Summing Up and Misdirection

Introduction:

This note will discuss the meaning of summing up, the meaning of misdirection, the various types of misdirection, when a misdirection would have an effect of causing a variation of a judgement, the absence of a definite format in summing up, and what a judge must do, can do, and cannot do in summing up to avoid misdirection.

Meaning of Summing Up:

In Black’s Law Dictionary, “summing up” is defined as:

A judge's review of the key points of evidence presented in a case and instructions to the jury on the law it is to apply to the evidence.

Justice S.A. Brobbey in his book, “Essentials of the Law of Evidence,” explained summing up as:

The summary of the case in simple terms given to the jurors to aid them in determining the trial, i.e., whether the accused is guilty or innocent of the charges preferred against him.

Meaning of Misdirection:

When there is an error in directing the jury, such error is described as a misdirection. Per Justice S.A. Brobbey in “Essentials of the Law of Evidence,” there is a misdirection when there is:

Erroneous instructions given to jurors or the failure to instructions to jurors.

Black’s Law Dictionary simply describes it as “an erroneous jury instruction that maybe grounds for reversing a verdict.” It is also termed mischarge.

Types of Misdirection:

1. Misdirection as to facts:

Here, the judge, in summing up, presents a version of events that differs from the accounts given by either the prosecution or the defence. As a result, the jury is not presented with an accurate reflection of what transpired during the trial.

2. Misdirection on the law:

There is misdirection on the law if the judge wrongly tells the jury what the position of the law is on a particular subject or asks them to apply the law in a manner that is wrong. Furthermore, wrong decisions on questions of law amount to misdirection on the law. In Zortovie v. The Republic [1984-86] 2 GLR 1, the court held that given that a submission of no case under Section 271 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) is a question of law, a wrong decision on same is a misdirection in law.

For example, in the case of Akorful v. State [1963] 2 GLR 371 , the appellant shot at a figure in the dark around 1:00 am, believing the figure to be a thief. In summing up, the trial judge invited the jury to find the accused guilty of murder if they were satisfied that a reasonable man in the circumstances of the appellant would have appreciated the consequences of his act . He was convicted of murder. On appeal, the Supreme Court criticised this as not representing our law. They added that:

It would indeed be monstrous that the idiot or the stupid man should hang simply because he had not the intelligence or the foresight of the reasonable man.

…

The proper criterion is what the prisoner himself had in his mind and what he intended.

It may thus be said that the trial judge in that case misdirected the jury on the law regarding intent.

3. Misdirection on both law and the fact:

This is where, in the same summing up, the judge applies the law wrongly and presents a different picture from what actually transpired at the trial.

4. Misdirection by non-direction:

Here, the judge fails to direct the jury on any of the following:

a. The facts.

b. The law.

c. Both the law and the facts.

d. Defences available to the accused, such as the defence of provocation and self-defence. In the case of Regina v. Ojojo [1959] GLR 207 , the appellant was convicted of murder, and he appealed. The Court of Appeal believed that the trial judge misdirected himself by non-direction when he failed to direct the jury on the defences of provocation and self-defence available to the accused.

e. Alternative verdicts, such as the verdict of guilty but insane and the verdict of manslaughter in a murder trial. In the case of Akorful v. State (supra), the trial judge only explained the meaning of murder but failed to do so for manslaughter. In commenting on this, the Supreme Court stated that

The jury are not trained lawyers and they must be made to understand the verdicts that they are entitled to return. In our judgement, the need to explain to the jury in this case the fundamental distinction between murder and manslaughter can hardly be over-emphasised.

It must, however, be noted that in summing up the facts, the judge is not required to tell the jury everything that transpired at trial. In the case of Opuni v the State [1965] GLR 82, it was held that:

It is no misdirection not to tell the jury everything which might have been told them, if the material is already on record. Again, there is no misdirection unless the judge has told them something wrong; or that something was said which would make wrong that which was left to be understood:

Effect of a Misdirection:

Issues of misdirection often appear in appeals where the appellate court is called to vary or set aside a judgement on grounds that there was a misdirection by the trial judge. Before the appellate court varies or sets aside the judgement, it must be satisfied that the misdirection occasioned a grave or substantial miscarriage of justice.

Per Section 406 (1)(c) of Act 30,

[A] sentence or order passed by a court of competent jurisdiction shall not be reversed or altered or altered on appeal or review on account

(c) of a misdirection in a charge to a jury, unless the error, omissions, irregularity, or misdirection has in fact occasioned a substantial miscarriage of justice.

In the recent case of Dzangmatey v. Republic [2019] GHASC 81 (30 October 2019) , the Supreme Court similarly advanced that:

For a conviction to be quashed on appeal on grounds of misdirection, it must occasion a substantial miscarriage of justice.

Black’s Law Dictionary, 9 ^th ed., defines “miscarriage of justice” as:

A grossly unfair outcome in a judicial proceeding, as when a defendant is convicted despite a lack of evidence on an essential element of the crime. - Also termed failure of justice.

For example, it will be grossly unfair if the trial judge wrongly directs the jury that the accused had the burden of proof.

Absence of a Formula for Summing Up:

The courts have severally held that there is no definite format in summing up. In the case of Akurugu Frafra v. The State (1966) GLR 12 , the Supreme Court per Akainyah JSC advanced that:

There is neither a formula for summing-up nor can any hard and fast rule be laid down. If the effect of a summing-up is to convey to the jury what is their duty it is enough.

In the recent case of Yaw Obeng v. The Republic [2020] DLCA9353 , the Court of Appeal concisely stated that “There is also no precise format for Summing Up.”

Similarly, in the case of Kwasi Reindorf v. The Republic [2021] DLCA10806 , the Court of Appeal again advanced that:

It is trite law that summing up is not an academic dissertation and there is no precise format or specific “magic” words that should be used in a summing up.

What a Judge is Mandated to Do in Summing Up:

Although there is no precise format of what to be done in summing up, it may be said that the judge is mandated to do all that is necessary to avoid a misdirection. In doing this, the judge must properly direct the jury on the facts, the law, alternative verdicts, and available defences.

A. What to do in Directing the Jury on the Facts:

In directing the jury on the facts, the judge must, as much as possible, summarise the case for both the prosecution and the defence in a manner that reflects what transpired at the trial. Thus, the judge must do the following in directing the jury on the facts:

1. Adequately and accurately place the case of the accused before the jury: In a practice note given by the Supreme Court on 10th April, 1961, in State v. Amoah [1961] GLR 195-196, the court stated that:

It is the duty of the trial judge to place the prisoner’s case adequately before the jury, that is to say, he should remind the jury of the general nature of the defence, but not that he may present a different case no matter how favourable that may be to the prisoner. It is of the greatest importance that the jury should be directed in an impartial way on the facts, and not in such a way as to indicate what they should find; it is also imperative that the judge should point out the considerations for the jury to bear in mind in deciding whether or not they should find the prisoner guilty. Although a judge is not disbarred from expressing his own opinion on the facts, it is his duty at the same time to warn the jury that they are not obliged to accept the opinion expressed by him on the facts

Here, the judge is prevented from painting a different picture of the defence even if that picture favours the accused.

2. Adequately and accurately place the case of the prosecution before the jury: Among others, the judge must highlight the evidence produced by the prosecution to prove the guilt of the accused beyond reasonable doubt. In the case of Kambey and Others v. The Republic [1989-90] 1 GLR 213-222 , it was advanced that:

From the above statements of the law, it is clear that the trial judge was obliged to present the salient and material facts as given in evidence in an impartial way to the jury in order to enable it find out if the essential ingredients of a charge of murder have been proved by the prosecution beyond reasonable doubt.

B. What to do in Directing the Jury on the Law:

In directing the jury on the law, the judge must, among others, do the following:

1. Direct the jury on the ingredients of the offence and the applicable principles of law:

In a Practice Note by the Supreme Court in the case of State v. Amoh [1961] GLR 637 , it was stated that:

It is clearly the duty of the trial judge to explain to the jury what the ingredients of the offence are and what evidence is required to prove each one of them and also the principles of law applicable to each

2. Direct the jury on who has the burden of proof:

The issue of who has the burden of proof is a question of law, and questions of law, as explained in a previous note, are determined by the judge. In Section 16 of the Evidence Act, 1975 (NRCD 323) , it is provided that:

The court on all proper occasions shall instruct the jury as to which party bears the burden of persuasion on each issue and as to whether that burden requires that a party raise a reasonable doubt concerning the existence or non-existence of a fact or that he establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt

Essentially, the judge must inform the jury that the prosecution generally has the burden of proof and the standard of proof is beyond reasonable doubt. In the case of Agyeman and Another v. The State [1964] GLR 681-695 , the court stated that:

There is no particular formula laid down by the courts for a judge to follow in explaining to the jury or to the assessors (as in this case) that the burden of proof lies on the prosecution. However, he is in duty bound to deal with the question of burden of proof And that duty is discharged if the summing-up notes show that he has directed the minds of the jury, or the assessors, to the question of burden of proof, and has made it quite clear to them that it is for the prosecution to establish the guilt of the accused, and if such guilt is not established, the accused must, as of right, be found not guilty

Similarly, in the case of Akom v. The State [1966] GLR 454 , the Supreme Court stated that:

Various expressions or different styles have been used by several judges in directing juries on onus of proof in criminal cases, but no matter what form of expression is used in directing a jury on the issue of onus of proof, the important thing is that the judge should tell the jury clearly that the onus is always on the prosecution, and that before they convict they must be satisfied of the prisoner’s guilt

3. Direct the jury to enter a verdict of not guilty if there is no evidence that the accused has committed any offence : In Section 271 of Act 30, it is provided that:

The Justice may consider at the conclusion of the case for the prosecution whether there is a case for submission to the jury, and if of the opinion that a case has not been made that the accused has committed an offence of which the accused could be lawfully convicted on the indictment on which the accused is being tried, the Justice shall direct the jury to enter a verdict of not guilty and shall acquit the accused.

In the case of Anthony Asomani @ Anthony Awuah v. The Republic (J3/13/2023) [2024] GHASC 15 (17 July 2024) , the Supreme Court advanced that by this provision, the judge has a legal duty to give this direction. In light of this, if there is no direction to the jury to find the accused not guilty when the need arises, the failure to direct will be misdirection by non-direction.

4. In insanity case, direct the jury on the law on provisions relating to mental conditions:

In the case of Collins Alias Derby v. The Republic [1987-88] 2 GLR 521-532 , the trial judge had said:

Now what is the state of mind of the accused? Was he mentally sound when he made these statements? That is exhibits N and P (police and court statements). From the performance of the accused in court, the contents of the two statements, and what Dr Koranteng of the Ankaful Psychiatric Hospital, the first court witness, said about the accused, there can be no doubt that the accused was sound at the time he made exhibit N on 21 March 1985 and exhibit P on 3 December 1986 and is still sound .

The Court of Appeal held that this was prejudicial and what a trial judge is required to do “was to explain the provisions relating to these mental conditions to the jury to let them decide whether the appellant was sane or not.”

5. Direct the jury to accept judicially noticed facts as conclusive : In Section 9(7) of NRCD 323, it is provided that:

In an action tried by jury the court may, and upon timely request shall, instruct the jury to accept as conclusive any facts which have been judicially noticed.

6. Direct the jury to find in favour of a presumed fact if no evidence is introduced to contravene the existence of the presumed Fact : In Section 21 of NRCD 323, it is provided that:

When no evidence is introduced contrary to the existence of the presumed fact, the question of the existence of the presumed fact depends upon the existence of the basic facts that give rise to the presumption and is determined as follows:— if reasonable minds would necessarily agree that, the evidence renders the existence of the basic facts more probable than not, the court shall find, or direct the jury to find, in favour of the existence of the presumed fact

7. Direct the jury that only a unanimous verdict is possible in capital offences :In the case of Collins Alias Derby v. The Republic (supra) , the court held that once the jury pronounces their verdict, they become functus officio, and if said verdict is not unanimous, all that a court could do was to dismiss the jury and order a new trial. For this reason, it was essential for a judge to stress unanimity in a jury's verdict in capital offences.

What Can Be Done in Summing Up:

In this section, we discuss what a judge may do during summing up but is not mandated to do. Judges are often criticized for doing those things, but the courts have held that there is nothing wrong in doing those things provided certain conditions are met.

In summing up, a judge may do the following:

1. Commenting on the weight or credibility of the evidence: In Section 2(1) of NRCD 323, it is provided that questions of fact are to be decided by the jury. However, in Subsection 2, it is provided that:

Nothing in this section shall preclude the court from summing up the evidence to the jury or from commenting on the weight or credibility of the evidence so long as the court makes it clear to the jury that they are to determine the weight and credibility of the evidence themselves and are not bound by the court's summary or comments.

Thus, although the court can comment on the weight or credibility of the evidence, it must make it clear to the jury that it is not bound by the court’s comments.

2. Express personal opinions on the facts:In State v. Amoah (supra), the court advanced that

Although a judge is not disbarred from expressing his own opinion on the facts, it is his duty at the same time to warn the jury that they are not obliged to accept the opinion expressed by him on the facts.

Similarly, in the case of Regina v. Ojojo (supra), the court advanced that

The authorities are clear that a Judge must leave the facts for the jury to decide, and should not impose, nor request a jury to return, a verdict unfavourable to the prisoner. A Judge is, however, entitled to indicate his own views to the jury, provided he leaves it to them to make up their own mind. We may put it this way: that unless in favour of the accused, it would be exceptional for a Judge to direct a jury as to the verdict which they should return. He is permitted, of course, to express his opinion freely and strongly, provided he is fair, and provided he makes it clear that the jury is free to give his opinion what weight it chooses.

Thus, a judge may express his personal opinions of the facts. However, he must similarly make it clear to the jury that they are not bound to accept his opinion.

Similarly, in the Supreme Court case of Bodua Alias Kwata v. The State [1966] GLR 51-60 , the court made it clear that

In a jury trial, the judge is entitled to express his opinion on the facts, as long as he makes it quite plain to the jury that in spite of the opinion which he so expresses, the decision on the issue of facts rests entirely with the jury. We also agree with him in the view that by telling the jury that if they accept the story of the appellant, they should find him not guilty, makes it quite clear that whatever might have been his personal views on the matter, the learned judge eventually left the matter to the jury to decide.

What a Judge Cannot Do in Summing Up

In a trial by judge and jury, and as a general rule, the judge cannot make determinations of questions of fact or prejudge the issue before leaving it to the jury. In the case of Collins Alias Derby v. The Republic (supra) , the Court of Appeal, in commenting on the trial judge’s comments that “…there can be no doubt that the accused was sound at the time he made exhibit N on 21 March 1985 and exhibit P on 3 December 1986 and is still sound,” said:

By expressly removing from the jury's consideration this factual evaluation, the trial judge fell into grievous error .

…

By further stating that there could be no doubt that the appellant was sound on 21 March 1985, and "is still sound”, the trial judge overstepped his bounds by prejudging issues and usurping the function of the jury whose duty was the factual one of assessing the state of mind of the appellant at the appropriate periods above described.

They added that the trial judge was merely required to explain the provisions relating to these mental conditions to the jury to let them decide whether the appellant was sane or not.