Trial by Judge and Jury: An Introduction

Introduction:

This note will highlight the circumstances where there would be a trial by judge and jury and the role of the judge and that of the jury in such trials.

When there is a Trial by Judge and Jury:

There will be a trial by judge and jury if the offence is one punishable by death or imprisonment for life and is not high treason or treason. This is provided for in Article 19(2)(a) of the 1992 Constitution , which reads:

A person charged with a criminal offence shall-

in the case of an offence other than high treason or treason, the punishment for which is death or imprisonment for life, be tried by a judge and jury…

Offences that qualify are:

i. Murder.

ii. Manslaughter.

iii. Attempt to commit murder by convict.

iv. Genocide.

v. Piracy.

Beyond the constitutional provision, Section 204 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) provides that:

Trials on indictment shall be by a jury or with the aid of assessors in accordance with this Act.

The question is, when are trials on indictment? This is provided for in Section 2(2) of Act 30 which reads:

(2) An offence shall be tried on indictment if

(a) it is punishable by death or it is an offence declared by an enactment to be a first degree felony; or

(b) the enactment creating the offence provides that the mode of trial is on indictment.

Among others, the offences that are declared to be first degree felonies under the Criminal Offences Act, 1960 (Act 29) are:

i. Attempt to commit murder.

ii. Manslaughter.

iii. Abetment of suicide.

iv. Causing harm with the use of an offensive weapon.

v. Rape.

vi. Unnatural carnal knowledge without the consent.

vii. Robbery

Role of the Judge in Trial by Judge and Jury:

In a trial by judge and jury, the judge has the following roles:

1. Determine questions of law.

2. Determination of preliminary facts.

3. Direct the jury to enter a verdict of not guilty if there is no evidence that the accused has committed any offence.

4. Summing up.

5. Giving judgment in accordance with the verdict of the jury.

These are now explained:

Role 1: Determination of Questions of Law:

In criminal actions and other legal actions, there are often two types of disputes:

1. Disputes on the facts: These are disputes concerning what happened or did not happen, the nature of things, and circumstances surrounding an event. For example, in the case of Nyameneba and Others v. The State [1965] GLR 723 , there was a factual dispute whether the herb grown by the appellants was the herb of life or Indian hemp.

2. Disputes on the law:These are disputes about how the law should be interpreted and applied to a given set of facts. In the same Nyameneba and Others v. The State (supra) , there was a dispute on whether the appellants can be exempt from criminal liability based on their consistent position that the herbs were herbs of life and not Indian hemp.

When there are disputes on the law, those disputes give rise to what is known as questions of law, defined by Black’s Law Dictionary 9 ^th ed., as:

1. An issue to be decided by the judge, concerning the application or interpretation of the law <a jury cannot decide questions of law, which are reserved for the court>.

2. A question that the law itself has authoritatively answered, so that the court may not answer it as a matter of discretion <the enforceability of an arbitration clause is a question of law>.

3. An issue about what the law is on a particular point; an issue in which parties argue about, and the court must decide, what the true rule of law is <both parties appealed on the question of law>

The rule is that in a trial by judge and jury, the judge determines questions of law. This rule is provided for in Section 1 of the Evidence Act, 1975 (N.R.C.D 323) as follows:

1) A question of law including but not limited to the admissibility of evidence and the construction of this Act, shall be decided by the Court.

“Court” as used in this provision is referring to the judge.

NRCD 323 then makes several express provisions on what amounts to questions of law. These are:

1. Issues on the admissibility of evidence, per Section 1(1)(supra) . In resolving these issues, the court has no discretion to admit irrelevant evidence per Section 51(2) and (3) of NRCD 323 but can exclude relevant evidence if the probative value of the evidence is substantially outweighed by— considerations of delay, creation of unfair prejudice, among others, per Section 52 of NRCD 323.

2. Interpretation of the Evidence Act, per Section 1(1) (supra) .

3. Issues on whether a party has met the burden of producing evidence on a particular issue, per Section 1(3) of NRCD 323 . In Subsection 4 of Section 1, if a party has not met the burden of producing the evidence, the judge is further empowered to determine that issue against that party.

Role 2: Determination of Preliminary Facts:

In Section 3(1) of NRCD 323, a preliminary fact is defined as:

A fact on which depends

(a) the admissibility of evidence,

(b) or the inadmissibility of evidence, the qualification or disqualification of a person to be a witness, or

(c) the existence or non-existence of a privilege.

Per Section 3(2) of NRCD 323, it is for the court to determine the existence or non-existence of a preliminary fact. Here, “court” is also interpreted to mean judge. It may thus be said that the judge determines the existence or non-existence of a privilege, whether evidence is admissible, and the qualification of a witness.

Role 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 recent case of Anthony Asomani @ Anthony Awuah v. The Republic (J3/13/2023) [2024] GHASC 15 (17 July 2024) , the Supreme Court of Ghana, in commenting on this provision, said:

From the reading of this provision, as well as on the authorities, it is a question of law for the judge to make the determination of whether a case has been made against an accused. This is a legal duty placed on the shoulders of the judge, and should not be neglected whether or not counsel makes such submission. Thus, the fact that Counsel for the two accused persons made a submission of no case on behalf of 2nd accused, but not of 1st accused did not relieve the judge of his duty to make a determination in the process of assessing the evidence at the close of the prosecution’s case. See also Tsinowope v The Republic [1989-90] 1 GLR 114 at p117 , the Court of Appeal per Osei-Hwere J.A restated the position that “ It is a question of law for the trial judge to decide on this matter and not one of fact for the jury.

In the earlier case of Moshie v The Republic [1977] 1 GLR 287 , it was similarly held that:

It is thus a question of law for the trial judge whether or not ‘there is no evidence’ to establish that the accused has committed any offence known to our law. The duty to decide this question is cast on the judge whether or not a submission of no case’ is made to him by the defence... The law now seems to be that in considering his duty under section 271 of the Criminal Code 1960 (Act 30), the judge should not leave a case to the jury if he is of the opinion that(a) there has been no evidence to prove an essential element in the crime charged, or (b) the evidence adduced by the prosecution had been so discredited as a result of cross-examination, or (c ) the evidence is so manifestly unreliable that no reasonable tribunal could safely convict upon it, or (d) the evidence is evenly balanced, that is to say, the evidence is susceptible to two likely explanations, one consistent with guilt, one with innocence...Section 271 casts a positive duty on the trial judge to ensure that the accused is not deprived of this protection through either mistake or ignorance. And in this case, the failure of counsel for the defence to make a submission of no case could not absolve the learned trial judge of his responsibility under the section.

Thus, even if a party does not make a submission of no case after the end of the prosecution’s case, the judge has a role and duty to play in determining whether there is a case for the accused to answer. If a judge fails to make this consideration simply because a submission of no case has not been made, such failure is seen as a breach of statutory duty.

In deciding whether a case has been made by the prosecution, for which reason the judge cannot direct the jury to enter a verdict of not guilty, the Supreme Court in Tsatsu Tsikata v. The Republic [2003-2004] 2 SCGLR 1068 advanced that the:

The inquiry has to focus on the threshold question whether the evidence presents a sufficient disagreement to require submission for a full trial, or whether it is one-sided that one party must prevail as a matter of law. Put another way, the inquiry is whether there are any genuine or factual issues that can be properly resolved only by a finder of fact because they may reasonably be resolved in favour of either party.

Role 4: 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.

The role of the judge to sum up is provided for in Section 277 of Act 30, which reads:

When, in a trial before a jury, the case on both sides is closed, the justice shall, if necessary, sum up the law and evidence in the case.

It will be noted that the provision says “if necessary,” making it appear as though there are instances the judge does not have to sum up at the close of the cases of the prosecution and the defence. In Practice Note: State v. Amoah [1961] GLR 195-196 , the Supreme Court of Ghana, in commenting on this provision, stated that it should be read as if the phrase “if necessary” had been omitted from the section to reflect the fact that the judge is obliged to sum up. They delivered themselves as follows:

The section appears to use language which confers a discretion, but we are of the opinion that the expression “shall, if necessary,” has compelling effect. The duty of the trial judge to sum up the law and the evidence is not less imperative by reference to the exercise of a discretion, and we think that the duty to sum up, especially in a trial for a capital crime, is as obligatory as it would have been if the words “if necessary” had been omitted from the section.

In a subsequent note, we shall examine all that can be done in summing up.

Role 5: Giving Judgment in Accordance with the Verdict of the Jury:

In Section 285(1) of Act 30, it is provided that:

When the jury are unanimous in their opinion, the Justice shall give judgment in accordance with that verdict.

In subsection 4, it is provided that:

Where the jury are not unanimous in their opinion, the Justice shall, after the lapse of a time that the Justice considers reasonable, discharge the jury, but a verdict of a majority of not less than five to two shall, in respect of an offence which is not punishable by death, be held, taken to be, and received by the Court as the verdict of the whole jury.

The Jury:

Black’s Law Dictionary, 9 ^th ed., defines the jury as:

A group of persons selected according to law and given the power to decide questions of fact and return a verdict in the case submitted to them. In certain contexts, jury embraces any fact-trier, including an arbitrator or a trial judge sitting in a nonjury proceeding.

In Section 179 of NRCD 323, the jury is described as a tribunal of fact.

Role of the Jury in Trial by Judge and Jury:

In Section 2 of NRCD 323, the jury determines all questions of fact. It reads:

(1) Except as otherwise provided in this or any other enactment in a jury trial all questions of fact are to be decided by the jury.

Per Black’s Law Dictionary, a question of fact is:

1. An issue that has not been predetermined and authoritatively answered by the law. _ An example is whether a particular criminal defendant is guilty of an offense or whether a contractor has delayed unreasonably in constructing a building.

2. An issue that does not involve what the law is on a given point.

…

Section 279 of Act 30 also provides for the duty of the jury as follows:

It is duty of the jury

(a) to decide which view of the facts is true and then to return the verdict which, under that view, ought, according to the direction of the Justice, to be returned;

(b) to determine the meaning of the technical terms other than terms of law and words used in an unusual sense, which it may be necessary to determine, whether the words occur in documents or not;

(c) to decide the questions which according to law, are to be deemed questions of fact;

(d) to decide whether general indefinite expressions do or do not apply to particular cases, unless the expressions refer to legal procedure, or unless their meaning is ascertained by law, in either of which cases it is the duty of the Justice to decide their meaning.

Per Sections 280 and 281 of Act 30, the jury also considers and delivers their verdict.

The case of Beniako and Another v. The Republic [1995-96] 1 GLR 32 described the role of the duty as follows:

The jury, as triers of fact, determine the credibility of witnesses. They evaluate all evidence adduced in the court and ultimately decide the guilt or innocence of the accused.

Conclusion:

This note discussed the role of the judge and the jury in a trial involving a judge and a jury. The note highlighted that such trials occur when an enactment makes the punishment for the offence death or life imprisonment or declares it to be a first-degree felony. In such trials, the judge, among others, has the duty to determine all questions of law and preliminary facts and to sum up for the jury. On the other hand, the jury determines questions of fact.

In subsequent notes, we will discuss summing up in detail and misdirection.