THE STATE vs. MANU ALIAS SOBOA AND 6 OTHERS [1961]DLSC1376

Date	1961-10-30
Suit No.
Citation No.	[1961]DLSC1376

VAN LARE JSC

SARKODEE-ADOO JSC

CRABBE JSC

J. QUASHIE-IDUN FOR THE APPELLANTS

K. DUA-SAKYI WITH HIM SARKODEE FOR THE RESPONDENT (THE STATE).

[1961]DLSC1376
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&nbsp;[SUPREME COURT]

[1961] GLR 624

DATE: 30TH OCTOBER, 1961.

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COUNSEL:&nbsp;&nbsp;

J.
QUASHIE-IDUN FOR THE APPELLANTS.

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VAN LARE JSC, SARKODEE-ADOO
JSC , CRABBE JSC

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&nbsp;

Van Lare J.S.C. delivered the judgment of the court. This appeal
is brought in order to challenge the right of the learned trial judge to
discharge the jury without ascertaining from them, as the appellants were not
charged with any offence punishable by death, what was the ratio of their
non-unanimity. It has been contended that had the majority opinion of the jury
been ascertained to be not less than five to two, that would have been held,
taken to be, and received by the court as the verdict of the whole jury within
the proviso to subsection (2) of section 298 of the Criminal Procedure
Code.1(1) This subsection reads as follows:

“298. (2) If the jury are not unanimous in their opinion, the
Judge shall, after the lapse of such time as he thinks reasonable, discharge
the jury: Provided that a verdict of a majority of not less than five to two
shall, in any case where the accused is not charged with an offence which is
punishable by death, be held, taken to be, and received by the Court as the
verdict of the whole jury.”

There is no indication as to the majority opinion of the jury
because the learned trial judge did not ascertain the same. The question we are
asked to decide in this appeal is whether the trial judge was bound to
ascertain what the majority opinion was. We are of opinion that the judge was
not so bound especially in view of the fact that the jury clearly indicated
that they required no further direction from the judge. If there had been such
an opportunity, the judge might have drawn the jury’s attention to the proviso
to section 298(2) in which case the jury might well have indicated the ratio of
their non-unanimity.

Although a judge may ask the jury such questions as are necessary
to ascertain what their verdict is, he is not bound to do so. If the jury are
not unanimous in their opinion the lapse of such time after which the judge
shall discharge them is entirely within his discretion. We think that it is
only when the judge is told by the jury of the ratio of their non-unanimity
that he would be bound to record the same and to act upon it. If the jury do
not so indicate, it is not mandatory upon the judge to enquire the same.

As we are satisfied in the light of the decision in the case of
Charlotte Winsor v. The Queen,2(2) that the learned trial judge properly
exercised his discretion in discharging the jury before verdict, we cannot
interfere; and we even go further to say that we are unable to appreciate what
effect any interference by us at this stage of the case which is still pending
before the High Court at Ho can have on the proceedings. In the result we
dismiss the appeal.

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