ZIP ZABRAMA (ALIAS WALLA) vs. THE REPUBLIC [1967]DLCA1552

Date	1967-12-18
Suit No.
Citation No.	[1967]DLCA1552

AZU CRABBE JA

APALOO JA

LASSEY J.A.

APPELLANT IN PERSON

V.E.A. KISSEIH SENIOR STATE ATTORNEY FOR THE RESPONDENT.

[1967]DLCA1552
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													<main id="main" class="content" style="min-height: 60rem" >ZIP ZABRAMA (ALIAS WALLA) <o:p></o:p>vs. <o:p></o:p>THE REPUBLIC <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>[1967] GLR 785<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
18 DECEMBER
1967<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

APPELLANT IN PERSON<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

AZU CRABBE, APALOO AND LASSEY JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AZU CRABBE J.A.<o:p></o:p>Azu
Crabbe J.A. delivered the judgment of the court. The appellant was tried at the
High Court, Ho, before Jiagge J. sitting with assessors, upon a count in an
indictment charging him with the offence of robbing of cash, the sum of £G18
14s. 2d. (or N¢37.411⁄2) from one Anthony Agbeve by use of force, contrary to
section 149 of the Criminal Code, 1960 (Act 29), as amended by section 3 of the
Criminal Code (Amendment) (No. 3) Act, 1963 (Act 157), and on 11 February 1966,
he was sentenced to six years’ imprisonment with hard labour.<o:p></o:p><o:p>&nbsp;</o:p>The
appellant has now appealed to this court on a number of grounds, none of which
seems to this court to have any real merit. But we have noticed that after the
learned trial judge had summed-up to the assessors she recorded the following
notes:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“First
assessor—guilty. Second assessor—guilty. Third assessor—guilty. The accused
admits: One previous conviction for housebreaking and stealing. Four previous
convictions for stealing. Six years, imprisonment with hard labour.”<o:p></o:p><o:p>&nbsp;</o:p>It seems
quite clear that the procedure which the learned trial judge adopted after the
assessors had expressed their opinions was gravely irregular. She omitted (1)
to write a reasoned judgment in compliance with section 287 (2) of the Criminal
Procedure Code, 1960 (Act 30); (2) to ask the appellant whether he has anything
to say before passing sentence, as provided in section 288 of Act 30, and (3)
to convict him before sentence, as required by section 287 (3) of the Criminal
Procedure Code.<o:p></o:p>The present
case seems to be on all fours with the Fiji case of Joseph v. R. [1948] A.C.
215, P.C. where the trial of the appellant was before a judge with the aid of
assessors. The judge, having summed-up to the assessors, accepted their
unanimous opinions of<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">&nbsp;“guilty of manslaughter” as if it were the
verdict of a jury and passed sentence on the accused. On appeal to the Judicial
Division of the Privy Council, Sir John Beaumont, who delivered the opinion of
their Lordships, said at p. 221:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The
learned Chief Justice does not appear to have brought his own mind to bear on
the question of the guilt or innocence of the accused. He left the appreciation
of evidence to the assessors, and accepted their conclusion as the verdict of a
jury which bound him, instead of regarding it merely as an opinion which might
help him in arriving at his own conclusion. The appellant was entitled to be
tried by the judge and he has not been so tried and, in the circumstances, the
only course open to the Board was to advise His Majesty to allow the appeal and
quash the conviction and sentence.”<o:p></o:p><o:p>&nbsp;</o:p>The
provisions of section 157 (1) of the Criminal Procedure Code of Fiji,
regulating the trial in that case, are similar to section 287 (2) of our
Criminal Procedure Code, 1960 (Act 30), and we think that the observations of
Sir John Beaumont apply with equal force to the present case. These
observations have been approved and applied in this country in the case of
Mensah and Ankrah v. The State [1961] G.L.R. 64, S.C.<o:p></o:p><o:p>&nbsp;</o:p>In R. v.
Adade [1959] G.L.R. 365, C.A. it was held that a judge’s omission, in a trial
with assessors, to write a judgment stating his reasons for whatever conclusion
he reaches upon </main>