[1950] EACA 417

## H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Newnham Worley (President), Sir Kenneth O'Connor, C. J. (Kenya) and BACON, Justice of Appeal

(1) PHILIBERT LOIZEAU and (2) PAUL GOBIN, Appellants (Original) Accused Nos. 1 and $2$ )

## $\mathbf{v}$

## REGINAM, Respondent

## Criminal Appeal No. 348 of 1955

(Appeal from the decision of H. M. Supreme Court of Seychelles, Lyon, C. J.)

Procedure—Capital offences in Seychelles—Seychelles Courts Ordinance (Cap. 75), section 3-Seychelles Criminal Procedure Code (Cap. 77), section 224-Seychelles Capital Offences Order in Council, 1903—Criminal Procedure Code of Fiji, section 308.

The appellants had been convicted of murder by the Supreme Court. In capital cases the Court consists of the Chief Justice and from four to eight assessors. The Chief Justice alone determines questions of law. Questions of fact are determined by all the members of the Court including the Chief Justice either unanimously or in accordance with the view of the majority.

In the instant case there were eight assessors and the Chief Justice had treated them as if they were a jury, leaving the findings of fact to them exclusively nor did he accompany them when they retired to consider their verdict.

$Hcld$ (28-11-55).—The departure from the prescribed manner in which the verdict was to be reached and declared was not a curable procedural irregularity but a fundamental error reducing the supposed verdict to a nullity in law.

Appeal allowed.

Cases referred to: *Wallace-Johnson v. R.*, (1940) 1 A. E. R. 241 (P. C.); *Joseph v. The King*, (1948) A. C. 215, P. C.; *Supramania Iyer v. Emperor*, (1901) L. R. 28 I. A. 257; I. L. R. 25 Mad. 61; *Abdul Rahman v. King-Emperor*,

Nowrojee for appellants.

Twelvetree for respondent.

JUDGMENT (prepared by Bacon, J. A.).—This is a joint appeal against conviction for murder in the Supreme Court of Seychelles sitting as the Court of Assize for that Colony. Before the Court came to deal with the merits of the case a point arose in limine which we thought fit to take in view of certain matters appearing upon the face of the record.

The trial took place before the learned Chief Justice of Seychelles sitting with eight assessors. The prescribed manner in which, in this particular form of trial in this particular Colony, the verdict is to be reached and declared is, so far as we know, unique. It, therefore, becomes desirable that in the first place we should refer to the relevant provisions which govern the procedure in question, that is to say, the procedure which is specially prescribed and which is obligatory in the case of any trial held in Seychelles on a capital charge.

Section 3 of the Courts Ordinance (Cap. 75 of the Laws of Seychelles, 1952) provides that "the Supreme Court shall continue to exercise the powers and to discharge the functions laid down by the Seychelles Judicature Order in Council, 1903, and the Seychelles Capital Offences Order in Council, 1903". Section 224 of the Criminal Procedure Code (Cap. 77) provides that "the practice of the Supreme Court in the exercise of its jurisdiction as Court of Assize shall be governed by the Sevchelles Capital Offences Order in Council, 1903". That brings us to the Order in Council itself, various clauses of which are relevant.

By clause 3 (iv) "'Court of Assize' and 'Court' means the Court of Assize for Seychelles". Clause 5 provides that the Court of Assize for Seychelles "shall be composed of (1) the Chief Justice of Seychelles who shall be President of the Court; (2) not less than four and not more than eight assessors to be chosen as hereinafter provided". Clause 7 provides as follows:-

"7. The Court shall have jurisdiction to hear and determine all questions on or connected with any charge or trial pending before it for a capital offence, and to discharge, commit, or remand to prison any prisoner charged before it, and to pass sentence according to law.

All questions of law shall be determined by the Judge. All questions of fact shall, unless otherwise provided by this Order, be determined by the unanimous verdict of the Court or by the verdict of a majority of the members thereof."

Then there is clause 90 which prescribed the functions of the Judge in the event of his considering that there is no evidence to justify a verdict of guilty, and, alternatively, in the event of his considering that there is such evidence. The clause concludes with the following sentence: "After the summing-up the Court may retire to the Judge's chambers or to a room set apart for that purpose to deliberate on the verdict".

Then come three clauses which serve to emphasise that the verdict is to be the verdict of the "Court", that is to say, the Judge and assessors combined. Those clauses are 91, 92 and 94. Clause 91 is in these terms: "The verdict of the Court if not unanimous shall be by a majority of the Court. If the number of assessors be an odd one and the opinions of the members of the Court are equally divided, the opinion of the Judge shall decide the verdict". In our view this clause shows beyond doubt that on the retirement of the Court to consider the verdict the Judge is to vote in exactly the same way as each of the assessors, in deliberation with them in accordance with the closing words of the clause, save that in the event of an equality of votes, the Judge is to have a casting vote. Clause 92 provides that "the verdict when found shall be given in open Court by the Judge in presence of the assessors and the prisoner and shall be recorded by the Registrar". Clause 94 provides that the verdict may be either general or special and lays down the functions of the Judge as regards determining matters of law arising from the facts found in a special verdict. Here again it is "the Court" whose duty it is to return the verdict.

Clauses 96 and 98 provide for such alternative verdicts as are allowed by law. Such verdicts are to be found by "the Court".

Finally, clause 106 provides, in effect, that as regards any matter of procedure in or respecting any trial conducted under the Order in Council the law of England for the time being shall be followed when the matter in question is not provided for in the Order in Council itself. It must, in our opinion, follow from that clause that the converse is impliedly laid down, namely, that where a matter is provided for by the Order in Council it is the Order in Council which is to be paramount to the exclusion of English procedure: see Wallace-Johnson v. R., (1940) 1 A. E. R. 241 (Privy Council).

The passages in the record which caused us to consider the preliminary point appear throughout the summing-up of the learned Chief Justice to the assessors and during the subsequent proceedings when the purported verdict was returned and sentence was passed. There are numerous passages in the summing-up in which the learned Chief Justice in effect told the assessors that they were the sole judges of fact, that the question of guilty or not guilty was entirely for them, and that he was glad to be relieved of any responsibility in that respect.

Typical passages in the summing-up are these: $-$

"Your decision must be made on all the facts. This has to be considered." I can guide you as to some of the evidence, but the result must come from you alone" (at p. 282 of the record).

"Gentlemen, the following points are rather complicated—it is for you to sort it out" (at p. $289$ ).

"Now of course this is entirely up to you, to decide whether you accept that defence as reasonably possible" (p. 295).

And again:

"I am glad those facts are entirely for you" (also at p. 295).

"You must find out whether it is concocted evidence or not" (p. 303).

"You are the judges whether you can rely on their evidence or not. It is not for me to tell you ... it is entirely up to you to make up your mind whether they are telling the truth" (p. 306).

"If I was trying to decide the case on the evidence of Labiche I would not take much notice. I think he was there" (p. 308).

"It is entirely for you, if you think that this evidence is not reliable you must acquit these two accused" (at p. $309$ ).

"Well, it is entirely up to you. If you think this evidence can be ignored, that is your business" (again at p. $309$ ).

"I do not know whether it is so or not. It is for you to make up your minds" (at p. 310).

"And I am very glad again that that is a matter for you and not for me. Now another point. In a trial for murder, as some of you know, it is open to the jury to bring in a verdict of manslaughter. It is open to you in a general sense" (pp. 310-311).

"If you are satisfied that the second accused stabbed the Indian and caused his death, and if you are satisfied that both were acting together common intention—then it is your duty to find them both guilty... It is odd that the Order in Council provides that when you retire to consider your verdict, I have to retire with you. I do not propose to follow it, in the sense that I shall say nothing to you when we retire. You must ask me now if you have any point which is not clear, because after rising I shall say nothing. I prefer that you should ask now" (pp. 311–312).

Immediately after the last-quoted passage the person described in the record as "foreman" asked the learned Chief Justice whether each case would have to be considered separately, to which the latter answered "Yes". The "foreman" then asked whether a verdict would have to be given separately in each case and the learned Chief Justice's answer was: "Yes, because you have to decide whether there is common intention. If you thought second accused was guilty but that they were not acting together, then acquit first accused". A moment later the learned Attorney-General, who appeared for the Crown, said this: "My

Lord, can they be told that if during the course of their discussion they want the advice of your Lordship they can come back to Court?" To that the learned Chief Justice answered: "Yes, it is not according to the ordinary principle of law that I should answer you in private." Then (at p. 313) the learned Chief Justice finally said to the assessors: "Have you any other point to make, gentlemen, before you consider your verdict?" The "foreman" answered "No". The learned Chief Justice then said: "Then will you please consider your verdict. Go into my room there".

When the Court later reassembled the learned Chief Justice said: "Gentlemen, are you agreed upon your verdict?" The "foreman" answered: "We are, my Lord" (p. 314). The learned Chief Justice then proceeded to take a verdict from the assessors. A few minutes later, when passing sentence, the learned Chief Justice said: "The jury unanimously found both accused guilty. They found them both guilty of murder and with that verdict I am in agreement. The jury recommended mercy in the case of first accused which I have noted... Gentlemen, thank you for your great patience and care. It is the first time that I have been associated with a jury who have taken so much trouble. You are all excused from duties as assessors for five years" (pp. 315-316).

In view of that record of the proceedings, we think it clear beyond a shadow. of doubt that there was a departure from the prescribed manner in which the verdict is to be reached and declared in a capital case tried by the Court of Assize for Seychelles; the persons by whom it is laid down that the verdict is to be reached in such a case were not the persons who purported to reach a verdict in the present instance. Indeed, the departure was deliberate, as appears from the passages quoted from pp. 311-313 of the record.

The question which in our opinion arises is whether this was a procedural irregularity which is, or may be, curable, or whether there was a fundamental error which reduces the supposed verdict to a nullity in law.

Joseph v. The King, (1948) A. C. 215, P. C., appears to be very much in point, although not entirely on all fours with the present case. That case was an appeal against a conviction for manslaughter in the Supreme Court of Fiji sitting in its criminal jurisdiction. Various material sections of the Criminal Procedure Code of Fiji are set out in the report. It will suffice for present purposes to quote the last of those provisions. Section 308 of that Code is as follows:-

"308. (1) When, in a case tried with assessors, the case on both sides is closed, the Judge may sum up the evidence for the prosecution and the defence, and shall then require each of the assessors to state his opinion orally, and shall record such opinion.

(2) The Judge shall then give judgment, but in doing so shall not be bound to conform to the opinions of the assessors.

(3) If the accused person is convicted, the Judge shall pass sentence on him according to law".

The trial having been before the learned Chief Justice of Fiji sitting with assessors, the assessors returned an opinion of guilty of manslaughter, but the learned Chief Justice did not then pronounce judgment as required by sections 156, 157 and 308 of the Criminal Procedure Code. To quote from the judgment of the Board (at p. 220): "In passing sentence, however, he expressed the opinion that the accused had been very properly convicted of an outrageous offence. In the result, the appellant has been convicted by assessors who had no power to try or convict him, and sentenced by a Judge who had not convicted him". The advice tendered by the Board was that the appeal should be allowed and the conviction and sentence quashed and the ratio decidendi appears from the following passage of the judgment, on p. 220:-

"It is no doubt possible, and even probable, that if the learned Chief Justice had tried the case in accordance with the provisions of the Procedure Code he would have reached the conclusion which the assessors reached, namely, that the accused were guilty of manslaughter. This, however, is matter of conjecture. 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.'

We are of the opinion that the error in the present case was fundamental. The Order in Council is unambiguous and mandatory. There is no question of any judicial discretion as to the extent to which it is to be applied. It is the governing code in all capital cases in Seychelles. There is the authority of the Privy Council for the view that "the disobedience to an express provision as to $\alpha$ mode of trial" cannot be regarded as a mere irregularity: Supramania Iyer v. King-Emperor, (1901) L. R. 28 I. A. 257: I. L. R. 25 Mad. 61, as reviewed and explained in Abdul Rahman v. King-Emperor, (1926) L. R. 54 I. A. 96. And, in at least two cases, namely, Joseph v. R., (supra) and in Privy Council Appeal No. 94 of 1946 (mentioned in the judgment of the Board in Joseph's case at p. 219 and footnote) the Judicial Committee, though not a Court of Criminal Appeal, has quashed a conviction and sentence where the accused has not been tried by the Court prescribed. There is no doubt that such an error is fundamental.

It is true, as has been observed, that the learned Chief Justice announced in open Court that he agreed with the finding of the assessors: so also did the learned Chief Justice in Joseph's case. But this agreement was announced after the assessors, who had deliberated alone and unaided, had reached their decision, and the way in which agreement was expressed by the learned Chief Justice only served once again to show that the purported verdict had already been reached by a body of persons, namely, the eight assessors alone, who were not empowered by law to do so. By analogy with the judgment in Joseph $v$ . The King, we think, however probable it may be that the same result would have been reached had the proper tribunal reached it, it is not for us to indulge in conjecture and to uphold a finding of guilty which was not a lawful verdict.

In the result, the trial became a mistrial, which is actually no trial at all, and the conviction must be quashed and the sentence set aside.

Counsel for the respondent submitted that we should order a new trial in the event of our quashing the conviction. We think, however, that the proper course is to leave the matter to the decision of the prosecuting authority as to whether or not any further proceedings should take place.

$\overline{\mathcal{A}}$