AITKEN, GRAHAM PATH;,
AND BARTON, JJ.
In this case the accused was
convicted on two counts of
having defiled a girl of under
eleven years of age, and
sentenced to five years
imprisonment with hard labour on
each count, such sentences to
run concurrently.
The trial was held at Lagos
before a Judge and jury on the
7th, 8th and 9th days of March
last, sentence being passed on
the 12th day of that month.
Three days later the accused,
having obtained the trial
Judge's certificate that the
case was a fit one for appeal,
gave notice of appeal. On the
10th of May, 1935, that appeal
came before the \Vest African
Court of Appeal sitting at Lagos
and was allowed on the following
grounds:-
Firstly, because the learned
trial Judge, in his summing up,
omitted to warn the jury as to
the nature of the evidence of
children of tender years, and
Secondly, because he misdirected
the jury as to the evidence when
he told them that "there was
medical -evidence that both the
accused and the girl were a few
days after the alleged
occurrence suffering from a
similar discharge of a
gonorrhreal nature." In point of
fact the evidence of Dr. B. W.
Smart went no further than the
statements-
(a)
That there was some discharge
from the girl, but he could not
tell the nature of it-possibly
gonorrhrea, and
(b)
That the accused appeared to
have gonorrhrea, but that he had
made no microscopical
examination to ascertain the
fact.
Quite obviously a misdirection
of this nature might easily have
led the jury to convict, whereas
a correct statement of the
medical evidence against the
accused, coupled with a proper
warning as to the nature of the
evidence of children of tender
years, might have raised a
reasonable doubt in their minds
to the benefit of which
he accused would have been
entitled. We therefore had no
option but to allow this appeal,
though there was evidence before
the Court on which given a
satisfactory summing-up the jury
might properly have found the accused guilty of the offences
charged against him. Moreover, the
Doctor's omission to make a
microscopical examination of the
discharges he found issuing from
the girl and the accused is indeed
strange, when one considers how
vitally important the results of
such
