Appeal Court. 8th Dec., 1938.

Conviction for Murder following 'visit by the Court and jury to locus when statements by witnesses was made in absence of Accused.

 

 Held: The" view" having become part of the trial and the accused being absent therefrom the trial was irregular and appeal allowed.

   There is no need to set out the facts.

Ladepon Thomas for Appellant..

T. A. Brown for Crown.

   The following joint. judgment was delivered:-

KINGDON, C.tT., NIGERIA, PETRIDES, C.J., GOLD COAST .AND YATES, J.

    This is an appeal from a conviction for murder. The appellant was tried by the Chief Justice of Sierra Leone and a jury at Freetown in the month of September, 1938.

    Four grounds of appeal have been filed but this Court is satisfied that. only one of them has any substance. This is ground 2 which is as follows:-

                    " The trial was irregular in that the Court moved to the "locus in quo with the jury, counsel for the " prosecution and the defence and two witnesses for " the prosecution after the case for the prosecution "had closed and the accused was half-way in his "evidence and there demonstrated part of the " evidence of the prosecution in the absence of the " accused."

In order to assist this Court affidavits have been filed by counsel for the prosecution and the defence setting out what actually took place when the Court and jury went to view the locus in quo, and the learned Chief Justice has reported to this Court that the contents of those affidavits are substantially correct ..

        On' the third day of the trial, the jury made a request for a view of the locus in quo and were told by the learned Chief Justice to wait until the end of the prosecution when, if they still desired it, arrangements would be made accordingly. On the fourth day when the appellant was giving his evidence on oath, the jury repeated their request and asked that three witnesses-Tuach  Thomas and Palmer-should be present. The learned Chief Justice acceded to their request but informed them that the presence of the witness Palmer was unnecessary.

Counsel for the defence then asked that the accused should be allowed to attend. The learned Chief Justice however ruled his presence was unnecessary, and the accused was not present at the View.

The next day the Court and jury together with the two witnesses proceeded to the locus in quo, which is situate some nineteen miles away from Freetown. After inspection of the premises, the witness Tuach was asked eleven questions, six of which appear to be most material

They are as follows:-

1.       He was asked to point out where the accused had

said he had found the body?

2.       Where the accused said he had removed it to?

3.       How the furniture was?

4.        To demonstrate what the accused said about the only chair?

5.       How the chair was " disturbed"?

6.       To show the window which the accused said was opened?

The witness did so.

In addition to these questions being put to the witness, the learned Chief Justice called the jurors in to a room with both counsel for the prosecution and the defence and then and there demonstrated with the lock of the door "how the prosecution alleged the lock was supposed to have been forced and the impossibility of its being so forced, pointing out that that was not the type of lock supposed to have been so forced."

Upon the above facts learned counsel for the appellant has submitted that the" view" was not merely a " view" within the accepted meaning of the word-and that by reason of questions being put to a witness and answers given, and a demonstration given by the learned Chief Justice, that this "view" became part of the trial, because evidence was led; and as this part of the trial took place in the absence of the accused the proceedings were irregular and' the irregularity was such that it might have affected the minds of the jury to such an extent as to affect their decision and amounted in fact to a miscarriage of justice.

In Lawrence v. The King, 1933 A.C. p. 699 at p. 708, Lord Atkin says, " It is an essential principle of our criminal law that " the trial of an indictable offence has to be conducted in the " presence of the accused; and for this purpose trial means the whole of the proceedings. There is authority for saying that in "cases of misdemeanour there may be special circumstances " which permit a trial in the absence of the accused but on trial " for felony the rule is inviolable."

We are satisfied that what took place at the "view" constituted part of the trial because a witness was asked material questions and answered them, and a demonstration was given by the learned Chief Justice, and as this was done in the absence of the accused, the form of legal process was disregarded, and the trial for that reason was irregular.

We have not been able to find any authority which lays down that a " view" is part of the trial and as such must, in cases of felony, be had in the presence of the accused. But we have no doubt that, once anything more takes place than the jury merely using their eyes to see things for themselves, for instance if questions are asked and answered or anything in the nature of a demonstration takes place, the so-called" view" at once becomes something more than a view and is definitely part of the trial. As experience shows that, in practice, it is almost impossible to confine a " view" to a mere looking and seeing, it follows that it is prudent that an accused person should always be present. It is also fair that he should be, for if he is present he may be able to give evidence refuting what is said or demonstrated.

Learned counsel for the Crown has admitted that evidence was adduced at the view and that this was irregular, but he argues that when the questions were asked it was the duty of counsel for the defence to object and to ask the learned trial Judge to correct the illegality; and in support of this argument cites Regina v. Martin 4" Webb, L.R. C.C.R. Vol. 1, p. 378. In that case it was held that where the jury upon a view have received evidence in the absence of the Judge and the prisoner, it is for the Court before which the trial takes place to investigate the facts and to ascertain whether the alleged irregularity has occurred or not, and to correct the irregularity; and he argues further that an appeal on this point would only lie to this Court after the refusal of the Judge to do so. Regina v . Martin 4" TV ebb is distinguish­able from this case in that in that case the learned trial Judge was not present at the view, whereas in this case he was; and Bovill, C.J. at p. 381 says: "It is always in the discretion of the " Court to allow a view or not though such precautions as may " seem to the Court necessary ought to be taken to secure that the " jury shall not improperly receive evidence out of Court."

It seems obvious that in this case the Judge being present could have himself stopped anything happening which he deemed to be irregular. Regina v . Martin 4" Webb is further distinguish­able by the fact that that case was one of misdemeanour which may be tried in certain circumstances in the absence of the accused whereas this is a felony where the accused must be present throughout-vide Lawrence v. The King (supra).