Appeal Court. 13th March, 1939.

  Trial with Assessors-Assessors not directed that it was duty of Appeal Court. from prosecution to establish the charge beyond reasonable doubt- section 43 (3 of Protectorate Courts Jurisdictionon  Ordinance

Held: As decision vested exclusively in the trial Judge. his omission to direct the assessors made no difference to his decision and was immaterial. Rex versus Annan quoted and distinguished (Gold Coast F.C. 1926-29).

Appeal dismissed.

A. S. Bodley for Crown.

S. A. Benka-Coker for Appellant.

The following joint judgment was delivered :-

KINGDON, c.J., NIGEI{IA, PETRIDES, c.]., GOLD COAST AND LANE, J.

In this case the appellant was convicted in the Circuit Court of the Protectorate of Sierra Leone of the murder of one Karimu.

The trial was had before a Judge assisted by two Assessors in accordance with the provisions of Section 43 of the Protectorate Courts Jurisdiction Ordinance, 1932. The appellant has appealed on four grounds of law. But there is no substance in any of them and there is only one with which it is necessary to deal, namely Ground 2 (c) which reads-

"Misdirection of the Assessors--omitting to direct the Assessors as to prisoner being entitled to benefit of reasonable doubt. "

The learned Chief Justice, who was the Trial Judge, summed up to the Assessors before calling upon them for their opinions, and the words of his summing up are recorded: I t is true that there is no instruction therein that the accused was entitled to the benefit of the doubt or that it was the duty of the prosecution to establish the charge beyond reasonable doubt, if, therefore, the trial had been had with a jury and the same omission had occurred in the summing up, it might have been necessary for this Court to quash the conviction (Lawrencev. The King, Law Reports A.C. 1933, p. 699 at p. 707). But trial by a Judge assisted by Assessors is essentially different from trial by a jury. Lawrence v. The King laid down that it is essential that the Tribunal of fact should understand the principle that a criminal charge has to be established by the prosecution beyond reasonable doubt. In a jury case the jury is the Tribunal of fact, but in a case with Assessors Section 43 (3) of the Protectorate Courts Jurisdiction Ordinance, 1932, provides that" the decision shall be vested exclusively in the Judge," to whom of course the principle is well known. The present case is distinguishable from the Gold Coast case of Rex v. Annan (Gold Coast F.C. 1926-29) to which our attention was very properly drawn by Counsel for Appellant, since in that case the Trial Judge, after misdirecting the Assessors, evidently based his decision entirely on their opinions and it was impossible to say what the decision would have been but for the misdirection.

In the present case there can be no doubt that the learned Chief Justice's omission to direct the Assessors upon the question of the benefit of the doubt made no difference whatever to his decision.

There is therefore, as we have said, no substance in the ground of appeal.

The appeal is dismissed.