JUDGMENT OF AZU CRABBE J.A.
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¢37.41½) 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.
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:
"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."
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.
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 [p.788] "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:
"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 t
