Kalinga v. R. (E. A. C. A.) Crim. App. 17-D-71; 19/5/71; Duffus P, Spry V. P. Lutta J. A.

 

Kalinga v. R. (E. A. C. A.) Crim. App. 17-D-71; 19/5/71; Duffus P, Spry V. P. Lutta J. A.

            The appellant was convicted of murder. There was no indication in the assessor’s replies that the onus and necessary degree of proof had been brought to their attention. It was argued that the trial judge had directed neither the assessors nor himself regarding the onus of proof. The court of appeal considered the proper procedure in summing up to the assessors.

                        Held: (1) “We would at this point make two comments on the procedure adopted at this trial. First as we have already indicated, there is no need for such notes to be lengthy but they should at least list the main matters of law and fact to which the attention of the assessors was drawn. As was said by this court in Mukeno v. Uganda [1965]; E. A. 491: “……. Notes of the summing-up should appear on the record of proceedings. The importance of the notes of the summing-up, both to the Appeal Court and to the appellant, cannot be over-emphasised.” (2) “Secondly, the learned judge put our specific questions to the assessors, of which the fourth was – “Is the accused guilty of murder?” With respect, we do to regard this as a sufficient compliance with the requirements of section 283 of the Criminal Procedure Code, which permits the asking of specific questions of fact but requires each of the assessors to state his opinion orally “as to the case generally”. We think this requirement was imposed to enable assessors, who are unlikely to have legal training and who may be uncertain what is strictly relevant, to give their opinions on the case broadly as they see it, and as such we think it serves a useful purpose. As regards the asking of specific questions which are limited to questions of fact, we would refer to the judgment of this court in Rajabu Salum v. Rep. [1965] E. A. 3654.” (3) “To return to the judgment, the learned judge said he asked the assessors – “to consider the issue of credibility of the witnesses, whether they accepted the story as told by the prosecution or by the defence.” It was to this phrase that Mr. Velji particularly took exception, arguing that, in the absence of any direction as to the onus of proof, it had the effect of putting the prosecution and the defence on an equal footing. So far as the learned judge is concerned, he is a judge of considerable experience and we have no doubt that on so fundamental a mater, he must have directed his own mind correctly. On the other hand, the record as a whole suggests that the assessors were, or at least, my not have been given the necessary directions. If this is so, it must detract from the value of their opinions and means, in effect, that the learned judge did not get the full benefit of their assistance.” (4) “The evidence shoed a possibility of provocation and self –defence.” (3) Appeal allowed.