Rex v Paulo (Criminal Appeal No. 47 OF 1939) [1939] EACA 126 (1 January 1939)

## COURT OF APPEAL FOR EASTERN AFRICA

## BEFORE SIR JOSEPH SHERIDAN, C. J. (KENYA), SIR LLEWELYN DALTON, C. J. (TANGANYIKA) AND FRANCIS, J. (UGANDA)

#### REX, Respondent

#### versus

# YOWASI s/o PAULO, Appellant CRIMINAL APPEAL No. 47 OF 1939

### (Appeal from conviction by H. M. High Court of Uganda)

Criminal Procedure-Trial-Nullity-Absence of assessors-Criminal Procedure Code, Uganda, section 265.

Appellant appealed from a conviction of murder. Before delivering judgment the learned trial Judge had recorded additional evidence at the request of counsel for the appellant after the assessors had expressed their opinions that the appellant was guilty of murder and after they were discharged.

Held (13-5-39).—That the proceedings were a nullity. R. v. Obau s/o Amimi (15 K. L. R. 107), R. v. Assa Singh (4 E. A. C. A. 41) and R. v. Romani bin Mwakiponye (4 E. A. C. A. 62) considered. (Retrial ordered.)

Appellant in person.

Hobson, Crown Counsel (Uganda), for the Crown.

JUDGMENT (delivered by Sir Joseph Seheridan, C. J.).—Our attention has been drawn to additional evidence having been recorded at the request of counsel for the defence after the assessors had expressed their opinions as to the guilt or otherwise of the accused and after they were discharged. This indulgence true was granted in the interests of the appellant but be that as it may the effect was, in our view, to render the proceedings a nullity. The assessors are an essential part of the Court and the Court was not a Court of competent jurisdiction in their absence. That the absence of the assessors during a trial invalidates the trial is to be inferred from the case of Rex v. Obau s/o Amimi (1933 15 K. L. R. 107). Also from the case of Rex v. Assa Singh (1937 4 (Pt. I) E. A. C. A. 41) in which it was held-

"That the trial was a nullity because one of the assessors having been absent during one day's hearing, had been allowed to resume and give an opinion."

The case of Rex v. Romani bin Mwakiponye (1937 4 (Pt. II) E. A. C. A.) is also to the same effect. Whether or not the additional evidence taken after the assessors had been discharged prejudiced the appellant cannot in our opinion affect the question. We observe however that the evidence referred to was taken into consideration by the learned Chief Justice in arriving at his conclusion. At page 2 of his judgment he states -

"I have carefully considered these points and in order that nothing should be left in doubt before delivering judgment I allowed accused at his urgent request to put further questions to his wife with the consent of his counsel who had difficulty

in obtaining instructions. The woman answered these questions most frankly without the least hesitation and confirmed my already strong impression that she was a truthful witness."

Whether or not the assessors having once given their opinions as was done here, could withdraw those opinions to hear further evidence and to express their opinions afresh after hearing that further evidence is a question which it is not necessary for us to decide in this case. والمترابع المتصدرية المرجوبين للاراسية

For the reasons we have given we hold the trial to be a nullity and we set aside the conviction and sentence and order the appellant to be tried according to law.