BENJAMIN KNOWLES Vs. EMPEROR

JUDGEMENT

(1.) This appeal, for which special leave was granted by His Majesty in Council is against a conviction of the appellant for the murder of his wife, Mrs. Knowles, by the Acting Circuit Judge of Ashanti on 23 November 1928. The case was tried by the Judge without a jury and the appellant was not allowed the assistance of either solicitor or counsel. The grounds of appeal are first, no jurisdiction, and second, that there was no evidence on which a conviction of murder could be maintained. The Court of Ashanti by which the appellant was tried was established by the Ashanti Administration Ordinance No. 1 of 1902. The sections of the Ordinance, as amended by subsequent ordinances which bear on the method of trial in criminal cases are the following: Section 5. "Where not otherwise provided by some other statute, ordinance, or other law for the time being in force in Ashanti, the Court shall in causes and matters brought or arising before it, be guided by the law in force in the Gold Coast Colony as set forth in Ss.14 and 19, of the Supreme Court Ordinance of the said Colony." Section 9: " So far as it is practicable and local circumstances permit, the procedure in the Court, civil and criminal, shall be the same as the procedure in the Supreme Court of the Gold Coast Colony." Section 10: " In no cause or matter, civil or criminal, shall the employment of a barrister or solicitor be allowed." It is unnecessary to quote the various sections of the Acts which regulate procedure in the Gold Coast, as it is clear that if the trial had been in the Gold Coast it would have been imperative to have a jury for a capital case and the prisoner would, if he chose, have had the assistance of counsel and solicitor. The appellant therefore contends that a jury for a capital case was a sine qua non, and that a conviction by a Judge sitting alone cannot stand. The Attorney-General stated, and it was not denied by the appellant, that as a matter of fact there never has been hitherto trial by jury in Ashanti.

(2.) Now the direction that in Ashanti the criminal procedure of the Gold Coast shall be the guide is not absolute, but is qualified by the provisions of S. 9. If jury trial is not practicable, or not permitted by local circumstances, then the direction does not apply. Practicability and the state of local circumstances are questions which can only be determined in Ashanti on the spot. It is impossible for their Lordships of this Board to form a conclusion on such matters, and it is not for them to turn themselves into a local tribunal. They are of opinion that this is a matter to which the maxim Omnia praesumuntur rite et solenniteresse acta clearly applies, and they are therefore unable to sanction this ground of appeal.

(3.) Before dealing with the question of the evidence their Lordships think it necessary emphatically to repeat what has been said on many occasions, that they do not sit as a Court of criminal appeal. To allow criminal proceedings to be reviewed, to use the words of Lord Watson in Dillet's case, [1887] 12 AC 459 at p. 467, there must have been " substantial and grave injustice done." In the present case if it had turned out that it was against the law for a Judge to try a capital case without a jury, that would have been substantial injustice, for it would have been conviction without jurisdiction, and it was on that ground that leave of appeal was manifestly granted. But the case once brought up it is incumbent on their Lordships to examine the judgment as given. Even in this somewhat exceptional case, however, their Lordships are still not sitting as an ordinary criminal Court of appeal in which case they would be entitled to consider what would have been their own verdict. Though the criterion is hardly as strict as it would have been on an application for leave based on the simple ground that the evidence did not support the verdict, yet they must be satisfied to use the words of Lord Sumner in Ibrahim V/s. The King, [1914] AC 599 at p. 615, "there is something which in the particular case deprives the accused of the substance of fair trial."