Foster-Sutton, P. The appellant was convicted of buggery, contrary to section of the Offences against the Person Act, 1861: he was sentenced to two years’ prinsonment, and now appeals against the conviction.
In cases of a sexual character it is eminently desirable that the evidence of the complainant should be strengthened by other evidence implicating the accused person in some material particular. It is true that there is nothing in law to prevent the Court from convicting on the uncorroborated evidence of the complainant, but it is an established rule that the presiding Judge must direct himself and the assessors in such a case on the desirability of there being corroboration of the complainant's evidence.
In this case the learned trial Judge did direct the assessors as to the desirability of corroboration, but counsel for the appellant took the point, among others, that the learned trial Judge misdirected himself and the assessors on what could be regarded as corroboration. He referred to several passages in the summing-up in support of this submission, the most important being two passages which appear at pages 67 and 68 of the record, which read as follows:-
“Well, you are not concerned with the propriety or otherwise of the conduct of Mr. Moss. In fact, from what Mr. Oldham said that Mr. Moss told him, you may think there is a case against the accused. That is sole evidence that the story of the complainant John Sesay may be true.
“That is the case for the prosecution that if there was not something, if those interested in trying to get this case settled out of Court, the general manager would not have insisted that the accused should pay and they say you should infer from that that the accused must have done this act. It is for you to decide whether that is so when you consider all the evidence and it is for you also if you consider that that is so to decide whether it is corroborative of the evidence given by the complainant. As I have told you it is necessary that you get some corroboration of the complainant's story and this is put forward by the prosecution as that corroboration.”
“Moss was the police officer investigating the case, and Mr. Oldham was the general manager of the concern in which the appellant was employed. The incidents referred to in the passages I have quoted had reference to matters which took place some six weeks after the offence was alleged to have been committed, to something alleged to have been said by Mr. Moss, and to the action taken by Mr. Oldham when the matter was reported to him.
It is quite clear that the opinion of Mr. Mo!1S and the action taken by Mr. Oldham could not be corroboration of the evidence of the complainant regarding the incident which the latter said took place on the 2nd July, 1953, and we think it fair to say that the learned Solicitor-General who appeared for the prosecution at the trial and at the hearing of this appeal did not suggest that such matters could be.
The question whether any particular evidence can be regarded as corroboration is a matter of law for the Judge to determine, the weight to be attached to corroborative evidence is a matter of fact for the jury to decide.
The Solicitor-General submitted that the evidence fully justified the verdict and that the misdirection did not, therefore, result in a miscarriage of justice, “and he strongly urged that this is a case where the proviso to section 4 (1) of the , West African Court of Appeal (Criminal Cases) Ordinance (Cap. 265) should be applied.
The proviso in question is the same as the proviso to section 4 (1) of the English Criminal Appeal Act, 1907, and it enables this Court, notwithstanding that we may be of the opinion that the point raised in an appeal might be decided in favour of the appellant, to dismiss the appeal if we consider that no substantial miscarriage of justice has occurred.
The proper interpretation of the proviso was the subject of a considered judgment of the Court of Criminal Appeal in England in the case of Rex v. Cohen and Bateman, 2 Ct. App. R., 197, where Channel, J., said at page 207:- Taking section 4 with its proviso, the effect is that if there is a wrong decision of any question of law the appellant has the right to have his appeal allowed, unless the case can be brought within the proviso. In that case, the Crown have to show that, on a right direction, the jury must have come to the same conclusion.”
Different considerations apply in cases where there has been a misdirection on a question of fact. The statement of the law to which I have referred has stood for forty-five years and, as far as we are aware, has. never been the subject of adverse comment.
The Solicitor-General also argued that since the decision in this case was that of the Judge we must look at his judgment and not at his summing-up to the assessors, a proposition with which we are unable to agree. In our view both must be ,looked at. It by no means follows that because the misdirection in the summing-up is not repeated in the judgment that it did not influence the learned trial Judge in reaching his own conclusion, indeed the inference is the other way. Moreover, the assessors are there to advise the presiding Judge and although he is not bound to accept their opinions it is his duty to consider them, and it was obviously necessary that they should be properly directed as to the law.
The misdirection in this case was an important one and we are quite unable to y that had the learned trial Judge properly directed himself and the assessors n the matter they must have come to the same conclusion. In this connection it relevant to observe that in spite of the misdirection one of the assessors expressed the opinion that the accused was not guilty.
It follows that, in our view, the appellant is entitled to have his appeal owed, and we accordingly quash the conviction and direct a judgment and verdict of acquittal to be entered.
Appeal allowed; verdict of acquittal.