MICHAEL OGOR (APPELLANT)

v.

THE QUEEN (RESPONDENT)

(1961) All N.L.R. 75

Division: Federal Supreme Court

Date of Judgment: 16th March, 1961

Case Number: FSC 54/1960

Before: Brett, Taylor, Bairamian, F.J.J.

Brett, Taylor, Bairamian, F.J.J.

Brett, Taylor, Bairamian, F.J.J.

A medical officer on 9th July, 1960 certified that the appellant was then mentally abnormal and in a state of semi-stupor, and recommended that he be observed with a view to treatment in a mental hospital as he was then unfit to plead. On the 17th October, after he pleaded "not guilty", defence Counsel asked that his mental condition be examined. The court took the evidence of one witness and then ordered that the accused be mentally examined and adjourned the case to October 26th. When the case was resumed on the 26th, the court was shown the July certificate, and said the question arose whether he should call for a medical report as to the accused's fitness to stand his trial; Counsel for the defence said he was satisfied that the accused was fit to stand his trial-he had given proper and rational instructions; the Judge said that that confirmed his impression of the accused on arraignment; the accused (in answer to the court) said he knew he was there charged with murder and had understood the proceedings to date; and the Judge said he was satisfied that the accused was capable of understanding the proceedings and making his defence, and the trial would proceed. The accused was convicted of murder, and appealed (inter alia) on the ground that, although there was a certificate from the Medical Officer which raised the question of his fitness to stand his trial, he was tried without any proper investigation having been made into that question, contrary to sections 223 and 224 of the Criminal Procedure Ordinance. That he could appeal on that ground was not disputed; but Counsel for the Crown argued that those sections related solely to cases where that question arose before the accused pleaded to the charge itself.

HELD:

        (1) A complaint relating to fitness to stand trial may be made in an appeal against conviction.

(2) Sections 223 and 224 of the Criminal Procedure Ordinance provide for the investigation of insanity, if the question arises, at any stage, whether before the accused pleads to the charge or after, and even after evidence has begun to be heard.

(3) The investigation must be taken up immediately the question arises, before the trial begins or continues, and the question must be resolved on evidence; and the court may accept as evidence a certificate in writing signed by a Medical Officer.

(4) The Medical Officer's certificate of the 9th July, 1960, gave rise to a doubt as to whether the accused was fit to stand his trial. 'That doubt was in this case resolved without any evidence as to whether he had recovered his sanity since the 9th July, and was fit to stand his trial or not.

(5) The proper order on the allowance of such an appeal is one ordering a new trial before another Judge, who shall first satisfy himself by evidence that the appellant is of sound mind and capable of making his defence, and, in the meantime, the appellant should be under medical observation.

OBITER:

(a) Where the question is raised by the defence, the onus is on the defence; it is discharged if the court, on considering the whole of the evidence, is satisfied on the balance of probabilities that the accused's insanity has been proved. That position results from the presumption in section 27 of the Criminal Code, that every person is of sound mind until the contrary is proved, and from the degree of proof required where the onus of proof rests on the accused.

(b) The words "of unsound mind and consequently incapable of making his defence", in sections 223 and 224 of the Criminal Procedure Ordinance include mental defects which might not be insanity within section 28 of the Criminal Code, such as a physical or mental condition, which prevents the accused from following the proceedings and so from making a proper defence.

PER CURIAM:

A certificate from a Medical Officer on the accused's state of mind, if shown to the court, should be retained by the court as part of the evidence and copies as part of the record of appeal.

Appeal allowed. New trial ordered.

Cases referred to:-

Abodundu and The Queen, 4 FSC 70.

Reg. v. Podola, 1959, 3 All E.R. 418; 43 C.A.R. 220.

APPEAL from High Court, Western Region.

Cole for Appellant.

Aguda, Senior Crown Counsel, for the Crown.

Bairamian, F.J., delivering the Judgment of the court:-The appellant was convicted on the 7th November, 1960, in the High Court of the Western Region at Abeokuta, by Charles, J., of murdering one Chuckwumeka Ogor at Apoje on the 3rd May, 1960. He appeals against conviction, and his first ground is that:-

The appellant was prejudiced upon his trial by the failure of the learned trial Judge to comply with the provisions of section 223 and section 224 of the Criminal Procedure Ordinance, Cap. 43, Laws of Nigeria.

His learned Counsel, Mr Cole, stated that the appellant complained about having been tried without any proper investigation having first been made into his fitness to stand his trial, in spite of the fact that the Crown had, before the trial, a certificate from a medical officer which raised that question, and of the fact that the question was raised immediately after the appellant pleaded not guilty, and arose again after the first witness for the Crown was heard.

Reference was made at the hearing to the case of Podola, 1959, 3 All E.R. 418, as showing that a complaint of that sort may be made in an appeal against conviction; and there was no dispute on that point. There was, however, a divergence in the submissions of Counsel on whether sections 223 and 224 of our Criminal Procedure Ordinance relates solely to an inquiry into a defendant's fitness to stand his trial where the matter arises before he pleads to the charge itself, or extend also to a case where the matter arises after he has pleaded to the charge, and also to a case where some evidence has been taken.

It is provided in section 223(5) that:-

Any court before which a person suspected to be of unsound mind is accused of any offence may, on the application of a law officer or Crown Counsel, made at any stage of the proceedings prior to the trial, order that such person be sent to an asylum for observation. The medical officer may, etc.

The words "prior to the trial" indicate that no plea has been taken and, at any rate, that no witness has been heard on the charge itself. On the other hand, the section begins as follows:-

(1)     When a judge holding a trial or a magistrate holding a trial or an inquiry has reason to suspect that the accused is of unsound mind and consequently incapable of making his defence the judge, jury, or magistrate, as the case may be, shall in the first instance investigate the fact of such unsoundness of mind.

Subsection

           (2) provides for the investigation of that fact, and subsection (3) goes on to provide that:-

If the judge, jury or magistrate, as the case may be, is not satisfied that such person is capable of making his defence, the court shall postpone the trial or inquiry and shall discharge the jury, if any, and shall remand such person for a period not exceeding one month to be detained for observation in an asylum.

The words "a judge holding a trial" in subsection (1) suggest that the defendant has pleaded to the charge, and can include a case in which evidence has begun to be heard. In subsection (3) the words "the court shall postpone the trial" suggest that the trial has not begun, but they are not conclusive: for there is section 226 which provides that:-

Whenever an inquiry or trial is postponed under section 223 or 224 the court may at any time reopen the inquiry or commence the trial de novo and require the accused to appear or be brought before such court.

The words "commence the trial de novo" suggest that, before the trial was postponed, evidence had been heard on the charge itself.

The above provisions seem to contemplate both a case in which unfitness for trial arises as a question before the defendant pleads to the charge, and a case in which the question arises after he pleads, and even after evidence has begun to be heard. The submission that they do not contemplate both cases leads to awkward results: a defendant of unsound mind who is incapable of making his defence may be tried and condemned merely because the fact of his insanity did not come to light, or was not raised until after the trial had begun; nor, apparently, can the question be raised if a defendant became of unsound mind after the trial began as the result of a blow for example, or for some other reason. There is a Latin maxim that argumentum ab inconvenienti multum valet, which may be applied in favour of the view that sections 223 and 224 cover all cases.

In any event there is section 363 of the Ordinance, which enables the High Court to have recourse to English practice in case of need. Section 363 provides that:-

The procedure and practice for the time being in force of Her Majesty's High Court of Justice in England in criminal trials shall apply to trials in the High Court insofar as this Ordinance has not specifically made provision therefore.

On the English practice the following passage in the Judgment of the court of Criminal Appeal in the case of Podola (at 428) is decisive:-

...it is now well established that the question may be raised either by the prosecution or by the defence or by the court itself. Indeed, if a court becomes aware, either before or during a trial, that the accused person's sanity is doubtful, it is the duty of the court to have the doubt resolved before beginning or continuing the trial.

For present purposes that is sufficient; but it is desirable to add that, in our view, sections 223 and 224 do themselves provide for the investigation of insanity, if the case arise, at any stage of a trial, whether before the defendant pleads to the charge or after, and even after evidence has begun to be heard.

In England the manner of resolving the doubt is as follows: we quote from p.429 of the Podola report:-

For the purpose of deciding whether a person 'is insane ... so that he cannot be tried upon the indictment' a jury is empanelled, and as Counsel for the appellant emphasised, the procedure before that jury is an enquiry and not a trial.

In the case of Podola the inquiry before Davies, J. and a jury lasted a number of days, and a number of witnesses were heard. It was an unusual case. As a rule, there is no controversy, and a little evidence suffices; but in any event some evidence is heard. Thereafter, to quote from page 429 of the Podola report:-

In all cases in which a preliminary issue as to the accused person's sanity is raised, whether that issue is contested or not, the jury should be directed to consider the whole of the evidence and to answer the question "Are you satisfied on that evidence that the accused person is insane so that he cannot be tried on the indictment?"

The issue is usually raised by the defence, and there is then a burden on the defence of satisfying the jury of the accused's insanity. To quote again from page 429:-

In such a case, as in other criminal cases in which the onus of proof rests on the defence, the onus is discharged if the jury are satisfied on the balance of probabilities that the accused's insanity has been made out.

The judge reminds the jury that there is a presumption of sanity, which includes a presumption that the accused person is fit to stand his trial, and asks the jury to say whether on the whole of the evidence the scales have gone down in his favour, as Davies, J., put it to the jury at 423 of the report and 424.

There is one more point in the practice of the High Court in England to which we should draw attention by quoting from Lord Parker's Judgment at 431:-

The words 'if any person ... shall be insane ... so that such person cannot be tried upon such indictment' contained in section 2 of the Criminal Lunatics Act, 1800, have in many cases since 1800 been construed as including persons who are not insane within the McNaghten rules, but who by reason of some physical or mental condition, cannot follow the proceedings at the trial and so cannot make a proper defence in those proceedings.

The words used in our section 223 and section 224 are "of unsound mind and consequently incapable of making his defence" or "of unsound mind and incapable of making his defence." We think that, in accordance with the practice in England, they include persons who are not insane within section 28 of the Criminal Code, but who by reason of some physical or mental condition, cannot follow the proceedings and so cannot make a proper defence.

We, too, have a presumption of sanity in section 27 of the Criminal Code which states that:-

Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.

That includes a presumption that the accused is fit to stand his trial, until the contrary is proved, viz, on the balance of probabilities upon the whole of the evidence.

Section 223 of the Criminal Procedure Ordinance makes it clear that the question whether an accused person is fit to stand his trial, when there is reason to doubt it, is a matter of common concern to both Counsel and also to the court itself. To repeat subsection (1):-

(1)     When a judge holding a trial or a magistrate holding a trial or an inquiry has reason to suspect that the accused is of unsound mind and consequently incapable of making his defence the judge, jury or magistrate, as the case may be, shall in the first instance investigate the fact of such unsoundness of mind.

We underline the words "in the first instance": the doubt must first be resolved before the trial begins or continues. Subsection (2) provides that-

(2)     Such investigation may be held in the absence of the accused person if the court is satisfied that owing to the state of the accused's mind it would be in the interests of public decency that he should be absent, and the court may receive as evidence a certificate in writing signed by a medical officer to the effect that such accused person is in his opinion of unsound mind and incapable of making his defence or is a proper person to be detained for observation in an asylum, or the court may, if it sees fit, take oral evidence from a medical officer on the state of mind of such accused person.

The section relies a good deal on the medical officer who visits the prison, naturally; and for convenience, unless the court wishes to hear his evidence viva voce, both section 223 and section 224 make it possible to receive as evidence a certificate in writing signed by the medical officer. There may of course be other evidence adduced by either side; and it is of course for the court to decide. The point we have to stress is this: that the investigation must be on evidence. With that in mind, we proceed to consider the complaint made by the appellant in this case.

The killing occurred on the 3rd of May, 1960. On the 9th July, the medical officer sent the Ministry of Justice a certificate in these terms:

The above (namely Michael Ogor) is now mentally abnormal in a state of semi-stupor. I recommend he be observed with a view to treatment in a mental hospital as at the moment he is unfit to plead.

The certificate was received at the Ministry on the 15th July. What happened afterwards remains unknown. On the 12th September, the appellant was called into court, and remanded to the 27th, and then again to the 17th October. It would have been appropriate for Crown Counsel to have shown that certificate to defending Counsel, or even to have asked the court, on the 12th or on the 27th September, to make an order under section 223(5); and it would have been prudent to have asked the medical officer for a fresh certificate so as to ensure that the appellant had recovered and become fit to stand his trial for murder. On the 17th October, the appellant was arraigned and pleaded to the information, and then his learned Counsel asked the court for an adjournment in order to have the appellant medically examined as to his mental condition. Counsel for the Crown agreed subject to a witness from the Eastern Region being heard first. The certificate of the medical officer was not mentioned. The learned Judge heard the witness from the Eastern Region and then remanded the accused to the 26th October for medical examination.

The notes of the 26th begin as follows:-

"The court: The medical certificate that the accused is a lunatic has just come to my notice-it is dated 9th July, 1960. The question arises whether I should call for a medical report as to the accused's fitness to stand his trial.

Osinowo (Counsel for accused): I am satisfied that the accused is fit to stand his trial-he has given me proper and rational instructions.

The court: That confirms my impression of the accused on arraignment.

Accused (in answer to the court): I know that I am here charged with murder. I have understood the proceedings to date.

The court: I am satisfied that the accused is capable of understanding the proceedings and making his defence-the trial will proceed.

We agree with the learned Judge insofar as his aim was to be satisfied "that the accused was capable of understanding the proceedings and making his defence": it is the means by which he was satisfied that does not accord with the law; for he was apparently making an inquiry into the accused's fitness to stand his trial, owing to the doubt raised by the medical officer's certificate, and he resolved that doubt without evidence. Counsel for the defence may have wished to be helpful; but what he said was not evidence: it was not on oath; but apparently it was treated by the learned Judge as evidence. Counsel for the accused at the trial could have called him as a witness, as was done in the Podola case; and the present appellant could have given evidence on oath and been examined. With respect, we are unable to endorse the course taken on the 26th October: we think that, although there was a case which called for an investigation of the doubt whether the appellant was fit to stand his trial, there was no investigation in accordance with the law. And Mr Cole has pointed to a passage in the Judgment which speaks of the appellant's mind as being "dangerously balanced" according to the impression that the Judge formed of him as a witness. The precise meaning of those words is not clear, but they are not reassuring. To quote from the summing up of Davies, J. to the jury in the Podola case, at 422 of the All E.R. report:-

It is a cardinal principle of our criminal law that no man may be brought to trial on any criminal charge unless and until he is mentally capable fairly of standing his trial.