REX V. ANTHONY UCHE

AITKEN, GRAHAM PAUL, AND BARTON, JJ. In this case the accused was convicted on two counts of having defiled a girl of under eleven years of age, and sentenced to five years imprisonment with hard labour on each count, such sentences to run concurrently.

The trial was held at Lagos before a Judge and jury on the 7th, 8th and 9th days of March last, sentence being passed on the 12th day of that month. Three days later the accused, having obtained the trial Judge's certificate that the case was a fit one for appeal, gave notice of appeal. On the 10th of May, 1935, that appeal came before the West African Court of Appeal sitting at Lagos and was allowed on the following grounds :--

Firstly, because the learned trial Judge, in his summing up, omitted to warn the jury as to the nature of the evidence of children of tender years, and

Secondly, because he misdirected the jury as to the evidence when he told them that “there was medical evidence that both the accused and the girl were a few days after the alleged occurrence suffering from a similar discharge of a gonorrhoeal nature.” In point of fact the evidence of Dr. B. W. Smart went no further than the statements— (a) That there was some discharge from the girl, but he could not tell the nature of it-possibly gonorrhoea, and (b) That the accused appeared to have gonorrhoea, but that he had made no microscopical examination to ascertain the fact.

Quite obviously a misdirection of this nature might easily have led the jury to convict, whereas a correct statement of the medical evidence against the accused, coupled with a proper warning as to the nature of the evidence of children of tender years, might have raised a reasonable doubt in their minds to the benefit of which

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the accused would have been entitled. We therefore bad no option but to allow this appeal, though there was evidence before the Court on which given a satisfactory summing-up the jury might properly have found the accused guilty of the offences charged against him. Moreover, the Doctor's omission to make a microscopical examination of the discharges he found issuing from the girl and the accused is indeed strange, when one considers how vitally important the results of such an examination might have been.