Rex V. L. Val-vannis (1949)
LawGlobal Hub Judgment Report – West African Court of Appeal
Criminal Law—Seditious Publication—Proof of consent of Attorney-General.
To take, on appeal, the point that the consent of the Attorney-General was not formally proved at the trial of an offence contrary to section 326 (2) (b) of the Gold Coast Criminal Code is a pure technicality.
Cases referred to:
- R. v. Metz, 11 Cr. App. R. 164; 84 L.J.K.B. 1462; 113 L.T. 464; 79 J.P. 384; 59 Sol. Jo. 457; 25 Cox C.C. 67.
- R. v. Aldred, 74 J.P. 55; 22 Cox 1.
Appeal from the Supreme Court of the Gold Coast.
Crabbe for Appellant.
Buckmaster, Crown Counsel, for Crown.
The following joint judgment was delivered:
This is an appeal against a conviction for publishing seditious words contrary to section 326 (2) (b) of the Criminal Code.
It was submitted for the appellant that the trial Court had no jurisdiction inasmuch as the Attorney-General’s consent under section 326 (9) of the Code had not been formally proved. A copy of the consent was not (as it should have been) included in the record of appeal, but it transpired upon examination of the original information in the Divisional Court, that the Attorney-General’s consent was filed on the same day as the information. Moreover, no objection on this ground was taken by the defence at the trial.
A similar point was raised in the case of Johan Metz (1) and was dealt with by the Court of Criminal Appeal as follows:—
” It is not suggested that the prosecution was in fact instituted without the necessary consent, but it is said that there was no evidence of it at the trial. The point was not taken at the trial. As we now know, the consent was in fact proved at the Police Court. The document was in Court at the trial, but it was not formally proved. If the point had been taken at the trial the defect would have been immediately cured, so the point is a pure technicality. We do not think it possible for the point now to succeed in this Court when there was an opportunity for counsel to take it in the Court below if he desired.”
Moreover, it is the duty of the Registrar of the Court to satisfy himself that all necessary steps preliminary to the information have been taken, and unless objection be taken by the prisoner that there was no consent in fact, it is to be presumed that the Registrar has discharged his duty in that respect. This ground of appeal therefore fails.
The other ground of appeal may be summarised as a submission that the trial Judge did not put the case for the defence adequately before the Assessors. This Court has carefully perused the summing up and is of opinion that it was eminently fair to the prisoner: indeed in one respect the learned Judge stated the law in a manner unduly favourable to the defence, for he implied that if the accused really believed that the state of the law was as he misrepresented it to be, he would be entitled to an acquittal.
But Coleridge, J., in Rex v. Aldred (2) stated the law thus:-
” The man who is accused may not plead the truth of the statements that he makes as a defence to the charge, nor may he plead the innocence of his motive; that is not a defence to the charge. The test is not either the truth of the language or the innocence of the motive with which he published it, but the test is this : was the language used calculated, or was it not, to promote public disorder or physical force or violence in a matter of State.”
Adapting this passage to the present charge the test would be: was the language used calculated to raise discontent among the inhabitants of the Gold Coast?
In dealing with the application of this test Coleridge, J., in the case referred to, proceeded to say :—
” In arriving at a decision of this test you are entitled to look at all the circumstances surrounding the publication with the view of seeing whether the language used is calculated to produce the results imputed; that is to say, you are entitled to look at the audience addressed, because language which would be innocuous, practically speaking, if used to an assembly of professors or divines, might produce a different result if used before an excited audience of young and uneducated men. You are entitled also to take into account the state of public feeling. Of course, there are times when a spark will explode a powder magazine; the effect of language may be very different at one time from what it would be at another.”
The last part of this passage might well be applied to the state of public feeling in this Colony at the time the appellant thought fit to publish his open letter, for it appeared in the Press shortly before an outbreak of mob violence, unprecedented in the annals of this country. It is only reasonable to infer that inflammatory press articles like the present, poisoning the minds of the credulous masses, materially contributed to those lamentable events.
In our opinion none of the objections to the summing up is of any substance. The appeal is dismissed.