THE QUEEN V. ITULE

• Pages: 221-225

THE QUEEN V. ITULE.

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221

defending counsel in his closing address pointed out that s.229 of the Criminal

Code did not deal with Rape, but with completely different offence. Prosecuting

counsel invited the Judge to amend the information by substituting a reference to

section 358 of the Criminal Code and this was done without objection from the

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defence. The Judge recorded that he thought it unnecessary to take a fresh plea,

because the amendment did not bring in a fresh charge, and proceeded to deliver

judgment convincting the appellant. The first ground of appeal is that the Judge

erred in law in not taking a fresh plea and asking the appellant if he was ready to

be tried on the amended charge.

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It is now suggested that the appellant was not in any way prejudiced by this

failure to comply with section 164 of tie Criminal Procedure Ordinance, but the

decisions in

Fox v. Police

12 W.A.C.A. 215, and

R.

v.

Eronini

14 W.A.C.A. 366,

leave us no choice but to hold that the omission rendered the conviction and sen-

tence a nullity, and they must be set aside. Mr Eboh invited us, if we felt obliged

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to allow the appeal on this ground, to make an order for retrial, but having listened

to arguments on both sides as to the merits of the case we do not propose to do

so. The appeal is allowed, the conviction is quashed, and a judgment and verdict

of acquittal are entered.

Appeal allowed:

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Conviction quashed:

Acquittal entered.

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THE QUEEN V. ITULE.

THE QUEEN

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V

JOHN AGAGARIGA ITULE

FEDERAL SUPREME COURT.

BRETT,

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Ag. C.J.F.

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HURLEY,

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C.J.N.R.

BELLAMY,

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Ag. C.J.

11th August, 1961.

RESPONDENT

APPELLANT

SUIT NO. FSC 170/1961

Criminal Law - Alleged confession of Homicide under provocation - Making of

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Statement of confession denied at trial - No finding as to whether statement

made or not - Trial Court bound to consider Statement in its entirety -

Failure to consider Statement miscarriage of justice - Evidence Ordinance Cap

62 secs. 27 to 32, 5(a).

45 ISSUES:

1.

Whether the denial by an accused person of having made a confessional

Statement renders the Statement inadmissible.

2.

Whether in the absence of an express finding by a trial Judge that an appellant's

statement alleging provocation was not his statement, the court can assume that

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it was his statement when considering whether there was any evidence of

provocation.

3.

Whether the unfavourable part of an accused's evidence can be considered

against him to the exclusion of the favourable part.