Adrian Fisher V State (CR APP 4 of 2010) [2015] SLCA 1124 (28 July 2015)

ae CR. APP. 4/2010 IN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN: -- ¢ ADRIAN J. FISHER + APPELLANT AND THE STATE = RESPONDENT

Coram

HON. MR. JUSTICE E.£. ROBERTS = isc HON. MR.JUSTICE NF. MATTURIJONES = JA HON. MR. JUSTICE A.S. FOANAH - 4A ADVOCATES: E. SHEARS-MOSES AND E. SAFFA ABDULAI FOR THE APPELANT RS, FYNN ESQ, FOR THE RESPONDENT

DGMENT DELIVERED THIS 28 Day oF JULY, 2015 ROBERTS LS.C. ‘Adrian Joscelyne Fisher the Appellant herein was a Judicial Officer employed as a Magistrate in June 2004. Upon his employment he started working inthe Freetown Magistrate Court. In April 2008 he was posted to Bo asthe Resident Magistrate. In September 2008 whilst he was still Magistrate in Bo, officers from the Anti-Corruption Commission (ACC) arrived atthe Bo Magistrate Court with a search warrant pursuant 10 section 71 ofthe Anti-Corruption Act 2008 and proceeded to search the Court premises following which over 120 Cour files were seized. The Appellant was ivited tothe Anti Corruption Commission a few days later on allegations of abuse of office and abuse of position contrary to sections 42 and 44 ofthe 2008 Act. In December 2008 however the & ‘Anti-Corruption Commission introduced the allegation of Misappropriation of Public Funds contrary to section 12 f the Anti-Corruption Act 2000 (The 2000 Act). The

oe (et im “Appellant was subsequently charged in an indictment dated 9® February 2009 with 20 : ‘Counts of Misappropriation of Public Funds contrary to section 12 (1) of the 2000 Act. ‘The gist ofthe allegation as contained in the various counts was that the Appellant “> misappropriated public funds by pronouncing a higher amount of fine in open Court but actually recording a lower sum in the Court file. That the Court clerk would then receive the higher amount of fine pronounced in Court and paid by or on behalf ofthe accused ‘and pass on the amount and the file to the Appellant who would in turn return to him (the clerk) the amount recorded in the file with instruction to pay to the NRA, whilst retaining the balance. The Appellant was tried and on 14 June 2010 he was convicted on all 20 counts, He was then sentenced to a fine of Le Smillion on each count to be paid within a fortnight and in default of payment 5 years imprisonment on each cout to run concurrently. * ‘The Appellant then filed a Notice and Grounds of Appeal dated 30* June 2010 numbering 20 pages followed by additional grounds of appeal for which leave was sought and ‘granted by the Court atthe oral hearing of this appeal. ‘This Court gave directions pursuant to which the parties filed their respective synopsis of arguments, The Appellant ‘s synopsis of argument is dated 6* June 2014 and contained additional grounds of appeal in respect of which leave was sought and obtained. The Respondent's synopsis was filed on the 3" March 2015. At the oral hearing of the ‘Appeal the parties made submissions respectively. | have decided to deal with the grounds of appeal under headings as can be gleamed from the written submission as well as the arguments of counsel atthe oral hearing. ‘The first issue raised by the Appellant is that there were grave irregularities in the process leading to the preferment of the indictment as well as defects in the indictment itself and so the Court below had no jurisdiction to try the matter. Counsel for the Appellant submitted thatwhilst the Appellant was eventually charged under the 2000 Act, all the ‘other processes leading to the indictment including the search warrants were issued under the 2008 Act. Counsel referred to Ex. “O” at page 455 of the Records which was issued and addressed to the Appellant under section 63 (1) ofthe 2008 Act. Counsel referred to " section 141 (4) and section 89 of the 2008 Act and submited that in view of the commencement of proceedings section 89 of the 2008 Act was already in force. Couns?

: M13 7 submitted that the transitional , repeal and saving provisions of section 141 of the 2008 Act provides for the commencement or continuation of investigation or prosecution under the 2000 Act. . Counsel also submitted that the indictment preferred against the Appellant (at page 11 of ¥ the Records) was signed by the Commissioner of the Anti-Corruption Commission . Counsel submitted that the authority for the Commissioner to sign the indictment was derived from the 2008 Act and that there was no such authority under the 2000 Act. ‘Counsel submits that there was therefore no indictment before the Court. Counsel for the Respondent in his synopsis and in oral arguments conceded that there had been an irregularity in the “joint use of the 2000 and 2008 Act”, but submitted that there ‘was no miscarriage of justice. Counsel submitted that in 2009 when the indictment was filed the Commissioner had authority to sign it. Counsel submitted that the Appellant had not been prejudiced In dealing withthe issues ofthe defective indictment (and the irregularities inthe process leading to the preferment of same) I shall briefly examine the complaints of the Appellant in this regard Counsel for the Appellant complained that the indictment filed was defective in that it vas signed by the Commissioner of the Anti-Corruption Commission, submitting that \whilst the indictment was filed under the 2000 Act it was the 2008 Act that gave the Commissioner authority to prefer the indictment. Counsel submitted that the ‘Commissioner had no authority under the 2000 Act to prefer an indictment. It is my view that there is no doubt that the Commissioner of the Anti-Corruption ‘Commission has authority to sign and prefer an indictment under the current 2008 Act. However in the instant case the issue is whether the Commissioner had authority to sign the indictment which was isued in respect of offences allegedly committed under the 2000 Act Its clear that it was the Constitution of Sierra Leone Amendment) Act No. 9 ‘of 2008 that authorised the Commissioner of the Anti-Corruption Commission to “institute and undertake” criminal proceedings for offence under the 2000 Act.

pa 4 7 Sections 1 and 2 of the Constitution of Sierra Leone (Amendment )Act No. 9 of 2008 provide as follows (with emphasis added).

1. The Constitution of Sierra Leone 1991 is amended by the repeal and replacement of subsection (3) of section 64 thereof by the following subsection:

“(3) All offences prosecuted in the name of the Republic of Sierra Leone except offences involving corruption under the Anti-Corruption Act 2000, shall be at the suit ofthe Attorney General and Minister of Justice or some other person ‘authorised by him in accordance with any law governing the same”

2. The Constitution of Sierra Leone, 1991 is amended by the repeal and replacement of paragraph (a) of subsection 4 of section 66 thereof by the following paragraph: *(@) to institute and undertake criminal proceedings against any person before any Court in respect of any offence against the laws of Sierra Leone exceptany tion under the Anti: jion Act 2000.” Itis clear from the above provisions that the Commissioner ‘s authority to prosecute was in relation to offences under the 2000 Act and I therefore need no further authority to hold that under the 2000 Act and even as at present the Commissioner of the Anti-Corruption Commission has power to sign and prefer an indictment. I shall now deal with the irregularities in the process leading to the preferment of the indictment. Itis accepted by both counsel for the Appellant and the Respondent thatthe acts and activities of the Appellant for which the charges were preferred took place * before the ‘coming in to force of the 2008 Act. Investigations apparently started before the commencement of the 2008 Act but continued well after it had come into foree. Section 141 (4) of the 2008 Act provides as follows: All investigations, prosecutions and other legal proceedings, instituted or ‘commenced under the repealed Act and which have not been concluded before the 7 commencement of this Act, shall Be continued and concluded in all respects as if thot ict had not been repeated.

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