Aiah M'bekay & Another v S (CR APP 4 of 2011) [2019] SLCA 32 (12 February 2019)

: r | Cr App 4/2011 Desh | IN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN: ATAH M'BEKAY - 1ST APPELLANT. . STA MBEKAY - 28 APPELLANT AND tHE sTATE - RESPONDENT

Coram

THE HONOURABLE MR JUSTICE N C BROWNE-MARKE

JUSTICE OF THE SUPREME COURT

THE HONOURABLE MR JUSTICE EE ROBERTS

JUSTICE OF THE SUPREME COURT

THE HONOURABLE MS JUSTICE V M SOLOMON

JUSTICE OF THE SUPREME COURT

COUNSEL:

MMS SIMITIE LAVALY for the Appellants

MONFRED M SESAY ESQ (as he then was) for the Respondent. Also, at today's hearing, MS S JY BARLATT, State Counsel, for the Respondent. JUDGMENT DELIVERED THE 12" DAY OF FEBRUARY, 2019 BROWNE-MARKE, JSC

The Appeal

1. This is an appeal brought by the above-named Appellants against their

respective conviction and sentences by way of Notice of Appeal filed on 10

February, 2011. The said Notice is at pages 62 - 63 of the Record. The

grounds of appeal are as follows:

(1) That the exhibits were never forensically tested to establish that they contained human remains or, were the particular remains of the alleged victim

.

(2) That the Learned Trial Judge failed to order a ‘voir dire’ when the 1* . accused disclaimed his confessional statement at the trial :

(3) That the jury failed to heed the Learned Trial Judge's admonition that the confessional statement of the 1* accused was not evidence to be used against the Appeliants. :

(4) That the Learned Trial Judge allowed hearsay evidence to be used against the Appellants.

(5) That the Learned Trial Judge failed to give equal weight to the ( evidence on both sides.

(6) That the whole trial was a miscarriage of justice.

2. At the hearing of the Appeal, Ms Lavaly sought the Leave of the Court to ‘amend the grounds of appeal to read as follows:

(1) That after one juror was discharged and replaced, the jury was not re-sworn, nor, were the accused persons put in charge of the reconstituted jury, contrary to the sections 182(2) and 187 of the Criminal Procedure Act, 1965

(2) That the trial in the Court below is a nullity due to the failure of the Trial Judge to discharge the jury at the end of the criminal sessions and to order a retrial

(3) That there is insufficient evidence to uphold the conviction of the Appellants,

3. The relief sought from this Court is that the said respective convictions be overturned, and that the Appellants be acquitted and discharged. But, after the appeal had been filed, and before it was heard, the 2" Appellant was pardoned by the President on 27" April, 2011. She did not thereafter pursue her appeal. The 1* Appellant, (now, the only Appellant), Aiah M’bekay’s sentence was at the same time commuted to life imprisonment, The 1" accused at the trial, Sahr Sheku, was also found guilty and sentenced to death, but had his sentence commuted to life imprisonment as well. He has not appealed against both conviction and sentence. The 4" accused at the trial, Sahr Charles Mbekay, was acquitted and discharged.

The Trial

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4. The Trial of the Appellants and two others was presided over by The Hon ‘Mrs Justice N MATTURI-JONES, then a High Court Judge, now, an acting

| : Justice of the Supreme Court. It went through several criminal sessions of . the High and lasted from 24" June, 2008 to 21" July, 2009. That it lasted 50 long was due to the lack of logistics for the holding of criminal sessions, in Sefadu, Kono, Eastern Province. tows

5. The case presented by the prosecution was that the Appellastt aid three > others captured and killed a young girl, Hannah Sorie, aged 4 years. The killing was done for ritual purposes. There was no direct evidence of the killing other than the out-of-Court confession made by the 1" accused Sahr, ( Sheku, to the Police, There was also evidence that when the scene of crime was visited by the Police during the investigations, Sahr Sheku repeated the allegations he had made in the presence of the Appellant. There was no evidence as to whether the Appellant said anything in response to the allegation. THE TRIAL - NUMBER OF SESSIONS DURING WHICH IT LASTED

6. Going through the Court Record, I have found out that the Indictment was not included: nor was the Committal Warrant, duly signed by the Committing Magistrate, committing the case to the High Court for trial, It appears the latter was not tendered by prosecuting Counsel at the close of the prosecution's case during the trial. The prosecution closed its case on 27" Tune, 2008 as is shown in the Learned Trial Judge's minutes for that day at page 32 of the Record. Whether there was in fact a Committal Warrant at all, is unclear, The Committal Warrant vests the High Court with jurisdiction to try a criminal case. It is provided for in section 120 of the Criminal Procedure Act, 1965 as amended, (hereafter, “CPA, 1965"), Included in that Warrant is the statement made by the accused before committal as provided for in section 115 CPA, 1965. At trial, itis usually tendered at the end of the prosecution's case as stipulated in section 191(1) CPA, 1965.

7. Returning to the issue of the number of criminal sessions during which the Appellant was tried, the Law, as stated in section 143(a) of the CPA 1965 as amended, is that where the of fence charged carries the death penalty, as in this case, the person charged must be tried by Judge and jury. That trial could be postponed for any of the reasons stated in Section 142 of the CPA,

a 1965, and consequently, the recognisances entered into by the prosecution witnesses, could be respited. However, if the trial has not ended by the last

to

day of the particular session, the jury must be discharged by the trial

7 Judge, or, should be taken as discharged, and the trial re-commenced at the next session, Further, if a fresh juror is added on to an existing panel, the whole jury should be re-sworn, or, the existing jury could be discharged, and anew jury empaneled, This is the combined ef fect of Sections, 142, 143, a

148(4), (5) & (6), 162, 165, 182 et all of the CPA, 1965; and Rule 5 of the High Court (Sessions) Rules, 1965 - S.I. 73 of 1965 as amended.

8. First, Section 148(4) makes specific provision for what should happen when a ( criminal trial is postponed, It states: 148(4) "Where, before trial upon

indictment or, at any stage of such trial, the Court is of the opinion that the postponement of the trial of the accused is expedient as a consequence of the exercise of any power of the Court under this Act, the Court shall make such order as to the postponement of the trial as appears necessary” Section 148(5)(a) states: * Where an order of the Court is made under this section for a separate trial or for postponement of a trial - (a) if such order is made during a trial with a jury or, during a trial with assessors, the Court may order that the jury or, the assessors be discharged from giving a verdict or opinions, as the case may be, on the count or counts the trial of which is postponed, or, on the indictment as the case may be;” and (b) the procedure on the separate trial of a count shall be the same in all respects 0s if the count had been contained in a separate indictment, and the procedure on the postponed trial shall be the same in all respects [provided that the jury or assessors, if any, have been discharged], as if the trial had not commenced..." Section 148(6) states; “Any power of the Court under this section shall be, in addition to and not in derogation of any other power of the Court for the same or similar purposes.”

9. Clearly, the trial in this case was postponed, and not adjourned in the accepted sense of that word, It follows that once such a postponement had been ordered by the Court, the jury which had been empaneled should have been discharged: or, as explained in a case which I shall deal with immediately below, taken as being discharged.

10, Section 162 CPA,1965 tells us that the same jurors are not expected to serve in two consecutive sessions. They are clearly exempted in the last two

- lines of Section 162 from so serving. Nevertheless, this Court is aware that this provision has been honoured more in the breach, than in compliance or

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