Aiah M'bekay & Others v S (CR APP 4 of 2011) [2019] SLCA 6 (12 February 2019)

Cr App 4/2011 i IN THE COURT OF APPEAL OF SIERRA LEONE * BETWEEN ATAH M'BEKAY 157 APPELLANT. SIA 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 E E ROBERTS

JUSTICE OF THE SUPREME COURT

‘THE HONOURABLE MS JUSTICE V M SOLOMON

JUSTICE OF THE SUPREME COURT

COUNSEL:

MS 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 +0 be used against the Appellants.

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

(8) 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 ‘rial, Sahr Charles Mbekay, was acquitted and discharged.

The Trial

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

J ‘the High and lasted from 24" June, 2008 to 21° July, 2009. That it lasted 0 long was due to the lack of logistics for the holding of criminal sessions, in Sefadu, Kono, Eastern Province.

5. The case presented by the prosecution was that the Appellant and three others captured and killed a young gir!, 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 wos 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" June, 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"). Tncluded in that Warrant is the statement made by the accused before committal as

provided for in section 115 CPA, 1965, At trial, it is usually tendered at the end of the prosecution's case as stipulated in section 191(1) CPA, 1965.

7. Returning io 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 0s amended, is that where the offence 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, 1965, and consequently, the recognisances entered into by the prosecution witnesses, could be respited. However, if the trial has not ended by the last

observance. The Supreme Court in Cr App 1/81 - SAMUEL LOMBA v THE

: STATE, the Judgment of BECCLES-DAVIES, JSC, makes it clear that at the end of one criminal session, the jury is supposed to be discharged, and if

2 not formally so discharged, may be taken to have been discharged by operation of law. Sessions are governed by The High Court (Criminal Sessions) Rules, 1965 - $.I. 73 of 1965. Sessions in Freetown, Bo and Kenema - since 1976, start on the same day. The Makeni Sessions have been added on, But the Sessions in other Districts where the High Court sits, commence, or, should commence on the days stipulated in the Statutory Instrument, The closing date of each Session is not stipulated in any statute, but it is the practice that a Session should be closed before the next one commences, Usually, there is a whole week between two Sessions, but it is not unknown for a Session to be closed on a Friday, and then reopened the following Monday, when jury trials have to be completed in the previous session

11, What is also clear is that once, a juror has been added on to the panel for

whatever reason, the whole jury has to be re-sworn, and the trial started anew. The necessity for the discharge of one or more jurors, and the addition of another one, or, more than one more, would usually occur, where ‘an emponeled juror or jurors dies, or die. Sections 182(2) states: "If either the prosecutor or accused shall refuse to give his assent, the Court may direct that a juror be added and the jury re-sworn, or, that the jury be discharged and a new jury empaneled, and in either of these cases the trial ‘shall commence anew." Tt is necessary for the trial to start anew simply because, at the commencement of each trial, the accused standing trial, is put in the charge of the jury in the manner provided in section

187. The Court Registrar would normally read out the charge or charges, and then tell the sworn jury that their duty is to return a true verdict on the evidence led, The formula used was set out by BECCLES-DAVIES, JSC in LOMBA v THE STATE, a case to which I shall refer to anon, There, the Learned Justice stated it to be thus: “Ladies and gentlemen of the jury, the accused is charged with the following offence(s) (here, indictment is read). Upon this Indictment, the prisoner has been arraigned: and ypon his arraignment, he has pleaded not guilty to the charge. Your duty therefore, is to listen carefully to the evidence that shall be adduced and enquire whether he be

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