Alfred Paola Conteh v S (CR APP 6 of 2020) [2020] SLCA 19 (19 August 2020)

CR.APP 586/2020 IN THE COURT OF APPEAL OF SIERRA LEONE (CRIMINAL DIVISION, IN THE MATTER OF AN APPLICATION FOR BAIL PENDING THE HEARING AND DETERMINATION OF THE APPEAL PURSUANT TO ORDER 67

(2) OF THE COURTS ACT NO. 31 OF 1965 BETWEEN: ALFRED PALO CONTEH - APPELLANT/APPLICANT AND THE STATE - RESPONDENT

Coram

THE HON. MR. JUSTICE A. |. SESAY JA - PRESIDING THE HON. MS. JUSTICE F. B. ALHADI JA THE HON. MRS. JUSTICE T. BARNETT J ot RULING DELIVERED THIS_\ \ DAY OF AUGUST 2020 Introduction and Background On the 15! day of July 2020 the Appeliant/Applicant filed a Notice of Motion dated the 14" day of July 2020 seeking the following Orders:

1. That the Court do grant bail to Major (Rid) Alfred Palo Conteh, the Applicant herein, pending the hearing and determination of his Appeal to the Court of Appeal pursuant to Section 67 (2) of the Courts Act No. 31 of 1965.

2. Any further or other order/s that the Court may deem fit and just.

a

* The application was supported by the Affidavit of Major (Rtd) Alfred Palo Conteh swom to on the 14" day of July 2020 together with four exhibits attached thereto. They include:

1) Exhibit "APC 1” which is a copy of the Magisterial charge sheet in the Preliminary Investigation conducted in the Magistrate Court;

2) Exhibit “APC 2" which is a copy of an Indictment dated 31 May

3) Exhibit “APC 3" which is a copy of the Conviction Certificate which is undated and unsigned by the Master and Registrar of the High Court;

4) Exhibit “APC 4" which is a copy of the Notice of Appeal filed against the aforementioned conviction and sentence.

On the 28" day of July 2020 the Respondent filed and swore to an Affidavit in Opposition. On the 4!" day of August 2020 the Applicant/Appeliant filed an Affidavit in Reply sworn to on the 3¢ day of August 2020. SUMMARY OF SUBMISSIONS MADE BY COUNSEL FOR THE ‘APPLICANT/APPELLANT The Applicant's solicitor relied on the entire affidavit and argued that the two grounds that formed the basis of the appeal are summary offences. The Application was eventually made pursuant to Section 67 (2) of the Courts Act No 31 of 1965. He argued that the Applicant was a first time offender and that the Applicant has good grounds with good prospect of success. According to him, the Respondent has nothing to lose if the application is granted. Reliance was also made on the written and oral submission cited by the Applicant's solicitor, Dr. A. O. Conteh. He further argued that the Applicant may have served his sentence before the appeal is heard.

A

Counsel also referenced Section 79 of the Criminal Procedure Act No 32 of 1965 and the notable cases of Iajy - Deen v The State: and Mustapha Amara v The State Cr.App 4/13. The Applicant filed an Affidavit in Reply sworn to on the 3 day of August 2020. Counsel for the Applicant relied on the content of the said Affidavit in Reply. Counsel for the Applicant, argued that discretion cannot be circumscribed or resttict the discretion of the Court. Mr. Joseph Kamara for the Applicant referred the Court to the said case of Mustapha Amara v The State Cr. App 4/13 where bail was granted pending appeal. He argued that the Applicant having served 5 months in custody, is itself a substantial period served already. According to him, it is only after the expiration of the first 12 months that the next twelve months will be considered. In respect of the psychological impact the Applicant may suffer if granted bail pending an appeal as advanced by Counsel for the Applicant, Counsel Mr. Joseph Kamara had this to say: “let us out and we will not complain.” He further submitted that there is no commitment on the part of the State to bring out the records of the Court trial; which will trigger the appeal and as such he asked that the Applicant be put on bail pending appeal. SUMMARY OF SUBMISSIONS MADE BY COUNSEL FOR THE RESPONDENT The Respondent filed an affidavit in opposition sworn to on the 28th day of July 2020. Counsel relied on the entirety of the said affidavit, especially paragraph 6 to 11 and also referred the Court to the case of |shaka Sylvester Menjor v The State. In arguing his case, Counsel for the Respondent submitted that Section 67 (2) of the Courts Act aforesaid gives the Court discretion which must be exercised judiciously and in doing so, the Court cannot shut its eyes on the fact that the Applicant is not a trial Applicant as he had been convicted

and sentenced. He further submitted that if the Applicant is to succeed, he must show that unusual/exceptional circumstances exist. Counsel further advanced that the Applicant having served 5 months out of 24 months, does not mean that he has served a substantial portion of his sentence to warrant him being put on bail pending appeal. Reference was made to the case of Rex v Theophilus Adenuga Tunwashi,

The Law

Section 67 (2) of the Courts Act No, 31 of 1965 states that: “the Court of Appeal or the Court before whom he was convicted may, if it seems fit, on the application of an appellant, admit the appellant to bail pending the determination of his appeal.” In the leading Sierra Leonean case of: Honourable Mr. Justice M.O. Iaju-Deen v The State [2001] (unreported) The Hon. Mr. Justice N. D. Alhadi J.A. stated that, “the law has been consistent in its principle that bail will not be granted pending the hearing of an appeal unless the Appellant show special circumstances why bail should be granted.” The decision of the Court of Appeal in the Taju-Deen case was later upheld by the Supreme Court thereby endorsing the principles which the Court of Appeal had applied contrary to what leamed counsel JF Kamara for the applicant submitted There is therefore no question whether a convict can be released on bail. Counsel for the State submitted that the recognized and well established test when considering whether or not to grant bail pending appeal, is whether there are exceptional and unusual circumstances. What then are exceptional and unusual circumstances? It is the view of the Court that the expression ‘exceptional and unusual circumstances’ in the context of application for bail pending appeal means circumstances where on the other hand, it appears prima

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