Alfred Paolo v S (CR APP 5 of 2020) [2020] SLCA 26 (14 August 2020)

. CRAPP 5846/2020 : IN THE COURT OF APPEAL OF SIERRA LEONE {CRIMINAL DIVISION) 2 INTHE MATTER OF AN APPLICATION FOR BAIL PENDING THE HEARING AND DETERMINATION OF THE APPEAL PURSUANT TO ORDER 87

(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 RULING DeuverED THis !4"Day OF AUGUST 2020 Introduction and Background On the 15m day of July 2020 the Appellant/Applicant filed a Notice of Motion dated the 14" day of July 2020 seeking the following

Orders

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

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2. Any further or other order/s that the Court may deem fit and : just. The applicction was supported by the Aificevit of Major (Rtd) Alfred Palo Conteh swom to on the 14” day of July 2020 together with four exhibits atlached 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 2020;

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/Appellant filed an Affidavit in Roply sworn fo on the 34 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 $7 (2) of the Courts Act No 31 of 1965. He argued that the Applicant was a firs! ime 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 macle on the writien ancl oral submission ciled by

“| the Applicant's solicitor, Dr. A. O. Conteh, He further argued that the

3ol +. Applicant may have served his sentence before the appeal is heard. Counsel also referenced Section 79 of the Criminal Procedure Act | No82of 1965 and the notable cases of Taju — Deen v The State; and ‘Mustapha Amara v The State CLApp 4/13.

* The Applicant filed an Affidavit in Reply swom to on the 30 day of August 2020. Counsel for the Applicant relied on the content of the said Affidavit in Reply. Counsel for the Applicant, argued thal discretion cannot be circumscribed or restrict the discretion of the Cour. Mr. Joseph Kamara for the Applicant referred the Court fo 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, itis only after the expiration of the first 12 onihs that the next twelve months will be considered,

In Fespect 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 SUMMARY OF SUBMISSIONS MADE BY COUNSEL FOR THE RESPONDENT The Respondent filed an affidavit in opposition sworn to on the 28% day of July 2020. Counsel relied on the entirety of the said affidavit, especially paragraph 6 fo 11 and also referred the Court to the case | of Ishaka Sylvester Menjor v The State. in arguing his case, Counsel for the Respondent submitted thal Section 67 (2) of the Courls Act aforesaid gives the Courl discretion which must be exercised judiciously and in doing so, the Cour! cannot shut ifs eyes on the fact 4) [hal the Applicant is not a trial Applicant as he had been convicted

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7 and sentenced. He furlher submitied that if the Applicant is to succeed, he must show lhal 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 fo 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. Taju-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 learned 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 fo grant bail pending appeal, is whether there are exceptional and unusual circumstances. Whal then are exceptional and unusual circumstances? Il is the view of the Court thal the expression ‘exceptional and unusual * | circumstances’ in the context of application for bail pending appeal

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