Amadu J. Smith v S (CR APP 10 of 1994) [1994] SLCA 4 (31 January 1994)

< asBBe 10/02 " ‘DW THB COURT OP APPHAL FOR STMRRA IBONR CORAM: , HOV. MR. JUSTICE M.0. ADOPHY = Joris ow APPEAL(PRES1 TG) HON. i+ JUSTICE AB. TINBO - JUSTICE OF APPaAL = HOY. MRS. JUSTICE V.A-D+ WRIGHT - gusplce CF AFSUAL : BETWEEN 2 AMADU JUANA SHITH - APFELLANT We THE STATE - RESPO.DENT D.P.Pe With Hin Miss. Atiba-Davies, for the State - Respmdent Mes AsKehe Barber, for the Appellant. supa! LIVERED THIS 3197 DAY OF JANUARY, ADOPHY MeO. Jekt- Tho appellant then accused with four others were tried on a charge of Murder in that they on the 4th day of October 1990 at linba Vill -e jn the Southern Province of the Republi» of Sierra Leone murdered Ibrahim Kh The trial was held at the Bo High Court, the appellant was convicted an sentencea to death ty Njlendor Je The reot of the accused Persons acquitted and discharged. Tho sPpellant appealed to this Court against the conviction Qn the 26th of May 1995 at the bearing of the appeal before us learned counsel. assigned 0 arc:? this appeal on behslf of the appellant sought leav to amend the ground (s) of appeal dated 2nd Nay 1992 by substituting those contained in the amended grounds dated 12th Hay 1993+ Opjevtdont tot this application was raised but on the 30th June 1993, Miss Atiba-D,vies informed the Court that tho Iearned Director of Public Prosecutions now wishes to abandon hie objections Thereupon learned comsel for the appellant intimated the Court that he has since filed further additional grovnd of appeals Leave was accordingly sought and obtained to srjme the additions! ground d-ted 22n. June 19936 Thereafter loarned counsel for the appellant elected to argue ground 3 which is 3» "That the trial is a nullity tho ground that the appellant ¢ not i take his plea," cubnitting thercfron, that the appellant not having taken hi plea together with tho other four accused persons who were acquitted and dis orged the trial is 2 nullity. eocccceeee

nates A %- He therefore implored the Court thet appellant be not retried. Eelied an the “, case of Mohamed Bangura v Tho State Cre Appe 4/86 by Short J. Miss Atiba-Davies in her reply said inter alia that having gone through the original records of the High Court she was satisfied that the plea of the appellant was not resorded, conceded to the submissior -f leqrned counsel for the appellar+. . S but urged the court to order that the appellant be retried.

Qn our careful perusal of the records in the High Court as well as the typed records of the court, we were altogether satisfied that the ssid records bear out the truth of the findings of both learned counsel.

This appeal has inevitably made it altogether necessary for recourse to be had by this court to what is otherwise regarded and accepted as a very besic Principle in Criminal Procedures It has always been recognised and accepted that the arraignment of an accused person against whom an indictucnt has been Preferred and signed consists of three parts firstly calling the accused to tho bar by name, secondly reading the indictment ¢o him and thirdly asking him whether he is guilty or not guilty.

Accordingly as soon as the indictient has been read to the accused, the Registrar or other Of ise i Ska covrt inmands of him "How say you, are you guilty or not guilty". Section 132 of the Criminal Procedure Act Noe 32 of 1965 thus provide, "A person to be tried on any indictment shall be placed -+ the bar unre trereds unlese peencouns piel see.cause geeei se to order, ari the inai tment or” Shar gy fot the wot nea SEAR eTAE AOE Othey PETLCt. Ofticcr or the interprete of she court and such 2erson shall be required fortiwit to plead thereto, «ai, vhere the Person is entitled to service of a copy “i the indictment he shall object to the want of such service and the sourt sIr°2

find that he has not been duly served therewith".

There should be no ambiguity in the plea and the arraignment therefore 13 not complete till the accused has pleaded and his plea recorded accordingly. The plea of the accused is of such importance to the trial procedure that it has always been held that without it the court cannot exercise it jurisdiction to try the accused and a purported trial in the absence of a plea is null and void. See Monsw v The ltepublic (1971) 2c1R30 C.C.P, v Tagos (1962) 1" GIR

427. May I observe however that though these cases wero

3 summary trials yet it has never been in doubt that the principle should be to sate. It is also necessary to note that the plea and all disputes connect«: with it are dealt with by the Judge alon: irrespective of whether the trial 3 to be with jury.

*. ee ft As said before in this judgement we are totally convinced and satisfied 7 that neither was the appellant's plea taken nor was it ever recordeds Accordingly we have no hesitation in arriving at the decision that the ee purported trial of the appellant was a nullity and we therefore order that the appellant Anadu Juana Smith be retried. Eg Before concluding this judgement we wish to state without any equivocatio that learned counsel who appear in our Courts should never in such courts loose sight of or be indifferent to the principle that they too are "Ministers of Justices" It has always been said that even in the face of a misdirection it is proper and desirable that learned counsel should draw the attention cf the judge to the misdirection. See Edmund Thoms Southgate 47 Cre &ppe

252. Philimore J. in the summing up used the word "justify" on several occasions. At the end of the summing up, counsel drew the judge's attention to the use of that word and submitted that it was a departure from the langage of Section 8 of the Homicide Act 1957e The judge accepted the submission and thend irected the jucy that justify was not the correct word. Eammd Davies 1.J. in giving the judgement of the court said in the opinicn of the court counsel had in the circumstances adopted 9 203-ce wii.ch was cc mmendable and desirablee Ig counsel (for the prosecution or the defence) had but drawn the attent: <n of the trial judge in tk. ineten:s case » che apparent omission it should hav been recognised and corrected i1 limine, That simple, straight forward and inexpensive act would have ot riated what today amounts to and is looked upon as legal excursion, “a .tuer futility. Therefore ?— Trial of Amadu Juana Smith Bo High Court - Nullity Order —- Amadu Juana Smith Be Retried on charge o° lurder of Ibrahim Khan, (ca): oR Ree as ce ih Oe AOS Pi ics quatdeaser Appeal : (Sea) 4.0. Hans Me Tastee TSO eseseees Juste of Appeal é (aga) Seemed, ete Tee Me ccc hbitdoe af Appeal