Amadu Smith v S (CR APP 10 of 1992) [1994] SLCA 1 (31 January 1994)

Ve Gia sdee 10/2 .

INTHE COURT OF APFEAL PC) SIRRA TECTR

Coram

HON. MR. JISTICE 1.0. ADOPHY ~ TUT OP Areal (PRES 1 6) . HON. MR. JUSTICE Au. TIMBO = JUstick OF AFILAL HON. MRS. JUSTICE V-A.D. WRIGHT = FeVTOR Char LAL BETWEEN :— . AMADU JUANA SIITH - APFeLL..T VW. THE STATE - RESE uf D.-P.P. With Hin Miss. Atiba-Davies, for tie State - x cmdony Mr. AsKeAs Barber, for the Appellant. JUDGMENT DELIVERED THIS 31ST _Day Qe JANUARY, 4994, ADOPHY MoO. Jakt- Tho appellant then «cowed with four cthrs Kerr * ded a charge of Murder in that they on the “th day of October 1° O at Livba Vili + in the Southern Provir .3 0° (36 Ropuhl* ¢ Sierra Leone mudered ly. ahim hi The trial was held at tle Bo High Court, the appellant was ca.cted a sentenced to death ly Nvinder ve Whe r+. % Cf Une accused persons uquitte and discharged. Thu “prel’an. appeated to this Court agvinst the ictia Qn the 26th of May 1595 1t the hearin: of the appeal before us lcarned course) assiimed t¢ arc + this appeal on bchalf of the appellant sou: ht lea. to amend the ground (s) of appeal dated and May 1992 by substituting those contained in the amended grounds dated 12th May 1993. Objectdont tot ‘this application was reised but oa the 30th June 1993, Niss Aviba-D,vies i forne. the Court that the learned Director of Public Prosecutions now wisie:: to abandon his objection. Thereupon lear: 1 counsel for the «})ollari « itinate the Court that he has sirce filed furt! » -dditional grow. of api Lea was accordingly sought end olitnined to 1 0 the additio rounc ed 22: June 19936 Thereafter learned counsel for the ~;)ellant electe’ wgue und 4 which is

3. "That the trial is a nullity in the ground that the ay) tlant « ‘ take hia plea,” :ubmitting thos fren, tat the appellant act having + ken hi | plea together with the other four acct:d persons who wery .cquitted and dis ried the trial is a nullity.

~ 2 -| ct . He therefore implored the Court thet arpeliant be not reiricd, Icl cd am t case of Mohamed Bangura v The State Cr. Ape 4/86 by Short .. Nias tibael’. os in her reply said inter alia that having cone through the criginal «cords of tho Nigh Court she was satisfied t!at the plea of the appellani ..s not . recerded, conceded to the submission of 1:qrned counsel for the 1} llant but urged the court to order that the appellant be retried.

On our carefui perusal of the record: in the High Court as vei as the typed records of the court, we were altogether satisfied th t the © id rec dear out the truth of the findings of botl: learned counsel.

This eppeal has inevitably mde it »ltogether neceswary for ‘curse t be had by this court to what is othery so regarded and :cc., ted very ‘ Principle in Criminal Procedure. It tics lways been rece:tiised :\ «.ceept: that the arraignment of an accused Fors: against whom on indictio:. has b preferred ani signed consists of threc «ta firstly caili:- the owed t bar by name, Seconily reading the indici:.t go him and thirdly ¢y. cag Iu. whether he is guilty or nov cuilty.

Accordingly as soon as the indic: ut has been read to the num sed, tt Regastrar or other 0 ive +.» sornt nds of him "Now vay you, we yer guilty or not guilty". Section 132 of tiv Criminal Procedure Act Nie $2 cf 1965 thus provide, "* verson to be trie? » any indictmant shall + placed the bar unfettered, unlesr the, court ‘het 890 cause other ge to . ler, ai the auddethent Or chm @ft the cout wa’ ob alaea teresa SEBS. ores or the interprete™ of the c.urt and sucl. erson shall be required tf: rtiwit! WePtlal theta, ove the persur is eititled to service cf 1 copy the indictment he hall object to the w.nv of such service and the ourt si find that he has not been duly served “jrewith"s

There should eno ambiguity in the ~lea and the arraijmment. i’ crefor: not complete till he accused has ple ded and his plea recorded © °. rdingl: The ploa of the accused ia of such inst ince to the trial proce: that it has always been held that without 1 /:e court cannot exercise # jurisdiction to try the accused and a jwrorted trial in ii abserc of a ples 1s null and void. See Nensw vo‘ epublic (1971) 211R30 CaP, v Jagos (1962) 1." GIR

427. May I obser. iowever that tho there ».ses w summary trials yet it has never been in doubt that the principle «) wld be same. It is al.o necessary to note t.1t ~he plea and ail disputes onnect

. with it are dealt with by the Judge alone irrespective of whether i trial . to be with jury.

-3- Si . a8 caid before in this julgenent we are totally convinced and sa:isfied that seither was the appellant's plea taken nor wes it ever rucordede Accordingly we have no hesitation in arriving at the decision that th: purported trial of the appellant was a null ty and we therefore order that , the appellant Anadu Juana Smith be retried. Before concludi.g this judgement we wich to state withous any v - ‘vomtin that learned counsel who appear in our Courts should never i: suc) © arts lewse sight of or be indifferent to the princiyle that they too src “Min es of Justice." It has always been said the! aven in the face or \ mis tion it ic proper and desirable that lea:sed counsel “ould draw the uttentior the judi to the wisdireetions See Kdmund Thome cy vhgate 47 Cre iup. 252. ) climore -« in the summiny; up used the word "justif, © several occasions £2 7% oad ci the summing up, counsel drew tio juwige's attention to the use of t word ani submitted that it was a dep. -ture fro: te language of Section 8 of che Homicide Act 1957« The judge accepted +e submission and thendirccted the poy that justify was not the correct vo~s. Edmund Davies L.J. in siving the judgement of the court said in the opiniin f the court counsel had in the circumstancos adepted 9 «> .o ch yo on rendable and desirable.

If counsel (for the prosecution or the defence) had \ut drawn the atten’ of tle trial judge ge re incur AL @ apprrent omigsion it shiwld ha beon recognised and correcte’ + linire, Tint simple, straight forvard and inexpensive act would iave 2) -inted what tojay amounts to and is looked upon as lege] excursion, ©. ter futility.

Therefore i=

Trial of Amadu Juann Smith

Bo High Court

- Nullity

Crder = — Amadu Juan. “ith Be Retriva on chuge vder of Ibrahin hhany Hone lire -Austice le. adophy (Sed) Lecce lac ecaceeecessersstnvenstescesseres Custice of Appea! : Hone Mr. Yustice A-!s:imbo (Sed) seseeetlecrcasceestteesscseeesseneseceees Justice of Ajpes - Hone Mrs. Justice Veéw. Wright

(Sed) .escecveecerceccttctscrcssesscteasessess Uustice cf Apper!