Baby Alieu v S (CR APP 12 of 2010) [2019] SLCA 26 (29 January 2019)

. —l4t- 2 Cr App 12/2010 (de aby - IN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN: 2 BABY ALLIEU = APPELLANT. AND i THE STATE - RESPONDENT

Coram

‘THE HONOURABLE MR JUSTICE N C BROWNE-MARKE JUSTICE OF THE SUPREME COURT THE HONOURABLE MRS JUSTICE N MATTURI-JONES AG JUSTICE OF THE SUPREME COURT ‘THE HONOURABLE MR JUSTICE SM MARGAT, JUDGE COUNSEL: IMS SIMITIE LAVALY for the Appellant MMONFRD M SESAY ESQ for the State/Respondent JUDGMENT DELIVERED THE 29"" DAY OF JANUARY, 2019 BROWNE-MARKE, JSC 1, This is an appeal brought by the Appellant by way of Notice of Appeal dated 7" December, 2010, It is at pages 70 - 73 of the Record. The grounds of appeal are as follows

(1) That the Learned Trial Judge failed to record his summing-up or, to make arrangements for recording the same.

(2) That the Learned Trial Judge failed to inform the accused of her right to appeal against conviction.

(3) That the Learned Trial Judge in his direction to the jury, ignored and/or misconstrued the evidence relating to self-defence and/or > provocation

E — 18-

(4) That the Learned Trial Judge did not properly or at all consider the 7 Appellant's case as put by her Counsel.

(6) That the mandatory death sentence for a conviction of murder isa breach of the accused's constitutional right to a fair trial,

(6) That the whole trial was a miscarriage of justice. :

2. The relief sought from this Court is that the conviction be overturned, and that the Appellant be acquitted and discharged.

3. At the hearing of the appeal, two grounds were substituted in place of the above ones: (i) That the Learned Trial Judge failed to put the accused in the charge of the jury contrary to section 187 of the Criminal Procedure Act, 1965. The second additional ground was a reworking of the original ground

3. Tt related to the non-direction, or, misdirection on the law relating to selfdefence and to provocation,

(

4. The trial was held at the Kenema High Court presided over by The Hon Mr Justice MF Deen-Tarawally, then a High Court Judge, now a Justice of Appeal. The trial started on 21st September, 2010, and was concluded on 19" November, 2010 when the Appellant was found guilty of the of fence of ‘Murder with which she had been charged, and was thereupon sentenced to death. On 27th April, 2012, she was granted a partial pardon by the President, and her sentence was commuted to that of life imprisonment. According to Ms Lavaly, she was at the time, i.e. 2014 the only female prisoner serving life imprisonment. The appeal was delayed because of the absence of a written record of the Learned Trial Judge's summing-up as evidenced by Ms Lavaly’s letter to the Registrar of this Court at page 1 of the Record, It was for this reason that this Court granted the Appellant leave to file her appeal out of time notwithstanding the express provisions of Section 64 of the Courts’ Act, 1965 as amended, and Rule 39 of the Court of Appeal Rules, 1985. Compelling and credible evidence was shown to the Court that the Appeal had not been filed in time because the Appellant was completely unaware of her rights, the Correctional Service no longer having in its employ a welfare of ficer who would have assisted her in this regard, and she not being able to brief Counsel to act on her behalf after her conviction. 2

5. Though it has been abandoned, we are of the view that we must make a pronouncement on the original ground 1, i. that relating to the absen-e of a

we —14- written record of the summing-up is not tenable in view of the binding . decision of the Supreme Court in SC Crim App 1/79 - THE STATE v BRIMA DABOR - judgment delivered 1" November, 1979. There, the Supreme Court laid down that the absence of a summing up does not by itself, nullify @ conviction, nor does it render a guilty verdict unsafe and unsatisfactory. + This ground therefore fails,

6. Weare also of the view that we ought to deal with the original Ground 2, in view of the course taken for this appeal to reach this Court. As respects ( that ground, it is true that Section 212 of the Criminal Procedure Act 1965 as amended (hereafter, "CPA,1965") does state in imperative terms, the following: * The Court shall inform every person condemned to death of the period within which, if he desires to appeal, his notice of appeal or of his application for leave to appeal must be given."’A trial judge is enjoined to do fi this because a person convicted of a capital offence cannot, as of right, apply for an extension of time after the 21 day period for doing so stipulated in section 64 CPA, 1965, has elapsed, This is the literal meaning of the proviso to the said section 64 which reads as follows: “Where a person convicted desires to appeal to the Court of Appeal, or, to obtain the leave of that Court to appeal, he shall give notice of appeal or, notice of his application for leave to appeal in such manner as may be directed by Rules of Court within 21 days of the date of conviction: PROVIDED that, except in the case of a conviction involving sentence of death, or, corporal punishment, the time within which notice of appeal or, notice of an application for leave 70 appeal may be given, may be extended at any time by the Court of Appeal, or, by the Court before whom the appellant was convicted" Rule 39 of the 1985 Rules of this Court are couched in nearly identical terms.

7. When the Appellant first appeared before us, it was in connection with her application for leave to appeal out of time. The Court was not originally inclined to grant the relief sought because it felt itself bound by the express terms of the law in question, It was then brought to this Court's attention that there were several other women in the same position: they had been convicted of Murder, but had failed to appeal within the 21 day period due to ignorance of the requirements of the Law. This Court felt that

2 notwithstanding these express provisions, it was necessary, in the wider interests of justice, that appeals out of time should be allowed to all those

F —Zo-

convicted of capital of fences, The Appellant is a beneficiary of this Court's

: willingness to see that justice is done in appropriate cases. She cannot then turn this opportunity or lifeline into an offensive weapon directed at the Court below. As such, this ground fails also.

8. The new Ground 2 contends that no proper direction was given by the a

- Learned Trial Judge on provocation and on self-defence, and that therefore, the conviction ought to be quashed as it would be unsupported by the evidence led at the trial, and would indicate that the Learned Trial Judge

( had not dealt adequately, or, at all, with the defence case. That being the case, the result would inevitably be a miscarriage of justice.

WHETHER JURY WAS EMPANELED AND ACCUSED PUT IN ITS CHARGE

9. As the contention of the Appellant is that the Appellant was not put in the

( charge of the jury as required by section 187 CPA, 1965, let us examine whether this was so, and the effect it has. The issue of the proper procedure to be followed in criminal cases has arisen in cases which were tried in the Provinces. In another appeal argued by Ms Lavalie, to wit, ATAH GBEKAY v THE STATE, the same issue arose. There, a fresh juror was added on, but the whole jury was not re-sworn. Additionally, the same jury continued to participate in the trial through several criminal sessions, That appeal will also be decided today.

40,1 have gone through the whole of the Record, including the Committal proceedings at pages 1 -

35. Nowhere is it recorded by the Learned Trial ‘Judge that a jury was ever empaneled. The case was first called up on 21 September, 2010, This is recorded on page 36 of the Record. The Learned Trial Judge minuted: “Case called. TPM Sowa for the State present. Accused present. PWL absent. CO MARTYN. Accd plea N/G TP M Sowa applies Accused remanded in custody. Subpoena to be served on witness. Ajd t0 30/9/2010."

11. On page 37 of the Record, it is recorded that the case was called up on 13 October,2010, There is no mention of a jury being empaneled, Mr Sowa opened for the State, and what he said was recorded on page 38, At the bottom of page 38, it is recorded that PW1 Fatmata Vincent, began

= testifying. Her testimony ended at page 42 where it is also recorded that

the case was adjourned to 18'" October, 2010. There are no minutes for 18"

The pages read for this report end here. The judgment continues in the PDF.