Barrie & Anor v S (CR APP 8 of 1974) [1976] SLCA 2 (11 March 1976)

[197482] | SLBALR Barie & Ano v The State 2 BARRIE & ANOR v THE STATE cA

COURT OF APPEAL FOR SIERRA LEONE, Criminal Appeal 8 of 1974, Hon Mrs Justice

‘AV Awunor-Renner PJ, Hon Mr Justice $ B Davies JA, Hon Mr Justice S CE Wame JA, 11

March 1976,

{1} Criminal Law and Procedure — Evidence ~ Wrongful admission of evidence — ‘Whether murder conviction ought to be quashed ~ Whether evidence prejudiced defendant and affected minds of jury - Whether judge’s direction adequate

[2] Criminal Law and Procedure ~ Defences — Alibi - Failure of judge to direct jury on meaning of defence and burden of proof ~ Judge had a duty to make proper direction on defence no matter how weak

‘The appellants were convicted of murder and sentenced to death at the Bo High Court on 24

February 1974. In their defence, both appellants claimed that they were somewhere else at the

time of the incident. The two main grounds of appeal related to the wrongful admission of

evidence at tial and the judge's direction to the jury in relation to the appellants’ defence of alibi.

First, the appellants argued that a statement given by the second appellant's landlord to police during investigations into the alleged offence was wrongly tendered into evidence atthe trial by the prosecution. The landlord did not give evidence during the trial and when put into, evidence the statement had not been objected to by the defence. Counsel for the appellants argued that this statement had been wrongfully admitted and thatthe judge misdirected the jury ‘on it. Counsel for the State conceded that the statement had been wrongfully admitted but argued that forthe convictions to be quashed the court must be of the opinion thatthe evidence ‘0 admitted can reasonably be said to have affected the minds of the jury to have come to their verdict.

q ‘Second, the appellants argued that the trial judge failed to put the case for the defence adequately to the jury and that although the judge explained all the general defences like provocation, self defence and fighting, he never explained the defence of alibi which both appellants had raised as their defence.

Held, per Awunor-Renner PJ, allowing the appeal and quashing the convictions:

|. Where itis established that evidence has been wrongfully admitted the court will quash the conviction unless it holds thatthe evidence so admitted could not reasonably be said to have affected the minds of the jury in arriving at their verdict and that they could or must inevitably have arrived at the same verdict if the evidence had not been admitted. In ‘considering this question the most material matters are the nature of the evidence admitted ‘and the direction with regard to it in the summing-up are. The landlord's statement should rnever have been admitted and contained matters which were prejudicial to the 2" ‘appellant as it gave the impression that he was not at home on the night ofthe incident and that he had run away. This piece of evidence may have influenced the jury adversely as regards the 2" appellant and the judge's direction on this point was inadequate. This was ‘not a proper case in which to apply the provisions of s$8(2) of the Courts Act 1965. R v Parker (1960) 45 Cr App R 1, R v Fisher [1910] 1 KB 149 and R v Wesifall (1912) 7 Cr ‘App R 176 applied.

2. It was a well known principle of law that a judge in his summing-up is bound to put the

| ccase for the defence, however weak, to the jury. The judge should have explained to the

8s Sia Lene Bar Assim Law Reps (197489) SLBALR

jury what an alibi was and fuber directed them on the burden of proof when such a

defence is raised. When such defence is raised the jury cannot convict unless they

definitely eject it. The judge should have treated the defence put forward by bash

appellants more seriously and directed the jury on this point more adequately than he dd.

In failing todo soa miscariage of justice may well have occured and therefore the appeal

rust be allowed also on this ground. Rv Dinnick (1909) 3 Cr App R77, Rv Kwabena Bio

XIWACA Reponts 49 and Rv Thomas Finch (1916) 12 Ce App R.77 applied.

Cases referred to

Rv Dinnick (1909) 3 Cr App R77

Ry Fisher {1910} 1 KB 149

‘Ry Kwabena Bio XIWACA Reports 49

Ry Parker (1960) 45 Cr ADDR

Ry Thomas Finch (1916) 12Cr App R77

Ry Wesfall(1912)7 Cr App R176

Teper v R 1952) AC 480

Legisttion referred to

‘Courts Act No 31 of 1965 5 582)

Criminal Procedure Act No 32 of 1965 ss 65, 19002)

Other sources referred to

Archbold 36th Edition paragraph 928

Appeal

“This was an appeal by Mohamed Bamie and Amadu Barrie against conviction for murder and sentence to death atthe Bo High Court on 24 February 1974 forthe murder of one Lappia Bindi. The facts appear sufficiently in the following judgment.

DrA0O Conteh and MrT Terry for the appellants

‘Mr Bankole Thompson for respondent.

AWUNOR-RENNER PJ: The appellants were convicted and sentenced to death atthe Bo High Court on the 24° February, 1974 forthe murder of one Lapia Bind. The appellants have now appealed against their conviction

“The prosecution's case briefly is as follows. On the night of the 20" May 1973, the deceased was at home with some women and so was one ofthe witnesses forthe prosecution Francis Alli. lic said he heard some people who were walking down the stret talking He later on saw them walking towards the house of the deceased. His house he claimed was 30 ‘yards away from that of the deceased and the moon was shining that night so he coud see ‘early,

[Not long afterhe heard gunshots and some women shouting in the house ofthe deceased He claimed he stood by his window and saw two men enter the house ofthe deceased whilst the ‘others were huring stones at his house. Later on he heard the sound of gunshexs again and the voice of the deceased exclaiming in Mende that he had been killed and a voice asking for money. He continued to narrate the conversation he heard between the deceased and the men in the house. At one stage he claimed he heard the deceased ask for him and he opened his door and tookhis sword to go out. Then he sid the 1* appellant became abusive and pointed pistol fat him and also shot ae killed his dog. The 2™ appellan was tanding close by witha match. He threw a stone a the 1" appellant which hit him andthe 1* appellant fl tothe ground then ‘got up and ran away. The 2 appellant also ran away. When he went into the deceased's house

i974 SLL Banie& Anoew The Sate “ bt the deceased he suid was covered with blood and be ave his people to take him tothe hospital in Bo Later on e collected some peopl and they went o look forthe appellants. The 1 appellant was arested ina bush by one Joseph Masaquo. The 2% appellant was later on arrested also. At the time he hit the 1* appellant before he ran away 1 appellant had dropped his torchlight and one of his shoes, which this witness alleged he was able to identify. Both appellants were subsoqderty pointed out at an identfiaton parade.

‘The 1 appellant denied being athe scene. In is statement fom the dock he aimed that he had gone to Menjen hospital to look for someone and was aested when he was tung home. This was also what he moe or les sid ins statement, Exhibit “E" which was tendered imevidence bythe prosecution

“The 2 appellant also claimed to have been working in his shop at the material time in his statement from the doc In his statement tothe police Exhibit “G" however he claimed that he had gone to Fretown to buy nails and leather and that on his retum he beard that a man had ten led atthe village of Kpetema. He denied all he allegations made aginst him.

“The appellants have appealed agnns thir conviction on several grounds but we ony propose to del with the grounds, which in our opinion we think were substantial grounds. One Ech ground under which the appeal was based vas that nadmissible evidence was admited on teal of the proseation a the tal ofthe appellants. The evidence in his case was Exhibit “J” {statement len ffom one George Ansumana the landlord of the 2 appelant by te police during invesigations nto the alleged offence. Ansumana never gave evidence at all during the ‘whole case This satement although not objced to was tendered in evidence by the roscution. Counsel forthe appellants argued that his statement had been wrongfully admit nd that judge's rection n it was woefully inadequate to the exten that twas tantamount toa misdecion.

“The other substantial ground of sppeal sed by counsel for the appellants was that the teamed il je failed to put the cas forthe defence adequacy tothe jy and that alough ‘the learned trial judge explained all the other general defences like provocation, self defence and fighing wich are applicable in cases ofthis nae 10 the jury, he never put forward the <etence of alibi which both ppl had raised to the jury. Finally be sid that the learned il dae usurped the functions ofthe jury and ected the court's tention to several passages in the judge's smming-p.

“The other grounds of appeal we do nt fest we cught ober wih

Counsel forte stat more or es argued that most of the grounds of appeal were without merc Fe came that he case fr the defence was adequately ut tothe jury. He conceded that Exhibit “J” had been wrongfully admitted but for the conviction to be quashed the court must be ofthe opinion that the evidence so admited can reasonably be sido have afeted the minds of he jury to ave come to ther verdict The matter contained in Exhibit “J could not have affected thir minds at al having regards othe nature ofthe dretion given by the learned tial judge iis summing.

In a case where evidence has been wronfly admit the est vo apply i ai down in Archbold 6h Eton at paragraph 9283 follows: quae

“Where itis established that evidence hasbeen wrongfully admit the cout wil quash

the convicdon uns it holds tat the evidence so admit could nt reasonably be sid to

have affected the minds of the ary in arving at tet verdict and that they cou or must ineviably have arived atthe sume verdict if the evidence had not been admited. In

Consdenng this question the nature of the evidence so admit andthe direction with

regard toi inthe summing-uparethe mest rater mates.”

8 Sia Leone Ba Assocation Law Repos (0974821 SLBALR

In the case of R v Parker (1960) 45 Cr App R 1 the appellant had been charged with ‘wounding his wife with intent to cause grievous bodily harm. AL the tial the licensee of the public house where the incident took place gave evidence forthe prosecution and before he ‘could be stopped said: “she came in her face was all bleeding and she sid he shot me, he said he would.” The judge did not hear the remark and it seemed to counsel that the jury probably thad not heard it. At the conclusion of the summing-up when the jury was about to retire a juror ‘ut a question othe judge which indicated that he had heard the whole ofthe above mentioned

Evidence

The judge did not discharge the jury but gave them a strong direction that they were ‘not to attach any weight to the evidence ofthe license. It was held by Lord Justice Ashworth applying the test laid down by Lord Normand in the case of Teper» {1952] AC 480 thatthe fair test in deciding whether the admissible evidence was s0 prejudicial and so likely to influence the jury that the matter would not be cued by the judge's direction was whether there was a probability thatthe improper admission ofthe evidence had tured the scale aginst the accused person. ,

Also inthe case of R'v Fisher {1910} 1 KB 149 a conviction was quashed where evidence was wrongfully admited and it was felt thatthe evidence may have influenced the jury. Again in the case of R v Westfall (1912) 7 Cr App R 176, where evidence was wrongfully admitted of 4 prisoner's bad character which was greatly prejudicial to the defence the convition was quashed

Now let us look at Exhibit “I” and see what can be made oft. Ihave already stated what it ‘was above but not how it came to be admited in evidence nor what its contents were and the judge's dection on it, and finally what in my opinion would have been the effect on the jury and whether the provision of s 58(2) of the Courts Act No 31 of 1965 could properly be applied inthis instance.

Exhibit *” was ede in vides by PW Lanin Vani ole Copal vio id that when he was investigating the matter he checked with the landlord ofthe 2 appellant who ‘ade a statement to him. He said he took down the statement on the 4* June 1973 he then produced ths statement as Exhibit J” and no objection was raised as tits production or as tit being tendered in evidence now propose to quote certain portions of Exhibit“ which reads as follows:

“On one Sunday moming the day ofthe Kpetema incident I was in my house as Iam sick

‘when one of my wives called Theresa informed me that Mohamed who was staying with

‘Barrie has reported to her that his brother (Barrie) has not been seen since Saturday night

before the Kpetema incident. I was at home for the whole Sunday up to the aftemoon

hhours when Bare came home. Bare greted me and I answered but I didnot tak to im,

1 did not ask him about his whereabouts. On Monday night again Mohamed who was

staying with Barre told me that Barie had removed all his property from the room and

that his whereabouts was not known. I went into the room and observed that some of his

belongings had been removed. Since then I did not see Barre unt the 20" May 1973.”

Quite clearly this evidence should not have been admitted in the fst place. The maker of Exhibit “J” George Ansumana never gave evidence inthe whole case. This is also not the case where we could apply s 65 ofthe Criminal Procedure Act No 32 of 1965 or s 19042) of the ‘Criminal Procedure Act No 32 of 1965. Further more the whole statement Exhibit “Fis fll of hearsay evidence. Under the circumstances one could quite rightly say that Exhibit “J” was ‘wrongfully admit.

‘As regards the judge's direction on Exhibit “J this is contained in page 93 ofthe record. I quote fom his surnming-up:

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