Challey & Ors v S (CR APP 12 of 1974) [1976] SLCA 3 (3 June 1976)

{197482] 1 SLBALR Challey & Ors vThe State 106

CHALLEY & ORS v THE STATE cA COURT OF APPEAL FOR SIERRA LEONE, Criminal Appeal 12 of 1974, Hon Mrs Justice A V Awunor-Renner PJ, Hon Mr Justice $ Beccles Davies JA. Hon Mr Justice SCE ‘Wame JA, 3 June 1976

{1) Criminal Law and Procedure - Murder ~ Summing up ~ Judge entitled to express ‘opinion on facts but issues of fact must be left to jury ~ Whether proper direction ‘would have resulted in same verdict

‘The appellants were convicted of the murder of one Boi Sei, who went missing while she was

fishing. The deceased's body was never found. There were allegations thatthe appellants had

arranged for the deceased to be captured and murdered in order to obtain her body parts to prepare a certain type of medicine. The appellants were sentenced to death. The appellants appealed against conviction on several grounds: (i) thatthe comments of the judge in his summing up about the 3" appellant when she was told thatthe deceased was missing gravely prejudiced the appellants and was a misdirection; (i) tha the judge's direction conceming the common design of the appellants in attacking the deceased was a misdirection on the evidence: (ii) that the judge fale to put the case forthe defence adequately and properly.

Held, per Awunor-Renner PJ, allowing the appeal:

1. A judge is entitled to express his opinion on the facts of the case, however strongly, Provided he leaves the issues to the jury to determine. In this case, the judge was ‘expressing is opinion though strongly but was not inviting the jury to form an adverse ‘opinion of the appellants and quite clearly he lft the issue of fact tothe jury to determine ‘on these particular points. R v Gerard (1948) 32 Cr App R 132 and R v O'Donnell (1917) 12Cr App R 219 applied.

2. The absence of a corpus delicti was not material provided there was strong circumstantial evidence to prove that the deceased was dead. However, there was no evidence that the deceased died as a result of an attack on her by the appellants and no evidence thatthe appellants were anywhere near the scene when the deceased was alleged to have been dragged into the water. The judge's statement complained of in this respect was one which the jury may have attached some imporance to and which could not clearly be erased from their minds. There was clearly no evidence to support the judge's statement. a8 the appellants were somewhere else atthe time the deceased was dragged into the water. It ‘could not be said with certainty tha the jury if properly directed could have arived at the same verdict. The appeal must therefore be allowed on the first count. R v Cohen & Bateman (1909)2.Cr App R 197 and R v Eilsom 7 Cr App R 4 applied.

Cases referred to

Ry Bangura [1968-1969] ALR (SL) 209

Ry Chan Wai-Keng (1967) | AIIER 948

Ry Cohen & Bateman (1909) 2Cr App R 197

Ry Ellsom7 Cr App R4

R v Gerard (1948) 32 Cr App R132

Ry George Burgess 52.Cr AppR 258

Ry Naylor 23 Cr App R177

Rv O'Donnell (1917) 12.Cr App R219

Sie Leone Bar Assit Law Reports {197482} 1 SLBALR Rv Peter Jones Moon S2Ct App R 12

Rv Prater [1960] 44 Cr App 83

Ry Sallah 4 WACA 10

Ry Willams Ovenell Walter A Carowright Ld 52 Ct App R167

Legislation referred to

Lawes of Sierra Leone (Cap 60) $7(5)

Other sources referred to

Archbold 36" Edition at paras 565, 931, 932

Appeal

‘This was an appeal by Kain Chlley,Pich Mabetch and Yema Keteke against convictions for murder and agreement to deal in person contrary tos 7(5) of Cap 60 of the Laws of Sierra Leone. The facts appear sufficiently in te following judgment.

DrA0O Conteh & Mr'M Terry for the appellants.

“Mr Bankole Thompson forthe Sate.

AWUNOR-RENNER PJ: The appellants were convicted atthe Moyamba High Court on ‘Wednesday the 10 day of April 1974 forthe following offences:

(1) murder and

(2) agreement to dealin person contrary to $7(5) of (Cap 60) of the Laws of Sierra Leone and sentenced to death onthe I" Count. No sentence was passed onthe second count

| will now try to set out the salient facts ofthe case as briefly as possible. According othe prosecution on or about the 23 day of March, 1972 the deceased one Boi Sei was living at Mole Village inthe same house asthe 2 and 3" appellants. The 2 appellant isthe son of the 3° appellant and the deceased Boi Sei was the grand- daughter of the 3% appellant. ‘According to one of the prosecution witnesses Ramatu Yeama and Boi Sampha who are inmates ofthe same house asthe deceased and the 2 and 3 appellants, two strangers came 19 the house ona certain day to vist the 3 appellant who cooked food for them before they went ‘vay. The I" appellant was one ofthe stangers. On the following day Ramatu Yeamsa, Boi Sampha and Momowoe went to a fishing ground called Pampally 1 fish at the request or Girecton of the 3% appellant. Ramana Yeama said that whilst they were fishing she saw a submerged cance in the water. She saw a hand come out ofthe canoe (kunkubay) and dragged the deceased Boi Sei into the water. She was never seen again and neither was the body of Boi Sei ever found. When the 3" appellant was informed about what had happened by Boi Sampha and Ramatu Yeama, itis alleged that she did not say anything. Another proscution witness ‘Amidu Challe, son of the * appellant, who claimed that two strangers came to vst is father, the 1* appellant, and that 1" appellant asked him to escort them to the wharf on one occasion but that he refused ashe did not know what they were about. His father he said had told him that he, the 1" appellant, was going to Moville for medicine, but did not tll him what sort of medicine it was. He also alleged that before Boi Sei went missing he had sen the two strangers anda third person in the bush with a pot in her midst.

‘The 1" appellant, he also claimed, used to vist the 2" and 3 appellants at Movil. The ‘appellants also made various statements which were tendered in evidence by the police. This then i the gist ofthe prosecution's case agains the appellants.

‘The appellants onthe oer hand, made statements from the dock in which they denied ‘knowing anything about the matte, but their various statements, which were tendered in evidence by the prosecution. i different mater.

| (197489]1 SLBALR Challey & Ors» The State i

‘The 1% appellant in his statement, Exhibit “A”, denied making any offer to the 3% appellant forthe deceased. He claimed that he went to Moville Village on the 4" day of March ‘1972 and that it was then that he called at the house of the 3" appellant where they settled a dispute about a cance. Ina second statement, Exhibit “G", he however admited that he was a rember of a cannibal society. In the same statement he admitted knowing about the offer of

: Le80.00 which had been made for the deceased to the 3” appellant and they also made arrangement a to when the gil would be caught with ther kunkubay along the river, but that he was not presen in the village when the gil was caught. He alleged that he had gone to visita friend of his at Dembu Village and only heard about the capture ofthe gil on his return. He farther sai that he didnot know whether Boi Sei the deceased, was alive or dead and that she ‘may have been caught by some other people.

‘The second appellant on the other hand, also made statements, which were tendered in evidence by the police. In his statement, Exhibit “J” he alleged that the I" apellant approached

’ him and sad that he liked the deceased. In fact he said thatthe 1* appelane approached him

4 ‘several times about the deceased and finally said that he wanted the body of the deceased to prepare a cenain type of medicine and that he told him thst if anything should happen to the ‘girl he would be held responsible. He said that on the 21" March, two men also came to enquire ‘bout the deceased. On the following day he said he went toa village called Mo-John, aftr that he went to anther vilage calle! Manu where he spent the night with one Yeama Nao and that it was whilst he was there tat he heard thatthe deceased was missing and had been drowned. He sai it was he who explained everyting tothe Chief when he was arrested.

Again in another statement, Exhibit“ the ™ appellant aed that he was at his house when his uncle one Abdul Rahman Bundy came to the house and asked his mother and himself to offer him Boi Se, and he promised to give them the sum of Le80.0. He sid he had wanted to explain tothe police bu that a certain ceremony had been performed on him and be was unable to talk.

“The 3" appellant also made statements which were tendered in evidence by the police. In Exhibit “B” in which she admitted that Kain Challey the 1* appellant had made an offer to her j for Boi Sei to use her body to prepare juju. She sid that she agreed to the offer. Later on she ‘sid that two men came to see her and that Boi Sei was later on caught along the river when she ‘went to fish.

Again in ancber statement, Exhibit “H", se admitted that her brother one Abdul Bunda ‘was the fit person who approached her about the deceased. She agreed to offer the deceased for Le80.00 which she claimed was never given to her before the deceased was caught along the river.

A number of intresting points have been argued in this appeal and I now propose to deal

: ‘with these grounds of appeal which in my view are the most substantial ones

One of the grounds of appeal raised by counsel for the appellants was that the learned trial judge made unfair and prejudicial remarks in his summing-ip on the conduct of the accused ‘hich gravely prejudiced ther cae. The isto the statements complained of read as follows

“Ramatu Yeama reported matter (that isthe disappearance of the deceased) to the third

‘accused and others. The 3% accused did nothing about the matter but perhaps this is

Understandable. However the matter was reported tothe Chief who organized search

pany, he organized a search party which searched the creek but was unable 1o trae the

body of Boi Sei who hs since not been found”

‘The next statement ofthe judge, complained of also reads a follows

@ Sia Lone Bar Asoxiton Law Reps {197482} SUBALR

“Further, the witness said she told the 3 accused that they had caught Boi Sei but thatthe

3% accused said nothing. Gentlemen ofthe jury put yourself in that positon, your relative

‘or more so your grandchild, you are informed that where the child went to fish something

had happened to her and you remain so complacent and you did nothing. that is, provided

‘you believe the evidence of PW. To quote the witnesses words “she did not say a word”.

‘The third statement complained of rads thus

“These two strangers according to the witness went again tothe 1* accused. The witness

continues the 1" accused then asked me to accompany the two strangers, again I refused.

‘Do you blame him? He had to disobey his father".

‘Counsel forthe respondent argued that the judge was entitled to tke comments and that the comments complained of did notin anyway prejudice the accused. I must say at this stage that as regards the second statement complained of although the judge had commented on the silence of the 3 appellant, and the 3" appellant not doing anything when he was informed of iS ‘what had happened to Boi Sei he had ended up by saying provided you believe the evidence of WI. Again in his summing-up the judge had directed the jury as follows:

“But T must remind you that you have to consider the entire evidence. both the case of the

prosecution and the defence before you can say that the accused persons are not-guity or

tha they are guilty”.

‘Counsel for the appellant i inviting this court to say thatthe comments made bythe judge in his summing-up about the 3° appellant when she was tld that Boi Sei the deceased was missing was a misdirection. In the case of R v Gerard (1948) 32 Cr App R 132 at page 134, ‘where the appellant on being arrested said what [have to say I will say to the cour andthe tial judge in his summing-up commented to the effect that ifthe appellant was innocent it was ‘somewhat curious that he had made that statement when he had not been charged. Humphrey J had this to say

“It could be a misdirection only if it was an invitation to the jury to form an adverse

‘opinion agains the applicant because he didnot then give an explanation”. ,