Dumbar v S (CR APP 26 of 1971) [1972] SLCA 1279 (15 February 1972)

SECTION 7 DUMBAR v. STATE, 1972-73 ALR S.L. 41 DUMBAR v. THE STATE Court of Appeal (Forster, J.S.C., Cornelius Harding and Percy Davies, JJ.A.): February 15th, 1972 (Cr. App. No. 26/71) C.A. [ 1] Criminal Law-insulting conduct-charge-defect in form without defect in substance of charge not prejudicial to accused in case tried without objection by defending counsel: A charge of insulting conduct towards another person or persons, contrary to s.3 of the Public Order Act, 1965, does not require the person or persons to be identified; nor does the use of the phrase "any or other person" instead of "any other person" render the charge bad for uncertainty since it does not affect the sub stance of the charge; moreover, where the accused is represented by counsel who allows the trial to proceed without objection, at which trial the accused himself gives evidence, the accused cannot then claim to have been confused, prejudiced or embarrassed by the phrase in the conduct of his case (page 4 7, lines 16-22, lines 32-34; page 49, lines 3-18).

[2] Criminal Law-insulting conduct-charge-identification of person or persons insulted not required under s.3 of Public Order Act, 1965: See [1] above.

[3] Criminal Law-insulting conduct-elements of offence-intent to provoke breach of peace to be established-experienced politician would reason ably foresee hostile reaction to insulting words at public meeting: When a person is charged under s.3 of the Public Order Act, 1965 with using insulting words with intent to provoke a breach of the peace at a public meeting, the intent of the offender is an essential ingredient of the offence; and the fact that the accused is a politician of long-standing experience may indicate that he would reasonably have foreseen and therefore intended a hostile reaction to insulting political remarks (page 4 7, line 36 -page 48, line 32). [ 4] Criminal Law-insulting conduct-interpretation-words considered in sulting contrary to s.3 of Public Order Act, 1965 to be interpreted in context in which spoken: Words which are alleged to be insulting contrary to s.3 of the Public Order Act, 1965 must be interpreted in the context in which they were spoken to determine whether they would amount to insulting conduct under the section (page 49, lines 22-27; page 50, lines 30-34). [ 5] Criminal Procedure-charges-form of charges-defect in form without defect in substance of charge not prejudicial to accused in case tried without objection by defending counsel: See [ 1] above. The appellant was charged in a magistrate's court with insulting conduct contrary to the Public Order Act, 1965, s.3. The appellant, a clergyman who was also a politician of long standing experience and a supporter of an opposition party, attended a public meeting at Koidu at which the Prime Minister

and other top-ranking politicians were present. The appellant alleged that after the opening speeches he asked for permission to address the Prime Minister, which was refused, and that he then sat down, saying as he did so that he was sorry for Sierra Leone 5 and for the Kono country. Becoming alarmed at the audience's mounting excitement he then left the hall, when he was set upon by a mob of young men who came running from inside the hall, threw him on the ground and beat him up. After the incident the appellant was arrested and charged with insulting conduct contrary 10 to the Public Order Act, 1965, s.3. Neither the place where the offence was alleged to have been committed, nor the person or persons alleged to have been provoked into committing a breach of the peace, were identified in the charge. At the trial in a magistrate's court the appellant pleaded not 15 guilty and made a no case submission which was overruled. The magistrate found the words spoken by the appellant at the public meeting to have been insulting and uttered with a view to provok ing a breach of the peace, and that a breach of the peace had in fact occurred. The appellant was found guilty, convicted and 20 sentenced to two months' imprisonment. On appeal to the High Court the appellant contended, inter alia, that the charge against him was bad for uncertainty and/or vagueness in failing to identify the place and the persons involved in the incident; and that the use in the charge of the phrase "any 25 or other person" when referring to the person or persons who were provoked was not merely unfortunate, but confusing and prejudicial to the appellant in the conduct of his case. The appel lant further contended that the circumstances in which he uttered the words complained of were such that they were neither threat- 30 ening nor insulting and that his conviction was unreasonable and such as could not be supported by the evidence. The State contended that since counsel for the appellant had not objected to the wording of the charge at the trial, but had submitted to the jurisdiction of the court and allowed the trial to 35 proceed, the appellant was well aware of the case he had to answer and had not in any way been prejudiced in his defence by the wording of the charge. The State also contended that the true meaning of words can only be gathered from the context and that the words "I am sorry for Sierra Leone" implied that the Prime 40 Minister and his government were not working in the best interests of Sierra Leone: the words were clearly insulting and uttered with

DUMBAR v. STATE, 1972-73 ALR S.L. 41 C.A. intent to provoke a breach of the peace. The High Court (Tejan, J.) upheld the decision of the magistrate's court and confirmed the conviction and sentence. On further appeal to the Court of Appeal the appellant reiterated the contentions in the court below. 5 The appeal was dismissed. Cases referred to:

(1) Morten v. Williams, 1964-66 ALR S.L. 393, distinguished.

(2) R. v. Phillip (1942), 8 W.A.C.A. 16, distinguished. Legislation construed: Public Order Act, 1965 (No. 46 of 1965), s.3(i): The relevant terms of this section are set out at page 4 7, lines 4-11. Public Order Act, 1936 (1 Edw. VIII & 1 Geo. VI, c.6), s.5: The relevant terms of this section are set out at page 46, lines 37-41. Criminal Justice Act, 1967 (15 & 16 Eliz. II, c.80), s.S: The relevant terms of this section are set out at page 48, lines 13-22. Mackay and Minah for the appellant; Thompson, State Counsel, for the State. FORSTER, J.S.C.: On January 15th, 1971 there was a public meeting at the Koidu Community Centre at which the Hon. Prime Minister was present and which was attended by the appellant as a member of the general public. An incident took place during the said meeting after which the appellant was arrested and charged on January 19th, 1971, under s.3(i) of the Public Order Act, 1965, in the following terms: "That you, the Reverend Paul Dum bar, on January 15th, 1971 made use of threatening and abusive language with intent to provoke any or other person to commit a breach of the peace contrary to s.3(i) of the Public Order· Act,

The appellant, then the defendant, pleaded not guilty. The record of the trial before the learned magistrate discloses that the appellant was arrested at 10.10 a.m. on January 19th, 1971. A cautioned statement was taken from him in the Magis~ trate's Court's office at 10.20 a.m. on the self~same day and, after an investigation by the police officer who had arrested him and

had taken his said statement, was summarily hailed before the magistrate who had to stand the case down at 1 p.m., granted the appellant bail but began trying the appellant ten minutes later. There is no record of evidence showing how the appellant came to 5 be arrested nor by what method, whether by warrant or otherwise. Suffice it to say, he submitted to the jurisdiction and no mention of this act on the part of the police was made by the defence, arbitrary and unlawful though it would seem to have been, con sidering the provisions of ss.4 to 15 of Part 1 of the Criminal 10 Procedure Act, 1965. The appellant's answer to the charge was brief and in these words: "I am not aware of this charge, because I do not remember that I did insult anybody on January 15th, 1971, anywhere. This is all and true." Two witnesses, the police officer who arrested and 15 charged the appellant and recorded the charge and an eye-witness to the incident at the said meeting, the then Minister of Infor mation, gave evidence for the prosecution. The substance of this evidence was that the appellant used insulting language at the meeting in the hearing of the honoured guest and other persons 20 among those present, causing such commotion that, but for the intervention of security personnel there, the appellant would have been severely manhandled by government party adherents. This was the case for the prosecution. At the close of the prosecution's case, counsel for the appel- 25 lant submitted a 'No Case' which the magistrate over-ruled and called on the appellant to answer. The evidence in answer was given by the appellant alone. It was that he had attended the said public meeting, having been given a programme therefor by the Senior District Officer, Kono, thinking it was a public meeting 30 for all and sundry to meet the Hon. Prime Minister but which later, unexpectedly, became a political party meeting. The appel lant said that during the meeting, after a 'welcome' address and speeches by several other persons, he had signalled to the chair man of the meeting and said to him, "Please, can I talk to the 35 Prime Minister before he replies?" Continuing, he said: "I told the Resident Minister that I had seen the Senior District Officer who assured me that I could talk to the Prime Minister if I raised my hand. The Resident Minister then told me I was out of order and then I said, 'Please, it will not take 40 ten minutes. I want to make a statement here because I want the public to bear me witness.' He insisted that I was out of

DUMBAR v. STATE, 1972-73 ALR S.L. 41 C.A. order and I said, 'I am very sorry, sir' and took my seat. As soon as I sat down Mr. Minister C.A. Kamara-Taylor pulled at the microphone and chanted the APC slogan and burst into a song which others joined in to sing. At that point I felt that a meeting at which all members of the Kono District were 5 invited had been turned into a political meeting, where activists were entirely excited after that song. I was afraid and did not wait for the end of the meeting. When the Prime Minister started replying, I quietly got up and walked through the crowd, through the hall, under no escort and went past 10 the Prime Minister's car outside and got to a taxi about 200 yards away from the Community Centre." It was the appellant who gave evidence of the immediate sequel to the incident at the meeting which led to his being mobbed by some young men who, he said, came "running from inside the hall 15 ... They threw me on the ground and beat me all over." This was the case for the defence and neither counsel is recorded as addressing the court at the end of the trial. The following day the trial magistrate delivered his judgment, convicting and sentencing the appellant to two months' imprisonment. 20 The appellant thereupon appealed on January 25th, 1971 to the High Court on two grounds, later by leave amended to five grounds, the last of which was eventually abandoned. The four grounds argued before the High Court were: (a) The charge upon which the learned trial magistrate con- 25 victed the appellant was bad for duplicity in that it charged two separate offences in one count. (b) The charge upon which the learned trial magistrate con victed the appellant was bad for uncertainty and vagueness. (c) The learned trial magistrate was wrong in law in finding the 30 appellant guilty of the offence charged. (d) The verdict was unreasonable or could not be supported having regard to the evidence. The appeal to the High Court first came before that court on May 25th, 1971 and, on June 2nd, 1971, counsel for both parties 35 agreed to and did apply for the case to be transferred to Freetown and the court so ordered that day. The case then came up before the High Court, presumably at Freetown, on July 23rd, 1971 and on six subsequent dates before being heard and disposed of in two hearing days, that is, on September 21st and 23rd, 1971, at which 40 latter date it was adjourned for judgment to October 7th, 1971,

judgment being given in the end on October 15th, 1971. The learned judge in the High Court considered arguments on the various grounds put forth. It is against his judgment that the appellant has now appealed to this court, originally on three 5 grounds, but by leave amended to four grounds as follows:

1. The learned trial judge was wrong in law in holding that the charge against the appellant was not bad for duplicity.

2. The learned trial judge was wrong in law in holding that the charge against the appellant was not bad for uncertainty and/or 10 vagueness.

3. The learned trial judge was wrong in law in holding that s.3(i) of the Public Order Act, 1965 was similar to s.5 of the English Public Order Act, 1936.

4. The verdict was unreasonable, unwarranted and such as could 15 not be supported having regard to the evidence. (As a matter of correction, the learned judge was not the trial judge, the original case having been heard by a magistrate, and thence to the High Court on appeal.) The learned High Court judge, Tejan, J., who heard the appeal, 20 reviewed the evidence before the magistrate and considered the criticisms against the latter's judgment, then finally decided in favour of that judgment and confirmed both the conviction and the sentence. This court heard arguments by the appellant's counsel, who also 25 conducted the appeal in the High Court, on all four grounds after which it adjourned for a brief period and, on resumption, an nounced to both counsel that it required to hear replies only to grounds 2 and 4 of the grounds of appeal. In my opinion, both grounds 1 and 3 were without substance. 30 Ground 1 was adequately dealt with by Tejan, J. with whose decision on that matter I am in agreement. In disposing of ground 3, I must refer to a portion of Tejan, J.'s judgment. He says: "However, the appellant was charged for an offence under the Public Order Act, 1965. In the case of Ward v. Holman 35 ([1964] 2 Q.B. 580; [1964] 2 All E.R. 729) the defendant was charged under s.5 of the English Public Order Act, 1936. The section enacts that-'Any person who in any public place or at any public meeting uses threatening, abusive or insulting words or behaviour with intent to provoke a breach of the 40 peace or whereby a breach of the peace is likely to be oc casioned, shall be guilty of an offence.' This provision is simi-

DUMBAR v. STATE, 1972-73 ALR S.L. 41 C.A. lar to the provision of the Public Order Act, 1965." Section 3 of the Public Order Act, 1965 under which the appellant was charged reads: "Any person who- (i) makes use of any threatening, abusive, insulting or ob- 5 scene language, gesture, or behaviour, or says or sings any insulting or offensive song or ballad, or makes any noise with intent to provoke any other person to commit a breach of the peace; ... shall, on conviction, be liable to a fine, not exceeding twenty leones or imprisonment for a period not 10 exceeding three months or both." 1 too hold that these two provisions are similar and so find ground 3 is without substance. State Counsel for the respondent replied to arguments in support of grounds 2 and 4 respectively. Ground 2 had earlier been taken 15 up and argued before Tejan, J. in the High Court. It is patent on the face of the record that the charge was not happily worded when it stated, inter alia, "with intent to provoke any or other person." But I am satisfied, from perusing the record of the case both in the magistrate's court and in the High Court that this 20 phrase did not confuse, prejudice or embarrass the appellant in the . conduct of his case at any stage. It was understood by him and correctly referred to by the learned trial magistrate in his ruling at page 3, lines 25 and 26 of the record of evidence before him which I quote here: "such intention being directed to any other person." 25 The appellant's counsel, arguing ground 2 in the appeal to this court-incidentally, this ground is numbered 2 also in the appeal to the High Court-complained that the phrase "any or other person" in the charge was vague, that nobody was mentioned in the charge and nobody was alleged to have been provoked. In 30 support of his contention he cited R. v. Phillip (2) and Morten v. Williams (1). Both these cases are distinguishable and the section under which the appellant was charged does not call for any particular person or persons aimed at being identified or named. I am in agreement with the decision of Tejan, J. on this point. 35 In regard to ground 4 I have considered a further criticism against the judgment of the learned magistrate by counsel for the appellant, that "the magistrate was not asked to determine whether the conduct of the accused was insulting." The marginal heading to the section under which the appellant is charged is "Insulting 40 conduct" and the section makes it an offence for any person to