Fornah & 14 ORS v S (Criminal Appeal 1975) [1975] SLSC 7 (30 April 1975)

tir eLRALR Foran 4 Othe Sse 8 ROCA 2 eee ee See ! FORNAH AND 14 OTHERS v THE STATE es ‘COURT OF APPEAL FOR SIERRA LEONE, Criminal Appel 3 of 175, Hon Mr Jsice Eivsey Lake JSC: Hon Mr Juice O B RTejn JA, Hon Jsice Ken E Dring J, 30 Apa

{1} Criminal Law and. Procedure ~ Treason - Preparing and endeavouring to ite ihe Goverament ~ Whether “preparing” and “endeavouring” are Scparate acs Meaning Two distinct acts which shouldbe charged separately ‘Tremon and State Offences Act 1963 40}, 0)

{2}. Criminal Law and Procedure ~ Treason ~ Overt acts — Charge of conspiracy could Se lias an vert act af bth specs of tron, fe preparing and endeavouring ~ ‘Agrement to everthrom the Government by unlawful means a sulin overt act ihe two specs of treason Treason and State Offences Act 19633-0N) (>)

[3] Criminal Law and Procedure ~ Treason ~ Applicable aw in Sierra Leone — Law ‘lating eral procedure depends on whether charged wih high teas or petit {reno = Trewon and State Offences Ac 1963 oflence reputed by Criminal Procedure Act 1965

(41 Constitutional Law ~ “Government” ~ Meaning ~ Mut be interpreted according 10 Context in which ci used = Person or body which exeressexceutive power in the State ~Preient is the Government of Sera Leone ~ Constitution of Sierra Leone

(51. Criminal Law and Procedure ~ Judge's summing up ~ Whether direction that witness was an aecompice was correct Whether direction on corroboration Was Correet~ Whether direction on truthfulness of wines was correct ~ Whether pn Thetorical questions othe jury was correct rer

(61 Criminal Law and Procedure — Appeal against conviction ~ Court no etd to reverse the verdict of jury unless no reasonable ‘rected could have ‘ever the ver jury property 5

(7] Criminal Law and Procedure ~ Sentencing ~ “Shall be lable to sulTer death — Whether death sentence mandatory or discretionary ~ Whether judge exercised arto Wht court cud vero ith xsi of aereton = Whether President of Sierra Leone coud exercise prerogative of mercy» Tews a Offences Act 1963's 3K), 0) ae

18). Words and Phrases ~ “Government”

(91. Words nd Phrases Sha be able”

‘The appellants were convicted of Treason conrary tos 3(1%A) ofthe Treson and

Offences Act 1963 a the Special Criminal Sons of he High Cour, Fresno

‘over 197 was al Dee Marr Cl Janda} wer The ‘ume unanimous verdict of lyon each cout in espe! s

|ndge semencdal he appl to deh nape ofeach cout am

ee eee act

° Sora Leone Bar Asoc Law Reps tus7482}1 SUBALR

cE Satara: ae ae ‘The appellants appealed tothe Supreme Cour agnnst conviction an various grounds, in

Danica hat the charges of treason were not ppd tt the coe rome rly

regarding the charge of teason were not applied in te trial and thatthe trial judge throughout

bis summing up usurped the function ofthe jury in deciding and/or ending o decide questions of fact meu forthe jury, specifically in relation to accomplices, corroboration, cediblty and

Te an er pet also ape agin the sentences of dea, ring thatthe se of

is to suffer death” in 3 the Treason

BP dog 3 the Treason and State Act 1963 meant that the

Held, per Livesey Luke JSC, allowing the appeal forthe 11% eee

appeal for the other 14 appellants: appellant and dismissing the

1. The contention thatthe appellants should have been charged with one offence of “prepare endeavour” under s {1}(a) and (b) ofthe Treason and State Offences Act 1963 to ‘overthrow the Goverment by unlawful means was incorrect. The ordinary meaning of ‘Prepare is “to make ready, putin readiness” and the ordinary meaning of “endeavour” is “7o make an effort to do or effec to make an effort to strive". “Preparing” and “endeavouring” are two distinct acts, One may prepare without endeavouring. Endeavour ‘connotes something more than prepare. When one endeavours on has crossed the stage of ‘Preparing. The words “prepare or endeavour” in sub-section 3(1a) and (b) created 660 <istinct offences which should be charged separately. Lansana & Ors v R (1970-71) ALR (SL) 186, Juxon-Smith v The Stace (1970-71) ALR (SL) 361 and State v Orchere & Ors (1963)2 GLR 463 followed

2. _A charge of conspiracy could be lad as an overt act of both species of treason created by s ‘3(1%a) ofthe Treason and State Offences Act 1963 i. () preparing and (i endeavouring. 1k was not corect that conspiracy could only be laid as an overt act where the offence charged was conspiracy to commit treason. Lansana & Ors v (1970-71) ALR (SL) 186 ‘pple.

3. _Byits very nature, conspiracy is preparatory ace, preparatory to the commission of an unlawful act. So if persons agree to overthrow the Government by unlawial means that agreement sa preparatory act. That preparatory act amounts toa preparation to overthrow the Goverment by unlawful means under s 3X), or may amount to an endeavour 19 covertiow the Govemment by unlawful means under s 31a), oF to both. Therefore an agreement to overthrow the Government by unlawful means is sufficient overt act ofthe {wo species of treason created by + 3(1Xa). Therefore the overt acts charging conspiracy in counts [and Il of the indictment were properly lid. Mulcahy v The Queen (1863) LR 3 HHL 306 and Queen v Aspinall (1876)2 QBD 48 applied.

4. The common criminal design was not the overthrow of the Govemment by unlawful ‘means but the preparation or the endeavour to overthrow the Government by unlaseful ‘means. To overthrow the Government by unlawful means was an act of preparation and amounted to the forbidden act of preparing to overthrow the Goverment by unlawful means under s 3(1\) and, depending onthe terms ofthe agreement, may also amount to the forbidden act of endeavouring to overthrow the Government by unlawful means under ' 3G). The direction ofthe judge thatthe common design in a charge of preparing 10 ‘overirow the Goverment is the preparation, and in a charge of endeavouring to ‘overthrow the Govemment isthe endeavouring was corect. Mulcahy v The Queen (1863) LR 3 HL 306 applied.

‘5. The word “Govemment” does not have one invariable or univers meaning. It has iferem meanings and must be interpreted according tothe context in which it is wed.

(097469) 1 SLBALR Fra and 14 Others The Sse 0 ‘The “Government” means the person or body which exercises executive power in the Sate. Section 49(1) of the Constitution provides that executive power shall ves in the President, who could exercise exceutive power directly or trough Cabinet, Ministers et ‘Therefore, aconding othe Constitution, the President isthe “Government. DPP v Chie (Obi (1961) All Nig Rep 186 applied

(6 The procure aid down by the Treason Act 1695, which was passed forthe regulation of tials of the species of teason created by the Treason Act 1351 and the subsequent Treason Acts, was not applicable wo the new species of treason created by the Treason and Sute Offences Act 1963 Act. The Criminal Procedure Act 1965 regulated procedure in ‘criminal tls in Sierra Leone and that is the statute which must be followed in tal fer ‘teas under the Treason and State Offences Act 1963.

7. There was nothing wrong in principle fora judge to tell the jury that a particular witness was an accomplice, especially ifthe evidence of the witness was unfavourable 10 the accused penon. Such a direction js favourable to the accused person and he cannot complain abou it In any case, the judge tld the jury that it was within heir province to decide which witnesses were accomplices. R v Chimes (1959) 43 Cr App R 149 (CCA) appli

8. The judge gave the proper direction on coroboraton, i, that itis dangerous to convict on the uncomoborae evidenee of an accomplice and that some independent testimony Was Fequired which tended to show not only thatthe offence was committed but also that it was commited by the accused.

9. There is nothing wrong in a judge expressing his opinion on the truthfulness of witnesses ron other questions of fact, so lng as he does so fey and make the jury understand that | they are not bound by his opinion and eaves the issues of fact to them to determine. Davies v R (1957-60) ALR (SL) 348 (CA) and R v Cohen & Bateman (1909) 2 Cr App R 197 (CCA) applied

10, There was nothing wrong in principle fy a judge posing question i his summing up for ‘he jury's consideration. Having carefully read through the summing up the jugs gave a summing up which wa fair every respect and there was no misdirection. The particular form and syle of a summing up, provided it contains what must on any view be cain ‘sential elements, wll depend not only upon the particulars features of a particular case ‘but also upon the view formed by the judge as tothe form and style that wl be far and reasonable and helpful. McGreevy v DPP (1973) 1 WLR 276 HL and Rv Lincee (1956) 3 AER 980 applied. v Kwabena Bio 11 WACA 46 ane Frampwon vR (1917) 12 Cr App R 202 distinguished.

11, The court was not entitled 1 revere the ventct of a jury unless no reasonable jury propery directed could have returned tha verdict. The cout snot etiled to subsite i views forthe verdict ofthe jury. The cour should accept the verdict ofthe jury. which was one of guilty and which means tat the jury were satisfied tha the accused did commit the ‘offence. McGreevy v DPP (1973) | WER276 HL applied.

12. There, was ample evidence against the Ist appellant on which the jury could convict on bath counts, and by their verdict it mast be presumed that they did ot accep is defence. Inthe circumstances the court could not interfere withthe jury's verdict.

13, The evidence against the 210 10" and 12°10 15% appellants was overwheling adn no reasonable jury properly directed could have failed to retum a verdict of gully against ‘hem on bth counts Inthe cumstances, the cour could no interfere withthe verdicts.

3 Siar Leone Br Associaton Law Repos [197482] SLBALR

14, There was no evidence tha the 11" appellant participated in the discussion going on inthe r room whilst he was in the parlour ofthe 2™ appellant's house. The evidence of PW1O that. the 11° appellant heard what was discussed in the room might have been only an opinion ‘or an assumption. AS such, it was unsafe to base a conviction on such unsatisfactory ‘evidence. The admissions contained in his statement to the police may amount to the offence of misprison of treason but certainly not to treason. Therefore it was unsafe to ‘uphold the conviction of the 11® appellant for treason and the conviction was quashed on ‘oth counts and the sentences set aside.

15. The words “shall suffer death” imported mandate whilst the words “shall be liable to suffer death” in s3 of the Treason and State Offences Act 1963 imported a discretion. The

: sentence of death under 53 ofthe Treason and State Offences Act 1963 was discretionary and not mandatory. The tial judge had a discretion as to whether to pass the death ‘sentence oF not. If the judge had a discretion, it must be presumed that he exercised it by ‘imposing the maximum penalty provided under the section, ie by passing the sentence of death. James v Young (1884) 27 Ch D 652, Re Lofius-Orway (1895) 2 Ch 235, Opoya ¥ Uganda (1967) EA 752 and Manaka and Ors v Republic (1971) EA 495 applied. Kichanjele s/o Ndamuoga v R. (1941)8 EACA 64 not followed.

Per curiam

1. The Treason Act 1695 may still be in the statute book of Sierra Leone, but it was not applicable tothe species of treason created by the Treason and State Offences Act 1963. If the Treason Act 1695 was still applicable in Sierra Leone, it was applicable ony to tials under the unrepealed Imperial Treason Acts, eg, the Treason Act 1702 and the Treason, ‘Act 1795.

2, The question ofthe prerogative of mercy was imelevant. It was erraneous of Ken During JA.to say that when a judge is exercising a discretion conferred upon him by law he is usurping the prerogative of mercy ofthe President. The President could sill exercise the prerogative of mercy under s 63 of the Constitution whether the sentence passed by a judge is mandatory or discretionary. So where the judge exercised his discretion by imposing the death penalty, as in the instant case, the President could sill exercise his prerogative of mercy, Similarly ifthe judge had, in the exercise of his diseretion, passed sentences of imprisonment, the President could sill exercise his prerogative of mercy by. for example, granting a free pardon orremiting the whole or part ofthe punishment.

Cases referred to

Davies v R (1957-60) ALR (SL) 348 (CA)

DPP v Chike Obi (1961) All Nig Rep 186

Frampton v R (1917) 12Cr App R 202.

James» Young (1884) 27 Ch D 652

‘uxon-Smith y The State (1970-71) ALR (SL) 361

Kichanjle s/o Ndamunga v R. (1941) EACA 64

Lansana & Ors v R(1970-71) ALR (SL) 186

(McGreevy v DPP (1973) 1 WLR 276 HL

‘Mattaka and Ors v Republic (1971) EA 495

‘Mulcahy v The Queen (1863)LR 3 HL. 306

Opaya v Uganda (1967) EA 752

Queen v Aspinall (1876) 2 QBD 48

Re Loftus-Orway (1895)2Ch 235.

Ry Ohrimes (1959) 43 Cr App R 149 (CCA)

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

Ry Kwabena Bio 11 WACA 46

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