Franklyn Kenny v S (SC CR APP 2 of 1982) [1983] SLSC 22 (28 April 1983)

conan ES SUE OE SHA LEON ‘The Honourable Mr, Justice B. Livesey Luke,C.J. ~ Presiding The Honourable Mr, Justice C,A, Harding = 3.8.0, The Honoura>le Mrs,Justice A.V,A, Awunor-Renner - J.S.C. The Honourable Mr, Justice S, Beccles Davies = J.8.C, The Honourable Mr, Justice F.A. Short = Tehe SC. OR, APP. NO. 2/82 FRANKLYN KENNY — ‘APPELLANT vs. THE STATE = RESPONDENT 7.5. JOHNSON, ESQ., for the Appellant N.D, TEJAN-COLE, ESQ., ‘for the Respondent “SODOMENT DELIVERED THIS 28th DAY OF April, 1989 ANUNOR-RENNER, J.S.C.t~ On the Bth'day of May, 1981 at ‘the Froctown High Court the appellant was convicted of the offence of Fraudulent Conversion contrary to * sec. 20(1)(4v)(a) of the Larceny Act 1976 and. sentenced to 2 yeara imprisonment by Justice D«B-Ms Wittiane sitting as guage alone. , me particulars of the offence arei wqhat Franklyn Kenny on the 2hth day of april, 1978 at Freetown in the vestern Area of Sierra Leone Praudulentiy vereated to his om use snd bonefity inat ts to cay the sun of three hundred ana facty Leones entrusted to.him DY qnrsstie Wallace Kargbo in order that . ne the seid Franklyn Kenny might pay ne same into the Judidial Sub-Treasury Freotowne” [Revers

‘The Appellant however, appealed to the Court of Appeal on the 20th day of May, 1981 against his conviction and sentence, On the 26th January, 1982 the Court of Appsal dismissed the appeal against conviction and allowed that against sentence, It is against that decision that the Appellant has now appealed to this Court on the following grounds:- (a) The Court of Appeal having found that the triel Judge did not advert his mind to the third point that the prosecution had to prove that is to say, that the misuse of the money was "fraudulent and dishonest" and “having found that, it ie not enough to say that the accused has converted the said amount to his own use and penefit, such use and Benefit must be sgraudulent and dishonest” and having eid that "in that regard the appeal ean succeed" orred in law in not auiowing the appellant's appeal against convictions (bv) Leave of the Court of Appeal having peen sought and granted to delete and gunetitute for the original grounds gne art threes the following new grounds one and threes tone: ‘The appellant having challenged PW. and P.W.5 respectively at é ‘the trial on their testimony as being totally . [Beveee

dizferent on material points from that given erred in lav in ignoring their conflicting and contradictory evidence and in convicting him on the Count of Fraudulent Conversion,"

“Tree The learned trial judge misdirected himself on the evidence by holding that the sum of 10350 was not paid into the Judicial Sub-Treasury having regard to the unsatisfactory and unreliable evidence of prosecution witnesses wen compared with their testisiony before the committal Magistrate. qne Court of Appeal erred in law in not allowing counsel for the appellant to argue the said new grounds (one and three) on the, grounds that it gould not and would not jook at the depositions taxon before the Conmittal Magistrate as they did not form part of the records pefore the Court.

Mhevee

The learned presiding Justice adding that the only reason Counsel for the appellant wanted the _ depositions looked at, was because he was concerned with the preliminary investigations." The facts of the case as far as I need to refer to them are as follows: According to the prosecution at the material time the appellant was working at the Registry of the Court of Appeal, One Mrs, Christie Wallace Kargbo on the 24th day of April, 1978 handed the sum of Le.350 to him in order that he should pay the amount into the Judicial Sub-Treasury on behalf of one Mer. Ajat Cole. Mra. Kargbo was then issued with a temporary receipt by the appellant. On the following aay ohe vas also issued with « paying~in-elip which he tne (appellant) claimed vas the official receipts Tis amount was never paid into the Judiesat Sub-Treasury. he appellant however admitted receiving the sum of 10.950 from Mra, Wallace Kargbe on the day in question and enon assuing & POOPOFATY receipt to her, He ciaimed that Mrs. Kargbo had asked him to keep this amount for ner ae ne had fo24 ner that dt was insufficdent for the purpose TOF which it was intended. He ajeo stated that when Mrs Kargbo called at his office on the foiiowing aay he handed over the Le.350 to her and he prepared and handed £° nor a paying-in-slip in evento the ounror Lesno and acted Her 6° PA cies sub-Treasury. She later returned ‘nie amount into the Sul ver pve copter oF #2 paying-in-elip with the Sub- ‘on them, He then retained one COPY a# qreasury stamp ‘ [Bereee

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