John & 4 Others v S (CR APP 23 of 1973) [1973] SLCA 10 (21 December 1973)

SECTION 47 JOHN v. STATE, 1972-73 ALR S.L. 441 C.A. JOHN and FOUR OTHERS v. THE STATE Court of Appeal (Cornelius Harding, Tejan and During, JJ. A.): December 21st, 1973 (Cr. App. No. 23/73) [ 1] Criminal Law-degrees of complicity-accessories-accessory before the fact -definition-person who counsels or procures commission of offence -must be absent at time of commission: An accessory before the fact to an offence is one who counsels or procures the commission of the offence, but who is absent when it is committed (page 448, lines 29-37). [ 2] Criminal Law-degrees of complicity-accessories-accessory guilty if principal departs from common design only in matters of time, place or manner of execution-not guilty if principal wilfully commits offence of substantially different kind: An accessory who has solicited an offence of a certain kind is guilty even when the principal departs from the common design in matters of time, place or manner of execution; but if the principal wilfully commits an offence of a substantially different kind, the accessory is not guilty of being an accessory to the latter offence (page 448, lines 29-37). [ 3] Criminal Law-degrees of complicity-principals-person who solicits offence and is present when committed is principal: A person who solicits an offence and who is present when it is committed is a prin· cipal to the offence (page 448, lines 29-37). [ 4] Criminal Law-murder-multiple offenders-common design-if common design that violence to be used if necessary, all guilty though act by one only-if actor went beyond common design he alone guilty: On a charge of murder against more than one accused whose common design extended to the express or implied understanding that violence would be used if anyone sought to prevent them from carrying out their pur- pose, all are guilty even if one accused only is shown to have been the perpetrator of the crime; but if the actor went beyond the common design and acted with malice he alone is guilty of murder (page 446, lines 19-27). [ 5] Criminal Law-murder-multiple offenders-prosecution to show that death caused by unlawful and malicious act of one in pursuance of common design or acts of all: For a charge of murder against more than one accused to be substantiated, the prosecution must show that the death was caused either by the act of one of the accused acting in con­ cert with the others or by the acts of all of them together, and that such act was unlawful and was accompanied by malice (page 446, lines 10-16). [ 6] Criminal Law-robbery-aggravated robbery-elements of offence­ forcible taking of property against victim's will by violence or putting him in fear: The offence of robbery with aggravation is committed by 5 10 15 20 25 30 35 the accused forcibly taking property of any value in the presence or 40 from the person of the victim against his will, by violence or by putting him in fear (page 446, lines 32-36). 441 5 10 15 20 25 30 35 40 THE AFRICAN LAW REPORTS [ 7] Criminal Procedure-judge's summing-up-confessions-failure to point out to jury that accused challenged voluntariness of confession not fatal when sufficient other evidence against accused: When at his trial an accused has challenged the voluntariness of his earlier confession, the failure of the judge to point this out to the jury is not fatal if there is other strong and abundant evidence of the accused's involvement in the crime (page 450, lines 5-10). [ 8] Evidence-confession~retracted or denied confessions-failure of judge to direct jury that accused challenged voluntariness of confession not fatal when sufficient other evidence against accused: See [7] above. [9] Evidence-identity-identification parades-not necessary if identify already sufficiently and definitely established: It is not necessary to hold an identification parade if the identity of the accused has already been sufficiently and definitely established, such as when he was admitted taking part in the crime; and in such a case it is not unfair or prejudicial to ask a witness in court to identify the accused in the dock (page 44 7, lines 8-32). The appellants were charged in the High Court with murder and robbery with aggravation. The first appellant was a lodger at an inn and made a plan to rob its proprietor. He gave the other appellants all the information they needed for the commission of the crime but did not take part in it himself. He knew, as did the others, that the use of violence might be necessary. The second appellant drove the third, fourth and fifth appellants to the inn where they carried out the robbery; the second appellant denied entering the building although he knew of the plan and was aware that the building was occupied and that violence might be used. When the proprietor heard the sound of intruders he left his room to investigate. The third appellant pinned him to the floor and later the fourth and fifth appellants helped to bind and gag him. He was subsequently found to have died from asphyxia. At least one eye-witness, the deceased's son, was able clearly to identify the third fourth and fifth appellants and since their identity was not considered by the police to be in any doubt, no identification parade was held. At the trial the third witness for the prosecution identified the third, fourth and fifth appellants who were in the dock. The appellants all made statements admitting their involvement in the plan to steal from the inn. However, during the trial the fourth and fifth appellants denied the voluntariness of their 442 JOHN v. STATE, 1972-73 ALR S.L. 441 C.A. confessions, but the trial judge did not specifically point this out to the jury in his summing-up. All five appellants were found guilty of murder and robbery with aggravation. On appeal against conviction the first appellant contended he was not guilty of murder because the common design was merely 5 to steal, that it was never his intention to kill or do grievous bodily harm and that he expressly ordered the others not to kill or harm the deceased but merely to frighten him. The second appellant conceded that he could be an accessory before the fact to burglary but contended that as he knew only 10 of a plan to steal and was not present either actively or construc­ tively at the time the offences were committed, he was not guilty of either murder or robbery with aggravation. The third, fourth and fifth appellants contended that the method of their identification by the third witness for the prose- 15 cution while they were in the dock was improper and irregular and their convictions ought therefore to be quashed. The fourth and fifth appellants contended that whilst the admissibility of a confession was purely a matter for the judge, the question of weight was one for the jury and that since they 20 had denied their respective statements in court, this fact should have been drawn by the judge to the jury's attention and his failure to do so was fatal to their conviction. The appeals were dismissed. Cases referred to: (1) Bah v. R., 1968-69 ALR S.L. 30. (2) Kargbo v. R., 1968-69 ALR S.L. 354. (3) R. v. Betts (1930), 144 L.T. 526; 22 Cr. App. R. 148. (4) R. v. Cartwright (1914), 10 Cr. App. R. 219. (5) R. v. Chapman (1911), 28 T.L.R. 81; 7 Cr. App. R. 53. (6) R. v. Collison (1831), 4 C. & P. 565; 172 E.R. 827. (7) R. v. Finch (1916), 115 L.T. 458; 12 Cr. App. R. 77. (8) R. v. Howick, [1970] Crim. L.R. 403. (9) R. v. Lovesey, [1970] 1 Q.B. 352; [1969] 2 All E.R. 1077. (10) R. v. Smith, [1963] 1 W.L.R. 1200; [1963] 3 All E.R. 597. (11) Walker v. R., 1967-68 ALR S.L. 189. 443 25 30 35 40 5 THE AFRICAN LAW REPORTS Halloway for the first appellant; Betts for the second appellant; Quee for the third appellant; Conteh for the fourth and fifth appellants; Smythe, Q.C. and Bankole Thompson for the State. CORNELIUS HARDING, J.A.: The five appellants were each convicted by the High Court at Freetown on August 31st, 1973 on a two count indictment charging them with the offences of murder and ·robbery with 10 aggravation and were each sentenced to death in respect of the count for murder, whilst sentence in respect of the other count was held in abeyance. The facts of the case were that during the very early hours of June 27th, 1973 the Travellers Lodge (which is some sort of an 15 inn) situate at Wellington Street, Freetown, was broken into. On hearing the sound of the intruders the deceased, Mr. Vidal Theo­ philus King, an elderly man about 70 years old, who was the proprietor of the said inn, left his room on the first floor to go and investigate. He was seized and pinned down on to the floor in the 20 parlour. Meanwhile his son Reginald, aged about 10 years, who was with him in the room had taken cover underneath a bed in the room. Two of the intruders entered the bedroom and lifted up the mattress from the bed under which he was hiding, where­ upon he was forced to give himself up. He was told to come out 25 from under the bed and when he did so he was asked to show them where his father kept his money. He was told that if he refused he would be killed. One of the two men carried a knife which he placed at Reginald's back. The safe where the deceased kept his money was accordingly 30 shown to them and after they had helped themselves to whatever amount that was there in the safe the boy was forced to go with them from room to room of the said first floor of the house where they took away yet another amount of money comprising 10 and 5 cent pieces, an Omega wrist watch, a radio tape recorder and a 35 camera all belonging to the deceased. All throughout the deceased was kept pinned down to the floor by a third man. The electric lights were on and Reginald stated that he saw clearly who the three men were. He said that he implored them not kill him or his father. He identified the third appellant, Sillah Kamara, as the 40 person who was pinning his father to the floor and the fourth and fifth appellants, Moses Demby and Michael Danielson, as the two 444 JOHN v. STATE, 1972-73 ALR S.L. 441 C.A. men who burst into the room and who led him around from room to room at knife-point. After they had collected all they wanted they told the boy to open the door leading to the steps and when this had been done they told him to go back into the bedroom. They then tied up 5 the hands and feet of the deceased and bound his head, face and neck with a pair of underpants after which they left the house. After they had departed the little boy came from the bedroom to where his father lay and he shook him trying to wake him up but he got no response. He thereupon ran downstairs and called the 10 servant, one Baimba Dumbuya, who came up with him followed by the first appellant Sylvanus Balogun John, who at the time was a lodger at the house. The deceased was found dead. A pathologist was called to the scene soon afterwards and he pronounced the deceased dead; subsequent examination revealed the cause of 15 death to be asphyxia. There is no doubt that death was the direct result of the attack made on the deceased when the intruders broke into his house. The third, fourth and fifth appellants each made a statement admitting breaking into the house in pursuance of an agreed plan 20 to steal money which it was believed the deceased had with him at home. Each described in detail what part each took in the trans­ action. The second appellant was the one who drove the third, fourth and fifth appellants to the house and he admitted he knew of the plan to steal from the house, but stated that the only part 25 he played was merely to drive his three companions to the scene of the crime. The first appellant admitted that it was he who hatched the whole plan, that it was he who received the second, third, fourth and fifth appellants when they arrived and showed them the steps leading to the deceased's apartment and that he 30 waited downstairs whilst the raid was being carried on. All five appellants have appealed to this court against the verdict passed on them. The same counsel appeared for them as had appeared in the court below. The main issue in this case is whether the appellants were acting in furtherance of a common 35 design. What was the common design- was it a felony involving violence? Was the act or acts which caused death done in pursuance of the common design? It is essential in a case such as this where there is a plurality of persons charged, for the prosecution to establish its case against 40 each accused separately and distinctly. The learned trial judge in 445 THE AFRICAN LAW REPORTS his summing-up told the jury the three ways in which a person can be implicated in a crime, viz. as principal in the first degree, prin­ cipal in the second degree and as an accessory before the fact, after which he went on to explain the essential ingredients of 5 murder and robbery with aggravation. He then dealt with the burden of proof and standard of proof required before going on to review the evidence adduced in the whole case. He again stressed that the on us of proof lay on the prosecution, before putting the case to the jury thus: 10 "In respect of the count of murder, has the prosecution shown each of the accused [appellants] to be of sound memory and discretion; that the act of one of them acting in concert with the others and in pursuance of a common design or the acts of all of them together caused the death 15 of another human being; that such act was unlawful; that such act was accompanied by malice. . . . If you find that there was no malice in the killing but that it occurred purely as an accident and cannot be divorced from the robbery, you will return a verdict of not guilty of murder. If you find that 20 of all the accused [appellants] there is an actor - perpetrator of the fact, and that the common purpose or design of all the accused went to the extent of either express or implied under­ standing that if anybody sought to prevent them from carry­ ing their purpose into effect he would be dealt with by 25 violent means, it is murder in all of the accused. If you find that the actor went beyond the common purpose and that his act was with malice it is murder only in such actor. As I have told you before there are here two counts - the second is robbery with aggravation, and quite distinct from 30 the first count of murder. The prosecution is not obliged to prove guilt of murder or of any other offence in order to prove the charge of robbery with aggravation. What the pro­ secution has to prove on this count is that the [appellants] acting in concert, feloniously and forcibly took from the 35 person or in the presence of Vidal Theophilus King, against his will, property of any value, by violence or putting him in fear." It will perhaps be convenient to deal first with the appeals of the third, fourth and fifth appellants. As stated previously, each made 40 a statement admitting that they broke into the deceased's premises on the night in question in pursuance of a concerted design to steal the deceased's money. When the deceased came out of his 446 JOHN v. STATE,l972-73 ALR S.L. 441 C.A. room he was grabbed by the third appellant who pinned him down to the floor whilst the fourth and fifth appellants raided the rooms. Before they left the house they bound up the deceased and there is not the slightest doubt that it was as a result of this manhandling that the deceased died. 5 There is hardly any substance in the grounds of appeal of these three appellants and in our view only two points raised by counsel are worth commenting on. Both Mr. Quee (for the third appellant) and Mr. A.P. Conteh (for the fourth and fifth appellants) have urged this court, relying on such authorities as (i) R. v. Cartwright 10 (4); (ii) R. v. Chapman (5); and (iii) R. v. Howick (8), that the method of their identification by the third witness for the prose­ cution whilst they were in court in the dock was improper and irregular and as such their convictions ought to be quashed. The learned trial judge had already dealt with this point and this was 15 what he told the jury: "Learned counsel for the third, fourth and fifth accused [appellants] particularly, continually spoke of identification and the necessity for an identification parade to have been held by the police. You heard the answer of the sixteenth 20 witness for the prosecution that although it is ordinarily vital to have an identification parade, he did not consider it necessary to hold one because the identity of each of the accused [appellants] was not in any doubt. The law on this point is that identification is only unfair and prejudicial 25 where at the time he is presented for identification he is not already sufficiently and definitely identified but he is so presented alone and by himself. When you deliberate on the evidence, it will be for you to decide whether the identity of the accused was at any time in doubt." 30 We are in entire agreement with the learned trial judge on this matter. The second point was that which alleged that the defence of the appellants was not adequately put and that the jury was not properly directed on the burden of proof. As this point was also raised by counsel for the first and second appellants, it will be 35 dealt with later. As far as the first appellant is concerned, it was contended by Mr. Halloway on his behalf, that whilst not denying that there was a common design, it was never his intention to kill or to do grievous bodily harm - the common design was merely to steal. 40 He referred to the first appellant's statement in which he stated 447 THE AFRICAN LAW REPORTS inter alia: "I now recall that during my travel on board WU 2207 in the afternoon of June 26th, 197 3 together with Johnny Grant, Michael Danielson, Sillah Kamara and Moses Demby 5 [i.e. the second, fifth, third and fourth appellants] I briefed them about the set-up of that part of the building which was occupied by the deceased Vidal King and his son Reginald King. I told the four men that there was money in a safe in the bedroom of the victim. I also advised them not to kill 10 or harm him but to frighten him so that he would surrender his keys to all the rooms and the safe. . . . " He submitted that the crime which the first appellant instigated was one of stealing and that he expressly ordered them not to kill or harm the deceased but merely to frighten him; consequently 15 if the deceased was smothered the first appellant cannot be held liable. He referred to the cases of R. v. Collison (6); R. v. Betts (3); R. v. Smith (10); and R. v. Lovesey (9). Even if the first appellant had expressly ordered his confederates "not to kill or to harm" as he stated, it must be presumed from 20 the circumstances of the entire case that the parties must have anticipated some opposition being directed against them whilst in execution of their common design, hence it was asked whether the deceased had a gun or a pistol and he was actually assessed physically before even they commenced operations. Clearly the 25 use of violence must have reasonably been within their contem­ plation all throughout and in fact violence was actually used against the deceased which resulted in his death. As the law in this country stands "If the principal totally and substantially varieth, if being 30 solicited to commit a felony of one kind he wilfully and knowingly committeth felony of another, he will stand single in that offence, and the person soliciting will not be involved in his guilt .... but if the principal in substance complieth with the temptation, varying only in circumstances of time 35 or place, or in the manner of execution, in these cases the person soliciting the offence will, if absent, be an accessory before the fact, if present a principal." (Foster's Crown Cases 3rd ed., at 369 (1809), cited in R. v. Betts (3)). The evidence against the first appellant was very strong and we 40 think he was rightly convicted. The position of the second appellant is somewhat different. 448 JOHN v. STATE, 1972-73 ALR S.L. 441 C.A. According to him he knew only of a plan to go and steal from the deceased's premises and he stated that he merely drove his companions to the scene of crime and did not wait but drove on. His counsel, Mr. G.J. Betts, strenuously submitted that he was not present either actively or constructively at the time of the commission of the crime and that at most he could only be an accessory before the fact to burglary and that burglary per se does not involve violence. It was never suggested on behalf of the second appellant that it was an empty house that was to be burgled and as previously stated it must have come within his judgment as an ordinary man that some sort of violence might have to be used. The next question to be considered as far as the second appel­ lant is concerned is whether there was any evidence to constitute him a principal in the second degree for the offences with which he was convicted. Although there is no direct positive evidence that he was present when the crime was actually being committed, in his statement from the dock he said inter alia: "According to the plan which was told to me about this charge, what I know is what I am going to talk about. The other four accused [appellants] told me that upstairs in the Travellers Lodge there were three rooms and that there was a room unoccupied, in which was the money and no one slept in such room. So according to the arrangement the room would be open ready and all that had to be done was to go in, collect the money and go away. So I left them off at the junction of Wellington Street and Pademba Road. I did not wait but drove off on to the Road Transport Department and there I parked the car. So my side of the ff . '' a ru.r was over. . . . Learned counsel argued that the second appellant was here estab­ lishing some sort of an alibi, at least, which he also did in his state­ ment to the police, and that this was never put specifically before the jury for their consideration. The complaint here -which I must say has been universally put up by all the appellants - is that the learned trial judge did not adequately put the case for the defence to the jury. Among the cases cited in support of this ground were: Walker v. R. (11); Kargbo v. R. (2); Bah v. R. (1); R. v. Finch (7). It was contended on behalf of the fourth and fifth appellants that whilst the question of admissibility of a confession was purely a matter for the judge, 449 5 10 15 20 25 30 35 40 5 10 15 20 25 30 35 40 THE AFRICAN LAW REPORTS the question of weight was one for the jury, and inasmuch as these two appellants have sought to deny their respective statements when they were before the court this fact should have been men­ tioned to the jury by the judge. The omission of the judge merely to point out that the appel­ lants were challenging the voluntariness of their confession in our view cannot be said to have any effect in the minds of the jury in this particular case where there is strong and abundant evidence about what part the fourth and fifth appellants took in the trans­ action. In the case of the second appellant perhaps it was unfortunate that the learned trial judge did not specifically refer to the defence he put up when he was making his statement from the dock, viz. that he simply drove off after depositing the third, fourth and fifth appellants at the scene of the crime, and direct them as to the pieces of evidence on the matter. However, we do find ample evidence from which the jury, if they had been properly directed on the matter, would have returned no other verdict than the one which they did. For these reasons we have been unable to find any misdirection by the learned trial judge, or anything in the summing-up which would justify us in saying that the case was not properly put before the jury. We have come to the conclusion that there was evidence on which the jury were entitled to convict each and every one of the appellants. The appeal of each appellant is accordingly dismissed. TEJAN, J.A.: _ I have listened carefully to the judgment read by the Presiding Judge, and I entirely agree with him. In this case, several grounds of appeal have been argued before this court, and these grounds, I think, have been adequately and rightly dealt with in the judgment of the Presiding Judge. It seems to me that the jury delivered the correct verdict on both counts in respect of each appellant after an admirable and faultless summing-up by the trial judge. The evidence of the prosecution was overwhelming and so strong against each appellant that it is quite impossible to say that the verdict was unreasonable. In the circumstances, I would dismiss the appeals. 450 JOHN v. STATE, 1972-73 ALR S.L. 441 C.A. DURING, J.A.: I have had the opportunity of reading the judgment of my brother, the Presiding Judge, and that of Tejan, J.A. and agree that the appeal in respect of each appellant against conviction for murder and robbery with aggravation respectively be dismissed. 5 Sensational though this case may be, in my opinion it is neither complex as to the law nor on the facts. In my opinion the defence of each of the appellants was adequately and fairly put by the trial judge to the jury. There is no set formula for judges as to the summing-up of a case to the jury. The fact that an appellant or his 10 counsel would like a summing-up to be made on a set pattern should not as in this case be a ground on which the court should set aside the verdict. In my view it is perhaps high time that we do away with "trial within a trial" proceedings and leave the question as to whether 15 or not a statement to a person in authority was involuntary to the jury to decide after proper direction from the trial judge on the "Judges' Rules" now applicable. This in my opinion will save time, expense and ensure a fair trial of the issue. In my judgment the verdict of the jury in this case in respect 20 of each of the appellants could not in any way be regarded as unreasonable and the only true verdict on the evidence was that given by the jury. In my opinion there is no merit in the appeal of each and every appellant. 25 Appeals dismissed. 30 35 40 451