Kai-Kai & 13 Others v S (SC CRIM APP 1 of 1988) [1989] SLSC 7 (29 September 1989)

KAI-KAI & 13 OTHERS v THE STATE SC SUPREME COURT OF SIERRA LEONE, Supreme Court Criminal No 1 of 1988, Hon Mr Justice SMF Kutubu CJ, Hon Mr Justice S Beccles Davies JSC, Hon Mr Justice SCE Warne JSC, Hon Mr Justice MO Taju-Deen JA, Hon Mr Justice AB Timbo JA, 29 September 1989

[1] Criminal Law & Procedure – Treason – Overt acts – Overt acts laid out in indictment for the offence of treason are not specific or distinct charges but merely further particulars – Preparation to overthrow the Government required to be proved beyond reasonable doubt – Whether count contained two or more separate offences and therefore duplicitous – Count did not allege that the appellants had “prepared or endeavoured” to overthrow the Government – Laying of multiple overt acts is permissible but proof of one overt act is sufficient to sustain a charge of treason – Conspiracy by several persons to undertake an act or acts that are preparatory to overthrow the Government is a sufficient overt act of treason – Treason and State Offences Act 1963 s 3(1)(a) – Criminal Procedure Act 1965 s 51, rr 3(4), (5)

[2] Criminal Law & Procedure – Misprision of treason – Common law offence in Sierra Leone – Person with knowledge that treason is merely being planned or committed has a duty to report such at the earliest opportunity – Misprision of treason a grave crime which endangers the very existence of the State – Constitution of Sierra Leone s 125

[3] Criminal Law & Procedure – Burden of proof – Beyond reasonable doubt – No rule that where case is based on circumstantial evidence the judge must give additional direction beyond burden of proof beyond reasonable doubt

[4] Criminal Law & Procedure – Hearsay evidence – Whether wrongfully admitted – Whether verdict unsafe – Jury would have arrived at same verdict even if hearsay evidence not admitted

[5] Criminal Law & Procedure – Alibi – No requirement that defendant prove alibi – Burden of proof remains on prosecution to prove guilt beyond reasonable doubt

[6] Criminal Law & Pro cedure – Accomplice evidence – Uncorroborated evidence of accomplice is admissible but judge must give warning that it is dangerous to convict unless corroborated – Failure to give warning will result in conviction being quashed – Accomplice cannot corroborate evidence of another accomplice – Independent evidence required

[7] Criminal Law & Procedure – Evidence of co -accused in course of joint criminal enterprise – Inadmissible unless expressly or by implication adopted by co-accused – Sworn evidence by co-defendant in course of joint trial is admissible as evidence against co-accused – No evidence that statement incriminating co-defendant had been retracted

[8] Criminal Law & Procedure – Evidence – Tape recording – Prerequisites for tape recording to be admitted in evidence

[9] Criminal Law & Procedure – Summing up – Misdirections – Whether miscarriage of justice or bias – No set formula for summing up – Whether case has been fairly put before jury – Whether no reasonable jury properly directed could have returned verdict – Court not entitled to substitute its views for that of the jury – Summon up must be viewed as a whole

[10] Words and Phrases – “Overt act” In June 1987, the appellants were tried in the High Court before Williams JA and a jury on a fourcount indictment of treason, misprision of treason and murder. Count 1 charged the first 16 accused with the offence of treason contrary to s 3(1)(a) of the Treason and State Offences Act 1963, with 26 overt acts laid out in the indictment (as set out in the judgement below). Four of the 16 accused were charged with the common law offence of misprision of treason (the deliberate concealment of

knowledge of a treasonable act or a felony). Four of the appellants were also charged with murder of a policer officer who was killed when the appellants were being arrested by security forces. The jury returned unanimous verdicts of guilty as charged in respect of all the accused. The death sentence was passed on the first 16 accused, while the 17 th and 18th accused were sentenced to terms of imprisonment of 4 and 7 years respectively. All 18 appealed to the Court of Appeal against their conviction on various grounds. Four of the appellants convicted of treason were acquitted on appeal, but the Court of Appeal dismissed all the other appeals. The remaining 14 appellants appealed to the Supreme Court and contended variously that: (1) the laying of overt acts on a count of treason was not permissible under s 3(1)(a) of the Treason and State Offences Act 1963;

(2) Count 1 was duplicitous and void because it contained several separate and distinct offences; (3) the conspiracy overt act in Count 1 was not properly laid; (4) the common law offence of misprision of treason was not part of the law of Sierra Leone following the repeal of the Treason Act 1351 by s 19(2) of the Treason and State Offences Act 1963; (5) the trial judge had misdirected the jury in relation to the circumstantial evidence on which the murder convictions were based; (6) in relation to the 5th and 12th appellants, that hearsay evidence was wrongly admitted and that their alibi defence was not properly considered; (7) that the trial judge misdirected the jury in relation to accomplice evidence; (8) that alleged statements made by suspects at the scene of the crime were improper and inadmissible; (9) that the unsworn statement of the first appellant did not constitute evidence against the 5th appellant and should not have been admitted; (10) that the tape recording of the 1st appellant was improperly admitted into evidence and prejudiced his trial; (11) that the trial judge’s 200-page summing-up did not fairly put the case of the defence to the jury and was biased. Held, per Kutubu CJ, dismissing the appeals:

1. An ‘overt act’ is an act that is open to the world in the sense that it can be perceived by anyone placed to do so. The overt acts laid in Count 1 are no more than further particulars of the particulars of the offence charged. They are in themselves not specific or distinct charges, but merely further particulars. The indictment as laid under s 3(1)(a) of the Treason and State Offences Act 1963 together with the overt acts is correct, proper and in conformity with the provisions of s 51 of the Criminal Procedure Act 1965 and rules 3(4) and (5) . Under criminal procedure in Sierra Leone the proof required for any criminal offence is proof beyond reasonable doubt. In the instant case what the prosecution was required to prove against the appellants was the substantive offence of preparation to overthrow the Government of Sierra Leone by unlawful means, which is treason. Fornah and 14 Others v The State [1974-82] 1 SLBALR 48 and Mattaka & Others v The Republic [1971] EA 495 referred to.

2. Duplicity in a count is a matter of form not of evidence called in support of the count. Whether a count is bad for duplicity, one must examine the count itself, that is, the count’s statement of offence, as read with its particulars of offence. If an examination shows that two or more offences have been charged therein, then the count is bad for duplicity and the conviction will be quashed. Mallon v Allon (1964) 1 QB 385; (1963) 3 All ER 843 and David Lasana & 11 Others v R (1970-71) ALR (SL) 186 applied.

3. An examination of Count 1 of the indictment clearly showed that the only offence charged in the statement of offence was treason, not treason and conspiracy or conspiracies. The particulars

of the offence alleged, that the appellants together prepared to overthrow the Government - not prepared or/and endeavoured to overthrow the Government. Had the statement of offence in Count 1 charged the appellants with two separate offences and the particulars of the offence alleged that the appellants had “prepared or endeavoured” to overthrow the Government as was the case in David Lasana & 11 Others v R (1970-71) ALR (SL) 186 the count would have been duplicitous and bad as the terms “prepared” and “endeavoured” would have related to distinct specific offences of treason. This was not the position in the instant case and the argument that Count 1 was bad for duplicity failed.

4. The various overt acts were not laid as substantive offences but as further particulars of the offence of the one and only count of treason in the indictment. In law, it is permissible to lay any number of overt acts in the same count of an indictment without making the count duplicitous. Where there are several overt acts laid in a count of an indictment and a judgment is given on a general verdict of guilty on that count, such judgment will be sustained, though some of the matters alleged as overt acts may be improperly so alleged, provided that the count contains allegations of overt acts that are sufficiently laid. In law, proof of one overt act will sustain the count provided that the overt act so proved is a sufficient overt act of the species of the treason count in the indictment. Consequently, the charge of the trial judge to the jury, that proof of one overt act is sufficient to sustain the count is correct and proper in law.

5. If several persons do an act preparatory to the overthrow of the Government by unlawful means, that amounts to treason under s 3(1)(a) of the Treason and State Offences Act 1963. Consequently, the respective acts of the parties can be laid as overt acts of the treason of preparing. In the instant case, the forbidden act under the Treason and State Offences Act 1963 with which the appellants were charged, was preparation to overthrow the Government of Sierra Leone by unlawful means. Conspiracy is a preparatory act, preparatory to the commission of an unlawful act. Therefore when persons agree to overthrow the Government by unlawful means, that agreement is a preparatory act, which amounts to a preparation to overthrow the Government by unlawful means contrary to s 3(1)(a) Consequently, the said agreement to overthrow Government by unlawful means is a sufficient overt act of the species of treason created by s 3(1)(a). Conspiracy to commit treason is a sufficient overt act of treason and can be properly laid in a count for treason. It is also possible in law to lay two or more conspiracy overt acts in a count for treason. Mulcahy v The Queen (1868) LR 3 HL 306, David Lasana & 11 Others v R (1970-71) ALR (SL) 186 and R v Greenfield [1973] 3 All ER 1050 applied.

6. Neither the repeal of the Treason Act of 1351, nor the absence of any mention of this offence in the Treason and State Offences Act 1963, made any difference to the status of misprision of treason as a criminal offence in Sierra Leone. Under s 125 of the Constitution, it was quite clear that the English law applicable to Sierra Leone is the common law of England, the doctrines of equity and statutes of general application which were in force in England on 1 January 1880, which included the offences of misprision of treason and misprision of felony. Sykes v DPP [1962] AC 528; [1961] 3 All ER 33 applied. Dictum of Tambiah JA in David Lasana & 11 Others v R (1970-71) ALR (SL) 186 overruled.

7. As soon as a person becomes aware of a treasonable design, that is, a knowledge that treason is merely being planned or committed, it is his duty to reveal it to a Judge or Justice of the Peace or other authority at the earliest opportunity. Failure to do so is misprision of treason for which he may be prosecuted. It is the duty of every citizen to assist in the detection and suppression of crime, and prevention is better than cure. The 13th appellant, as a high-ranking Police Officer, had a duty which carried with it a high degree of responsibility. Much was expected of him at a time when it would appear to any reasonable person that the country was on the brink of a precipice. Regrettably, the 13th appellant was woefully wanting in foresight and the expected standards of a highly placed and disciplined Police Officer.

8. In a criminal trial, it is the duty of the judge to make clear to the jury in terms which are adequate to cover the particular features of the case that they must not convict unless they are satisfied beyond reasonable doubt of the guilt of the accused. There is no rule that, where the prosecution

case is based on circumstantial evidence the judge must, as a matter of law, give a further direction that the jury must not convict unless they are satisfied that the facts proved are not only consistent with the guilt of the accused, but also such as to be inconsistent with any other reasonable conclusion. The proper direction to be given in all criminal trials in Sierra Leone, irrespective of whether the evidence adduced at such trials is direct or circumstantial, is proof beyond reasonable doubt. Woolmington v DPP (1935) 25 Cr App R 72 and McGreevy v DPP [1973] 1 WLR 276; (1972) 57 Cr App R 424 applied. Ogwa Nweke Onah v The State (1985) 3 NWLR 236 not followed.

9. From the range of evidence, it was apparent that there were matters sufficient for the consideration of the jury, and further, that it was open to them to draw conclusions from the mass of evidence which would warrant them in deciding that the guilt of appellants had been established or not. In addition, the prosecution case against the appellants was based on common design. In law, if several persons act together in one common unlawful undertaking and death results, but it is not known by whom, all are responsible. Consequently, the 2nd, 3rd, 4th and 11th appellants were all responsible for the death of Mohamed Adama Rogers. On the totality of the evidence, no jury properly directed would have returned a verdict otherwise than that of guilty of murder.

10. It is a fundamental rule of evidence that hearsay evidence, whether oral or written (common law and statutory exceptions apart), is inadmissible in criminal proceedings. The essence of hearsay evidence is that the statement complained of was made in the absence of the accused person. It is not the best evidence, and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross-examination and the light which his demeanour would throw on his testimony is lost. The rule, however, admits of certain carefully safeguarded and limited exceptions, one of which is that words may be proved when they form part of the res gestae, that is, the facts surrounding or accompanying a transaction which is the subject of the legal proceedings. Subramanian v Public Prosecutor [1956] 1 WLR 965 applied.

11. The hearsay evidence of DW20 based on the intelligence reports received was wrongly admitted by the trial judge in that it went beyond the principles laid down in Subramanian, in that the object of the evidence was to establish the truth of the statement in the intelligence reports not the fact that it was made. The trial judge misdirected himself by admitting DW20’s hearsay