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

SIERRA LEONE LAW REPORTS – ADVANCE COPY 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 four- count 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 SIERRA LEONE LAW REPORTS – ADVANCE COPY 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 SIERRA LEONE LAW REPORTS – ADVANCE COPY 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 SIERRA LEONE LAW REPORTS – ADVANCE COPY 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 evidence. However, the fact that evidence is wrongly admitted does not make the verdict unsafe unless it can be shown that the evidence has actually influenced the verdict of the jury. Before assessing the prejudice caused by the wrongful admission of the hearsay evidence and deciding whether it affected the substantial justice of the trial, the nature and effect of the other evidence must be looked at. Disregarding the piece of hearsay evidence of DW20, there was other evidence left to the jury for consideration on a right dir ection, in determining the guilt or otherwise of the appellants. The jury were properly directed on that evidence and would have arrived at the same verdict if the hearsay evidence had not been admitted. 12. At a criminal trial with a jury, where an accused raises an alibi as a defence, it is the duty of the trial judge to explain that defence to the jury. He must explain to the jury what in law amounts to an alibi. It must be explained further to the jury that even where an accused raises an alibi, the burden of proving his guilt lies on the prosecution throughout the proceedings. In law, no duty is imposed on an accused to prove his alibi although nothing stops him from calling witnesses to buttress such alibi if he chooses. The jury must be told this in clear terms and that if an alibi fails the matter does not end there. The overall burden of proving the guilt of the accused lies on the prosecution. The standard of proof required of the prosecution is proof beyond reasonable doubt. 13. The trial judge in his summing-up directed the jury over and over on the burden of proof being on the prosecution to establish the guilt of the appellants and that he did this after reviewing the whole evidence and explaining the nature of their defences to the jury in non-technical language. The jury understood the trial judge’s direction and were not confused by it in arriving at their SIERRA LEONE LAW REPORTS – ADVANCE COPY verdict and came to the conclusion that the prosecution had proved guilt beyond reasonable doubt. 14. In law, an accomplice simpliciter is a person who is involved in the actual commission of the crime charged, whether as principal or accessory in felony or persons committing, procuring or aiding and abetting in the case of misdemeanour. A police spy is not an accomplice for this purpose. An accomplice is always a competent witness for the prosecution, although the fact of a witness being an accomplice detracts materially from his credit. The uncorroborated evidence of an accomplice is admissible in law; but where an accomplice gives evidence for the prosecution, it is the duty of the judge to warn the jury that although they may convict on his evidence, it is dangerous to do so unless it is corroborated. This rule, although a rule of practice, has now become a rule of law. 15. Where the judge fails to warn the jury in accordance with this rule, the conviction will be quashed even if in fact there be ample corroborative evidence. Where the judge has given the jury an adequate warning on corroboration and has explained to them what is meant in law by corroboration, it is not necessary that he should point out to the jury the pieces of evidence which can amount to corroboration. In law an accomplice cannot corroborate the evidence of another accomplice. Corroboration of a witness’s testimony must be afforded by independent evidence which affects the defendant by connecting or tending to connect him with the offence charged. It must be evidence which implicates him, that is, which tends to confirm in some material particular not only that the offence was committed, but also that the defendant committed it. It is for the judge to decide whether there is any evidence to show that a witness can be regarded as an accomplice, and it is for the jury to determine whether the witness is in fact an accomplice. In the pre sent case, the trial judge correctly assessed the evidence and came to the right conclusion that PW18, PW21 and PW33 were not accomplices and he in no way misdirected the jury. 16. In the instant case, proper caution was administered to suspects before statements were obtained from them. In the course of ordinary police investigations visits were made to places mentioned in the several overt acts and not scenes of crimes simpliciter. As far as possible the proprieties were duty observed. The jury as judges of fact had the opportunity of seeing and hearing these witnesses give evidence and were in position to form their own impressions. Their verdict was an indication that they believed the statements of the appellants. 17. It is a fundamental rule of evidence that statements made by one accused person either to the police or to others, whether in the presence or absence of a co-accused, made in the course and pursuance of a joint criminal enterprise to which the co-accused was a party are not evidence against a co -accused, unless the co -accused either expressly or by implication adopts the statements and thereby makes them his own. It is the duty of the judge in a jury trial to impress on the jury that the statement of the accused person not made on oath in the course of the trial is not evidence against a co-accused and must be entirely disregarded. R v Rudd (1948) 32 Cr App R 138 and R v Gunewardene (1951) 35 Cr App R 80 applied. 18. However, it is a recognised and universal principle of law that, whereas a statement made in the absence of the accused person by a co-defendant cannot be evidence against the accused person, yet if that co-defendant goes into the witness-box and gives evidence in the course of a joint trial, then his sworn evidence becomes evidence for all purposes in the case including that of being evidence against the accused person. Here, the 1st appellant elected to give evidence on oath in his own defence from the witness-box. His sworn evidence from the witness-box became evidence for all purposes in the case including that of being evidence against the accused, and there was no evidence that the 1st appellant retracted his statement his incriminating statement against the 5th appellant. R v Meredith and Others (1943) 29 Cr App R 40 applied. 19. In order for a tape recording to be admitted into evidence, he accuracy of the tape recording must be proved, the voice recorded must be properly identified, the evidence must be relevant and the recording must come from proper custody. All of these prerequisites were met in the current SIERRA LEONE LAW REPORTS – ADVANCE COPY case and the tape recording was properly admitted in evidence. R v Maqsud Ali and Ashiq Hussain [1962] 2 All ER 464 applied. 20. As regards the trial judge’s summing up, the proper approach is to look at the summing up as a whole in determining whether it contains misdirections or other matters verging on a miscarriage of justice. There is no set formula for a summing-up. Strong comments by the trial judge in summing-up cannot be equated with unfairness or usurpation of the functions of the jury. A judge is entitled to express his opinions and to make strong comments on questions of fact as long as he leaves the issues to the jury to decide. The key question is whether the case for the defence has been put fairly before the jury. On the general ground that the verdict is unreasonable or cannot be supported having regard to the evidence, the court is not entitled to reverse the verdict of the jury, unless no reasonable jury properly directed could have returned that verdict. The court is not entitled to substitute its views for that of the jury. While there were misdirections in the trial judge’s summing-up, there was ample evidence against the appellants on which the jury could convict on all counts. There was here no miscarriage of justice and the appeals against convictions and sentence were therefore dismissed. R v Linzee and O’Driscoll [1956] 3 All ER 980, McGreevy v DPP [1973] 1 WLR 276 ]; (1972) 57 Cr App R 424, R v Cohen & Bateman (1909) 2 Cr App R 197 and R v Ali (1981) 6 A Crim R 161 applied. Per Warne JSC: 21. In any civilized society, where the rule of law exists, misprision of treason is a grave crime. It is a grave crime in Sierra Leone. It is a crime which endangers the very existence of the State. For such a crime the maximum sentence is life imprisonment. It is one of the gravest offences know to the laws of Sierra Leone yet it carries a lower sentence than that for the offence of murder. In considering whether the sentence is inordinately long, one must bear also in mind the frequency with which such offence is committed and ensure whatever sentence is imposed will be a deterrent to others. In the twenty-eight years of the Independence of Sierra Leone, there have been as many coups and abortive coups as there have been general elections. The several attempts to overthrow the Government of Sierra Leone by unlawful means are not only disturbing but intolerable. It is reprehensible that persons who know of a coup plot or that treason has been committed should conceal this intelligence from authorities. They should feel the full weight of the law. 22. The summing-up by the trial judge was not impeccable and contained a number of misdirections (as set out in Warne JSC’s judgement). However, it was necessary to take into account the length of the trial, the number of accused persons, the several objections of counsel for the number of accused persons, the several objections of counsel for the defence, some warranted and some absolutely unwarranted, and the advantage the judge and jury had to see and hear the several witnesses both for the prosecution and the defence. The Court of Appeal made a determined and critical scrutiny of the whole proceedings. The trial judge’s summing-up was not open to the charge of bias. There are passages in it which are open to criticisms. But the summing-up must be viewed as a whole, and upon this view of it, the appellants were guilty of the offences as charged. Cases referred to David Lasana & 11 Others v R (1970-71) ALR (SL) 186 Fornah and 14 Others v The State [1974-82] 1 SLBALR 48 Mallon v Allon (1964) 1 QB 385; (1963) 3 All ER 843 Mattaka & Others v The Republic [1971] EA 495 McGreevy v DPP [1973] 1 WLR 276; (1972) 57 Cr App R 424 Mulcahy v The Queen (1868) LR 3 HL 306 Myers v Director of Public Prosecutions [1965] AC 1001 Ogwa Nweke Onah v The State (1985) 3 NWLR 236 Queen v Aspinall [1876] 2 QBD 48 R v Ali (1981) 6 A Crim R 161 R v Brisac (1803) 4 East 164 SIERRA LEONE LAW REPORTS – ADVANCE COPY R v Cohen & Bateman (1909) 2 Cr App R 197 R v Greenfield [1973] 3 All ER 1050 R v Gunewardene (1951) 35 Cr App R 80 R v Henry Beecham [1921] 3 KB 464 R v Kojo Bodom & Others (1935) 2 WACA 390 R v Linzee and O’Driscoll [1956] 3 All ER 980 R v Maqsud Ali and Ashiq Hussain [1962] 2 All ER 464 R v Meredith and Others (1943) 29 Cr App R 40 R v Onufrejczyk [1955] 1 QB 388; (1955) 39 Cr App R 1 R v Rudd (1948) 32 Cr App R 138 R v Summers [1952] 1 All ER 1059 R v Taylor Weaver and Donovan 1928] 21 Cr App R 20 R v Turner and Others [1975] 61 Cr App R 67 R v Wann (1912) 7 Cr App R 135 R v Wolf (1914) 10 Cr App R 107 Shamwana v The People (1985) ZR 41 Subramanian v Public Prosecutor [1956] 1 WLR 965 Sykes v DPP [1962] AC 528; [1961] 3 All ER 33 Teper v R [1952] AC 480 Venn v The State [1974-1982] 1 SLBAR 172 Woolmington v DPP (1935) 25 Cr App R 72 Legislation referred to Constitution of Sierra Leone 1978 s 125 Courts Act 1965 ss 58(2), 74 Criminal Procedure Act 1965 ss 3, 51(1), 52(1) Criminal Procedure Code s 135 (Tanzania) Criminal Procedure Rules r 3(1), (2),(4), 3(5) Penal Code s 39 (Tanzania) Penal Code (Cap 146) s 52 (Zambia) Treason Act 1351 [UK] Treason and State Offence Act 1963 ss 2, 3(1)(a), 17, 19(2) Other sources referred to Archbold [39th Ed] p 598, paras [1127], [1301] Funk and Wagnalls Standard Dictionary of the English Language, International Edition Halsbury’s Laws of England [4th Ed] Vol 11 p 483 Jowitt’s Dictionary of English Law [1977 Ed] 2nd Vol p 1300 Kenny’s Outlines of Criminal Law [15th Ed] 1936 Oxford Universal Dictionary Illustrated [3rd Ed] Vol II 1970 Reprint Smith & Hogan, Criminal Law [5th Ed] 1983 Stephen’s Commentaries on the Laws of England [21st Ed] p 405 Taylor on Circumstantial Evidence [11th Ed] Vol 1 p74 Wharton’s Law Lexicon [4th Ed] p 723 Appeal This was an appeal by 14 appellants from a decision of the Court of Appeal on 22 September 1988, which dismissed their appeals against conviction in a trial before Williams JA and a jury on 1 June 1987 on a four-count indictment of treason, misprision of treason and murder. The facts appear sufficiently in the following judgment of Kutubu CJ. Mr CF Margai for the 1st, 8th, 9th, 10th & 14th appellants. Mr JA Wilson for the 2nd, 3rd, 4th & 11th appellants. Mr CJ Betts and Mr SE Berewa for the 5th appellant. Miss Isha Dyfan for the 6th & 7th appellants. Mr Berthan Macauley Jnr for the 12th appellant. SIERRA LEONE LAW REPORTS – ADVANCE COPY Mr CA Osho-Williams and Mr ABC Johnson for the 13th appellant. Attorney General for the State. KUTUBU CJ: This is an appeal from the judgment of the Court of Appeal for Sierra Leone, comprising Turay JA, Thompson-Davis JA and Johnson J, dated 22 September 1988. The brief history of this case can be succinctly stated. Eighteen accused persons were in the month of June 1987 arraigned before the High Court in Freetown on a four-count 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 No 10 of 1963. Four of the 16 accused were charged with the offence of misprision of treason, contrary to law. The trial proceeded before Williams JA and a jury, from 1 June 1987 and was concluded on 17 October 1987. Suffice it to say that this trial was beset by many difficulties of unparalleled proportions in the history of criminal trials in this country, one such being the empanelling of juror which took four weeks to accomplish. At the close of the case for both the prosecution and the defence, and after a long summing-up by the learned trial judge which lasted several days, the jury returned a unanimous verdict of guilty as charged in respect of the accused. The death sentence was passed on the first 16 accused, while the 17th and 18th accused were sentenced to terms of imprisonment of 4 and 7 years respectively. It was against this background that all 18 convicted prisoners appealed to the Court of Appeal against their conviction on various grounds. The 18th appellant also appealed against sentence. As was the position in the High Court, all appellants in the Court of Appeal were represented by counsel. On the 16 appellants convicted of treason, the Court of Appeal upheld the appe als of the following four: Francis Augustine Ensah, Patrick Benedict Kai-Kai, Kazim Allie and Raymond Brima Dorwie, who were accordingly acquitted and discharged. The appeals of the following twelve appellants were dismissed by Court of Appeal, namely: Gabriel Mohamed Tennyson Kai-Kai, Prince Deen Kai-Kai, Joseph John Harding, Daniel Sulaiman Kai-Kai, Francis Mischeck Minah, David Abu Samu, Francis Massaquoi, Amara Allieu Tarawallie, Joseph Abiodun Williams, Hassan Morlai Conteh, Conrad Innis and Haruna Vandy-Jimmy. The murder appeals in respect of Prince Deen Kai-Kai, Joseph John Harding, Daniel Sulaiman Kai-Kai and Conrad Innis were dismissed. So also were the appeals for misprision of treason in respect of Benjamin Orissa Dunacca Taylor and Sheku Deen Kamara. Appellants have appealed to this court against the judgment of the Court of Appeal on various grounds. For the purpose of this judgment, the appellants who number fourteen in all, are now re- numbered 1-14, starting with the 1st appellant Gabriel Mohamed Tennyson Kai-Kai, and ending up with Sheku Deen Kamara, the 14th appellant. The indictment upon which the appellants were convicted contained four counts which I shall proceed to set out as laid. The count for treason contains 26 overt acts in all. Count 1 Statement of Offence: Treason contrary to s 3(1)(a) of the Treason and State Offence Act 1963, as amended. Particulars of Offence: GABRIEL MOHAMED TENNYSON KAI-KAI, PRINCE DEEN KAI-KAI, JOSEPH JOHN HARDING, DANIEL SULAIMAN KAI-KAI, FRANCIS MISCHECK MINAH, DAVID ABU SAMU, FRANCIS AUGUSTINE ENSAH, FRANCIS MASSAQUOI, AMARA ALLIEU TARAWALLIE, JOSEPHUS ABIODUN WILLIAMS, PATRICK BENEDICT KAI-KAI, HASSAN MORLAI CONTEH, CONRAD INNIS, KAZIM ALLIE, RAYMOND BRIMA DORWIE and HARUNA VANDY JIMMY on divers days between that day SIERRA LEONE LAW REPORTS – ADVANCE COPY and 23 March 1987 in Sierra Leone prepared to overthrow the Government of Sierra Leone by unlawful means. Overt acts of the said treason: On 1 June 1986 and on divers days between that day and 23 March 1987 in Sierra Leone the said GABRIEL MOHAMED TENNYSON KAI-KAI, PRINCE DEEN KAI-KAI, JOSEPH JOHN HARDING, DANIEL SULAIMAN KAI-KAI, FRANCIS MISCHECK MINAH, DAVID ABU SAMU, FRANCIS AUGUSTINE ENSAH, FRANCI S MASSAQUOI, AMARA ALLIEU TARAWALLIE, JOSEPHUS ABIODUN WILLIAMS, PATRICK BENEDICT KAI -KAI, HASSAN MORLAI CONTEH, CONRAD INNIS, KAZIM ALLIE, RAYMOND BRIMA DORWIE and HARUNA VANDY ALLIE conspired together and with other persons unknown to overthrow the Government of Sierra Leone in that they agreed: To lay ambush, attack and kill the President of Sierra Leone Major General DR JOSEPH SADIU MOMOH; To make a broadcast over the Sierra Leone Broadcasting Service announcing the dissolution of Parliament, the suspension of the Constitution of Sierra Leone, the disbanding of the recognized party and the formation of a National Reformation Council; To impose a dusk to dawn curfew in Sierra Leone; and To overthrow and take over the Government of Sierra Leone by unlawful means. Francis Mischeck Minah on a date unknown between 1 July 1986 and 23 March 1987 in Freetown incited Jamil Sahid Mohamed and Gabriel Mohamed Tennyson Kai -Kai and others unknown to overthrow the Government of Sierra Leone by unlawful means. On a date unknown between 1 July 1986 and 23 March 1987 Francis Mischeck Minah incited Haruna Vandy-Jimmy to solicit and collect contributions in furtherance of a plot to overthrow the Government of Sierra Leone by unlawful means. On a date unknown between 1 February 1987 and 21 March 1987 Haruna Vandy -Jimmy collected from inhabitants of Wonde Chiefdom, Bo District in the Southern province of Sierra Leone and other persons unknown the sum of Le80,000 (eighty thousand leones) on behalf of Francis Mischeck Minah in furtherance of a plot to overthrow the Government of Sierra Leone by unlawful means. On Wednesday 11 March 1987 at 42 Waterloo Street, Freetown Gabriel Mohamed Tennyson Kai- Kai incited Daniel Sulaiman Kai-Kai and Joseph John Harding to overthrow the Government of Sierra Leone by unlawful means by giving the sum of Le500.00 (five hundred leones) to use as transport to recruit other persons to join in the plot to overthrow the Government of Sierra Leone. On Wednesday 11 March 1987 in Freetown, Daniel Sulaiman Kai-Kai procured Conrad Innis and Samuel Taylor to join the said plot. On Thursday 12 March 1987 at 42 Waterloo Street, Freetown, Daniel Sulaiman Kai-Kai and Gabriel Mohamed Tennyson Kai-Kai procured and incited David Abu Samu to join the plot to overthrow the Government of Sierra Leone by unlawful means. On the same day Thursday 12 March 1987 at 42 Waterloo Street, Freetown in furtherance of the plot to overthrow the Government of Sierra Leone by unlawful means Joseph John Harding procured and incited Francis Massaquoi and Amara Allieu Tarawallie by giving them the sum of Le500.00 (five hundred leones). On Thursday 12 March 1987 at 42 Waterloo Street, Freetown, Gabriel Mohamed Tennyson Kai-Kai incited Joseph John Harding, Daniel Sulaiman Kai-Kai, Francis Massaquoi, Amara Allieu Tarawallie, Conrad Innis and Samuel Taylor by giving them the sum of Le500.00 (five hundred leones) to join in a plot to overthrow the Government of Sierra Leone by unlawful means. He the said Gabriel Mohamed Tennyson Kai-Kai further procured Prince Deen Kai-Kai to join the aforesaid plot. SIERRA LEONE LAW REPORTS – ADVANCE COPY On Friday 13 March 1987, Daniel Sulaiman Kai-Kai and Joseph John Harding in furtherance of a plot to overthrow the Government of Sierra Leone by unlawful means reconnoitred Hill Cot Road, Freetown in the Western Area of Sierra Leone and selected points thereon for attacking and killing the President of Sierra Leone. On Friday 13 March 1987, Joseph John Harding, Amara Allieu Tarawallie, Conrad Innis and others unknown attending a meeting at 42B Waterloo Street, Freetown and Gabriel Mohamed Tennyson Kai-Kai disclosed to them details of the plan to overthrow the Government by unlawful means. On Saturday 14 March 1987, in Freetown in furtherance of their plan to overthrow the Government of Sierra Leone by unlawful means Joseph John Harding, Daniel Sulaiman Kai-Kai, David Abu Samu, Amara Allieu Tarawallie, Francis Massaquoi and Conrad Innis met at Aberdeen Bridge Freetown whence they proceeded to W26 Spur Road where Gabriel Mohamed Tennyson Kai-Kai incited them to join in a plot to overthrow the Government by unlawful means by showing to them assorted weapons to be used in furtherance to the said plot. On Saturday 14 March 1987 at Freetown David Abu Samu incited Joseph Abiodun Williams to join in a plot to overthrow the Government by unlawful means by giving him the sum of Le30.00 (thirty leones). On Saturday 14 March 1987 at W26 Spur Road, Freetown Gabriel Mohamed Tennyson Kai- Kai incited Josephus Abiodun Williams to join in a plot to overthrow the Government by unlawful means by giving him the sum of Le100.00 (one hundred leones). On Sunday 15 March 1987 Daniel Sulaiman Kai-Kai, David Abu Samu, Josephus Abiodun Williams, Joseph John Harding, Amara Allieu Tarawallie, Francis Massaquoi, Sheku Deen Kamara, Conrad Innis, Gabriel Mohamed Tennyson Kai-Kai and other persons unknown in furtherance of the plot to overthrow the Government of Sierra Leone agreed Friday 20 March 1987 as the day to attack and kill the President along Hill Cot Road, Freetown and Gabriel Mohamed Tennyson Kai-Kai requested the aforementioned persons to bring their uniforms and military kit and they did bring the said uniforms and military kit as part of a plan on Thursday 19 March 1987 to overthrow the Government of Sierra Leone by unlawful means. On the same day Sunday 15 March 1987 at No 42B Waterloo Street, Freetown , Gabriel Mohamed Tennyson Kai-Kai further incited Daniel Sulaiman Kai-Kai and Joseph John Harding to go and reconnoitre Hill Cot Road Freetown preparatory to a plan to ambush, attack and kill the President. On Sunday 15 March 1987 at Freetown, Gabriel Mohamed Tennyson Kai-Kai in furtherance of a plot to overthrow the Government of Sierra Leone by unlawful means contacted a Mr Jaward of No 25 Bathurst Street, Freetown to procure arms and ammunition. On or about 15 March 1987 Gabriel Mohamed Tennyson Kai-Kai in furtherance of the preparations to overthrow the Government of Sierra Leone by unlawful means procured arms and ammunition which he showed to Joseph John Harding, Daniel Sulaiman Kai-Kai, Josephus Abiodun Williams, Amara Allieu Tarawallie, Conrad Innis and other persons unknown. On Sunday 15 March 1987 in Freetown in furtherance of a plot to overthrow the Government of Sierra Leone by unlawful means Prince Deen Kai-Kai procured Francis Augustine Ensah as a driver and Gabriel Mohamed Tennyson Kai-Kai gave the sum of between Le60 (sixty leones) and Le80 (eighty leones) to the said Francis Augustine Ensah in furtherance of the said plot. On Monday 16 March 1987 Daniel Sulaiman Kai-Kai and Joseph John Harding reconnoitred Hill Cot Road Freetown in the Western Area of Sierra Leone to mark and did mark positions for the attack on the Presidential motor-cade in furtherance of their plan to overthrow the Government of Sierra Leone by unlawful means. On Tuesday 17 March 1987 in Freetown, Daniel Sulaiman Kai-Kai gave the sum of Le1,000.00 (one thousand leones) to Josephus Abiodun Williams, Joseph John Harding, Francis Massaquoi, SIERRA LEONE LAW REPORTS – ADVANCE COPY Amara Allieu Tarawallie and Conrad Innis to bring their uniforms and military kit the following day Wednesday 18 March 1987 in furtherance of the plot to overthrow the Government of Sierra Leone by unlawful means. And they the said Josephus Abiodun Williams, Joseph John Harding, Francis Massaquoi, Amara Allieu Tarawallie and Conrad Innis did bring the said uniforms and military kit. On or about 18 March 1987 in Freetown, Gabriel Mohamed Tennyson Kai-Kai procured a quantity of arms and ammunition in furtherance of a plot to overthrow the Government of Sierra Leone by unlawful means and transferred part of the said arms and ammunition to No 42B Waterloo Street Freetown in a motor car, registration SN16000. On or about 19 March 1987 in Freetown Gabriel Mohamed Tennyson Kai-Kai solicited Hassan Morlai Conteh and Prince Williams to procure a vehicle in furtherance of a plot to overthrow the Government of Sierra Leone by unlawful means. On or about 19 March 1987 in Freetown, Gabriel Mohamed Tennyson Kai-Kai wrote a speech in furtherance of a plot to overthrow the Government of Sierra Leone by unlawful means which speech contained measures pertaining to the taking over of the Government of Sierra Leone and was recorded on a cassette. On or about 20 March 1987 at No 25 Bathurst Street, Freetown in furtherance of a plot to overthrow the Government of Sierra Leone Kazim Allie gave to Gabriel Mohamed Tennyson Kai- Kai the sum of Le100,000.00 (one hundred thousand leones). On or about 21 March 1987 Gabriel Mohamed Tennyson Kai -Kai received arms and ammunition at No W26 Spur Road Freetown and caused the said arms and ammunition to be conveyed by Hassan Morlai Conteh and Patrick Benedict Kai -Kai to No 42B Waterloo Street Freetown for delivery to Prince Deen Kai-Kai in furtherance of a plot to overthrow the Government of Sierra Leone. And he the said Gabriel Mohamed Tennyson Kai-Kai solicited Raymond Brima Dorwie at New England Police Station to join the said plot. Count 2 Statement of Offence: Misprision of treason contrary to law. Particulars of Offence: SHEKU DEEN KAMARA on 15 March 1987 in Freetown in the Western Area of Sierra Leone well knowing that TREASON had been committed by GABRIEL MOHAMED TENNYSON KAI-KAI, PRINCE DEEN KAI-KAI, JOSEPH JOHN HARDING, DANIEL SULAIMAN KAI-KAI, FRANCIS MISCHECK MINAH , DAVID ABU SAMU, FRANCIS AUGUSTINE ENSAH, FRANCIS MASSAQUOI, AMARA ALLIEU TARAWALLIE, JOSEPHUS ABIODUN WILLIAMS, PATRICK BENEDICT KAI -KAI, HASSAN MORLAI CONTEH, CONRAD INNIS, KAZIM ALLIE, RAYMOND BRIMA DORWIE and HARUNA VANDY-JIMMY in that the said GABRIEL MOHAMED TENNYSON KAI-KAI, PRINCE DEEN KAI-KAI, JOSEPH JOHN HARDING, DANIEL SULAIMAN KAI- KAI, FRANCIS MISCHECK MINAH, DAVID ABU SAMU. FRANCIS AUGUSTINE ENSAH, FRANCIS MASSAQUOI AMARA ALLIEU TARAWALLIE. JOSEPHUS ABIODUN WILLIAMS, PATRICK BENEDICT KAI -KAI, HASSAN MORLAI CONTEH, CONRAD INNIS, KAZIM ALLIE, RAYMOND BRIMA DORWIE and HARUNA VANDY-JIMMY had prepared to overthrow the Government of Sierra Leone by unlawful means, unlawfully concealed the commission of the said Treason. Count 3 Statement of Offence: Misprision of treason contrary to law. Particulars of Offence: BENJAMIN ORISSA DUMACCA TAYLOR on 21 March 1987 in Freetown in the Western Area of Sierra Leone well knowing that TREASON had been committed by GABRIEL MOHAMED TENNYSON KAI-KAI, PRINCE DEEN KAI-KAI, JOSEPH JOHN HARDING, DANIEL SULAIMAN KAI-KAI, FRANCIS MISCHECK MINAR, DAVID ABU SAMU, FRANCIS AUGUSTINE ENSAH, FRANCIS MASSAQUOI, AMARA ALLIEU TARAWALLIE, JOSEPHUS ABIODUN WILLIAMS, PATRICK BENEDICT KAI -KAI, SIERRA LEONE LAW REPORTS – ADVANCE COPY HASSAN MORLAI CONTE H, CONRAD INNIS, KAZIM ALLIE, RAYMOND BRIMA DORWIE and HARUNA VANDY-JIMMY in that the said GABRIEL MOHAMED TENNYSON KAI-KAI, PRINCE DEEN KAI-KAI JOSEPH JOHN HARDING DANIEL SULAIMAN KAI- KAI, FRANCIS MISCHECK MINAR, DAVID ABU SAMU, FRANCIS AUGUSTINE ENSAH, FRANCIS MASSAQUOI, AMARA ALLIEU TARAWALLIE JOSEPHUS ABIODUN WILLIAMS PATRICK BENEDICT KAI-KAI, HASSAN MORLAI CONTER, CONRAD INNIS KAZIM ALLIE, RAYMOND BRIMA DORWIE and HARUNA VANDY-JIMMY had prepared to overthrow the Government of Sierra Leone by un lawful means, unlawfully concealed the commission of the said Treason. Count 4 Statement of Offence: Murder contrary to law. Particulars of Offence: PRINCE DEEN KAI-KAI, JOSEPH JOHN HARDING, DANIEL SULAIMAN KAI-KAI and CONRAD INNIS on 23 March 1987 at Freetown in the Western Area of Sierra Leone murdered MOHAMED ADAMA ROGERS. The case for the prosecution is that between 1 June 1986 and on divers days between that day and 23 March 1987 , Gabriel Mohamed Tennyson Kai-Kai, 1st appellant herein and 17 others committed the offence of treason, in that they prepared to overthrow the Government of Sierra Leone by unlawful means. Four of the appellants were charged with the murder of Mohamed Adama Rogers, an SSD Officer, and two others were charged with the offence of misprision of treason. Several acts of preparation were laid in the twenty-six overt acts under Count 1 of the indictment, which included the allegation of conspiracy with other persons unknown to overthrow the said Government in that they agreed among others, to ambush, attack and kill the President of the Republic of Sierra Leone, disband the recognised Party, declare a dusk to dawn curfew, form a National Reformation Council and take over the Government by unlawful means. The prosecution further alleged that in the said act of preparation to overthrow the Government several persons were solicited and incited to join the plot, monies were collected from individuals and paid to others in pursuit of the plot to overthrow the Government by unlawful means and that arms and ammunition were collected from persons and stored in places, while others were issued to some of the appellants in furtherance of the said plot. At the trial in the High Court in Freetown, the prosecution called many witnesses, thirty-six in all, in support of their case including the appellants, some of whom gave evidence on their own behalf, while others made statements from the dock. On the charge of murder, the prosecution relied substantially on circumstantial evidence. On the whole, there was a total of forty-four exhibits. Many grounds of appeal were filed on behalf of each appellant in this appeal, but on the whole, they are substantially identical and have common ground with those filed on behalf of the other Appellants. I now proceed to consider these grounds. The indictment Counsel contended on behalf of the appellants that the laying of overt acts is not permissible under s 3(1)(a) of the Treason and State Offences Act 1963, there being no reference to overt acts in any of the provisions under the said Act. It was also contended that the laying of the several overt acts under the same count rendered the count duplicitous and therefore void. That since the repeal of the Treason Act of 1351 by virtue of s 19(2) of the Treason and State Offences Act 1963 the inclusion of overt acts in a charge of t reason ceased to have any place in our criminal laws, referring in particular to s 74 of the Courts Act No. 31 of 1965 and also the Criminal Procedure Act 1965 s 3 Part 1, captioned, “General Provisions Procedure”. This contention was common ground to almost all the appellants both in the Court of Appeal and in this Court. To buttress their arguments, counsel among others relied on the judgment of the Court of Appeal in the treason appeal of Mohamed Sorie Fornah and Others v The State [1974-82] 1 SLBALR 48 (Cr App 31/1974, 30 April 1975). Like in the present appeal, there was before the SIERRA LEONE LAW REPORTS – ADVANCE COPY Court of Appeal in Fornah’s case the issue as to whether there was in our laws any legal basis for the inclusion of overt acts in charges under the Treason and State Offences Act 1963. This was a ground of appeal before their Lordships. Livesey Luke JSC (as he then was), inter alia, had this to say: “The necessity for overt acts in an information or indictment of treason was first introduced by the Treason Act of 1351. According to the statute that requirement related only to the species of treason of “being adherent to the King’s enemies in his realm”, and not to any other species of treason. That species of treason was required to be proved by “open deed”, which in more modern times has been defined as “ any act manifesting the criminal object ” (see R v Thistlewood (1820) 33 St Tr 681). In the 17th & 18th centuries the c ourts by judicial interpretation extended the requirement of an overt act to all species of treason. But the Treason Act of 1351 is no longer applicable in Sierra Leone. It was repealed by s 19(2) of the Treason and State Offences Act 1963. The question then is: are overt acts necessary in indictments for the species of treason created by the Treason and State Offences Act 1963? That is an arguable question, but it is not necessary to decide it in this appeal because the State chose to lay overt acts in the indictment in the instant case”. Suffice it to say that this issue was never decided by their Lordships’ court. The question was left open, only to resurface in the Court of Appeal and in this c ourt for our consideration and determination. I now consider the term “ overt act”. What is an overt act? Oxford Universal Dictionary Illustrated [3rd E d] Vol II 1970 Reprint defines the word overt as follows: open, not closed; uncovered. Open to view or knowledge; evident, plain, unconcealed, not secret. The learned Attorney-General for the State referred us to Wharton’s Law Lexicon [4th Ed] p 723 and Jowitt’s Dictionary of English Law [1977 Ed] 2nd Vol p 1300. Jowitt defines “overt act”, inter alia as, “an open act, or one consisting of something stronger than mere words, and evidencing a deliberate intention in the mind of the person doing it. The phrase is chiefly used in the law of treason it being a rule that a treasonable intention is not punishable unless it is evidenced by some overt act …”. Wharton’s defines “overt act”, inter alia, as follows: “The expression overt act means an act which shows the intention of the party doing it is used principally in connection with treason and conspiracy. A treasonable intention is not punishable unless it is manifested by an overt act. In the same way conspirators may make their criminal purpose clear by some overt act, such as an agreement to further their common design”. Following the respective legal definitions given to the term “overt act”, I take it to mean that 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. In Shamwana v The People (1985) ZR 41, to which frequent references were made by counsel on both sides in the prosecution of this appeal, s 52 of the Republic of Zambia Penal Code (Cap 146) of the Laws of Zambia in relation to treason and allied offences makes specific reference to “overt act” and defines it in these terms: “Section 52— In the case of any of the offences defined in this chapter, when the manifestation by any overt act of an intention to effect any purpose is an element of the offence, every act of conspiring with any person to effect that purpose, and every act done in furtherance of the purpose, by any of the persons conspiring, is deemed to be an overt act manifesting the intention”. We in Sierra Leone, unlike Zambia, do not have a codified system of laws. We therefore look for our laws from the relevant provisions of the Constitution, in particular, s 125 of the Constitution of Sierra Leone Act No 12 of 1978 (as amended). I have looked in vain for an answer whether it is SIERRA LEONE LAW REPORTS – ADVANCE COPY permissible to lay overt acts under our Treason and State Offences Act 1963. However, the matter does not rest there. Criminal proceedings in this country are regulated by the provisions of the Criminal Procedure Act No 32 of 1965 (as amended). It is an Act to consolidate and amend the law relating to Criminal Procedure. The relevant sections and rules for our purpose are in these terms. Section 51(1) of the Criminal Procedure Act No 32 of 1965 states: “Every information or indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge”. Rules 3(4) and (5) of the Criminal Procedure Rules state as follows: Rule 3(4)— “After the statement of offence particulars of such offence shall be set out in ordinary language in which the use of technical terms shall not be necessary. Provided that (a) where any rule of law or any Act or statute limits the particulars of an offence which are required to be given in an information or indictment, nothing in this rule shall require any more particulars to be given than those so required; (b) It shall be sufficient if only the words of the section of the enactment creating the offence are set out in the particulars of the offence.” Rule 3(5) states: “The forms set out in the Appendix to these rules, or forms conforming thereto as nearly as may be, shall be used in cases to which they are applicable; and in other cases forms to the like effect or conforming thereto as nearly as may be, shall be used, the statement of offence and the particulars of offence being varied according to the circumstances in each case.” Also in Mattaka & Others v The Republic [1971] EA 495 the appellants were charged with the offence of treason under s 39 of the Penal Code of Tanzania. The Criminal Procedure Code made no provisions as to the method of laying a charge for treason contrary to s 39(2) and the prosecution followed the English practice of setting out the various overt acts in each count after having first set out the statement of offence. It complied, however, with the Criminal Procedure Code as it set out a statement of the specific offence charged and then gave such particulars as may be necessary for giving reasonable information as to the nature of the offence charged. Section 135 of the Tanzanian Criminal Procedure Code, which is in the same terms as our s 51(1) of the Criminal Procedure Act No 32 of 1965 states: “Section 135— “Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences charged together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged”. This procedure was not questioned and was in the view of the East African Court of Appeal correct. I am also of the opinion that it was both proper and correct procedure, since it complied with the provisions of s 52(1) of our Criminal Procedure Act No 32 of 1965. The overt acts laid in the present count are no more than further particulars of the particulars of offence charged. They are in themselves not specific or distinct charges, but merely further particulars. In my judgment and for the reasons stated supra, 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 No 32 of 1965 and rules 3(4) and (5) thereof. Under our criminal procedure 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 SIERRA LEONE LAW REPORTS – ADVANCE COPY accused/appellants herein was the substantive offence of preparation to overthrow the Government of Sierra Leone by unlawful means, which is treason. It was further contended by the appellants that the count under which they were charged with treason was duplicitous and therefore void. In short, they complained that they were charges with several separate and distinct offences in the same count. In law, where two or more offences are charged in the same count of an indictment, the indictment is to that extent bad for duplicity. The law relating to duplicity is to ensure the protection of an accused person, by not subjecting him to an unfair trial so that he may know e xactly what case he has to answer. It is also to give him an opportunity at some future date to plead autre fois convict or autre fois acquit, as the case may be. It has been said time and again that duplicity in a count is a matter of form not of evidence called in support of the count. To ascertain 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. There is a long line of cases where it has been held that where there is duplicity in a count, the conviction should be quashed as it goes to the root of the jurisdiction. Thus Lord Parker, remarking in the case of Mallon v Allon (1964) 1 QB 385; (1963) 3 All ER 843, said: “That duplicity although is a highly technical point is one which goes to the jurisdiction of the court and if a good point, it is good whenever taken and the conviction should be quashed. An accused should know of what offence he is charged and convicted.” In David Lasana & 11 Others v R (1970-71) ALR (SL) 186 the appellants were charged with preparing or endeavouring to overthrow the Government of Sierra Leone by unlawful means. They were convicted of treason and sentenced accordingly. On appeal, the Court of Appeal set aside the conviction on the grounds that the counts were bad for duplicity. I must now determine whether the count including the several overt acts is void for duplicity; and also, whether in a count for treason two or more conspiracy overt acts may be laid without making the count duplicitous. This brings me to a consideration of the provisions of s 51(1) of the Criminal Procedure Act No 32 of 1965, which I have already set out in appropriate places (supra). Now the statement of offence in the instant case is treason, contrary to s 3(1)(a) of the Treason and State Offences Act 1963 (as amended). The particulars of offence inter alia are: “Gabriel Mohamed Tennyson Kai-Kai and … Haruna Vandy-Jimmy on 1 June 1986 and on divers days between that day and 23 March 1987 in Sierra Leone prepared to overthrow the Government of Sierra Leone by unlawful means”. An examination of Count 1 of the indictment clearly shows that the only offence charged in the statement of offence is treason, not treason and conspiracy or conspiracies. The particulars of 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 is not the position in the instant case. The contention of the appellants that the various overt acts laid in the indictment make Count 1 bad for duplicity is in my view insupportable in law and wholly untenable. Suffice it to say that the various overt acts were not laid as substantive offences but as further particulars of 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 SIERRA LEONE LAW REPORTS – ADVANCE COPY alleged as overt acts may be improperly so alleged, provide 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 learned trial judge to the jury, that proof of one overt act is sufficient to sustain the count is correct and proper in law. I have looked at overt act 4 as laid in the indictment in respect of 5th appellant and also the learned trial judge’s charge to the jury thereof. I am satisfied that there is nothing in the said overt act 4 touching and concerning the 5th appellant in relation to the treason charge. The direction of the learned trial judge is clearly wrong in this regard. But as already stated, where there are several over acts charged in a count of an indictment and a judgment is given on a general verdict of guilty on that count as was the case here, such judgment will be sustained, through some of the matters alleged as overt may be improperly so alleged, provided that the count contains allegations of overt acts that are sufficient and are sufficiently laid. This in my view is the crux of the matter. Was the conspiracy overt act in the count properly laid? A specific conspiracy charge is a common law offence (misdemeanour) and an agreement between two or more persons to do an unlawful act or a lawful act by unlawful means. It was defined by Willes J in Mulcahy v The Queen (1868) LR 3 HL 306 at 317 as follows: “A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for the use of criminal means”. In R v Brisac (1803) 4 East 164, Grose J said at p 171: “Conspiracy is a matter of inference, deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them”. In Queen v Aspinall [1876] 2 QBD 48, Brett JA said at p 58: “The crime of conspiracy is completely committed, if it is committed at all, the moment two or more have agreed that they will do, at once or at some future time certain things. It is not necessary in order to complete the offence, that any one thing should be done beyond the agreement. The conspirators may repent and stop, or may have no opportunity, or may fail. Nevertheless the crime is completed when they agreed”. If several persons do an act preparatory to the overthrow of the Government by unlawful means, that would amount 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 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) of the Treason and State Offences Act 1963. 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) of the Act of 1963. In law conspiracy to commit treason is a sufficient overt act of treason and can be properly laid in a count for treason. That this is so, is supported by a long line of authorities; see Mulcahy v The Queen (supra); David Lasana & 11 Others v R (supra). In R v Greenfield [1973] 3 All ER 1050 it was held that the fact that the evidence disclosed other conspiracies did not make the count duplicitous. In Mulcahy (supra) two conspiracy overt acts SIERRA LEONE LAW REPORTS – ADVANCE COPY ‘were validly laid in the same count’. It is also permissible in law to lay two or more conspiracy overt acts in a count for treason. Misprision of Treason This case raises the question whether there is today such an offence as misprision of treason in Sierra Leone. Counsel for 13th and 14th appellants say that such an offence is not known to our laws; or if it was an offence, it has ceased to be so, since the repeal of the English Treason Act 1351 by virtue of s 19(2) of the Treason and State Offences Act No 10 of 1963, which in their view swept overboard the common law misdemeanour of misprision of treason. Until its repeal, the Treason Act of 1351 was law in Sierra Leone. Counsel for State respondent says that there always has been such an offence, as is exemplified by the prosecution of the instant case. Misprision of treason is a common law misdemeanour and is committed when any person who knows, or has reasonable cause to believe , that another has committed treason, omits to disclose this information or any material part of it to the proper authority (Smith & Hogan, Criminal Law [5th Ed] 1983). It is also defined in Halsbury’s Laws of England [4th Ed] Vol 11 p 483 as “an offence at common law, punishable by fine and imprisonment at the discretion of the court, for a person who knows that treason is being planned or committed not to report it as soon as he can to a Justice of the Peace or other authority”. Over the years eminent legal exponents of the common law have extended its scope to include bare knowledge and concealment. 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 can be prosecuted (See Stephen’s Commentaries on the Laws of England [21st Ed] p 405 at 406). I shall come to this aspect later in this judgment. What appears in my view to have conduced learned counsel to subscribe to this erroneous assumption that misprision of treason is no longer an offence in Sierra Leone is the dictum of his Lordship Tambiah JA in the leading judgment delivered by his Lordship in the treason appeal of David Lasana & 11 Others v R (1970-71) ALR (SL) 186 , where his Lordship observed that misprision of treason was no longer an offence in Sierra Leone. With respect, his Lordship took the view albeit mistaken, that the repeal of the English Treason Act of 1351 by s 19(2) of the Treason and State Offences Act 1963, ipso facto abolished the common law offence of misprision of treason, particularly so, when the repealing Act did not contain any provision relating to misprision of treason as known to English Law. Regrettably, as the position is, that was never the case. With respect it was a misconception on the part of the learned justice. Suffice it to say that 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 makes any difference to the status of misprision of treason as a crimin al offence in this country. It is quite another matter, however, if for purposes of convenience, simplicity and clarity our Parliament in its wisdom considers it desirable to spell out the offence of misprision of treason in our laws by appropriate legislation as in some of our sister common law jurisdictions. Be that as it may, our position will be brought into proper focus if I trace the sources of our laws. The laws of Sierra Leone are to be found in s 125 of the Constitution of Sierra Leone, Act No 12 of 1978 and s 74 of the Courts Act, No. 31 of 1965. Section 125 inter alia states: “Subject to the provisions of the Constitution and any other enactment, the common law, the doctrines of equity, and the statutes of general application in force in England on the 1st day of January 1880 shall be in force in Sierra Leone”. From the foregoing, it is 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 (s 74 of the Courts Act 1965 and s 125 of Act No 12 of 1978). In regard to the contentions of learned counsel for the appellants, I will dismiss such contentions as SIERRA LEONE LAW REPORTS – ADVANCE COPY there are, by reference to the memorable pronouncement of Lord Denning in Sykes case which I consider not only correct but appropriate in the circumstances. Lord Denning in Sykes v DPP [1961] 3 All ER 33, held that misprision of treason and misprision of felony still exist in England. I must add here that I know of no authority to the contrary. By the reasons stated above, misprision of treason has always been and still is a common law offence in Sierra Leone. In relation to misprision of felony, in the same case, his Lordship had this to say ([1962] AC 528 at 564; [1961] 3 All ER at 42): “My Lords it is said that this offence is out of date. I do not think so. The arm of the law would be too short if it was powerless to reach those who are ‘contact’ men for thieves who assist them to gather in the fruits of their crime; or those who indulge in gang warfare and refuse to help in its suppression. There is no other offence of which such persons are guilty save that of misprision of felony”. By parity of reason, this principle, which in my view, is sound in law and grounded in common sense, is applicable to the offence of misprision of treason so that the arm of the law in Lord Denning’s words would not be too short to reach not only those who hide treason but also those who conceal knowledge that treason is merely being planned or committed [see Stephen supra]. It is, I feel, good law, because it accords with our society’s sense of justice, devoid of subtleties and technicalities in the particular circumstances. Having held that the offence of misprision of treason is known to our laws, and that the 13th and 14th appellants were properly tried, I now come to consider the evidence adduced by the prosecution in respect of the appellants. The 13th appellant, Benjamin Orrisa Dunacca Taylor, was up to the time of the abortive coup plot on 23 March 1987 and his subsequent arrest, a senior member of the Republic of Sierra Leone Police Force with a record of twenty-three years’ service to his credit. During this period, he served in various capacities, including that of personal bodyguard to the 5th appellant, Francis Mischeck Minah, whom he served for a period of nine years, 1973- 1982. He rose to the rank of Deputy Superintendent of Police, and at the time of his arrest, was Officer Commanding Central Police Station Freetown. Briefly, the case for the prosecution was that on Saturday evening, 21 March 1987, the 13th appellant Benjamin Taylor visited Jay’s Pub at Texaco, Aberdeen Road to have a drink. He found Mustapha Sheriff, 18th prosecution witness already there. Mustapha Sheriff received him warmly and served him a pint of beer and a second. According to the appellant, he refused the second pint as he was hungry, and was proceeding home to have his meal. There and then Mustapha Sheriff called the appellant aside and told him that he, Mustapha Sheriff, had been approached by people in connection with a coup plot, but that he had not yet seen weapons and arms. Mustapha Sheriff, however, did not give the appellant the names of the coup planners, but promised to furnish him further details in this regard when he received full information, in any case, not later than following day. The appellant said OK and he left Jay’s Pub for Aberdeen Village. In keeping with his promise to call on the appellant, on the following day, Sunday 22 March, 1987 Mustapha Sheriff, accompanied by his friend Prince Williams, PW33, boarded a van and set out for Aberdeen Village to see the 13th appellant. Unfortunately for him, due to a road block, he was unable to reach the 13th appellant. They returned and instead, decided to drive to Wilberforce Village and divulge the planned coup plot to the Military Intelligence Branch, which, they did. This piece of information set the machinery of the Security Forces in motion, culminating in the foiling of the coup plot in the early hours of Monday 23 March 1987 and the apprehension of the appellants and others. SIERRA LEONE LAW REPORTS – ADVANCE COPY “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” [see Stephen’s Commentaries on the Laws of England, supra]. Suffice it to say that these words are plain and unambiguous. The evidence in this case was that Mustapha Sheriff informed the 13th appellant Benjamin Orissa Dunacca Taylor at Jay’s Pub, about the planned coup plot, short of giving him the names of the plotters. In the circumstances of this case, was the tip-off given to the 13th appellant by Mustapha Sheriff not of such a nature and importance as to warrant its expeditious disclosure by the 13th appellant to the proper authorities in the style and manner of a Senior Police Officer, so that a stitch in time would save nine? In all the circumstances of this case, was the information from Mustapha Sheriff not of sufficient momentum and gravity as to put a Police Officer of the appellant’s calibre and standing on the qui vive, making it incumbent on him to initiate immediate investigations without more? Finally, was the 13th appellant interested in any information from Mustapha Sheriff? I fail to see any evidence of it. His general attitude in my view, was one of apathy and resignation. Suffice it to say that it is the duty of every citizen to assist in the detection and suppression of crime, and that prevention is better than cure. A fortiori, by the nature of his duty which carries with it a high degree of responsibility, much was expected of appellant at a time when it would appear to any reasonable person that the country was on the brink of a precipice. Regrettably, the appellant was in my view woefully wanting in foresight and the expected standards of a highly placed and disciplined Police Officer. In the circumstances and for the reasons given, I am of the view that the Court of Appeal rightly and correctly dismissed the appellant’s appeal. I have looked at the evidence and having regard to the special circumstances of this case, I find myself unable to uphold this appeal. The appeal is accordingly dismissed. The 14th appellant, Sheku Deen Kamara was up to the time of his arrest, a private soldier in the Republic of Sierra Leone Military Forces, having served for eleven years. The case for the prosecution is that the 14th appellant attended a secret meeting at 42B Waterloo Street, Freetown on 15 March 1987 together with the appellants herein, in order to prepare and overthrow the Government of Sierra Leone by unlawful means. There was no denying that the appellant attended this meeting, albeit once, and did not show his face there again. At this meeting, the logistics of the coup plot were discussed at length. Among those who attended were Gabriel Mohamed Tennyson Kai-Kai, 1st appellant, David Samu, 6th appellant, Francis Massaquoi, 7th appellant, Allieu Tarawallie, 8th appellant, Josephus Williams , 9th appellant and Conrad Innis, 11th appellant. In his voluntary cautioned statement, Ex “FF”, appellant said: “I never thought of revealing this information to any authority because the whole plan seemed to have been impossible for a single Police Officer to stand and fight to overthrow the Government of Sierra Leone. O.C. Kai-Kai never gave me any amount to keep the information secret”. Again in his charged statement Ex “N” he said: “The reason why I failed to report was because I was not convinced that a Police Officer can succeed in making a coup in this country as there is a standing Military Force”. The appellants gave evidence on oath from the witness box. The jury saw the witnesses, heard them and on a consideration of the evidence adduced, returned a verdict of guilty as charged. The Court of Appeal considered this ground and dismissed it for want of substance. In my view, no reasonable jury properly directed would have returned a verdict otherwise than guilty of the offence as charged. I agree with the findings of the Court of Appeal and hold that misprision of treason, which is a common law misdemeanour, constitutes an offence in this country, SIERRA LEONE LAW REPORTS – ADVANCE COPY punishable under our laws. In my opinion the sentence is neither severe nor inordinate. I would therefore be loath to interfere with it. I would dismiss this appeal. Murder Charge The 2nd, 3rd, 4th and 11th appellants herein, were convicted of the murder of Mohamed Adama Rogers and sentenced to death by the High Court in Freetown, on 17 October 1987. They appealed against conviction to the Court of Appeal for Sierra Leone on various grounds. It was contended on their behalf that the learned trial judge had in many respects misdirected the jury and also failed to put the case of the appellants adequately to them. Particular prominence was given to a contention that the learned trial judge had failed to direct the jury as to how they should view and approach circumstantial evidence, being the pith and substance of the case for the prosecution. That since the prosecution case was based substantially on circumstantial evidence, before appellants could be convicted on such evidence, it must be so mathematically accurate that it leads to one and only irresistible conclusion that the appellant s murdered the deceased. It was therefore contended that the learned trial judge’s direction to the jury, that they must not convict unless they were satisfied beyond reasonable doubt of the guilt of the accused, was not sufficient in law. Apart from this contention, the other points raised by counsel are wholly inconsequential and do not deserve serious consideration. It is sufficient therefore if I deal with the main issues. The Court of Appeal dealt with these contentions and dismissed the appellants’ appeals for want of substance. It held that there was evidence on which the jury properly directed were fully justified in returning a verdict of guilty against the appellants. On a consideration of the whole of the evidence, the Court of Appeal held the view that the learned trial judge’s charge to the jury was proper, fair and accurate. 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. According to the evidence, the deceased, Mohamed Adama Rogers died from bullet wounds at 42B Waterloo Street Freetown, involving the appellants who were acting in furtherance of a conspiracy to overthrow the Government of Sierra Leone by unlawful means. The appellants and their confederates had assembled at 42B Waterloo Street Freetown, their rendezvous, waiting for the signal, to plunge into action. It came out in evidence that 42B Waterloo Street belonged to the 1st appellant Gabriel Mohamed Tennyson Kai-Kai, who put it at the disposal of his brothers 2nd, 3rd, 4th appellants and others for residential purposes. That was the position at 42B Waterloo Street on the night of Sunday 22 to Monday 23 March 1987. The Security Forces had before Sunday evening 22 March 1987 got wind of the coup plot and the movements of the appellants and were taking counter measures to close in on them as they assembled at 42B Waterloo Street. At