Kargbo v S (CR APP 1 of 2012) [2012] SLCA 3 (8 March 2012)

CR.'.ApP 2/2012 IN THE COURT OF APPEAL OF SIERRA LEONE BTEW EEN: DAVID KARGBO - APPELLANT AND THE STATE - RESPONDENT CORAM: THE HON, MR JU S T IC E N C BROWNE-MARKE, JU S T IC E OF APPEAL THE HON. MRS JU S T IC E A SH O W ERS, JU S T IC E OF APPEAL THE HON MRS JU S T IC E N M A TTURI-JO N ES, JU S T IC E OF APPEAL COUNSEL: E E C SHEARS-M OSES ESQ for the Appellant • S A BAH ESQ Ag DPP for the Respondent JUD GM ENT DELIVERED THE DAY OF MARCH.2012 1 . The Appellant David Kargbo, has in this Application dated 10th February,2012 applied to this Court for Bail pending appeal. On 5 January,2012 he was convicted of the offence of Receiving Stolen Goods, contrary to Section 33(1) of the Larceny Act,1916 and sentenced to a term of imprisonment of 3 years, without the alternative of a fine. He is now serving his sentence at Central Prison, Pademba Road, Freetown. The Judgment was written by the Trial Judge, The Hon. Mr Justice S A Ademosu, now retired, but delivered by The Hon Mr Justice Katutsi in the Freetown High Court. The Appellant is also asking for any further or other Orders, and i hat the Costs of the Application, be Costs in the Cause. There is no Cause in existence, and, in any event, C osts a re not usually awar ded in an Application in a criminal mdtter. . 2. The Application is supported by the affidavit of Mr Shears-Moses deposed and sworn to on 10 February,2012. Exhibited thereto are, firstly, EECSM1 which is a copy of the Indictment on which the Appellant was convicted. In Count I I of that Indictment, the Appellant is charged with receiving various quantities of cosmetics and toiletries, the property of Yusufu Sow, knowing the same to have been stolen. Count I sets out in extenso, the various goods end, their respective value, stolen from the store of Yusuf u Sow EECSM2 is a copy of the Judgment of the A D EM O SU,JA which was actually delivered by KA T U T S I,J ns ^D EM OSU,JA had retired during the course of last year, and is now the . Chairman of the Political Parties Registration Commission. In that judgment, AD EM O SU.JA gave the reasons on page 31 thereof, for believing that the Appellant was guilty of the offence with which he charged. EECSM3 is a copy of the Notice of Appeal dated 20th • . January,2012 EECSM4 is a copy of an amended Notice of Appeal dated 26tf Janaury,2012. The grounds of appeal relate principally, to the identity of the goods stolen, and whether, the prosecution hod succeeded in proving that the Appellant knew the goods he had received, were indeed stolen. The Appellant, of course, has the right to add further grounds of appeal to his amended Notice of Appeal, before the appeal comes up for hearing. 3. In his affidavit, Mr Shears-Moses deposes that the offence in respect of which the Appellant was convicted is one for which bail can be granted; that the Appellant is a citizen of Sierra Leone, and also a businessman with a family o f which he is the sole breadwinner. He deposes further . -that the Appellant's business and family will continue to suffer hardship as s result of the Appellant's conviction and sentence That k “ ..ad m ittin g th e A p p lican t to B a il w ill make him m ore u se fu l fo r conducting . h is case m th e supply o f in fo rm atio n and m a te ria l" Basically, these are very much the same grounds canvassed by Mr Shears-Moses in a similar Application made on behalf of the Appellant Ibrahim Bah *n an affidavit deposed and sworn to by him on 13 January,2012. And, as I pointed out in the Judgment in that Application, "an ap p eal is n o t a tria l. A ll th e evid en ce is a lre a d y in ; ^nd th e A p p ellan t was co n victe d b y th e T ria l Ju d g e on th e b a sis o f th e evidence led. An ap peal is circu m scrib e d b y th e grounds o f ap p eal H e w as Counsel fo r th e A p p ellan t in th e C o u rt below, and he m ust have re c e iv e d adequate and concise in stru c tio n s from th e - f • '' ■ ' _A p p ellan t in o rd e r to conduct h is d efen ce. I f he h ad n ot, then he could n o t have e x e rc is e d th e due d ilig en ce an d s k ill e x p e cte d o f Counsel a t th e B a r ." ’ . 4 .. Mr Shears-Moses deposes further, that if admitted to Bail, the Appellant has reliable sureties who will ensure that he attends Court whenever needed. Again, quqting from that Judgment," That, I am a fra id , is a . : . . . 2-' co n sid eratio n w hich should weigh w ith th e C o u rt o f f ir s t in stan ce, n o t w ith an ap p e lla te trib u n al. The appeal, fo r a ll in te n ts and purposes, is being h an d led b y M r Sh ears- M o ses h im self, o r, as ap pears on th e back o f e x h ib it EEC 5 M 3 , th e N o tic e o f Appeal, th e firm o f Sh ears- M o ses & Co. The A p p e lla n t's p resen ce is n o t req u ired , u nless he w ish es h im s e lf to be p re se n t in C o u rt during th e h earin g o f th e appeal. I f he is in c a rc e ra te d , he would be b ro ug h t to C o u rt b y Priso n O f fic e r s ...........T h at th e A p p ellan t n e ve r vio la te d h is b a il co n d itio n s during th e co u rse o f th e t r ia l in th e C o u rt below, is o f no moment. Those b a il con d ition s a re now sp en t An accu sedf p erso n 's conduct b e fo re he is co n victe d does n o t n e c e s s a rily rem ain th e sam e a f t e r he h as been convicted . B e fo re con victio n , he may be looking fo rw ard , h o p efu lly, to an a c q u itta l[ an d m ay se e no reason to jum p b ail. A f t e r co n victio n and sen ten ce, and a f t e r spending some tim e behind b ars, he may look a t th in gs in a d iffe r e n t lig h t." Mr Shears-Moses also deposes that the Appellant's appeal has a " high d eg ree o f c e rta in ty to be s u c c e s s fu l!’ Relying on what I said in the BAH Judgment,” T h is view point, is e n tire ly s u b je c tiv e , and is n o t r e a lly a req u irem en t o f th e Law , though th is C o u rt would n o rm ally take in to co n sid eratio n th e s tre n g th o f th e grounds o f appeal. S e c tio n 6 7 (2 ) o f th e C o u rts' A c t,1965 w hich g overn s th is A p p licatio n , p ro vid e s th a t. " The C o u rt o f Appeal, o r th e C o u rt b e fo re whom he w as co n victe d may, i f it seem s f it , on th e ap p licatio n o f an ap p ellan t, ad m it th e ap p e llan t to b a il pending th e d eterm in atio n o f h is appeal." To quote again from that Judgment, since the arguments canvassed are very much the same:" The A p p ellan t h as n o t ap p lied to th e C o u rt b e fo re which h e w as co n victed , fo r B ait, b u t h as come d ire c tly to th is Court. H e is e n title d to do th is, a s ap p licatio n s fo r b a il, a re n o t th e sam e a s applications fo r s ta y o f execution o f ju d g m e n ts in c iv il appeals. In c iv il <*ases, th e A p p licatio n m ust be made to th e C o u rt below, and upon re fu s a l, i i could be made to th is C ourt. To help th is C o u rt d eterm ine w h e th e r ‘it seem s f i t ' to g ra n t an ap p ellan t b a il, th is C o u rt would took, a s I have s ta te d above, a t th e s tre n g th o f th e grounds o f ap p eal and th e lik elih o o d th a t th e A p p ella n t would have se rv e d a s u b s ta n tia l p a rt o f h is sen ten ce b e fo re h is ap p eal h as been heard. This C o u rt should n o t overlo o k th e p o s s ib ility th a t i f an ap p ellan t is re le a s e d on b a il pending appeal, and h is ap peal is e ve n tu a lly dism issed\ he would have to be re tu rn e d to p riso n to 23 com plete h is se n ten ce Su ch an e v e n tu a lity w ould p ro b a b ly have a much m ore damaging, p sych o lo g ical and em otional e f f e c t on an ap p ellan t and h is fam ily. A lso , th e fa c t th a t an ap p ellan t h as rem ain ed in cu sto d y pending .h is appeal, m ight w e ll induce o r in clin e th is C ourt, in th e e ve n t th a t it d ism isses h is appeal, to e x e rc is e m ercy; and re d u ce such an a p p e lla n ts se n te n ce ," 7. The issue of whether the Appellant would hqve served a substantial portion of his sentence before his appeal qA^determined, M r Shfiflf5- AAojw# is of more importance in this Application than in the BAH Application, as the sentence in this case was for three years only. This issue, was dealt with in the old WACA case of R v TU W A N 5H IE which Counsel on both sides agree, still governs applications of this nature. As I stated in the BAH Judgm ent"... th e m anner in w hich ap peals have been d e a lt w ith b y th is C ourt, sin ce a t le a s t 2004 in d ic a te th a t i t is u n lik ely th a t an y ap p ellan t in a crim in a l appeal who h as been se n ten ce d to a term o f im prisonm ent w ith o u t th e a lte rn a tiv e o f a fin e , w ould have sp en t a s u b s ta n tia l p o rtio n o f h is sen ten ce b e fo re h is appeal is h e a rd " W ith the introduction of + he use of written arguments, appeal hearings are now very short. Once the record is ready, the Honourable the Chief Justice will assign the appeal to a panel for hearing. Mr Shears-Moses has not cited any appeal which came up for the first time within the last 5 years . in which the Appellant has served a significant portion of his sentence before his appeal was determined. He has not done so, because there is none. The only similar situation I can recall is that which arose in 30L0KU BOCKARIE's appeal. His appeal had been filed long before the new system came into operation- In fact, it was only heard and determined af ter I had become a Judge in 2007.1 had the pleasant duty of writing the majority judgment which set him free. By then, he had served his sentence. 8. Ar Monfred Sesay, Principal State Counsel has filed an affidavit in opposition to the Appellant's Application, deposed and sworn to by him on 27 February,2012 But since the matters canvassed by him have been dealt with above, I do not find it necessary to reiterate the matters deposed to by him. In paragraphs 6, 7 and 8, Mr Sesay has succinctly set out the matters which should exercise our minds, in dealing with this Application for BalL . 2-0r 9. In the result, the Appellant's Application for Bail pending appeal is dismissed. THE HONOURABLE MR JU S T IC E N C UROWNE-MARKE. JU S T IC EOF APPEAL H' ■THE HONOURABLE MRS JU S T IC E A SHOWERS, JU S T IC E OF APPEA K HONOURABLE MRS JU S T IC E N M A TTURI-JO N ES JU S T IC E OF APPEAL