Khazali & ORS v S (Criminal Appeal 4 of 1973) [1974] SLSC 7 (21 May 1974)

s Sior Leone Bar Associaton La Reports (1974-89) SLBALR KHAZALI & ORS v THE STATE cA

COURT OF APPEAL FOR SIERRA LEONE, Criminal Appeal 4 of 1973, Hon Mr Justice

CA Harding PJ, Hon Mr Justice O B R Tejan JA, Hon Mr Justice S Beccles-Davies JA, 21

May 1974

[1] Criminal Law and Procedure - Evidence - No case ~ Whether defendants ‘precluded from making no case submission.

[2] Criminal Law and Procedure - Evidence - Inconsistent statements ~ Whether {judge should have directed jury that evidence of witness unreliable because of prior inconsistent statements ~ Witness not hostile and explained to jury reasons for inconsistent statements ~ Strictly upto jury to accept or reject evidence of witness

[3] Criminal Law and Procedure ~ Evidence ~ Accomplice - Corroboration evidence ~ Duty of judge to warn jury that it was dangerous to convict on uncorroborated evidence of an accomplice - Whether corroborative evidence existed ~ Where evidence consisted entirely of uncorroborated evidence of accomplice case should be left to jury after administering necessary caution unless statute required otherwise

[4] Criminal Law and Procedure Evidence ~ Accomplice ~ Duty of judge to provide jury with broad indication of type of evidence presented at trial which could be treated 2s corroboration

[5] Courts ~ Bias~ Whether judges disqualified on basis of bias because they had heard appeal in a related matter — Real likelihood of bias must be shown

“The facts of this case were tha the four appellants entered into an agreement with one Sunday

‘Kargho to sell his (Kargbo's) wife to the first appellant. Subsequent!y Sunday Kargbo took his

wife to a village, where she and her child were murdered by the second to fourth appellants and

‘another person, while her husband and the first appellant stood by.

Ina separate tal, Sunday Kargbo and four others were convicted in December 1972 at the Port Loko High Cour by Marcus Cole J of the murder of the deceased. The Court of ‘Appeal allowed the appeal of two out of the five men who had been convicted and ordered their acquital and discharge, but the appeal ofthe other three including Sunday Kargbo was dismissed.

"The four appellants inthis case were tied in the Freetown High Court in November 1973 on

‘wo-count indictment charging them with dealing in person contrary to section 7(1) ofthe

Provinces Act (Cap 60), and murder of the deceased. Each of the appellants denied all

knowledge of the offences and the first three appellants claimed that they were nowhere in the

Vicinity of the crime atthe time it was committed. The main witness in the tial against the

appellants was Sunday Kargbo (PW9). On the first count the first three appellants were

‘convicted and each sentenced to 5 years. imprisonment, while the fourth appellant was

acquitted. On the second count, each appellant was convicted of murder and sentenced to

seath,

“The appellants appealed against their convictions on eight grounds relating tothe conduct ofthe trial. The main issues were: (i) whether the judge had refused to hear a submission of no case to answer forthe appellants at the close ofthe prosecution's case; (i) whether the judge failed to direc the jury that PW9's evidence should be regarded as unreliable on the basi that he had made several previous inconsistent statements; (i) whether the judge should have directed that it was desirable for the jury o look for corroboration of PW9's evidence before

(u97482]1 SLBALR Kanal & Or ¥ The Ste 6 convicting because, asthe only material witness, he may have had his own purpose to serve in siving evidence; (iv) because PW9 was the only witness who gave evidence incriminating the appellants and was himself an accomplice, whether the judge's dtection to the jury on the law relating to accomplices was defective. In relation tothe last issue it was argued thatthe judge left it open to the jury to convict on the evidence of a self-confessed accomplice without adequate corroboration, thatthe judge failed to diet the jury that there was no evidence of corroboration ofthe evidence of PW9 implicating the appellants and that the judge failed to sufficiently direct the jury as to the type or nature of evidence given at the tril which could amount o caeroboration.

eld, per Harding PJ, dismissing the appeals of the first, second and third appellants and

allowing the appeal of the fourth appellant and quashing his conviction:

1. Counsel forthe appellants were not n any way precluded fom making the submission of “io case” atthe close ofthe prosecution's case. but asthe tal judge had iimated the way in which he thought about thi issue, they must have advised themselves to abandon ‘making such a submission If counsel had been serious about their intention to make ano ‘ase submission they could ave pressed on with their application. It could not be sid that counsel were deprived ofthe right to make such a submission. v Abbot [1955] 2 QB 497; (1955) 39 Cr App R141 and SP Stevens v R (unreported, SLR Vol 1 p 20) isingushed.

2. In the present case, PW was nota hostile witness and had of his own accord stated that that he had previously made statements inconsistent with his evidence and he stated on ‘ath his reasons for doing so. The jury heard the statements and listened to the witness sive evidence and it was strictly upto them to decide whether they accepted or rejected his story. The contention thatthe tril judge should have directed them that they should regard his evidence as unreliable was misconceived. R v Chapman [1973] 2 All ER 624 followed; R v Golder {1960}3 All ER 457; (1960) 1 WLR 1168 distinguished.

3. Ikwas desirable that, in cases where a person may be regarded as having some purpose of his own to serve, the judge should give the jury a waming against convicting. on uncorroborated evidence. Inthe present case, the judge did administer such a waming. He told the jury that PW, by confessing to participation inthe crime had held himself out 10 bee an accomplice, and wamed them that although there was nothing to stop them ‘convicting on PW9's evidence it was his duty to wam them that it was dangerous to ‘convict on such evidence unless it was corroborated. Rv Prater (1960) 1 All ER 298; (1960) 4 Cr App R 83 and Davies v DPP {1954} |All ER 507 applied.

4. The argument thatthe judge was under a duty to direct the jury that there was no independent evidence corroborating that ofthe accomplice, PW9, and that this resulted in ‘the los by the appellants of protection afforded them by law was based on two false premises. Fist, it presupposed that there was no comoboratve evidence, which was not the case. Taking into account the totality of evidence before the cout there was, s far 38 the first appellant was concemed strong circumstantial evidence from oer independent witnesses of PW9's story which implicated the frst appellant in the commission ofthe ‘rime. Second, inthe absence of any statutory provision expressly requiring corroboration, where the evidence adduced by the prosecution consisted of uncorroborated evidence of an accomplice, the judge should leave the case to the jury to convict or not afer giving them the necessary caution. R v Baskerville (1916) 12 Cr App Rep 81 and R Anslow (1962) Crim LR 101 refered to.

7 ‘Sioa Leone Ba Asocation Law Reports (19748011 SLBALR

5. Itwas not sufficient forthe judge to merely direct the jury onthe law ofthe case. The jury ‘was entitled to receive from the judge abroad indication of the evidence which, if they ‘accepted it they could treat as comoboration. However, in the present case, the judge's failure to indicate to the jury the type or nature of evidence given at the tral that could amount to corroboration did not amount toa misdirection so as to render the conviction of the first, second and third appellants invalid. R v Goddard (1921) 16 Cr App Rep 156 applied.

6. Asregards the fourth appellant, who was accused of cutting the throat of the deceased and ‘convicted atthe trial, it would be a miscarriage of justice to sustain is conviction as nother person in a separate trial had been convicted of the same act. Therefore the appeal ofthe fourth appellant was allowed and his conviction quashed.

Per curiam

7. Section 65 of the Constitution, which provided the Atiomey Genera with power to ‘discontinue at any tage criminal proceedings before judgment is delivered. didnot apply to the situation where there is an appeal against the State from a decision given in favour ofthe State

8. There was no ground to disqualify Tejan JA and Beccles Davies JA on the basis of bias hcause they had heard the appeal of Sunday Kargbo and four others. In order to disqualify them, a real likelihood of bias must be shown. Nor was there any basis to disqualify them under the Constitution or Cours Act. R vCambome Justices, ex p Pearce [1954] 2 AILER 850 applied.

‘Cases referred to

Davies v DPP (1958) 1 AILER 507

Homallv Newberger Products 1d (1956) 3 All ER 970

R vAbbont [1955] 2 QB 497; (1955) 39 Cr App R 141

Ry Anslow (1962) Crim LR 101

Ry Baskerville(1916) 12 Cr App Rep 81

Rv Cambome Justices, exp Pearce (1954) 2 All ER 850

Ry Chapman [1973]? ATER 624

Rv Finch (1916) 12Cr App Rep 77

‘Ry Goddard (1921) 16 Cr App Rep 156

Ry Golder 1960] 3 AILER 457: (1960) 1 WLR 1169

Ry Harris (1927)20 Cr App R86

Rv Majekodiunni 14 WACA

Ry Pipe (1967) 51 Cr App R 17

‘Ry Prater [1960] AI ER 298; (1960) 44 Cr App R 83

‘Ry Russell S2 Cr App Rep 147

RvSussex IJ; exparte McCarthy [1924] | KB 256

SP Stevens vR (unreported, SLR Vol | p20)

Legislation referred to

‘Constiuion (Act No 6 of 1971) ss 65(5),66(7), 95(1)

Constitution (Consequential Provisions) Act 1971 (1)

Courts Act 1965 (Act No 31 of 1965) 338

Criminal Procedure (Amendment) (No 3) Act 1973 s1

Incerpretation Act No 8 of 1971 s18(1a)

Provinces Act (Cap 60) 7(1)

Sierra Leone (Constution) Order in Council 1961

(1974-9) 1 SLBALR aval & Or The Ste s ‘Appeal ‘This was an appeal by Alimamy Khazali and three others against conviction for sale of person (the first appellant's wife) contrary tos 7(1) of the Provinces Act (Cap 60) and for ‘murder of the same person. The facts appear sufficiently in the following judgment. Mr Berthan Macaulay QC and Mrs § Bash-Teaqifor the first appellant. ‘Mr BM Conteh forthe second and third appellants. ‘Mrs S Bash-Tagi forthe fourth appellant. ‘MrT Johnson forthe State. HARDING PJ: The four appellants were tried inthe Froctown High Court in November 1973 ‘on a two-count indictment charging them with

(1) Dealing in person to wit, the sale of one Marie Dumbuya, contrary to section 7(1) ofthe Provinces Act (Cap 60), and

(2) Murder ofthe said Marie Dumbuya. On count one the first three appellants were unanimously found guilty by the jury and they were thereupon convicted and each sentenced to 5 years imprisonment by ‘Okoro Idogu J. whilst the fourth appellant was acquited and discharged: on count two, each ‘was convicted ofthe capital offence and the leamed trial judge sentenced each to death by & firing squad. Agains their said convictions they have appealed to this court on eight grounds (leading counsel for the first appellant having conceded that two out ofthe ten grounds filed had no substance). For the sake of convenience Ihave renumbered the grounds a follows:

1. That the learned trial judge admitted evidence which was inadmissible. 2, ‘That the leamed tral judge was wrong in law in refusing to hear submission of no ‘case forthe appellants atthe close ofthe prosecution's case.

3. That the leamed trial judge failed to put the case forthe defence adequately to the iury

44. That the Verdict was unreasonable and cannot be supported having regard to the ‘evidence. '5, That the leamed trial judge's direction to the jury on the law relating to accomplices was so defective as 10 deprive the appellants of the protection of law to which they ‘were entitled in that: (a) He contradicted himself in describing to the jury what ‘Sunday Kargbo's (PW9) position was in law, thereby leaving it open tothe jury 10 convict on the evidence on oath of a self-confessed accomplice; (b) He totaly failed to direct the jury that there was absolutely no evidence of corroboration of the ‘evidence of Sunday Kargbo (PW9) implicating the appellant (c) Assuming that there ‘was such evidence capable of amounting to corroboration, he totally file to indicate the type or nature ofthe evidence actually given inthe trial which, if believed, could ‘amount to corroboration, . 6. ‘The leamed tral judge failed to direct the jury that where as here, the only material witness may well have a purpose of his own (0 serve, it was desirable for the jury 10 Took for corroboration in deciding the issue of the guilt of innocence ofthe accused.

7. "The leamed trial judge filed to direct the jury that where as here, the material witness for the prosecution has made several previous inconsistent statements, his evidence should be regarded as unreliable, and they should look tothe est of the evidence in tral, ifthere is any such, which proves the guilt or otherwise ofthe accused.

8. The discrepancies in the evidence for the prosecution, and the contradictions. especially those which showed that the material witness's memory improved with t= ‘passage of time, made it essential thatthe judge should have drawn attention to the

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