Melvin Thomas v S (CR APP 1 of 1985) [1995] SLSC 10 (14 July 1995)

fro : ie : ‘ TNE _suRae cour OF STERRA LEONE conant:— ‘HON. MR. JUSTICE S.BECCLES DAVIES AG. C.J. - PRESIDING HON. MR. JUSTICE S.C.E.WARNE - I.8.0, HON. MR. JUSTICE M.o, ADOPHY ° - Tea. ‘HON. MR. JUSTICE G.GELACA-KING - Tea. HON. MRS. JUSTICE V.A. WRIGHT = JA. Ga BER. 1/85 MELVIN = THOMAS - APPELLANT vs. THE STATE - RESPONDENT APPELLANT-IN-PERSON bot Pofpreacthizor THs RESPONDEND tupac pao on yn or Delp 3095 WARNE J.S.C.:- This is an Appeal against the judguent ef the Court of Appeal delivered on the 20th day of Deceaber, 1984. There is enly ene greund of appeal which reads:- “hat there was miscarriage ef justice throughout the proceedings both in the High Court and the Appeal Court."

At the hearing of the appeal on Friday 26th May, 1995, the appellant argued his case in person. The State/Respondent was unrepresented.

The gravamen of the argument of ‘the appelant is that his was @ case of mistaken identity. He Pointed out the inconsistencies i ‘the evidence of the two women who gave evidence against him. The. appellant submitted that the identification parade at the C.I.D. unfair because he was the tallest man among the men in the parade. The appellant concluded that he was never at the acene of the oxint on the 31st of October, 1982.

on a cursory glance, the recordy of proceedings both in the Court of Appeal and the High Court was unsatisfactory.

The appellant was convicted in the High Court before a Judge and jury and sentencedto 25 years(twenty five years) imprisoment.

Puviestityd t

Againot that Conviction, he Sppealed to the Court of Appeal,

fmong the grounds of sppeei which Were before the Court was "That ‘She verdict was unreasonable or cannot be support having regard to the evidence," the argument of the appeliant Before the Court was sutmittea in writing 1 states "raentirication was wrong. Incident took | place on the 31st Cetober, 1982, was identifica a week later. qo | not have gone that way", 1 7H anawer to this sutmission, Counsel sutmitted that "issue; | of Adentity. Identification parade was surplusage oupdneage.... Sumite verdict is reasonatie and supportea by evidence." i The dudguent of the Court was reserved on that @ate, 8th Nove: 1994 end doliveroa on 20th Decenber, 1994. ‘The appeal was dismiss Sessons to be given later. There 4s no record that the reasons m ever given, The course open to the Court of Appeal on an appeal Defore at Contained in Section 58(1) Curte Act No. 31 of 1965, | 1 provides: |

(1) Subject ana without prejudice to subsection (2) tne I Gourt of Appeal on eny such appeal against conviction | shall allow the appeal if they, think that the verdict should be set aside on the ground that it is unreasonah or cannot be supported tnving regard to the evidence, the judgnent of the Court before waem the appellant vas convicted should be set aside on the ground of wrong decision of any question of lan, or that on any grouna there was a niscarrioge of justice, and in ary other om shall dismiss the appeal."

It de portinent to repeat audseotion(2), Subsection (2) provides: § ion the appeal against conviction the Court of Appeal, eg nobwitetanding that they are of opinion that the | point waised in the appeal might be deciaea in favour of the appellant, may- |

(e) eithor aienisa the appeal or

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d) () order the appettant to be retried ty @ Court of completent jurisdiction, if they consider that no substantial miscarriage of justice has actually occured.” 4s I have Said, the Court of Appeal ‘Gimigeed’ the appeal | without giving any reasons as Section 58 (1)"(2) heretorore mentioned, presupposes Be that as it may, thie Court ie empow to examine the record, cotisider the entire proceedings and mak ite own findings according|to law-Section 122(3) of the Consti tution of Sierra Leone Act No.6 of 1991 provides:—

"For the purposes of hearing and determining any natter within its juriediction and the anenduent | excoution or the enforcement of any judgnent or order made on any such matter, and for the purpo of ary other authority, expressly or ty necesean | implication given to it, the Suprene Court shall have all the powers, authority and jurisdiction vested in any Court established ty this Constitution or any other law". /

tq-the DNGHTOHGE Sebtion 122 of tho SamaTTRRIGEB pote bata however epe2 Wut Its provisions. It providest> iYnere no provision is exppes@ly made in these ute Ging Se Cesc ‘and Supervisory surtadictaonpeiue Suprene Court the practice od srgpathc for a being of the High 5 AEN rant Sep Rand ; yw consider the appeal within Having said this, T shalt new 0° . in tho High Court. In my view, ‘the context of the proceedings ‘’ al Juage ie flawed. The Court of | ‘the Summing Up of Teamed Sri ° 4% gen the exror in the Summing Up before'dis~ |” Appeal should have © ‘the High Court, the jury did eal summarily. 1 mee sistance fron the Judge to enable than | not have the necessary 9: if Mheverseeee - ene aera YS. AT)

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to return a jest verdict,

‘There were three witnesses for the Prosecution and one for the

"defence. The eppellant relied on his Voluntary statenent for hig

defence, That staterent was an alibi, The Tearned Trial Judge failed to airect the dury on the Statenent and on the defence of on alibi, ithe 1ew is quite clear on the poir 74 49 cosential that the defence of the prisoner shall ve adequate) Pit fo the jury- Rv. Mille, 25 oR. APP. R. 138 Re vs Waters (1954) oP En. 147 C-G.A.;0n thia score alone the appeal must succeed; more on this later,

There were also inconsistencies in the evidence of the two wor who gave evidence - Pi, 1 end P.W, 2, It is not enough for the Jy ‘dust to repeat the evidence of the witnesses to the jury.

P.W. 1 Sylvia Shirley Barnett said "He then threatened to rotum and kill ue if we shouted, He then left the room. Right thre ‘the ineident the accused was holding a revolver."

The other witness P.lf, 2 recounting the incident, said "The accused had in his hands a gun, a knife and an iron",

In the Summing-Up the Learned Trial Judge saia:— “gecording to her (P.W.1) three of the raiders entered ‘heir room inclufing the accused in the dock. mie

witness eséecked that it was the accused who was carrying a revolver which he pointed straight at hor. I wilt not bother to go into the part of her evidence regarding the accused's threat to rape then. she stat that she was 00 terribly apprehensive of her life that she folt like giving up."

the witness aia say’ she was apprehensive of her lige tut never Said she felt Like giving up. The witness said "As he insisted on raping us, I told hin I was fron the hospital and I had ny toblets with me to take. I asked accused to pase mo the tablets, he aia ao

ko far as the evidence of the second witness was concerned, th Shes nk ut th sn ne Seis

—_— Cw —sSa n

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