Michael A.M.Kamara v S (CR APP 9 of 2020) [2022] SLCA 9 (4 October 2022)

—i54— : CR. App 9/2020 . INN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN: MICHAEL AMA MOHAMED KAMARA - APPELLANT AND THE STATE - RESPONDENT

Coram

HON. JUSTICE JAMESINA E. L. KING J.A. (PRESIDING) HON, JUSTICE M. J. STEVENS J. A HON JUSTICE M. P. MAMIE L.A. COUNSEL: Y. Williams Esq, Y. Gborie Ms. & J. Noldred (Ms.) for the Appellant J.A.K. Sesay Esq. & A. J. M Bockarie Esq. for the State JUDGMENT DELIVERED THIS 4 ™ DAY OF OCTOBER 2022

Background

‘The Appellant, Michael Ama Mohamed Kamara appeals against a Judgment of the Hon. Justice Komba Kamanda J.A. dated 21° July 2020. He was convicted of + rape, contrary to section 6 of the Sexual Offences Act, 2012, Act No. 12 of 2012 after full trial by the Learned Trial Judge sitting as a Judge alone, and sentenced to 10 (ten) years imprisonment. By an Amended Notice of Appeal filed on 31"

March 2021 the Appellant has appealed against his conviction on the following 7 grounds:

1. That the Learned Trial Judge erred in law and misdirected himself when x he proceeded with trial by judge alone contrary to the provisions of sections 143, 144 and 145 of the Criminal Procedure Act 1965 of the Laws of Sierra Leone;

2. That the Learned Trial Judge having correctly stated the law in regard the proof when he opined at pages 4-5 of his Judgment to wit “that......such burden of proof rest squarely on the prosecution in line with the cardinal principle in criminal cases in our jurisdiction. The case of Woolmington V. DPP AC 462 is instructive on this point” [sic] the Learned Trial Judge erred in law and in fact when he intimated at page 6 of his judgment that the Appellant ought to have “.....produced the phone numbers at the Police ‘and asked that they be verified when the incident was fresh";

3. That the Learned Trial Judge having correctly stated the extant law in Sierra Leone in respect of the corroboration of evidence in his judgment that “The issue of corroboration is very important in the instant case. In my view it is a matter of law. In essence the prosecution can only succeed in proving their case where the evidence of the victim is corroborated by other evidence. In essence the law as stated in Cap 31 of the Laws of Sierra Leone in this regard still remain good law” the Learned Trial Judge erred in law when he proceeded to convict the Appellant in the absence of any evidence corroborating the evidence of PW1 and

4, That the verdict was unreasonable or cannot be supported having regard to the evidence before the court.

1" Ground of Appeal

On the first ground of appeal, Counsel for the Appellant submitted that the

Appellant was tried by judge alone, however he was to be tried by the Court

with a jury consisting of twelve men unless upon election of the Appellant,

or upon application of the Attorney-General for a Court order to the contrary, and there was no evidence on record that the exceptions were satisfied. He submitted that there was an erroneous mode of trial as it was contrary to » sections 143, 144, & 145 of the Criminal Procedure Act 1965. He further submitted that the Appellant had a right to be tried by the Court with a jury . of his peers and the absolute disregard of this without being lawfully dispensed with, did not merely constitute procedural impropriety, but also

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resulted in a breach of the principles of natural justice and amounted to a . miscarriage of justice. In support of his submission he relied on Sierra Leone x Court of Appeal case of Regina v Manyei Alias Kuloyorkor, Bawoi and Sheriff Allis Seifa (1970-71) ALR SL at page 58, where i> error was far less serious 4 than the error in this case, as the application for trial by judge alone in that case was granted but Counsel who applied had no authority to do so, as it was the preserve of the Attorney-General, the entire process was declared a nullity. In the current case, he submitted there was not even a semblance to comply with the statutory provision. Other authorities he referred to on strict compliance with mandatory statutory requirements in criminal cases included Secretary of State for Defence v. Warn (1968) 2 All E.R. at 303, Francis Omosaye v. The State SC 198/2012 (2014) LPPELR-22059 (SC), Aiah M’Bekay v. The State CR. App. 4/2011 (2019), Bockarie v. the State (Cr. App7/2000) 2008 SLCA

1. He also referred to Amnesty International Fair Trial Manual 2" Edition (2014) at page 118 on the scope of fair hearing, that it encompasses all the minimum procedural and other guarantees of fair trial set out in international standards, including compliance with national procedures consistent with international standards. He also referred to the case of Rasaki A. Salu v. Madam Towuro Egeibon (1994) LPELR — 2997 (SC) in support of his submission that the denial of a fair hearing was a breach of one of the rules of natural justice. In response, Counsel for the Respondent submitted that the Court assumed jurisdiction upon arraignment and conceded that the prosecution should have applied for an order for trial by judge alone instead of by Judge and jury pursuant to section 144(2) of the Criminal Procedure Act, 1965 as repealed and replaced by section 3 of the Criminal Procedure (Amendment) Act, 1981 Act No. 11 of 1981. He however submitted that such mode of trial is however made as of course, not as of right, and the Appellant had no say in it. He submitted that failure to obtain the order would not and could not have occasioned any injustice to the Appellant, nor could it have breached the principles of natural justice. He submitted that any procedural error will only amount to a nullity in the proceedings and the Court can order a re-trial. He referred to the case of . Samuel Lomba v The State, a Supreme Court decision Crim App No. 1/81 the appeal was dismissed when there was a failure to comply with procedure in : ‘empanelling jurors. In Court of Appeal, the court agrced that the trial was a nullity but the Supreme Court said that the trial and subsequent conviction were

not a nullity and the judgment of the Court of Appeal was set aside and 7 substituted with an order dismissing the appeal. ’ Counsel further referred to the provision of section 7 of the Court (Amendment) ip Act, Act No. 21 of 1966 which gives this Court the power to dismiss ground 1 ii this Court is of the opinion that no substantial miscarriage of justice has occurred. In reply Counsel for the Appellant submitted that section 7 above did not apply to the instant case as this was not an appeal against acquittal or discharge and this was a case where the Accused and not the State is appealing, This Court has considered the written and oral submissions of both Counsel on the first ground of appeal. It is not in dispute and it is apparent from the records, that trial of the Appellant was done without seeking and obtaining an order for his trial by judge alone as required by law. The mode of trial of the Appellant in this matter for the offence of rape which is not punishable by death ought to have been by a court with a jury as provided in section 143 of the Criminal Procedure Act, 1965 and could have only been tried by Judge alone, if the Appellant had elected for such a trial or an order obtained to that effect under sections 145 and 144 of the Criminal Procedure Act. The Appellant never elected to be tried by Judge alone and the issue is what was the effect of the trial which proceeded without the necessary order obtained? Section 144(2) of the Criminal Procedure Act, 1965 as repealed and replaced by section 3 of the Criminal Procedure (Amendment) Act, 1981 Act No. 11 of 1981 provide as follows: “(2) Notwithstanding anything contained in section 143, in any case where a person is charged at any sessions of the High Court with a criminal offence not punishable by death the Attorney-General and Minister of Justice, or Director of Public Prosecutions, if he is of the opinion that the general interest of justice would be served thereby, may make an application to the Court for an order, which shall be made as of course , that any person or persons shall be tried by the Court with the aid of assessors, or by a Judge alone, instead of by a Judge and Jury”. 7 From the above section, the application is made after the AGMo! or the DPP is : of the opinion that the general interest of istice would be served. It is only after this requirement is fulfilled then the next step is pursued which is an application to the court. Even though there is no requirement in the section for the

The pages read for this report end here. The judgment continues in the PDF.