Mohamed L. Sesay & Another v S (SC CR APP 1 of 1984) [1986] SLSC 3 (9 July 1986)

sein eee ee aus 4 LUN oined et , : Zp % The Mone fre Justice Coky Hordingy 365.C. - Presiding FVSE ME, the Wong mews uation Reh Avunazrfienper = 3.5.0. ite) OS" the Hone ire Justice 06M, Colley ' = 3eRi S.C. GR.APP. nost/e4 . SoC4 CRAAPP. nO.2/04 . D ecrucens ‘ase owanco Laman stisay = APPcLfanTs eat (auins PiTTy) , ano . SAMA ALLOW bid ud Te stare = heesponcenr

8. MACAULAY (2NR) for 2nd Appedient Ne TEOAN SALLOH (MISS) for The State augonent ostivenco was 44 pay of “Soy ss, Ac AUWNOR-ACHNER, 3,5,C.1- The eppeliante vere convicted at the Kenena Mah Court on the Yat day of October 1975 before Havo Js ae he then wany and «Jury, for the eurder of one Albert Senda on the and dey of || Nay 1976 at Lovone VAllage in the Lover Sanbare Chietéom, Kensine f Bsteset and sentenced to deaths Thay appesied to the Court ef Appeal‘ ' land Judgment vas delivered on the 10th dey of Noventer 1981 dientesing . ‘i tthe eppeel and affirming the conviction and sentence of the Kish Court. It 49 against that decision that the eppellents have nov apgeeled to. ~,§ My, thie Court on the following grounde vizt~ dig ‘ on behalf of the tet sppelients ' 4

(e) That the Court of Appeal for Sterre Leone vee 4 wrong An Lew sn holding that the verdict vas not = 5) unressonsble for could At net be supported having”. regerd to the evidence adduced at the trial, “

(0) That thp Court of Appeet wee wrong in Lav when 3a Lt held thet the Learned Trial Judge's direction Pans ta tho. Jory thet LF there ie bny doubt, Tamast | | o¥ F eying any fanciful doubty but 1 there 48 any y ubetaptiel coudt, you should resolve that doubt a in favour of the eccveed persone and Let them 99 4 tree vee Sn orcers be ay tr : j

ewe t - tone ee -_ + . SS

PRES: BE i ar as ig (e¥ “thay poe: Gaurt, wae wrong An law when At head. tna 4 FA ange’ vasa svidenca te Igave to the jury f6r the f ceneiderstion of the Aveus of provecationsand oF ‘ self derencengecMehettidr ie Haeiaedtaece On behalf of the 2nd appellants . 7S) (a) The Court of Appead erred in lew in holding that: . the appediante defence of éiibi wae property put te tne jurye (bv). The Court of Appel erred in law in holding that the laarned trial Judge hat not, afedizected the jury en the grounds of inpited eedice. si (e) The Court of Append erred An lew, dn holding that : the learned trie judge tid not atadtegcted. the Jury auto the dtanderd of proof inposed upon the prosecutions tne 16t Appetuant vas oot represented by Counsel, hoyever the. court took cagoizence of his grounds of sppeai thet vere before uty ‘ine facte a0 far eccerding to the prosecution and defence: as. -” de Ae pavensary to state them arecan fellowes : dn the night of the tat May 1976 at Lovous Vilage in tng Lover Bambara Chiefdon the dycessed Albert Sanbe staged gence et the Sezris Ona Kone Sanbe, tan at Lip dance neiping the: dgcansed to sil tiokete at the enteance to the Barri. ile: vite ELizapeth’ 20h (aiias Sinte Samba)’ vas ales’ present Funning the ber, Later on that sane nignt Monaned Deruay 2nd accused An the High Court uno se pow dead cane and sat by,Kans Samba; shen he was questioned about | hie theket ne seid thet hevhad! bought one earlier in the evening. 7” + gut’ned lost its | An‘ezqueaty pnaued:-betusen the daceaiedleadl Ae aged aeranyetgen Spt on febsiaoelin:a tig deeten ate of tnees inte Hild she aucayneg by nie trouagin and ves aon out aide, By, that time tet and and appeiiante vere standing! sutedal and o8 Site took therdabaneed ainy the gt appeliant, was ang soya het we gy nd fue tka teh apn ae ead wens tlaisplage Sess Bey ces ss

a | 2 remy : ORE ona

.O being taken away he was overtaken by the tuo appellants and Dareny,

They crossed An frontot thomy The sacond appellant then kickes Binte on her etonach and the ial appellant broke & bottle on « tens and stabbed the decasea on the right side of hie necks He was than taken into « house vhence he later died. Both appellants dtd not give any evidence or call wltnesses but relied on the state mente which they sage to the Példce and vhich vere tendered in * evidence in the High Court. The tat appellant in hie etatenent dented being present at the acene of the alleged incident) in fact ne cleimed ‘that he was not in Lowona Vallege at all but in Tokpombu TT VALage An the Tengo area vnere he spent the day and eventing An the company ef one Alpha Jellon and sone other people untii 1 asm. winan ha retired to bed and woke up at 7 auny on the Sungey the 2nd. any of may 1976.

The Znd appeliant also alleged that he toe vae not at the scene but that he spent the night at the house of one Pa Rosch Kpsketene Tha other iomates of the house he clined including the tet appelien went out at about 10 pits and Enat be was alone in the house untit the sary noure of the serning when the Tat appeiiant returned to Ae house panting} there vas blocd on the tet appellant's hist and tan he nd appellant questioned hin about it the tet appeiiant stated that pe nad been*involved in a Fight with sone one who ned bitten nine He was-later on arrested and charged.

Three gteunde of appeal have bien urged on behalf of the 2nd appellants novaver 1 propose only to geai with those uhich in ay pinion are substantial.

‘The second ground of appeal raised by Berthan Meceulay (Jnr) counsel for the 2nd appadlant vas that the Court. of Appéei erred An Lav An holding that the Lesrned ttel Judge had not atséizycted to wnat the Court of Appeal ad to say about malice aferethought and 1 quoter

Counsel for the 168 and Sea appoliente had subaltted that the Judgete dicection on aagice aforethought with particetar whe : ENCES ere vn NCCE ENEN ES MS: a

ee reference to inplied malice 4 ezronsous. AppeLlante! Counsel ned oubadtted that the Judge had employed the subjective test in ltsecting the Jury on shether there ves Implied aaiice of net he sheuld have used the objective teat a propeunded An Sane basbey and othere, The Judge did not f4i1 into the error as he did not eizect the Jury that 4 wae the supjective test that thay nad to apply. agree vith Counsel for the state that he aerely gave an exenple of factual situation that could ssount to daplied malice I find no serie An thts ground® vie further referred this Court te quotations from the sueming up of the Learned Trial Judge and again I quote = ‘Than we come to the meat important ingredient with malice atoretnought. The death aust be with malice aforatnought. Unat dows that aeant Netice does not mean preseditation, we have tue categoriie’of salice, axprése aelice and Inplied aelices In the cane of express aalicn there a an Lotention to cause death, oF cause grievous bodily hare. to any parseny whether uch person ie the parson killed of not. Now you sake Up your ied and say #1 an going to K1LL aaee bosy's I vill take ay guns 1 ae going to shoot at A. It you shoot at A and A dies that {0 express malice, You had Lt tn tind to do someting shich Vili caute grdeveus bodily hare to A oF which aay cause the death of the person ageinet shoe you infitct or on hon you Anflict injuries ate. vie than continued to explain vnat 4s esant by exprase aelices fn the question of saplid malice the learned trial Judge directed the Jury‘in thie way. ‘lapLisd sedice in aany cases unere no aslice 40 expzeneed:oF openly Antended, the Lev vill Aaply At fron « deliberately cruel act comaitied by # patton ageinst another.t gn pe

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