R v Emmanuel Charlesworth Davies (8 of 1963) [1963] SLSC 14 (3 April 1963)

Freetown April 3, 1963 Marke J. [SUPREME COURT) REGINA v. EMMANUEL CHARLESWORTH DAVIES Criminal Ltlw--Power of judge to transfer criminal case from Bo to Freewc:wn­ Criminal Procedure Act (Cap. 39, Laws of Sierra Leone, 1960), s. 125-Courts Act (Cap. 7, Laws of Sierra Leone, 1960), s. 15 (l'J--lurors and Assessors Act (Cap. 38, Laws of Sierra Leone, 1960), ss. 39, 40. The accused was charged on ten counts in an information. On March 11, 1963, he appeared before a Supreme Court judge at Bo and pleaded not guilty to each count. On March 16, at the request of Crown counsel, the judge ordered " that the trial be postponed to the sessions at present holden hi Freetown to be mentioned there on Friday, the 22nd of March .... " Counsel for the accused objected that the court had no power to order the transfer. Held, that the accused was not properly before the Supreme Court in Freetown. Kanja A. Daramy for the Crown. Berthan Macaulay for the defendant. MARKE J. The accused was charged on ten counts on tl:1is information. He was informed or given notice by the Registrar of the Supreme Court at Bo to attend in the Supreme Court Hall, Bo, on March 6, 1963, for his trial on this information. On March 6, reading from the notes of the learned judge who presided over the sessions at Bo, the accused appeared but the information was short-served. The accused was then asked to plead on Monday, March 11, 1963. On Monday, March 11, 1963, the accused pleaded not guilty to each count on the information, but his counsel, Mr. Berthan Macaulay, asked for the case to stand down until March 15, 1963, as he had only that morning received the depositions in this case. The next entry on the record of the learned judge is for March 16, 1963. That entry reads : " In the time available this case cannot be heard at this session. Crown counsel applies for case to be transferred to Freetown to be tried at present sessions. " Macaulay says court has no power to transfer. " Crown counsel replies, ' One Supreme Court for Sierra Leone. Court has inherent power to transfer. The auditor who is a main witness in this case is due to leave for U.K. very soon and will not be available again until after six months. Accused should have been tried earlier in the sessions if Mr. Macaulay had been available and case was held at his request.' ~' Then comes the following: "By virtue of section 125 of Cap. 39, the court appears to have power to make the transfer. I therefore order that the trial be postponed to the sessions at present holden in Freetown to be mentioned there on Friday, the 22nd of March .... " 16 prom this note, it appears that the learned trial judge ordered a transfer of this case from Bo to Freetown and quotes section 125 of Cap. 39 as his aut..lJority for doing so. I have great doubts (1) whether this case could be transferred by virtue of section 125, and (2) whether it could be transferred at all. Section i 25 provides: " It shall be lawful for the court upon the application of the prosecutor or defendant, if the court considers that there is sufficient cause for the delay, to postpone the trial of any accused person .... " From the wording of this section, it appears that this power to postpone the trial is to be exercised where there is going to be a delay and the court con­ siders that there is sufficient cause for such a delay. In that case, the tr:al maY be postponed. The section gives the right- " to postpone the trial of any accused person to the next sessions of the court to be held at the place where the court is sitting at the time of such an application being made, or to subsequent sessions, or to sessions to be held at a time and place to be named at the time of granting such postponement." It will be observed that the right given to postpone can be exercised in one of three ways only: (1) to the next sessions of the court to be held at the place where the court is sitting at the time of such application being made. Applying this subsection to the present case that could be to the next session at Bo; or (2) to subsequent sessions. For this to make sense and to carry out the intention of the legislature, it seems to me that there must be read after the word " sessions " ; the words " . . . of the court to be held at the place where the court is sittir1g at the time of such application being made." The word "subsequent" there taken to mean any sessions after the next sessions at such place ; or (3) sessions to be held at a time and place to be named at the time of granting such postponement. The words here " sessions to be held " denote futurity: that is, sessions which are not already in progress but which are to be held at some future time. The case could, under this, have been transferred to sessions to be held at Kenema or Makeni or any other place in the Provinces. So that in my construction of the power to postpone given in section 125 of Cap. 39 it would not be a proper exercise of that power to postpone the trial to a session which is already in progress as was done in this case. The fact that the auditor as the main witness for the prosecution is about to leave for the United Kingdom very shortly would, to my mind, constitute the '' sufficient cause for delay" con­ templated by section 125, but, in exercising the right of postponement conferred by that section, such right can only be lawfully exercised in the manner laid down by that section, which does not authorise transfer to a session in progress. The transfer, it seems to me, can only be made to a session that has not already begun to sit. Again, I have grave doubts whether a case which has already begun can be transferred under section 125. 17 3 S.L-2 s. c. 1963 Roo. v. DAVIES. Marke J. s. c. 1963 REO. v. DAV!ES. Marke 1. From the notes of the learned trial judge the case had actually begun before him by taking the plea of the accused man. Section 125, it seems to me, contemplates the making of the application before the man is asked to plead. If it were otherwise, one would have expected to see expressed in that section some such words as these: " It shall be lawful for the court at any stage of the trial ... " just as is to be found in section 37 of the same Ordinance. Again, section 15 (1) of Cap. 7 provides that in criminal proceedings before the Supreme Court in the Protectorate (or, now, the Provinces) the Supreme Court shall be assisted by two or more assessors but the decision shall be vested in the judge. So that in criminal proceedings in the Protectorate it is the judge who exclusively has to say that a man has been found guilty or not guilty. By section 39 of Cap. 38 a person charged before the Supreme Court in Freetown can elect to be tried by the court with the aid of assessors instead of being tried by a judge and jury. In such a case the judge who is to try this case selects from persons summoned to act as special jurors not less than three to assist him in such a trial. If the assessors selected by the judge are unanimous their opinions shall constitute the decision of the court ; and it is only when such accessors are not unanimous that the decision is vested exclusively in the judge. Now, if this trial is to be held in Freetown, where or how are the assessors to be obtained; or is the accused free to demand a trial by jury?. In Freetown, the Attorney-General can only apply for trial by assessors where he is of opinion that a more fair and impartial trial can be obtained by a trial by a judge with the aid of assessors than by a trial by judge and jury. Section 40 of Cap. 38 provides: " The Attorney-General, whenever he is of opinion that a more fair and impartial trial of any person or persons charged with any criminal offence who has or have been committed for trial, can be obtained by such person or persons being tried by the court with the aid of assessors instead of by a judge and jury, may make an application to the court for an order, which shall be made as of course, that any such person or persons shall be tried by the court with the aid of assessors instead of by a judge and jury." So far as I am aware this is the only provision in our law whereby an Attorney­ General can apply for triai by assessors ; and the basis of that application is that a more fair and impartial trial can be had by judge and assessors than by judge and jury. So that it appears that if the case were to be tried the Attorney-General cannot apply for trial by assessors, as in the Freetown Supreme Court trial by assessors can only be had (1) where accused himself applies for it; or (2) where the Attorney-General applies for it on the grounds stated in section 40 of Cap. 38. If that, then, is the case, how would this accused man be tried? The more one goes into this matter the more one is convinced that it was never the intention of the legislature that criminal cases pending in the Provinces should be transferred to the Supreme Court in Freetown ; and as I find no authority whereby a criminal committed to the Supreme Court in the Provinces can be transferred to the Supreme Court in Freetown during the sessions of that court in Freetown, I hold that the accused is not properly before the Supreme Court in Freetown. As I cannot take the plea of the accused, it follows that I cannot make any order in this case. 18 REGINA RICHARD B. SAWYERR, SAMUEL B. TIIOMAS [SUPREME COURT] v. ANNIE R. SA WYERR [C.C. 124/63] Respondent AND Applicants Criminal Law-Application for order of prohibition-Nolle prosequi-Whether 'ormal discharge necessary-Whet her defendants lawfully before court-Summary ~onviction Offences Act (Cap. 37, Laws of Sierra Leone, 1960). Nolle prosequi-Whether bar to antecedent charge of same offence on same j(l,(;ts­ Meaning of "subsequent proceedings" in section 37 of Criminal Procedure Act (Cap. 39, Laws of Sierra Leone, 1960). On January 22, 1963, the applicants appeared before the police magistrate at Freetown on charge No. 313, which alleged that they had assaulted one Boyzie John at Regent Village on January 1. They pleaded not guilty, and the case was adjourned to February 6 and then to March 7. On March 7, the applicants appeared, and the case was adjourned to March 21. As they were leaving the dock,. a police sergeant arrested them inside the court. They went into the dock again and were there joined by two other defendants. Charge No. 1002, which was the same as charge No. 313, was read out to the five of them, and they all pleaded not guilty. The case was adjourned to March 21, on which date both cases were adjourned to April 3. On April 3, case No. 313 was called first, and the magistrate announced that a nolle prosequi had been entered by the Acting Attorney-General. When case No. 1002 was called, counsel for the applicants objected that the nolle prosequi covered this case also. The magistrate reserved his decision until April 11, when he held that the noile prosequi applied only to case No. 313. Case No. 1002 was then adjourned to May 10. The applicants then applied to the Supreme Court for an order of pro­ hibition to be directed to the police magistrate and the Commissioner of Police prohibiting them from proceeding further with the cases. They also ask.:d that they be discharged from the charges. Held, dismissing the application, (1) that the applicants were lawfully before the magistrate on charge No. 1002, since,. "if a party is before a magistrate and he is then charged with the commission of an offence within the juriadiction of that magistrate, the latter has jurisdiction to proceed with that charge without any information or summons having been previously issued, unless the statute creating the offence imposes the necessity of taking such a step." (2) That the nolle prosequi effectively terminated case No. 313, even though the applicants were not formally discharged; and (3) That case No. 1002 was a subsequent proceeding within the meaning of section 37 of the Criminal Procedure Act so as not to be banned by the entry of the nolle prosequi. Cases referred to: Reg. v. Hughes (1879) 4 Q.B.D. 614; Poole v. Reginam 0960] 3 All E.R. 398. Solomon A. J. Pratt for the applicants. •. John H. Smythe, Acting Attorney-General (Constant Davies with him) for <ue respondent. 19 Freetown May 3, 1963 Dobbs Ag.J.