Randa Skeiky v S (CR APP 4 of 2022) [2022] SLCA 2 (19 July 2022)

CR. APP NO. 4/2022

IN THE COURT OF APPEAL OF SIERRA LEONE

IN THE MATTER OF AN APPLICATION FOR BAIL PENDING THE HEARING OF THE APPEAL

‘AT-THE COURT OF APPEAL FILED FOR AND ON BEHALF OF RANDY SKEIKY, THE APPELLANT IN THE MATTER OF AN APPLICATION FOR BAIL PENDING THE HEARING OF THE APPEAL PURSUANT TO SECTION 67(2) OF THE COURTS ACT 1965 ‘AND SECTION 79(4) OF THE CRIMINAL PROCEDURE ACT 1965

Between; RANDA SKEIKY - Appellant/Applicant

And THE STATE - Respondents

Coram

HON. MR JUSTICE ALLAN B. HALLOWAY JSC

HON. MRS JUSTICE JAMESINA E.L. KING JA

HON. MR JUSTICE KOMBA KAMANDA JA

COUNSEL

M.P. FOFANAH ESQ. for the Appellant/Applicant

‘A JALLOH ESQ. for the Respondents

RULING _

Delivered this |7thday of _Juty 2022

‘The Application herein, filed for and on behalf of RANDA SKEIKY the Appellant/Applicant, by way

of a Notice of Motion dated the 16 June 2022, is principally for this Court to grant an Order

aadmiting the Appellant/Applicant to Bail, pending the hearing and determination of her appeal at

this Cour.

In support ofthe said application, is the affidavit of MOHAMED PA-MOMO FOFANAH sworn to on

the 16" June 2022, to which said affidavit is annexed Exhibit B, being the Indictment fled, for

which the Appellantpplicant was convicted, Exhibit C, being the Judgement off BIBI Daurt

dated 14% June 2002 delivered by he HON. MR JUSTICE ALHAJI M. STE YAS pigsty)

the Appellant/Applicant of the offences charged in Exhibit B aforesaid, thpaid ees NS, 1%. Hea a? \aen Pop oF, ae )

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which the appeal herein was filed and Exhibit D, being the Notice of Appeal fled against the conviction aforesaid. In further support of the application aforesaid, is the Supplemental affidavit of MOHAMED PA-MOMO FOFANAH swom to on the 27% June 2022 and in opposition to the said application is the affidavit of ARUNA JALLOH sworn to on the 20" June 2022. The facts are that on the 14® June 2022, RANDA SKEIKY, the Appellant/Applicant herein was convicted of Two

(2) Counts of the offence of Larceny in a Dwelling House contrary to Section 13(a) of the LARCENY ACT 1916 and the offence of Larceny by Servant contrary to Section 17(1) (@) of the LARCENY ACT 1916 respectively and sentenced to Three (3) years imprisonment on each Count aforesaid, the same to run concurrently. The said AppellantApplicant appealed the conviction aforesaid by way of a Notice of Appeal dated the 14 June 2022 and by way of the Notice of Motion herein, the said Appellant/Applicant has applied for her to be admitted to Beil pending the hearing and determination of the Appeal. Having heard M.P. FOFANAH ESQ. of Counsel for the Appellant/Applicant and having also heard A. JALLOH ESQ. of Counsel for the Respondents on the application aforesaid and considered same, this Court had recourse to Section 79(4) of the CRIMINAL PROCEDURE ACT 1965 pursuant to which the application herein was made, the same which provides thus: ‘A person may be admitted to Bail at any time and thereupon shall be discharged from custody or prison if he is not detained for any other cause’. Clearly, the provision aforesaid, merely entitles one to be admitted to Bail at any time including being admitted to such Bail pending an appeal. It confirms the fact that itis not only atthe time after one has taken a plea after being arraigned and either awaits Trial of the offences charged or when he awaits sentence after being convicted of some offences charged. One can be admitted to Bail even after sentence and awaits the hearing and determination of an appeal to a conviction of some offence (8) charged. However, it is Section 67(2) of the COURTS ACT 1965, another provision pursuant to which the application herein is made, which is the relevant provision that indicate the circumstances under which one can be admitted to Bail pending an appeal, Section 67(2) aforesaid, which provides thus: ‘The Court of Appeal or the Court before whom an Appellant was convicted may, ifit seems fit, on an application of an Appellant, admit the Appellant to Bail pending the determination of his appear’. As stated by the HON. MR. JUSTICE NICHOLAS C. BROWNE MARKE JA (a@fe'then was) in the case between MUSTAPHA AMARA and THE STATE, CR. APP. 4/2013 j Going Appeal of Sierra Leone (unreported), ‘the words used in the provision above are,ifar nid fand eA sic. eee Pm at

gloss ought to be put of them. A very wide discretion is conferred on the Courts, the requirement is that they be exercised judiciously’. He stated that ‘to help this Court determine whether ‘it seems fit’ to grant an Appellant Bail, this Court would look at the strength of the grounds of appeal and the likelihood that the Appellant would have served a substantial part of her sentence before his appeal has been heard’ MP FOFANAH ESQ. of Counsel for the Appellan/Applicant submitted that the Appellant/Applicant has good grounds of Appeal the same which is contained in the Notice of Appeal dated 14" June 2022 and marked Exhibit ‘D’ annexed to the affidavit of MOHAMED PA-MOMO FOFANAH sworn to on the 16% June 2022 and deposes in the said affidavit that he verily believes that Exhibit ‘D’ aforesaid, has a realistic prospect of success, as the grounds therein are serious and raise grave and significant questions and errors of law and fact. In the case between ISHAKA SYLVESTER MENJOR and THE STATE, CR. APP. 2/2015 in the Court of Appeal of Sierra Leone (unreported), the HON. MR. JUSTICE REGINALD S. FYNN JA stated thus: ‘However by merely stating that the grounds of appeal are good and are likely to succeed will not by itself constitute exceptional circumstances. The strength of the grounds must be discernible prima facie. This means that even before they are argued, the grounds must ‘Suggest that some serious flaw was committed by the Court below’. Exhibit ‘D’ annexed to the affidavit of MOHAMED PA-MOMO FOFANAH aforesaid, state inter alia, 28 a ground of appeal, that the Learned Trial Judge fundamentally erred in law in shifting both the burden and standard of proof from the Prosecution to the Appellant/Applicant facing a criminal prosecution and trial, when he claimed that the Appellant should have realized that she stood the risk to take responsibilty, should have realized that she made a fatal and terrible mistake, that she did not act prudently and consciously as a reasonable person, when she conducted herself in certain ways, when obviously it was the Respondents who should have proved beyond reasonable doubt that the said Appellant/Applicant in fact conducted herself in these ways. Surely, if it is the case, as the Notice of Appeal aforesaid suggests, that the said Appellant/Applicant was convicted of the offences charged as a result of the claims aforesaid made by the Leamed Trial Judge it would certainly be true to say, as another grounds of appeal, that the Learned Trial Judge erred in law to have therefore placed a reverse onus and burden of proof on the AppellantiApplicant to prove her innocence. Exhibit ‘D’ aforesaid state further, as a ground of appeal that the Learned Trial Judge erred in law and fact to have excluded a fundamentally exculpatory evidence which was tendeg CBE A muted in evidence at the Magistrate's Court whilst on committal proceedings there/AerGell prado recording containing the voice message of PW/1, ALIE ABESS, the complainanf gent Wail pir | si50 4 SON 2 NESE

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medium by him to the Appellan¥/Applicant on her phone the same which was contrary to Section 124 of the CRIMINAL PROCEDURE ACT 1965, which said provision requires that ‘any documents and things which have been put in evidence at the committal proceedings at the Magistrate Court shall be transmitted in proper time to the High Court’. A. JALLOH ESQ. of Counsel for the Respondents deposes in the afidavit in opposition of ARUNA JALLOH swomn to on the 20" June 2022 that the Trial Judge in a criminal matter which would include the matter herein, always has the discretion to admit or exclude evidence. It should be pointed out though, that such discretion, if at all, should be exercised judiciously, within the ambits ofthe law and the reason(s) for the exercise of such discretion to admit or exclude evidence should always be given and made absolutely clear. A. JALLOH ESQ. in the affidavit aforesaid, has not given and made absolutely clear, the reason(s) for the Trial Judges’ exercise of such discretion to exclude the evidence aforesaid. Surely, if the audio recording aforesaid being a ‘thing’ which should have been transmitted and which was indeed transmitted to the High Court was excluded by the Learned trial Judge from been putin the evidence adduced at the High Court without reason(s) being given why the same was excluded, a strong possibilty exists that such evidence might have been evidence which would have raised a reasonable doubt 2s to the gui of the Appellant/Applicant.

Clearly, it cannot be disputed that shifting the burden and standard of proof on the Appellant/Applicant and excluding evidence which might have raised a reasonable doubt as to the guit of the Appellant/Applicant are factors which would tend to prevent the acquittal and discharge Of the Appellant/Applicant. Consequently, the raising of these factors as grounds of appeal herein qualify as very goods grounds of appeal and merits consideration by this Court. They are factors dealing with important legal principles like the burden and standard of proof required in a criminal matter and the exclusion of evidence which could have raised a reasonable doubt as to the guilt of an Accused person. Undisputedly, these grounds of appeal have been discernible prima facie. In other words, its the case that even before they are argued. they suggest that some serious flaw might have been committed by the Court below.

The relevant question, the answer to which seems to be controversial, is whether or not the Courts would have sufficiently ‘seen it fit’ to grant Bail immediately when only good grounds of appeal have been shown. The HON. MR. JUSTICE NICHOLAS C. BROWNE MARKE JA (as he then was) in the case between MUSTAPHA AMARA and THE STATE, cited above, took the position that all tat needs to be shown for Bail fo be granted in that case was the Applicant showing goods grounds of appeal and in support of such position relied on the statement by the Editors of the 2003 Econ of BLACKSTONE’S CRIMINAL PRACTICE at paragraph D24.11 at-pane 1672) that ‘if the grounds of appeal are prima facie very strong, that is an argumenbéSeRheveudn its discretion, allowing Bail’. f this Court were to follow the decision above in ton BP bborh ss veld have at this stage, determined the application herein in favour of the A rl a be pnd

‘ (ony ke) LAN mi} Sov Ss Sa

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