S v During And Others (CR APP 13 of 1974) [1974] SLCA 1 (14 October 1974)

uaa} staat ‘he SacDurng 600 2 plore eee tiie sre a ‘THE STATE y DURING & 6 ORS cA

COURT OF APPEAL FOR SIERRA LEONE, Criminal Appeal 13 of 1974, Hon Mr

Jeavee C A Harding P, Hon Me Jusice O BR Tejn JA, Hon Mr Justice Ken EO During JA,

14 October 1974

< a (Criminal Law and Procedure - Larceny ~ Proof of ownership - Whether sufficient rience to show owmeship or custody of stolen goods ~ Meaning of “owner” — Larceny Act 1916s 1(2Viii)

(2) Criminal Law and Procedure ~ Receiving stolen goods — Whether esential for ‘Sner tobe stated or proved Circumstances may be suficen to prove that goods Stolen without identifying owner

[3]. Criminal Law and Procedure —Indictment~ Amendment o indictment afte trial SJoinder of partes to counts with other defendants ~ Whether amendment was eceaary to correct fet in indictment ~ Whether amendment caused injustee — (Ciminal Procedure Act 1965 514841)

{$) Criminal Law and Procedure ~ Conspiracy ~ Judge's direction on ingredients of Satence - Whether requirement to show intention of alleged conspirators to commit ‘unlawful actin addition to agreement oearry out act

“Te int fifth respondents wee charged wit arceny contrary to 2 ofthe Larceny Act 1916

for steaing 3 bags containing 75000.00 CFA francs belonging tothe Cental Bank of West

‘Nisan Stes while they were inthe custody of Union de Transport Avene (UTA) (cunt 1)-

‘They were ano charged with tempted larceny of fourth bag Belonging tthe bank while in

the cosa of UTA (coun 2The sith and seventh respondents were charged with receiving

SJolen goods conrary to 3() ofthe Larceny Act 1916 hat they received a bag containing

CCEA francs Knowing them to be stolen (count 3). All respondents were also charged with

onpiac to steal the as containing the money (count 4)

‘On Apsl 197 the High Court acquited each respondent on ech charge, against which the

‘Ste appealed on varios grounds, secking a reversal ofthe tal judge's daision under $5816)

tthe Coane Act 1963 The main issues on appeal were () whee the tril judge misdirected

‘maton te law of larceny by ining that ownentip ofthe stolen fans had not been

peoved and (i) wheter the judge misdirected hums by Roig that that twas eset on

Frat of receiving forthe owner o be sated or proved. The tate also argued, iter lia, that

thera je nas wrong to amend the indict and jin the sth nd seventh respondens

thou Land 2 withthe other respondents after the til commenced and in the absence of ths panes without thei consent, and that the tal jodge misdreed himself onthe Iw of

Conspiracy, arguing that there was no obligation onthe prosecution o show an aed intenson

use the agreement odo an unlawful 2.

Held, per Harding PJ, reversing the verdicts in relation to the 1*, 3% 4% and 5*

respondents:

1. The ial judge eoneously base his decison on count Ion the fact that no evidence of Gunendip of the francs lleped stolen was aced during the whole tal. Section TOXt ofthe Larceny’ Act 1916 provides thatthe expression ‘owner includes pat cwner, or enon having possesion custo of, special rope. anything capable ‘of being stolen”. There was overwhelming evidence to warrant a finding at the very least '

a Sioa Leone Bar Asscition Law Repos (i972) SUBALR

ee that UTA had custody of the 275,000,000 francs when they were stolen and the judge erred in law when he held tothe contrary.

2. The circumstances in which property is received may in themselves be suficent proof that it was stolen and thatthe defendant knew that fact. The judge was wrong in law in holding that count 3 was bad merely because it did not specify who was the owner ofthe ‘goods which the 6° and 7® respondents had been charged with receiving. R v Sbarra z (1918) 13 Cr App R 118 and R v Fuschillo (1939) 27 Cr App Rep 193 applied.

3. The purported joinder ofthe 6” and 7* respondents tothe 1* and 2% counts could notin any sense be deemed to be correcting a count in the indictment but rather it altered its substance, thereby prejudicing the 6* and 7* respondents who were the parties placed in jeopardy. While this amendment ofthe indictment was bad in law, no injustice was caused to the State by the indictment having been so amended and there was no miscarriage of justice so as to nullify the trial. Ry Hughes (1927) 20 Cr App R 4, R v Jones (1938) 5 WACA 75 and Rv Jennings (1949) 33 Cr App R 143 applied.

44. There was nothing incorrect inthe judge's direction in relation to conspiracy, vic that “the Jaw requires the prosecution to prove not only an agreement between the alleged conspirators to carry out an unlawful purpose as signified by words or other means of ‘communication between them but also an intention in the mind of any alleged conspirator to carry out the unlawful purpose”. R v Thomson (1966) 50 Cr App R 1 refered to

Cases referred to

Manly v R (1968-69) ALR (SL) 94

Ry Fuschillo (1939) 27 Cr App Rep 193

Ry Hughes (1927) 20 Cr App R4

Ry Jennings (1949) 33 Cr App R 143

Ry Jones (1938) 5 WACA 75

Ry Sbarra(1918) 13 Cr App R 118

Ry Thomson (1966) 50 Cr App R 1

Legislation referred to ’

Courts Act No 31 of 1965 ss 57(2), 58(6), 65

(Criminal Procedure Act No 32 of 1965 35 136, 144(2), 148(1)

Larceny Act 1916 ss I2Xii), 2,33(1)

(Other sourees referred to

Archbold 30" Edition para 4051

Appeal

‘This was an appeal by the State under s 57(2) of the Courts Act No 31 of 1965 against the acquittal of Isaac Christian During and 6 others who were variously charged on counts of larceny, attempted larceny, receiving stolen goods and conspiracy to steal. The facts appear sufficiently in the following judgment

Solictor-General forthe State

‘Mr C VM Campbell forthe firs and fifth respondents.

‘Mr Eke Halloway forthe second respondent.

Mr EJ Akar forthe third and fourth respondents.

MrALO Merger for the sixth respondent.

‘Mrs S Tagi for the seventh respondent.

(19742) 1SLBALR “The SievDasing & 608 ™ HARDING PJ: This appeal is by the State against a verdict of acquit on the tial of an indictment containing four counts prefered by the State against the seven respondents and is brought pursuant tos 57Q) ofthe Courts Act No31 of 1965 (as amended by s 6 of Act No 21 ‘of 1966) which enacts as follows:

‘570: Any person aggrieved by the acquital or discharge of the accused or defendant

iefore the Supreme Court (now High Cour) may appeal tothe Court of Appeal against

such acquital or discharge. Provided that no such appeal shal lie except on a question of law.” “The powers ofthe Court of Appeal on the hearing of such an appeal are spelt out in s 58(6) of the Courts Act No31 of 1965 as amended by s7 of Act No2 of 1966) which states: 58(6a) On an appeal against the scquital or discharge ofthe accused or defendant the

‘Court of Appeal may, notwithstanding that itis of opinion what the question of law raised

inthe appeal might be decided in favour ofthe appellant, dismiss the appeal fit considers

that no substantial miscamage of justice has etal occured.

(©) Subject and without prejudice to the provisions of paragraph (a), the Court of Appeal

may:

(0) affirm o ater the decision appealed aginst;

(Gi)except in cases where an accused has been acquitted of a criminal offence punishable by death, reverse the decision appealed against;

(Gi) onder areal of the accused or defendant.

(6) In every such case the Supreme Court may give such consequential directions as it

may deem fi"

“Te trial was held at the Feetowm High Court as result of proceedings having been taken (i) under s 136 ofthe Criminal Procedure Act No 32 of 1965 (viz consent in writing by judge to the preferment of the indictment without a commital for tal consequent upon previous preliminary investigation) and (i) under s 1442) ofthe same Act viz. order for the tial tobe by judge alone.

“The Indictment as fled reads as follows: 1° Count Statement of Offence: Larceny contrary to $2 ofthe Larceny Act 1916.

Particulars of Offence: Isaac Christian During, Josephus Ibrahim Tucker, Roland Rogers ‘Okoro Macaulay, Ibrahim Jalloh and Johannes Laggah, on the 18* day of September at Freetown Intemational Airport Lung in the Port Loko Judicial District of Sierra Leone stole 3 bags containing 275,000,000 CFA francs propery of Banque Central Bats Afrique de L’ouest, Abidjan Cote d'Ivoire (Central Bank of West African States, Abidjan Ivory Coast) while in the ‘custody of Union de Transport Aeriene (UTA).

2 Count

Statement of Offence: Attempted Larceny

Particulars of Offence: Isaac Christin During, Josephus Ibrahim Tucker, Roland Rogers ‘Okoro Macaulay, Ibrahim allo and Johannes Laggah. on the 18" day of September 1973 at the Fretown Intemational Airport Lung inthe Port Loko Judicial District of Sierra Leone attempted to steal a fourth bag containing money in CFA francs property of Bangue Central Etats de L‘ouest while inthe custody of Union de Transport Aeriene (UTA).

Fa Sion Lame ar Asociton Law Ruts 197482} SLBALR 3 Count Statement of Offence: Receiving Stolen Goods contrary to 5331) ofthe Larceny Act 1916. Paniculars of Offence: Alhaji Sanus Jallch and Adit Barrie on a day unknown between the 19° day of September 1973 at Masoila Village in Port Loko Judicial Distt did receive abag containing 41 500.000 CFA franes knowing the same tohave been tle, 4* Count Statement of Offence: Consprcy to Stal Paniculars of Offence: Isaac Christian During, Josephus brahim Tucker, Roland Rogers ‘Okoro Macaulay, Frahm allo, Johannes Laggah, Alhaji Sanus allo and Adiatu Baie on divers days between the 1" day of September 1973 andthe 26° day of September 1973 a Lang in the Port Loko Judicial Distt of Siewa Leone conspired together and with other perens unknown to steal a quay of bags containing money in CFA francs propery of Bangue Cental Etats Afique de L’ovest while in the custody of Union de Transport Acriene (OTA, “The tal commenced on 25* February 1974, and on the 29 April 1974, the Presiding Suge Okoro-. na very lengthy judgment recorded his vedi as follows Verdict ‘Count 1 - Each of Ist, 2nd, 3rd, 4th, Sth, 6°, and 7 accused No Guilty Onder: Bach acquit and discharged Verct ‘Count 2- Each of 1*, 2nd, 3rd, 4%, 5*, 6" and 7* accused Not Guilty

Order

Each acquitted and discharged pe Verdict ‘Count 3~ Sixth accused: No ity Seventh accused: Not Guilty (Onder: Each acquit and discharged Verdict Count 4 - ach of 1% 2nd, 3h, 8,68 and 7 sous Not Guilty Onder: Each suited and discharged Fit accused receiving Verdit: Not Guilty Onder: Acquined and discharged. cis again this verdict of acquital and discharge that the Solicit General acting on tha of the Sat has appealed to ths cout. on questions of lw, on eleven grounds of appeal (samended) as follows:

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