S v Francia S Gabihdon [2009] SLSC 2 (17 February 2009)

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CRN 76/08 1 THE HIGH COURT OF SIERRA LEONE HOLDEN . AT FREETOWN THE STATE vs

The Accused Francis A. Gabbidon stands charged · with 1.68 counts of Misappropriation of Public Funds contrary to Section i2(1) of the Anti Cor rup t ion Act 2000 (as amended). The charges ar·e laid under Section 12(1) of the Anti Cor rup tion Act 2000 which provides that "any person who misappropriates public revenue, public funds or proper ty is guilty of an offence. " Secti o n 12(2) states that: "A person misappropriates pwblic revenu e, public funds or property If he wilfully commits an act, whether by himself, with or through another person, by which the Government, a. public corporation or a local 6uthorit y is deprived of any . revenue, funds or other financial interest, or propert;y belonging or due to the Govern m·ent , the publlc corporation or local aut horit y". The substance of the charges is that the Accused · as the former Om budsm an · of Sierra Leone misappro'priated public funds to the tune of sevent y million, two ·hundred and twenty six thousand, six hundred and· forty two Leones

-- ..' (l e7,0, 226, 642.00). It is alleged, on each of the said· 168 _c ounts that the Accused, on a date' , . '.

_ : · u nkn ov:vn between a t wo ·month period, being the Om budsm an, misappropriated a particular sum which had been entrusted to him for payment to eit her Christopher Peacock or Melron Nicol Wilson as monthly salary having falsely represented that they were both employed by the Office of the Ombudsman. · The ch arges were put to the Accused and the plea taken on the 15th day of July 2008. Thereaf ter,, this .Court made an Order as of cour se for trial· by Judge alone instead of by Ju dge and Jury pursuant to _ an application in writing - made by th Attorney-General and Mini$ter of Justice under Section 144(2) of the Criminal Procedure Act NO. 32 of 1965, as _ repealed and replaced by Section 3 of the Crim inal Procedure Amendment Act N0.11 of · 1981. In the circumstances, therefore, throughout the trial, this Court proceeded both as a Tribunal of Fact and as a Tribunal of Law.. Howeve r, before the trial itself commenced, cert ain preliminary matters had to be dealt with as can be seen from the following sequence of proceedings. On the 18th day of July 2008, Ms .I

Glenna Thompson made an opening statement .for the Prosecution outlining the method of execu tion ·of the Prosecution case. Then Couns el Mr. J. s.·Jenkins Johnston, who led the defence team, applied for an adjournment on the basis · that t he· defence team had not had enough time to study all the papers served on them only within the past forty eight hours. The application wa s gr ant ed and, taking into consideration the lon g vacation of the Court, the case was

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adjourned to the 18th .of September 2008. On that day. aforesaid, Dr.Jabbl, · who now led the _def·ence team, raised a preliminary jurisdictional objectior1 prernised on the ground that the entire .ac tion covering all the 168" counts is entirely and abso lut elytime barred in terms of Section 2 subsections (1) and (2) of the Public Officers Protection Act, Cap. 172 of the Laws of Sierra Leone.. • .: Submissions were mad·e by both Dr. Jabbi and Ms Glenna Thompson and the mat t er .wa s re$erved for Ruling. Oh the 9th day of Oct ober· 2008, this C9urt delivered a Ruling dismissing the pr elimin ry jurisdi ct iona l objection on th·.e ground, Inter alia, that the Accused can not take umbrage under the statutory protection given. to public officers under Sect ion 2 subsections (1) and (2) of the Public Offi cer s Prot ectior_i Act, Cap. 172 of 1960 as amended by the Limit atio n Act, No. 51 of 1961. Thereafter, Dr. Ja_q bl announced their intention to appeal aga in st the Ruling and craved the Court's discretion to grant a stay of proceedings as to the trial pending the hearing and determinat io n of the appeal. Needless to say, the State vehementl y opposed the said applicat ion on the g round tbat the High Court does not have an inherent . jurisdiction to grant a stay of proceedings in criminal matters. ·o the 16 th ·da y of October, 2008 I deHvered a Ruling refusing the - defence application for stay of trial proceedings and I ordered that the case against the Accused Francis A. Gabbidon on charges of misappropriat ion of public funds cont_rary to Section 12(1) of the Anti-Corruption Act , 2000 as am ended, shall proceed forthwith. Therealter, the ·Pr osecut ion began leading evidence on theth

. said 16 day of Octobet, 2008.

I is the State which bri ng_s this case and it bears · the burd n of proving beyond a reasonable cfoubt ever ·ye_lement of the off ence with whi h the I, a

Accused. is charged and it is for tfie St at e to s?tisfy t he· Court so that it is sure of the Accused person's gu ilt. This burden of proving the guilt of the Accused rests with the State and continues throug hout. The leading authority is the case of Woolmington v, DPP [ 935] A.C. 462, HL wherein it was stat'ed that " throughout the web of the Englis h criminal law one golde·n t hread Is always to be seen, that It Is the duty of the prosecution to prove the p risoner's gui lt (subject to _the qualification Involving the defence of insanity and to _ any statutory exception). If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or th e· prisoner, as to whether (the offence was committed by him), the prosecution has not made out the case and the prisoner is entitled to an acqult tal. No matter what the _charge or where the trlal, the ·principle that the prosecution· must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained." (per Viscount ankey LC. at pp. 481--t:182). On the st a n d ar d of p ro o f, Denning J. in Miller v. Minist e _r o f Pension s [ 19 4 7 ] 2 All E.R. 3'72 at pp. 373-374 st9ted that: "I t need no. t reach cert ainty, .but

it must carry a·high degree of probabili ty. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt.· The law will fail to protect the comm unity if it admitted fanciful possibil ities to deflect the cours€ of justice. If the evidence is so strong against a man as·t o leave only a remote possibility In his favour which can be dismissed with the sentence 'of course it is ·' p.ossible bu.t not the least probable', the case is proved

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be yo n d r eason able doubt, but nothing short of that will : suffice".

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• J To ·pr ove its case the State has relied on the ·'1 evi dence of 9 witrJesses as foll ows: . . PW1 - Sheku Kamara PW2 - Issa Dauda Kanu· P\/1/3 - James Kamara . . PW4 - Haroun Al·r asch id Sherfff PWS - Alieu Badara Gibril PW6 - Marie Elaine Dumbuya PW7 - M. eIr on Nicol Wilson PW8 - Christopher James Peacock · p_w g - Victoria Aminata Mansaray The State also tendered in evidence various docu rn en t s such as Exhibits . Al- A161:The · r-ecord ed · in terview given by the Accused; Exhibit_s B1-B 12:Status Report on the office of the Ombudsman of Sierra Leone; Exhibit C: Letter ·of: Appoint m en t as Om budsm an·; Exhibit

.·t •• Dl -D3·: · urriculum Vitae of Christopher J. Peacock ; . : Exhibit E: Accoun.tant General Vote Serv(ce Ledger; Ex hibit .F: Letter addressed- to . Mr. M Nicol Wilson Re: Appointment as an I ovesti ga or ; Exhibits G1-G62:Salaries of Staff - The Office of the Ombudsman; Exhibits H1-H3: .Acc,ountant General 's Department - Payment to t t1-e . Office of the Om budsm an; Exhibit s J1 -J18 : Acco unt nt · Ge ner al 's Department - salaries . verffic ati on and approval Form; Exhibit P: Letter wr•itten· by Christopher J. Pe a co ck· to the Editor _ Pe e p · N ws Magazine; Exhibit Q: Letter from Francis A.. Gabbidon to the Spectator Newspap_er ; Exhib i.t R: Peep· Magazi ne dated Friday November 9, 2007;·Exhibit -S: Letter from C.J, Peaco ck Esq. to Frari¢f.s..A . Gabbidon Re: Demand for a wri tten 'd fscl aim er< in a - local tabla.id having wide rrculat i on and readership .- Reply to Le t t e r dated _ - December 2007; Exhibit· T· : Letter from

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Francis A. Gabbidon to CJ.Peacock; Exhibit U:The $pectator News . Paper dated 21-11-07; Exhl b.i t V: Awoko Newspaper dated Friday November 16, 2007; Exhibit W: Peep newspaper dated Friday D cember 14, 2007; Exhibit X: Recom mendation made by Francis A. Gabbidon on behalf of C.J. Peacock and Exhibit DD which js a Letter from NASSIT to the Ombudsman dated l 9thAugust 2005 Re: Non Registration of E:m ploy ees for Social Security. The facts of this case as presented by the Pr osecut ion can be seen through the evidence of _ PW4, PW5, PW6, PW7 and PW8 together with t: xhibits Ai -58, B, E, F, G1-62, H and J. Briefly f.) Ut, it is the prosecution's ca_se that Exhibits G1- 621 which are the paid-up salary vo.uchers, were sign ed month after month from 2001 to 2007 with t he names of Messrs Christopher Peacock and Melron Nicol Wilson who were said to have been ernployees at the Office of the Ombudsman · and with ifn insc'ri pti on to acknowledge receipt of the said salaries; that at the end of each month, the Accused will claim to have paid - 9 .fp F e aco k · and Mr. Nicol Wilson who tte had . presented to Government were employees of the Office of the Ombudsman; that the Accused would· sign· the paid up salary vouchers,· t her eb y att esting to that fact and by so doing triggering -the release of quarterly funds to his Offic;::e. Both Messrs· Christopher Peacock and Melron Nicol Wilson denied ever havi ng seen the vouch e_rs let

ato n e sig ni_n g t hem . I n s6 far as it was put o the Accuse d· that the signatures were put there by hin1, the Accused denied• it, but went on to state . th t he believ ed they were the signatu res of Messrs Nicol Wilson and Peacock.

PW4 Haroun Alraschid Sheriff testified that he is a civil servant ·attached to the Accountant General's pffice and he confirmed that since the inception of the Office of the Ombudsman sometir:ne around 2001, it received quart erly _ a llo cations from the Goy er·nm ent of Sierra Leone tnrough his department. He produced in evidence the salary verification and approval forms (Exhibi ts Jl-18) and the -records of payment to: ♦•

:•·· the Office : of the Ombudsman (Exhibits Hl-3). He ·stat ed · further that payments were paid into Sierra L o'ne Comm ercial Bank account number 10092·92 which is the account of the Office of the Om·budsman. He said these payments were made on quarterly basis but sometimes when there is a cash prob'lem in the country they pay on a monthly basis. He further testified that in 2006 all four quarters totaling Le129; 000,0.00.00+ were paid and in 2007 for the · first three quarters, the sum of Le108, 139,308.00 was paid as .salary grant to the Office of the Om bud sm an. He gave evidence of other similar payments ma e since 200-1. This evidence shows cat egoricall y that the money used for salaries was from the Government of Sierra Leone. Further i'n· his evidence he w.as able to explain to the Court. the process involved in getting the salary alloc;ation from government. He also referred o Exhibit J6 and- he stated as foll ows:· . " Ther e are names o_n t hat document. · Under Accountant the first name is Mr. Chr istop her Peacock a d a basic salary o f Le1, 650,000 is stated. Deductions were m·ade and the net payment is for Lel, 574,313. The name Immediately \ ' ,· below -retired civil servant is Mr. M. ·Nicol . Wilson and his basic salary is

Le1, 099,998 and . deductions were rrrnde and the net was Le1,188,062. Below Mr. Peacock's name the d·esignation is "Lawyer" and below Mr. Nicol ·_: Wilson the designation is \'I n·v estigator " and below there is a st am p . and signature of the Ombudsman". It is pertinent to note that PW4's evidence was not challenged by the Defence at all as he w s not Cr o ss examine d.

PWS was 'Alieu Badara Gibril the Accountant in the Off ice of the Ombudsman. He was able to .9ive ari overview of how the accounting system worked in the office. He stated that the office was. ru0 by the Accused who was the vote controller and under whose instructions he operat:eq. He said his responsibility was to sign cheques, prepare- payment vouchers, prepare cornmitment forms and write up payment ·vouchers· for other charges to be taken to he Acco unt ant. General's department. He said he signe_d the cheques together with the Accused

and that at t imes the Accused instructed him to just sign blank cheques. He stated that salaries were p_aid to the· staff by the Accused and they were asked to sign on the paid up vo.uchers and that the names on the vouchers were never rej ect ecj by the Accountant General's depart ment beca use. the procedure was followed· and they did t h_\ co r r ect presentation to the Account ant Gener al 's of fice. He referred to Exhibit Gl as the... ;.l

.+ .... pa n· vouche r the month of March 2003. He said he recognized his name and that he hc;td signed against it. He then stated as follows:

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" Tl)e .n-ame after that ls Mr. Peacock with a basic salary of LeS00,000 and a net pay of Le408,333. _There is a signature against Mr. Peacock 's salary and it · implies that he has already received his salary . Number 4 is Mr. M. Nicol Wilson with a basic- salary of Le333,

333. His net pay is Le283, 333· and there is a signature there. ·on the next page the computation for March 2003 amounts to Les, 687,500. I prepared it and it was approved . by the Ombudsman Mr. Francis .Gabbidon..." Testifying further, PWS said . there were 12 names on the v ouchers . every month and thos·e vouc_h ers included the names of Christopher Peacock and M. Nico l Wilson. He said he did not know·these two as staff members in the Office of the Om bu dsm an. He said he had never seen Mr. Nicol w· ilson or Mr. Peacock· in the Office of the Om buds m an al th oug_h he knew who they- w· er e. He stated that neither Mr. Peacock nor Mr. Nicol Wilson operat ed from their·office nor did either of them have any relationship with the office. In fact,· unde r cr o.ss examination he stated that he knew . their names from the salary paid up vouchers. ·He denied ever taking salary to Mr. Nicol Wilson or ever telling the accused that Mr. Nicol ·Wil son had declined his salary and had .- instead asked for it to be paid to charities. When the Accused put it to ·hi m that every month during. the pe,riod in qu_est _ion he had given him

r monies.to give to Mr. Nicol Wilson as salaries, PWS em phatica ll y yelled out the words " No, not . in my life". He went on to state that he prepared · vouchers with their names on it but that it was the Accused who made al·l the payments and whenever the Accused paid salaries, he would . cl_a in, · t h at he was going to pay the other staff c,1t

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thefr· various places of work . He referred to · ·Exhibit ·G58 and after pointing out the names of Mr Christopher Peacock an.d Mr. M. Nicol Wilson and their salaries he read out the following . words: "and I hereby certify that each of the above positions exist during the period stated and the employ ment was duly authorised by the · Ombudsman". :pws explained that this was the endorsement before the words "approved by Francis Gabbidon". He-.t hen refer r ed · to Exhibit G59 and he said the name·s on . number 2 and number 4 are Mr. Chr1stopher Peacock and Mr. M Nicol . Wil.son · respectivfi:ly. Their sign·atu res are attached and these. wor d·s appear: "Also we [ler by certify t_hat each of the above named persons have been emp/oyed in the capacity and during the period stated and that the emplqyment was duly authorised. . We will personally be held liable_if a .·. f Name in the voucher is not a genuine Staff". PWS said the endorsement was signed by himself and M·r. Francis Gabbidon. He said he signed first and later it was approved by the Accused. He emph·asi zed that the procedure· for approval is that· o·ne _c annot t aki these _vouc'hers down to the ·. · Accounta nt General's department without both of the:m si'gning and the .Accused· approving ·after ensuring ·that each member of staff h s signed for his/her salary. HE. confirmed that this was the pattern followed·since 2001 to date. .

Under cross examination, by the Accused in person, PWS m·aint ained that Mr. Peacock had no relations ip with the office. He said he only kno ws that Mr. Peacock's name and that of Mr. Nicol Wil on's were on the vouchers and that that . . ad been the case for. th·e past eigh. t years. He categ oricall y denied the. suggestion by the Accused that every month he had given him monies to give to Mr . Nicol Wilson and that Mr. Nicol Wilson had always said he would rather give the alaries to charities.