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

I . f· . . . • • I () , : .· .- 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' , . '. .' , , ' 0 _ : · 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by th Attorney-General and Mini$ter of Justice under Section 144(2) of the Criminal Procedure Act NO. 32 of 1965, as _ repealed and replaced by Section 3 of the Crim inal Procedure Amendment Act N0.11 of · 1981. In the circumstances, therefore, throughout the trial, this Court proceeded both as a Tribunal of Fact and as a Tribunal of Law.. Howeve r, before the trial itself commenced, cert ain preliminary matters had to be dealt with as can be seen from the following sequence of proceedings. On the 18th day of July 2008, Ms .I . . , Glenna Thompson made an opening statement .for the Prosecution outlining the method of execu tion ·of the Prosecution case. Then Couns el Mr. J. s.·Jenkins Johnston, who led the defence team, applied for an adjournment on the basis · that t he· defence team had not had enough time to study all the papers served on them only within the past forty eight hours. The application wa s gr ant ed and, taking into consideration the lon g vacation of the Court, the case was 2 0 ·. i . • I - . .' l . .,l -: -I . • J. _ , -· .:! ' t· ·!.' . !· . 1· . ;I - I . 1. II • , r - I .: .I.: ._... ... ,, 'I • • • , • - · ·. . "':, ·. adjourned to the 18th .of September 2008. On that day. aforesaid, Dr.Jabbl, · who now led the _def·ence team, raised a preliminary jurisdictional objectior1 prernised on the ground that the entire .ac tion covering all the 168" counts is entirely and abso lut elytime barred in terms of Section 2 subsections (1) and (2) of the Public Officers Protection Act, Cap. 172 of the Laws of Sierra Leone.. • .: Submissions were mad·e by both Dr. Jabbi and Ms Glenna Thompson and the mat t er .wa s re$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 0 ' .. ; . said 16 day of Octobet, 2008. 3 ' •' .,' ' '. . " 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 ,' ,, . •, . •I I . ' . be yo n d r eason able doubt, but nothing short of that will : suffice". 4 . ,\ \ ' ' 7th .. . •' • 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 5 fir:, . : r .'• ' .. -· ) ·l ' .--. 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. 6 . .. ' . . ' ...-.· ,,; • . • .. ·- . 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 . ..... 7 ' ·.· ' • .. . .... 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: .. 8 · . ,.. I . - • r• ,. · • • ' " 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 9 ,t . . .. -. ·. • • r J • .I ,·.. ·-J ,.; •. •. ', I I . ) •I ' .. 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. . ' • 1 . .' . , , 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. ·,'•. . , , . ) Let us pause at this stage and take a brief -look at Exhi_bits Gl - 6 2 . and .the endorsement at the back · .of each voucher. The following words appear. : " TOTAL AMOUNTING TO THE SUM OF .............. AND. I HEREBY CERTIFY THAT EACH OF THE ABOVE .POSITIONS EXISTED DURING THE PERI OD STATED AND THAT THE EMPLOYMENT · WAS DULY AUTHORISED BY THE OMBUDSMAN". Below t hes e words appear two signat ures: " Pr epar d by A. Gibril" (PWS) and "Approved by . . F. Gab.bidon" (the a<=:cused). T h i·s the prosecution submitted shows clearly that it . was done on the i nst ructi .on s of. the Orn bu ds m·an whose approval not only appeared but·was the most import nt signature _t her e . PWS wor ked under the direction of the Ombudsman· and therefore the vouchers were prepared under his directives. Pw6 was Ms Marie Dumbuya .. She was the Con Ad ent ialSecretary, first to the Accused . qu ri ng his legal practice and she was later :, 11 .• Jf ' . . .. ... , · ... . su b su rTied: into the Office of the Om buds·man. s·he. said she started wor king for the Accused in 1980 ·and in April 2000 the Accused switched ' ' , ' .• over· her appointment to the Office of the Om budsman. She testified that she was never given. a letter of appointment by the Office of the Om bud_.s.m an even though· the Accused had given .her letters of appointments, including hers, to type. She -st at ed further that salary vouchers for ty'ping we-re given to her by Mr. Gibrll to whom they ·had been passed by the Accuse·d. As fa·r as she could recollect, since the Office started in April ·2 00 0she could remember the staff as follows: Mr. Francis Gabbidon was the head of the Offi c.e and the Vote Controller, Mr. Gibril was the Accountant, she was the Confidential Secretary, ·Mr. Saidu Bangura the messeng er and one Mr. Isdand Baimba whom she said left between 2003 -2004. She said when Mr. Baimba ·.left there we·re only three members of staff until May 2008. PW6 went on to state that she is aware o'f the close personal relationship the Accu sed. has with both Mr. Nicol Wilson and Mr. Peacock, but she· m aintained that they were not employee·s of the Off ice of the Ombudsrnan. She said· she was not aware that monies were sent to Mr. Nic:0·1 Wilso n and Mr.' Peacock on a monthly basis .from April 2000 to December 2007. PW6 ,, identified Exhib it G3 and then went on to state inter alia : \I see Exhi bit G3. My name is there-. No 2 is Peacock and No 4 is Nicol Wilson; Of the 12 nam es I recogni ze Mr. Gib r il the Accountant, Saidu Bangura the Messe nger, Isdand Baimba the other Messenger and my name as Confident ial 12 , , . - . - .. . . : . Secretary. These are the people I .recognize as being staff members of the . . ·Office of the Om budsman. I see sl·gnatur es against their names 6ut .•. these two, i.e. Peacock and Nicol , ·• ·. WJl son, to my knowledge, were not · members" .staf f She was rand_omly showed different other .Exl)ibit s .such as G30, G59, Gl , G60, G2 and G3 and she sa.id these were the sort of vouchers that . they signed month after month on the receipt of salaries. She further testified that in each case· , eyery month she would see 12 names on the list. · She sai d that she typed the salary vouchers and sl,e 9ot he information through Mr. Gibril who in turn •had got the information from the Accused. Under cr0$S examination the witness confirmed tl at ·t he- office was very tight' and she recalled that :lette_ rs had been written ·asking for space.. ·.• . . . She said she could recognize Mr. Nicol Wilson and Mr: Peacock; that Mr. Nicol Wilson normafly wen t to the office during· the period the Accused was Om b. udsm an; that as far as she could recollect Mr. Peacock only came to the office twice; 'that she could not recollect the Accused seri'ding people to Mr. Peacock dl,.Jring his period as Ombudsman although he drd so when he was a·: lawyer. When pressed further by the Accused PW 6 retorted that the Accused had sent mat t e.r s that were riot within their jurisdiction to Mr. Peacock . On being questioned about theJ relation. ship between the Accused an·d Mr. Nicol Wilson she said "being the Director of LAWCLA ·anct ' y.ou · being the Ombudsman I believe that was • the relationship you had· wi h Mr. Nicol ,'• •..·' . 13 . . ' ,•. . ..' • ·,, ' • . l •- •• ·• w i !"son. · I don't recall your r la ionship wit h Mr. Peacock .11 ·On-_ t h"is point, in her closing Address, Ms Glenna Thon1pson for the Pr osecu t i on submitted that even if Messrs· Nicol- Wilson and Peacock were employed by the Office of the Ombudsman, but due· to short age of space had to work elsewhere, both_ Mr. Gibril and Ms Dumbuya wo.uld have. . nown about it. In eight years they must have t ome across it, di_scusse.d it or at the very least heard about it. Counsel further submitted that it is no·t a criminal offence to have such an arr angem ent and if it did exist there would have been. no reason for any of the witnesses to .conceal . /t or deny its existence. She submitted that this arrangement imply did not exist . and ha·s be n put forward as an explana tion by the _ Accu$ed to explain away his crim in alit y . . . .: .' "} . ·- . ·.'•• PW7 Melron Nicol Wilson is one of the persons the· Prose cut ion says was falsely inserted as an n1ployee by the Accused and by so doing misappropriated funds belonging to the Gove rn m en t of Sierra Leone. PW7 categorically ·denied any suggestion that he ever worked for the Office of t he Om budsman . He had never seen any 9f Exh ib i ts Gl-62 nor signed any of them. He denied that the signature which appeared against his na·me was h is . He said he did not receive any . payrnents from the Office of the Ombudsman and that he did not have a relationship with Mr. Gibri l or :any_ ot h e r person- wor king· in· that office. I ndeed; even in cross examination by the Accu·se d, he stated that he was never spec ifically asked to investigate any ma tt e r by hi m. The Accused has strenuously sought to explain the inclusio'n of Mr. Nicol Wilson as a staff member 14 \ . ., • < • ·.,' .•. .T, ., , - by sayin g that he used to send him cases whict) fell outside the mandate of the Office of the Ornbudsman. PW7' s response was that In such a case .the modus operandi was normally by a referral- letter written by the Ombudsman to LAWCLA, the organization of which he is Director, and rio·t to him specifically He said that the letter : would state that a particular complaint had been · made ·and the said complaint did not fall within ... • J .• -, I the mandate of the Ombudsn1an and for the Centre to assist. PW7 further testified that such con,plaints related to landlord/tenant issues and . mqintenance and custody matters. He explained further that because the Accused as Ombud?man was Cha.ir man of LAWCLA, the Centre treated such matters with high priority and on a ·pro · bona basis and so the question of payment never•I arose. . The Accused has tendered in evidence the Annual Report 9'f LAWCLA 2()03 (Exhibit N) in· which the Otfice of the Ombudsman is listed amongst the .• !. ." funders of LAWCLA." This . Mr. Nicol Wilson · .explained was a prin ti n_g error _and should read ',' "those LAWCLA cooperated with". The accused asked for the statement of this · witne·ss to be tendered and it was tendered as · Exhibit .k. I have perused the· said statement and I ffnd that there is no l.nconsistency between the stat em ent and the evidence given in court, nor , .. wa-s that put to the witness. Mr. Nicol Wilson , • •. •' both in his statement and. his vidence before the Court described. the relationship he had with the Accused as a "professional relationship for many years" and not' that of an employee/employer . r·etationship. 15 . ·' . 0 - ... . ) ·1. ,. _Under. cross exan1ination_ by the Accused PW7. 9enied thesuggestionthat monthly payments were made to him through Mr. Gibril for the ervice rendered. He said "monthly paymentswer e not made to me by any official working in : ; ; 't.•. ' j the Office of the Ombudsman for services rendered. to that Off ice. " He also denied the sug·gestfo n by the Accused that whenever monies were paid to him he would · decline to accept them but rather make them as donations to .char i ties . He said he did not recall having such discussions with the official who· has been referred to as- Mr. Gibril and working as Accou ntant in the Office of the Om budsm an. He concluded by stating that the Accused has been very supportive of LAWCLA but tha.t there has .. \ ... . /.• 1 • • . i neve·r been any fi nancia l transaction between the two institutions. Next to take the stand was PW8 Mr. Christopher Peaco c . He gave.evid.ence and, like Mr. Nicol . Wilson, he denied ever being an employee of the Office of the Ombudsman. By way of backgr ou nd, the Prosecution tendered various newspaper articles and exchange of letters between the Accused and Mr. Peacock. These are ·Exhi bi t s P to X. The .accused has sought to main t ain that payment was made because he sent cases to Mr. Peac.ock . Mr. Peacock denied ever r·ecei ving cases from the. Accused and went on tt> say" that he was consulted and his services paid for by the clients. He gave a narrative of his . .rea ction and what transpi red alter he becarne wa_r e _v ia a newspaper article that his name had been used as an employee of the Office of th·e Om bu dsm an . This culmi_ n at ed in the letter of disclaim e·r written by the accused. This letter was ', .... · ad1Tlit t ed in evidence as Exhibit P. The Accused in 16 j ' 0 , ' \· ....·, - ... . •,.'. his tj f nce explained that Mr. Peacock was annoyed because he had broken a promise he. _ .m_ ade at· the time of employing .hi m that he will :no reveal that he, Peacoc.k, . worked for the · Office of the Ombudsman. The Prosecution subm! tted that even allowing for the possibility ·that this statement might be true, how practical was it if the accused sent "many cases" to Mr. Peac_oc k in secret. Surely, those people who were :referred to. him would have known that Peacock wa·s working for him. Secondly, it is not a crime to wor k, so why would Mr. Peacock ask for the -· gr eement to be kept confidential. The "Prosecution further submitted that the Accused would have included that in Exhibit P because wit hout it, it gave the impression that there was som e · dishonest wrong doing on the part of the Accused. Counsel further submitted that the Accu sed . would not have lef·t himself open to a . ... crif0inal charge to honour- a confidentiality agr eem.ent he made with Mr. Peacock. Like PW7; PW8 also denied ever seeing Exhibits Gl- 62 or ever ·signing any of the vouchers. He did not recognize the signature appended against his name. · PW8 was very emphatic in his denial and he had this to say: '.'I have never in my.life received any form of emolurnents from that office in the form of salary, wages, honorarium, .consultancy fees, retainer ship fees or aJlowances or end of service benefits. · 1· have never signed any form of documents as a recipient of any form of moneys relating to that office. ·.I have never part icipat ed·in any form· .of activities organized by the Off ice· of . the Ombudsman." 17 I' ,_ . ,. . . . .. .. . 'I In his- submissions to the Court theAccused has .. . '• ' .. ' •, . as k _ed the Court to believe that Mr. Christ opher Peacock was an employee of the Office of the Ombudsman. He said that this arose by an agreement betwe-en him and Peacock. He submitted further that as the Office of.. the - .· ·.• . : . . · . ·, !: ' . ... '. Ombudsman generally operates on the principle · ofconfident iality and in order for Peacock's cHent s generally not to know, and also for tax : avoidance reasons, it' was agreed for it not to be. ' in writing or formal. He said that·this might be improp r but it was not •i ll egal or cri m in al. .. It i · pertinent to note that the Accused himself condu cted the cross examination of PWS Alieu Badara Gibril, PW6 M rie Elaine Dumbuya, PW7 Melron Nicol Wilson and PW8 Christopher James Peacock. In my considered view nothing in the cross examination by the Accused could dent thes witnesses' evidence. They all came across as credible and reliable witnesses and the Court accept s -their evide nce. In any event, it se ms to me, and my view is buttressed by the questions put to these witnesses by the Accused, that the _. cross examinat ion w.as reduced to ·get t ing the witnesses to confirm the good relationship they had enjoyed with the Accused and the fact that ·. h e· had always been ·good to them and had help d them to further their careers. · The last witness for the Prosecution was PW9 Vi.cto-r-ia Am inat a Mansaray, a NASSIT Of fi cial who gave evidence on the.15t hJanuary 2009. She conffrmed that the Office of the Ombudsman did not register its employees for NASSIT payment. 18 ' > •I .. . . .' . .. She pr'oduced and tendered Exhibit DD which she said was a let ter· written formally to the Office of the Onib d rnan after several oral reque$ts to hem to register their employees and to regist er their \nstitution. Under cross examination the · Accused put it to the witness that they never : i ec eived Exhibit DD. She answered that they did and to this letter was attached the registrat io n form for the employees. . ,. · i '•. . , • , .' . ·-: . . ' ... ,,. .•. ,, .. ..·· A t c l o s e t h e P r o s e c u t i o n ' s c a s e , • A c c u s e d ( w h o by the n wa s un re pr es ent ed ) on th e . 29t h· da y of Ja nu ary 20 09 ma de a no ca se su bm is ion pr em ise d on the foll ow ing gr ou nds: • . The Court has no jurisdiction to try the case. The proper forum for this matter should be a Tribunal appointed by the President to investi gat e allegations of _misconduct s, to wit, acts of a-ll eg e q corrupt ion and misappropriation by him · as the fon11er Ombudsman. 11o As a matter . of public policy, the Ombudsman, like a Judge, when performing his functions should not be sued or prosecuted In the Courts of Law. • No consent or fiat has been proved in Court as part of the p_roceedings. . . In t he Prosecution's response, ·Counsel Glen na Thori)pson pointed out that the issues which form the basis of the submissions of the Defence are a repeat of the issues.contained in th submission·s 111ade by Counsel for the Accused at the beginni·ng of this trial in their preliminary jurisdi.ctio ·nal objection, the subj ect of whi.ch is th e basis of an appeal before the Court of Appeal and an application for a stay of proceeding s· befor e the Supr eme· Court. Counsel further 19 cal l .I' , '' ,, ,, ' J - r . :..... . - ,,, s·ubm itt ed that in no case submissions the g idelines laid down In the case of R v. Galbraith (73 c_. Ap p. R. 124, CA) sho-uld be used and • •I • . . .. ·' since those guidelines have not been the subject o_f t h i s n .o case submission, it should be taken that . the Defence does not' challenge the facts of this case as being capable to be put before the ·:- ;:• I Ju'dge to det er m in e guilt or innocence. j I .., .. .. • ' • ' a • • "I ' Suffice it to say that after careful consideration of II the submissions made by the Accused. as "Defence Reply to close· of Prosecution's case" I delivered a Ruling on the 9th day of February 2009 in which I held· that the Accused has a case to answer. On .th e .11t h day of February, 2009 the Ace.used was put to his election in accordance with the provisions of Section 194 of the Criminal Procedu r e. Act, 1965. He was also informed of his : r i gh t t o witnesses on his behalf, irrespective of wh ich ever opt ion he chose in presenting his case: The Accused elected to give evidence on oath and to call witnesses. On that day th /.\ccused . was represented QY Counsel Leon Jenk ins Johnston. . '. . . , The Accused testified that he is a Barrister and Solici tQr with 37 yea s post call experience having been called to the Bar at Gray's Inn on h.e 2n d day of July 1972. He gave a brief · overview of the v·ar iou s positions he has held; name-ly, that he is a member of the· Sierra ·Leone Bar: Associ at io n of which he was President twice; a member of Commonwealth Lawy ers Associat ion; the first ·Si•er r a Leonean to be a rnern ber of the International Bar Asso ci t i on of which he was an executive member; also a 20 r . , ! r . • J - a ' ••,' . I (f)em ber of the West African Bar Association; a Notary Public; a Commissioner of oaths; the Chairm an of the Committee of Lawyers that draf t_ed tt)e Legal Pr act it i on er 's Act; that he wasI '• • . J .. ! •, ' also te·aching at the Sierra Leone Law School and · he al·so taught Media Law Et.hies and Law of Intetnational .Property at Fourah Bay College for four: ano a half years w•thout· salary b t that he was asked to stay away until after this case ends.- He stated that being a Notary Pu blic ent ai ls n ota ri zing documents and affidavits especialIv those used outside the country; that in the case of being a Com missioner of Oaths when l1e appends his signature and notarizes these docum nts it means everything has been properly and regularly done and that it is a mark - qf honour for anybody to perform that role in terms of trust and confidence. The Accused fur the r testified ·t hat he was ppoi nt ed as Ombudsman in April 2000. Prior to _ that he said he had been informed by the then Government of Sierra Leone that they wou_ld lik e ··1I ·. , • .I• . . • - ii;. .J • ...I i t . . . to· promote him to the Bench or make hi.m the flrst Ombudsman of Sierra Leone. He. said he opte8: b be the first Ombudsman because he felt it was a challenging job. He identified Exhibit C . as his appointment tetter and he stated that even though· it. was dated 21s t De cem b er 2000 he act uall y_ start ed work on 1st April 2000: He referred to the 2nd paragra ph of Exhibi t C where there is reference to office accom m odatio n an d he said there was no office all ocat ed to hin1 and so he had to resort to using hi s own priv ate office at No. 84 Dundas Street, Freetown. He said this was unlike the Human Rights Commissio. n, the ACC and the IMC which were all provide.d with offices. He said he complained 21 . '• • ., .I ·, . .... -·• .; ' . .'· .,.:.,;:.- . about ,this··on severally occasion$ yerbally and in writing but. they sHd n ot h i n g virtually. He · pr o duced ·and tender·ed a' l etter dated 10/5/1001 . wri'tten· by one Mr. Wellington who was ? Ct i ng as Permanent .Secreta ry · at the time he was complainl ng about · accom modation .and office _ spac . the said letter was a9mitt d as Exhi bit . EE. .The • Accused also tendered as Ex hib it ' FF a le t te r· dated 1/10/02 which he had written to the then Minister of Housin g. · He said it was a : not orious fact that his office was the only one that was not given the· seriousness that it ·.deserved. Various oth r issues which the Accused brough t . up in his d fence can be summarized as follow s: • That the Office of the Ombudsman was · not provided with space by the Government of Sierra Leone; • That the Office was not provid ed with staff by the governn1ent of Sier ra . - Leon e ; . • That the office was inadequat ely funded by the government of · Sierra Leone; • That neither . PWS nor PW6 ever complained or put any disclaim er on any financial matter; • That he used to help both PWS and PW6; • That the office was never que; stion ed by Parliament or by the Acco'un t ant - General's Offi ce;· • ·That there was no Perm ane nt ·· Secr et ar y ; • That there was no Vote Controll er ; • That PW6 left his employment In 2008 22 .. .. ' ' '• .' •. •, • That h e was not sworn in as Ombudsman after the first term can1e to an end in 2004 and that since there was a violation of the Om budsm an ' s Act and the Parliamentary Procedure and Approval, all acts and things done by him after that period was . unconstitutional, void and of no effect. It is· my v iew, however, that none of these issues raise d . address the fundam ent al. questi,on of whet her the accused is guilty of the offences · charged . Moreover, the Court has take·n j udicial notice that, notwfthstanding the fact that he had not b en sworn In, the Accused at all material time·s acted as Ombudsman (includi ng signing cheques and letters from the Office). Unc.ler cross exan"li n ation the accwsed accepted that he was ·o· m bu dsm an for the entire period. He continued to perform the functions of On1budsm an, to refer to himself as such and to answer to the title. He annot how, out' of convenience, claim not to have been Ombudsman at the mat eria l time. J . find that ·he was at all times the Om budsm an of the Rep blic of Sier ra Leone and I so·Hold. • , ' The Accused also tendered a number of documents namely: Exhibit K: The recorded interview given by ·Melron Nicol Wilson Exhibit L: Letter from Francis Gabbidon to Melron Nicol -Wilson Exhibit M·: Eighteen Month Report - Lawyers Centre for Legal Assistance Exhibit N:· Annual Report 2003-The Lawy ers Centre for Legal Assist ance. 23 ' ' . ' . Exhibit O:· Donation to Cent re· from Peter Harrison .. Exhibit Y:\ Peep Maga.zi ne dated Wednesday November 21, 2007 , 'i' ,, • ; Exhibit Z: Handwritten Pro'file of CJ .Peacock . Exhibit AA: Writ pf Summons attached to lett er from C.J. Peacock to Mr. Gabbido n Exhibit 8B1- 8B2: Letters from C. F. Peacock · dated 24lh J a nua ry , 20 02 to the Attorney General.. Exhibit CC1-CC2: Let ters . from C.F. Peacock dated 27thAugust 2001 Re : Sale of Blue Mercedes Benz 230 . '.: ... i Exhibit Ff: Exhibi t GG: Ex hi it HH: ·Exhibi t JJ: to Mr. Lansana R_ogers Letter from the Ministry of Presidential Aff airs to Francis Gabbidon dated 10/ 5/ 01 Letter from th·e Om budsm an · to the Mi.nist er of Hous.ing and Environment dated 1/ 10/ 02 Letter from the Ag. Permanent Secretary to t h e Secretar y to the President dated 11/ 2/ 02 Letter to Mr. Fran cis Gabb idon From Ms Marie Dumbuya dat ed 20/5/08 Letter from the Secretar y to Ombudsmar\ to the Financial Secretary .dated 4/ 6/ 01 . ,,, , . ' . Exhib it .KK1 - KK2 : Om budsm an Annua l Rep ort s Dated 1/1/02 and1/ 1/ 03 . . .\ .. .· ., . E.xhibit LL :· Letter from Mathias Tumwesigye Director Education & Prev ent ion of Cor ru pt io n, Ins pe cto rat e of of Gov er nment , Kam pala, Uganda + . In . .1 ·":I :1 ,1 ,i'.· . -· 'I . . '· . -I· ·I. j I · hav e perused all of t em and wish to st ate that, for an i nt ent and purposes, the majority of these docu.m ents were intend·ed to show the constraints wnd ·'r which the Off ice of ·the Ombudsman worked. The Accused has put a lot of emphasis on Exhibit LLt h ' . which is a letter dated 26I June, 2002 from a ..I '' 'I }. · 1· i• :j, • · II ◄· · 3' ,,I.. +·. ... ' . . - .. . Co0sult ant sent by the Commonwealth Secr etariat to assess the office of the Om bu dsn, an. his. . . clo ing .argu m en t s, the Accused . s ated that he . Report of Mathias Tumweslgve clearly • stated that there were· t wo Lawyers in the staff of the Office of the Ombudsman in Sierra Leone. He further submitted that the- two Lawyers referred to are Chri st opher' Peacock and Melron Nicol Wilson and. . t h at they h.ad to work elsewhere. In any event, none of this was put to either Mr. Nicol Wilson or Mr. f: e acock. Counsel for the Pro sec ut ion ·has urged t11e Cour t to conclude that the contents therein of E_xhibit LL could only have come from the .Accused', ' I . ·' · i. . l I • ' . . . hirn self and. is further evidence of the elaborate and expansive web he weaved in order to deprive the $tate and now deceive the Court. · · The Accused has denied all 168 counts against him and -h e said he did not r:nisappropriate public funds because he had no reason to do so. He said·he paid both Mr. Nicol Wilso·n and Mr. Peacock for work they did for the Office of the Om bu dsm an. He testified' ' that the Office of the Ombudsman started off with abotJt 5 - 6 ·st aff and then increased to about 12. He sai.d: h e spol e to Mr. Nicol Wilson and Mr. Peacock abou t the possib ility of working t oget her with then1. He also said that he enjoyed a good and excellent 25 ' • , . . . > --- . re;l ationship· wit h both Mr. Nicol Wilso n and M.r P.eacock and: that they did work and co-operate toget her . T he. Accused explained that he· was the Chai rm an of LAWCLA and if th er e were complaints · .n' o t within the mandate of the Offi.ce of til e Ombuds a.n they sent them to LAWCLA.· He said there was no money involved in some matt er s b ut they paid Mr. Nicol W.ilson for other matters but Mr. Nicol Wilso n never took any cent from them and t ia t I, h ad to ld them he was doing it pro bono· and that l) e always said the n1oney was to be given to cl1ari ies. The Accused further testified that he k ows that Mr. Nicol Wilson never took the money ,b t i t was Mr. Gibril, the Accountant , who handled . .... ., ... t,he issu e o the payment to charit ies such as the Amputees and the Blind. ie said the staff was paid by ca sh. an_d· that there were no payments by .'Ch e q ues • except for his own _s alary . He stated that · when all the staff had been paid Mr. Gibril would p: , ep are·a return form for the next salary pay n1en t and he would enter everybody's nam e and then e:i.tll er Mr. G. ibril or himself would tak e it for the . ' , • _. J , •. ': staff to append their signatures to show they had been paid previous salari es. He said if this is not done th en the next salaries would not be paid. . . It is not e worthy that the accused has atterr,pted to lay the bla!Tle at the door step of Mr. Gibri!. The at:cused ih his e v iden ce s t ated that all the vouchers were prepa·red by Mr. Gibril and that Mr. Gibril set the· salary and. the reviews of each salary . I find this u·,i true and.I so hold. For a start, the accused by his _. o wn admission stated in cross exami nation that Mr. ·Gibri l work ed ·under his direction and that he, the 26 .,, ' ....: . . ·ac used, · was the l,ead of the office. This negates . ,any notion put forward· by the accused that offences· complained of were the fault bf Mr.Gibril. Indeed it :- m ake·s nonsense of the claim by the accused that ... .. ·Mr. Gibril was responsible for setting the salary · .levels .of Messrs Nicol Wilson and Peacock. .In the case of Mr. Peaco k, the Accused said he · knew Mr. Peacock for tt1e first time in 1998 when ;'he was his student at the Law School where he ·. lectured hi.m on the Law of Evidence . He stated tl,at -'when he became Ombudsman he told Mr. Peacock there was provision for a Law yer/ Legal / Adviser in t h·e Off ic e· of the Ombudsman and he asked hirr1 .... .. ' • .1.;I whet her he would be interested. He said Mr. ·Peacock said "yes" but then told him there were difficulties because he would not like it to be made public and that the relationship should be confidential because he would not like his clients or .tax p eo ple tb be made aware of this. The Accused · said Mr. Pe·acock did accept the work and that he received salaries monthly which started off wit h LeL00,000 - Le250,000 and then increased to · . abo: u t Le350,000. He was shown Exhi bi ts Gl-62 .and he identified them as payment vouchers . He ·$aid he ·had nothing to do with those vouchers; that :·he did not sign besides Mr. Peacock 's name and that he was not the Vote Controller. Under cross :e_x·am inat i_on· the Accused was shown Exhibit G39 which • bears the figure Le524,771 agai n st .Mr . Peacock's r,ame and he was asked whether he stood by. the amount of Le350,000 he had talked .a, bou t earlier. He replied that he did not stand by that amount but he maint ained that "Christopher :,-P acock and Melron Nicol-Wilson wer e 'bona fide' .em:ployees of the Office of the Om budsm an and ·t hey · were. regularly paid their salar ie·s of LeSOO, 000 . 00 and Le333 , 333.00 respective ly". The 27 a. ... . •' ' . ; . . ac,cused accepts that the name of Mr. Nicol Wilson arid Peacock were inserted as employees. He insist s that the·y w re employees and that he recruited . •' ' . '· .. .... , ,tl em. It is ·ihconceivable that either or b oth of these two g:en lemen could have .been employees of th · o ff ice of .t he Ombudsman from 2001 to 2007, ye·t no one, except the accu ed himself, knew that they were employees. The prosecution .has submitted.. that this assertion by the accused ' is complet ely untrue. I am inclined to believe so and my examination of th following pieces of ev idence confir m.s this: The evidence of PWS, 6, 7 and 8 b. The inconsistencies contain ed in t he Interview (Exhibit Al-58) c. Status Report (Exhibit B1-12) 1 h.e. accus_ed called a Mr. Abdu.l Babatu nde Gill en to gl 1e evide_nc :On his behalf . Mr. Gillen's evidence is t ha t ·h e is a Civil Society a cti vist and was part of t ile B 1d get .Ove 1ght Committee. The role of the .Comm_ itt e was to monit_or various government pr.ojects and the government budget at the time of alfocation; · when Minis.tries, Departments and , Agencies would have to justify their budgets in. ' order to receive their allocation. The Ombudsman would attend .such meetings annually and woul d have to j ust if.y the activities that he had stated. He would be · accompanied by . Mr·. Gibr il, the ,• ·l> , • ·1 Accotrnt ant. The Importance·of Mr. Gillen 's evidence i·s- that he stated that there was no investigat ion of w·h at was told to them. He said they depended on the documents given to them and if they were di_ssat isfi ed _ th!=Y would ask for m or e documents. . .• 2 8 . . . ·.. . . The'y did not seek to look beyo _d that which was presented . , ' · _t o them. , . . .' Under cross examination he stated that they di d spot checks during the year, but only to chec k that acti vit ies were being carried out as planned. If) the cas_e of the Ombudsman they visited his office to obtai n mo.re copies of his annuar report and decided to E;:h eck his book. He saw· his staff list which co'nt ain ed a lot of names but could only recall Mr. Gib r:-il and Ms Dumbuya, and he only saw a total of -· 1 staff in t e office. They did no investi gation as to bow t he. money allocated was being spent. To n1y m. i n.ct, t hi s ev id en ce. shows that ·the accused has . .• I ., - ..'. been_ present ing his i11flated .st af f ,li st .for government allocation year after year and had been using t his• as a cover to perpetuate the fac;ade that l, e ran an office which included Mr. Nicol Wil son and Mr. Peacock, This inflated list was a m eans to being allo·cat ed· m or e money than the office needed in order · that he could m isappropriat e and spend at hts whim. t-o t an Accused to be convict ed of an offence under section 12(1) of the An ti - Corrupti on Act 2000 as . amended, the prosecution must prove beyond · .reasonable· doubt that the funds were public funds, public re·venL,Je or property; that the Accused must have acted, wilfully, whether by' himself with or througl') another person and that by his act ions. he has deprived the Governm ent of such funds, rev nue or financial interest. I shall now turn to examine all the elements of the offence whtch the Prosecution must prove. 29 ' . ' ' . Were the funds public funds·?·-Th ere is no doubt that they were. In the first· 1 ce the Office of the • ·. Ombudsman Is a public om e as can be seen frorn section 2 (2) of the Offi budsm an Act 1997 · .. which states as follows: _ The Office of the · Orn budsman shall be a pubii t office but shall not form .part ·of the public seJVice". Further that · s·ame Ac·t rn section 20 stipul tes .how the offi.ce is to be funded, which is· by ,government f4nds. The administrat iv e expenses of the Offi_ce of the ·. • ' Ombudsman · including salaries , allowances, gratuities and pensions, if any, of the Ombuds1T1an and his staff, sfi'all be a charge on the Consoli.dat ion Fund." Aisd section 1 of • tile Anti Cor ru· pt ion · Act 2000 as amended (the interpretation section) deffnss public funds as " any monies paid fro.m the .fUhti s appropriated by : Parliament from the Conso't,ldated Fund or any fund und r subsectiop (2) of - se ction 111 of the . · Constitution." The e?idence given by P\N4 - Haroun Alrashid Sheriff - from the Accountant Genera'l's Qepartmer:t also ma es it clear that the Offi ce. of the Ombudsman is and has always bee_n fully funded by the. Governm en t of Sierra Leone. This·has been proved by the State. •... ' ' . Therefore, it logically follows that money misappr opriat ed .is always a loss to the Government of Sierra Leone. The definition of " misapp ropriation" i ; to be read in accordance with the case of R v. Gom ez (1993) 1 All ER 1. _ This case involved the delivery by the owner of eiectrical goods to 21 third party; paid for by stolen cheques, to the .knowledge of and _. niachir:1ations of Go,m ez. It was held that ·. · " app ropriat ion" in the circ·umst ances of that case involves· the assumption of the rights of the 30 .. •, . . . . . . ... . ... . :I . owner by the Accused. It follows therefore that ;· the wjlful commission of any act which results in .· the .o wner· 1osing funds belonging .t o it, amounts to misappropriation. The consent of the owne·r is · irrelevant as was pointed out by the House of Lords· · in Lawrence v. Metropolitan Police Comniissioner (1971) 2 All ER 1253. . Wa·s the· act complained of wilful? Generally, it . has.. been · held that the act which causes deprivatlo·n of funds must be wilful . In the lea.di ng case of R.v.Sheppard (Jam es Martin) ·: [ 1981] A.C. 394 HL, the majority held that a · man \\wilfully" fails to provide adequate medical . ·: attention for a child if he either (a) deliberately ·-' does so, kriowing that there is som·e risk that the . '' child's heal h may suffer unless he receives sue!, . a.tt ention; or (b) does so because he does not care whether the child may be in need of medical . treatment or not. The majority equated " wilfully " with common law recklessness. Lord Keith wl10 was in the majority had this to say: ''w- ilfully is a word which ordinarily carries a pejorative sense. It is used here . to ·.'•.. .: • # .. · ·. describe the mental element which, in . additionto the fact of neglect must be proved....The primary meaning of 'wilful' is \deliberate'." In the 2002 Edition of Blackst one's Criminal / Pr ctice, . the Learned Editors have at paragraph . A-2. 8 described 'wilful' as "a composite word to · cove.r bot h ·intention and a type of recklessness". ' .• . Jt fol lows therefore that there must be proof th·at · the act wa·s deliberate. The State has submitted that there is ample proof that the acts " .complained of were not a mistake but systematic 31 • I •, acts deliberately" planned and executed to deprive ·th Go vernm e nt of Sierra Leone. I agree entirely wlth this submission and it appears to me that the evidence of P\/1 3 James Ka_mara ancl th.e Exhibits he tendered fully illustrate the deliberat-e acts being alleged by the Prosec ut i on. a. Fir stly there is_ the Vote Serv ic e Ledger { Exhibit E) : PWS, Alieu Badara Gibril was able to shed some light on this book. It contains the amounts given by the Accountant General's Departn1ent with the signature of the accused appearing on various pages. The accused himself in his cross examination admitted the signatures to be his. b. Secondly, is Exhibit F which is the appointment letter purportedly given to Mr. Nicol Wilson. Mr. Nicol Wilson denied ever bein_g given this letter. . , . .. ' ' .... ·, . .... 0 , , ,• Also PW6 Ms Dumbuya had testified that she was never given a letter of appointment by the Office of the Ombudsman even though the Accused had gi ven her letters of appointments, includin9 hers, to type. The accused himself confirmed that both Mr. Nicol Wilson and Mr. Peacock were never given letters· of appointment. This he stated in his interview (Exhibit Al - 58 ) and in c r os s e x am i nat i on . The Court can only conclude 32. . .. , .:· . ' . .. : , · - · • ; ·l .·. • _. , , ' : .. therefore, that Exhibit F was drafted and kept by the accused to give a semblance of legitimacy should he ever be investigated. . ' , Was the act done by himself or throug h others? From t_h e t ot91it y of the e v i d n c e adduced I am satisfied that the Pros cu t i on has proved beyond, r eason able doubt that the act was · done by the accused and through others, i.e. Alieu Gib_ri l and Marie Dumbuya, ·· who were used as instruments to further the grand plan. In Exhibit Al-58 (the interview of the acc ed at question 42) the accused said . "We ..utilized the services of Mr. Chri stopher .· , Peaco_ck who was employed by me on .behalf , . , . ·-- .·. • , of the O'ffice of the Ombudsman whereby he gave legal advice or second opinion if and yVhen- necessar y." I answer to question 47," t h e accused stated that "Mr . Melron Nicol Wi.lson also helped with investigati ons · especially in complaints and because I worked with· him as Chairman of the Board ·of Directors of LAWCLA we he!p each. other if and . v1hen necessary......" Under cross examination of PWS, It was put to him that he, PWS, t oo k .·· . ' .,, . .·• salary every month to Messrs Peacock ·a nd . .- .., . : .. ' ' i - - ..I ,· . Nicol W-i l son and.·that Nicol Wilson oonated it · to chariti s. This PWS denied in its entiret y. At ·the ·end- of each payment voucher is an official endorsement of the Office of the Ombu dsm a-n which was shown to- the ac cused In his i·nt erv iew at question 83. Here aga in the ., .- 33 ... .. .• ' .1 r..r ,· . , , , •' accused confirmed that it was the official sta_mp and .h is signature and · that it signified "that I m satisfied with· the d ocu m ent s as pr esent ed to me by Mr. Gibril." Furtller the .·accused in cross examinat ion accepted that he signed exhibits Gl-62 and that it signified that he approved of the information contained therein.- That signature at the back of each salary· p ayment voucher goes ar beyond mere appro va l., Without it, the Accountant General's depar tm ent would not release the next trancll of the money due to the depart ment. The evidence of PWS also supports the prosecution 's ca$e that the accused acted by . himself • and through others. PWS .stat ecJ that the names on exhibit Gl-62 were supplied .to l1in1 by the accused. That evidence went nchalien.9ed . These pieces of ev iden ce show · th at the . accused acted by himself andby instructing ot hers to do so. This requirement of the Act is therefore satisfied. · I nterest ingly, the Accused himself submitted in his dosi11g arguments that Ms Dumbuya and Mr. :Gibril assisted him in the work at the office and t hey · all worked voluntarily as a team wit hou t any dissents or disapp ro v al; that they both were aware of what was going on in the Office; that Ms Dumbuya agreed to type their . names -on the Pay Sheet for nearly 8 years witho.ut qny objection, waiver or disclaim r; that Mr. : Gibril, the Accountant prepared the Pay Sheet with all the names, signed the document and other documents r elat ed to it and regular ly took them .to the Accountant- 34 ' .