S v Tommy Sesay (CR APP 2 of 2002) [2002] SLCA 16 (10 December 2002)

cy. app. 2/2002 INTHE COURT OF APPEAL OF SIERRA LEONE BETWEEN: THE STATE APPELLANT AND TOMMY SESAY _ RESPONDENT

Coram

| HON MR JUSTICE M. E. TOLLA THOMPSON JA HON MR JUSTICE G. GELAGA KING JA . ! HON MRS JUSTICE PATRICIA MACAULAY JA

6. J. Sowei, Esq, with him, P.C.M. Sowa, Esq., for the State. 4.8. Lansana Esq., for the respondent JUDGEMENT DELIVERED ON THE 30™ DAY OF DECEMBER 2002 b HON MR JUSTICE G. GELAGA KING, J. Ac: pinta senieed tpunsel for the State had argued his t+ decided not to call on he respondent to reply. We there and thel appes "“dgement in order to give our reasons.iWe nowdo To appreciate the raison d’étre for the short shrift bffall now set out the grounds Peal, some of which are rather novel, in extenso: “L. That the learned trial judge did not sufficiently Fe Pee centay 1 ingredients of the offence of larceny in a dwelling section 13 (a) of the Larceny Act, 1916. . 7 i it all the

2. That the learned trial judge failed to sufficiently conser OF Me Question of insanity raised against the complainant, Morgan,

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3, That the learned trial judge erred in law i : ‘Act, 1916, against the respondent is bad for duplicity. Larceny

4. That the learned trial judge erred in law in substituti the trial court in its criminal jurisdiction, with ie ie meter hal of a mystic and thereby held herself bound by the findings of ‘the mystic in connection with the innocence of the responder concerning the complainant. pondent-<enel sues

5. That the verdict is unreasonable or cannot be supported having regard to the evidence. Mr Sowei for the State, with the leave of the Court, argued grounds 2 and 4 together. Both grounds, in my judgement, are clearly frivolous and vexatious. with regard to ground 2, why should the trial judge consider any question of insanity, if at all, raised against the so-called ‘complainant who apparently, was PW.1? Was P.W.1 on trial? Was he the person charged in the indictment? Section 73 of the Criminal Procedure Act, No 32 of 1965, obliges the trial court only to consider the question of insanity only where it is given in evidence that the person. charged was insane or not responsible for his ‘action at the time the offence alleged was done. In the case of witnesses, be they complainant or not, it is trite to say that the duty of the tribunal is to evaluate their evidence adduced at the trial in the quest to decide whether the prosecution has proved its case beyond reasonable doubt. As for ground 4, it is equally frivolous and, a fortiori, unintelligible and patently cbsurd, Who is this mystic? What is the meaning of the prosecutorial jargon “competent sittings of a mystic"? Where in her judgement did the learned bi ledge hold herself “bound by the findings of the mystic in conn haba innocence of th t and issues concerning the complainant”? | have been the responcien & rd, let alone the unable to find any reference to a mystic in the whole of the recor 7 ne did idgement, It ought to have been obvious tO the appellant that vor [1979] "ot stand a scintlla of a chance of succeeding. AS was sai Cin Lf, gag, “irvolous’ must include @ BroUnd of appeal Lee 22ssbly succeed in argument. | must here stress the need core 1 Oe seul, concise and intelligible igrounds of appeal @F! Cort phasize that it is ‘otary tonnebared and ingcourste Chale 180 nd of ‘appeal a sweeping and t fo counsel's duty to put forward 3° “ustified. Vide R, vy Mason ie 3 As id the judge hold that “the cnf@@2rds ground 3, nowhere in the judgement W'3 (a) of the Larceny Act, 151g, 2! larceny in a dwelling house contrary t0 the judge did was tO comment on 2 28ainst respondent is bad for duplicity”. out holding that it wae bad for “up criticize the charge as drafted, but "°° to the judge's mouth. | shall ity, and it is wrong and unfair to put WO"

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yer to the relevant comment of the trial jud, . oor. The judge had this to say: Judge at page 69 lines 14 to 21 of the “Yet the prosecution in its wisdom situations in the count. The fact that ‘hey have dated eons the offence that the incidents took place on a d te a eta pxlrcmi and 31* of December 1998 is no legal basi ert fe unknown between 1* ne count. A cha is for Joining both incidents in ba arge of this nature must be one and only one incident and therefore its use is justified (stet) because the exact date is not known.” he basis on which the lower court found the respond consequently acquitted and discharged him is decidedly not on the rosnd auplicty, 28 can be seen from the following extract from the judgement at p 70 lines 6-11: “| cannot arrive at any other conclusion than that the accused received the items with the consent of the wife and when he took them to the Alphaman, who retained them, he did not intend to deprive the complainant permanently of ther~ She concluded by stating quite clearly and unambiguously: “| find as a fact and in law that the accused did not intend to deprive the complainant permanently of the subject-matter of the indictment.” Duplicity was not mentioned by her and was not the ground on which she arrived 2 the decision to find the accused not guilty and acquit and discharge him. \n Rv Singh [1973] Crim. L. R. 36 the practice of attributing to the judge statements he did not make is frowned upon. It behoves practitioners to bear in ‘rind that where they are complaining of particular passages 1 4 judgement, Particulars, in accordance with this Court's — identifying _ Lear pod teference to the record, should be given. This Court frowns 0 4nd distasteful practice of extracting sentences from a judgement out of context if within context they cannot be the subject of criticism. | now turn to grounds 1 and 5, which are certainly without ary Diepietlicooli ‘ra! judge carefully and meticulously, sufficiently and Aces Montend otherwise in the ingredients of the offence charged in the indiChTON Ne acting effect for ound of appeal can only have, as | stated supra, any Vndulgenee, or show which this Court will, in the interest of justice, NOt BIT Toss i3) by judge alone ny olerance. The appellant had applied for abet judge ‘and jury, diligently and pant ludge laboriously reviewed her roles a vy everyone of the witnesses and ially ev; idence of eat inded herself that it ‘igpeitally evaluated the evid f each and Cry remind hat it "Wht came to the conclusion she did. She COSY eq beyond reasonable “oust the prosecution to prove the case aginst Wr the accused. t and that any such doubt will inure to

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| have given, this appeal, i j ay all the reasons n » In my judgement, ought not fo brought and we, therefore, did Not hesitate in not Calling on the resy Me dent oeely and in summarily dismissing it, ia to

Hon Mr Justice &GeragaKing, J. A. W~ Sa agree Hon Mr Justice M.E.T Thompson, J. A. | agree e vont Justice Patricia Macaulay, WA.