S v Turay & ORS (SC CRIM APP 2 of 1981) [1982] SLSC 2 (13 July 1982)

THE STATE v TURAY & ORS SC SUPREME COURT OF SIERRA LEONE, Supreme Court Criminal Appeal 2 of 1981, Hon Mr Justice Livesy Luke CJ, Hon Mr Justice CA Harding JSC, Hon Mrs Justice AVA Awunor-Renner JSC, Hon Mr Justice S Beccles Davies JSC, Hon Mr Justice KEO During JA, 13 July 1982

[1] Criminal Law & Procedure – Evidence – Co-accused statements – Trial judge’s duty to advise jury of inadmissibility – Trial judge sitting alone under no duty to warn himself of inadmissibility

[2] Criminal Law and Procedure – Evidence – Confession statements – Voir dire – Burden on prosecution to prove voluntariness – Whether standard of proof beyond reasonable doubt or on balance of probabilities – Whether judge needs to state that he found statements were voluntary “beyond reasonable doubt”

[3] Criminal Law & Procedure – Larceny by a servant – Faking of time sheets – Overwhelming evidence – Larceny Act 1916 s 17(2)(a) – Falsification of Accounts Act 1875 s 1 On 29 March 1978 the three respondents were convicted by Davies J sitting alone in the High Court on various counts of larceny by a servant contrary to s 17(2)(a) of the Larceny Act 1916 and on several counts contrary to s 1 of the Falsification of Accounts Act 1875. The respondents, who worked in a department of the Ministry of Agriculture & Natural Resources, had falsified pay sheets in order to defraud government funds. On 27 January 1981 the Court of Appeal allowed the appeals of the respondents and quashed their convictions. The State appealed against this decision on various

Grounds

The main issues were whether the trial judge sitting without a jury was obliged to warn himself that the oral or written statement of an accused person is not evidence against a co-accused, and the admissibility of the first respondent’s confession statement. Held, per Livesey Luke CJ, allowing the appeal:

1. It was a fundamental rule of law that the statement of an accused person is not evidence against a co-accused, unless the co-accused either expressly or by implication adopts the statements and makes them his own. It is the duty of a trial judge to explain and impress this rule upon a jury. All the authorities relied upon by the Court of Appeal were cases of trial by jury. However, there was no principle or authority that a judge sitting alone should impress that rule upon himself. In the event that a judge wrongly relied on a statement of an accused person, this would be evident in his judgement and could be remedied by an appellate court. There was nothing in the trial judge’s judgment to suggest that he relied on the statements of the co-accused in convicting the respondents. R v Rudd (1948) 32 Cr App 138 applied. R v Gunewardene (1951) 35 Cr App R 80, R v Rhodes (1959) 44 Cr App R 23, R v Bowen [1972] Crim LR 312 and R v Rogers and Tarran [1971] Crim LR 413 distinguished.

2. It is a long established rule of English law, adopted throughout the Commonwealth, that for a confession by an accused person to be admissible at trial, it must be proved by the prosecution to be voluntary in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. R v Thompson [1893] 2 QB 12, Ibrahim v R [1914] AC 599 and Ajodha v The State [1982] AC 204, [1981] 2 All ER 193, [1981] 3 WLR 1 applied.

3. Where the admissibility of a statement is challenged on the ground that it was involuntary, it is the duty of the judge to determine that issue. The proper course is for the judge to hold a trial within a trial (or voir dire) to try the issue. The burden is on the prosecution to prove that the statement was voluntary. The prosecution should normally call all the material witnesses relevant to the making of the statement. The accused may give evidence if he so desires and call witnesses. The trial within a trial is normally held in the absence of the jury. After the conclusion of the evidence, the judge should rule on the admissibility of the statement in the absence of the jury, if they had been previously excluded. It is the duty of the judge to decide on the admissibility of an impugned statement. He cannot abdicate that duty to the jury. Once the statement has been admitted in evidence then the question of its probative value is for the jury and the defence is entitled to cross-examine who had already given evidence on the voir dire as to the circumstances in which the statement was made. R v Francis & Murphy (1959) 43 Cr App R 174, Sparks v The Queen [1964] AC 964, N’Doinje & Ors v R (1967-68) ALR (SL) 202, Chan Wei Keung v The Queen [1967] 2 WLR 552 and R v Murray [1951] 1 KB 391 applied.

4. It was an open question as to whether the standard of proof on the prosecution to prove a confession statement at the voir dire in Sierra Leone was “beyond reasonable doubt” or “on the balance of probabilities”. For the purposes of this appeal, the court assumed that the proper standard of proof was beyond reasonable doubt. However, the mere fact that the trial judge failed to use the words “beyond reasonable doubt” did not mean he did not apply that standard. There is no magic in those words. The important thing is that on a consideration of the ruling as a whole an appellate court must conclude that the judge applied the right standard. R v Summers (1953) 36 Cr App R 14, Sparks v The Queen [1964] AC 964 and Director of Public Prosecutions v Ping Lin [1975] 3 All ER 175, [1976] AC 574 applied. Wendo v R (1964) 109 CLR 559 referred to.

5. The fact that the judge said that the voluntariness of the statement had been proved to his satisfaction, did not mean that the proof was not “beyond reasonable doubt” or that he was not sure. The ruling has to be looked at as a whole. In this case, the trial judge left no room for doubt about his belief that the first respondent was lying or about his belief that the statement was voluntary. On the simple and straightforward issue before him he was saying in effect that he was sure that the prosecution witnesses spoke the truth about the voluntariness of the statement, that the first respondent lied when he said that hope was held out to him and that he was threatened and that the statement was not voluntary. Therefore, the trial judge properly and rightly ruled that the confession statement of the first respondent was admissible in evidence. R v Rennie [1982] 1 WLR 64 applied.

6. Even if the confession statement of the first respondent was inadmissible , there was overwhelming evidence against the first respondent as regards the faking of time sheets that the only reasonable verdict was guilty. Similarly, there was no merit in the appeal of the second and third respondents against the trial judge’s guilty verdicts. Cases Referred to Ajodha v The State [1982] AC 204, [1981] 2 All ER 193, [1981] 3 WLR 1 Chan Wei Keung v The Queen [1967] 2 WLR 552 Customs and Excise Commissioners v Harz & Anor [1967] 1 AC 760 Director of Public Prosecutions v Ping Lin [1975] 3 All ER 175, [1976] AC 574 Ibrahim v R [1914] AC 599 N’Doinje & Ors v R (1967-68) ALR (SL) 202 R v Bowen [1972] Crim LR 312 R v Francis & Murphy (1959) 43 Cr App R 174 R v Gunewardene (1951) 35 Cr App R 80 R v Hepworth and Fearnley (1955) 39 Cr App R 152 R v McLintock [1962] Crim LR 549 R v Murray [1951] 1 KB 391 R v Rennie [1982] 1 WLR 64 R v Rhodes (1959) 44 Cr App R 23 R v Rogers and Tarran [1971] Crim LR 413 R v Rudd (1948) 32 Cr App 138

R v Satori [1961] Crim LR 397 R v Summers (1953) 36 Cr App R 14 R v Thompson [1893] 2 QB 12 Ragho Prasad v The Queen [1981] 1 WLR 469 Sparks v The Queen [1964] AC 964 Wendo v R (1964) 109 CLR 559 Legislation referred to Courts Act 1965 s 58(4) Falsification of Accounts Act 1875 s 1 Larceny Act 1916 s 17(2)(a) Application This was an appeal by the State against the decision of the Court of Appeal on 27 January 1981, which allowed the respondents’ appeal against their conviction in the High Court on 27 March 1978 on various counts of larceny and falsification of accounts. The facts appear sufficiently in the following judgment of Livesey Luke CJ. Mr Tejan-Cole, Director of Public Prosecutions, for the State. Mr TS Johnson for the respondents. Livesey Luke CJ: On 29 March 1978 the three respondents and two others were convicted by Mr Justice CS Davies sitting as a judge alone at the Freetown High Court on an indictment containing eleven counts. It is not necessary to set out the counts in full. It will be sufficient to state their substance. In Count 1, the first respondent (Ahmed Sankey Dian Turay), the second respondent (Joseph Ngebeh Squire) and one Amadu Mohamed Conteh were charged with larceny by a servant contrary to s 17(2)(a) of the Larceny Act 1916; and the particulars of offence alleged that on a day unknown between 21 August 1975 and 20 September 1975 at Newton Agricultural Station in the Ministry of Agriculture and Natural Resources they stole Le2159.19 belonging to the Republic of Sierra Leone. In Count 2, the same persons named in Count 1 were charged with the same offence as in Count 1, the only difference being that in the Particulars of Offence it was alleged that the offence was committed between 21 September 1975 and 20 October 1975 and that the amount stolen was Le4214.43. In Count 3, the same persons named in count 1 were charged with the same offence as in Count 1, the only difference being that in the Particulars of Offence it was alleged that the offence was committed between 21 October 1975 and 20 November 1975 and that the amount stolen was Le3966,93. In Count 4, the same persons named in Count 1 were charged with the same offence as in Count l, the only difference being that in the Particulars of Offence it was alleged that the offence was committed between 21 November 1975 and 20 December 1975 and that the amount stolen was Le4117.41. In Count 5, the first respondent and one Evans Rashid Jobo Sama were charged with the same offence as in Count 1, the only difference being that in the Particulars of Offence it was alleged that the offence was committed between 21 May 1975 and 20 June 1975 and that the amount stolen was Le4563.90. In Count 6, the same persons named in Count 5 were again charged with the same offence as in Count 1, the only difference being that in the Particulars of Offence it was alleged that the offence was committed between 21 June 1975 and 20 July 1975 and that the amount stolen was Le853.38. In Count 7, the first respondent, the second respondent and the third respondent (Josephus Justice Davies) and Amadu Mohamed Conteh were charged with the same offence as in Count 1, the only difference being that in the particulars of offence it was alleged that the offence was committed between 21 May 1976 and 20 June 1976 and that the amount stolen was Le5463.81. In Count 8, the same persons named in Count 7 were again charged with the same offence as in Count 1, the only difference being that in the Particulars of Offence it was alleged that the offence was committed between 21 Ju1y 1976 and 20 August 1976 and that the amount stolen was Le5116.31. In Count 9, the first respondent, the second respondent, the third respondent and Amadu Mohamed Conteh were charged with Falsification of Accounts contrary to s 1 of the Falsification of Accounts Act 1875; and the particulars alleged that on 8 June 1976 at the Newton Agricultural Station they made or concurred in making a false pay sheet No WR443/6/76 purporting to show that the sum of Le399.96 was due and payable as wages for the period 21 May 1976 to 20 June 1976 to certain named persons as employees of the Ministry of Agriculture and Natural Resources. In Count 10, the first respondent and Evans Rashid Jobo Sarna were charged with the same offence as in Count 9, the only difference being that in the particulars of offence it was alleged that the offence was committed on or about 18 March 1975, that the pay sheet alleged to have been falsified was given as No WR425/J/75, that the amount involved was stated as Le665.28, that the period for which the wages were due and payable was stated as 21 February to 20 March 1975 and that the persons named as employees of the Ministry were different from those named in Count

9. In Count 11, the first respondent and Evans Rashid Jobo Sama were charged with conspiracy to defraud and in the Particulars of Offence it was alleged that on divers days between 1 July 1974 and 31 January 1975 at Newton Agricultural Station they together with others unknown conspired with intent to defraud the Republic by the preparation of monthly pay sheets for fictitious employees. The learned trial judge found the first respondent not guilty as charged but guilty of obtaining money by false pretences in respect of Counts 1, 2, 3, 4, 5, 6, 7 and 8; and guilty as charged in respect of Counts 9, 10 and

11. He found the second respondent not guilty as charged but guilty of obtaining money by false pretences in respect of Counts 1, 2, 3, 4, 7 and 8 and guilty as charged in respect of Count

9. He found the third respondent not guilty as charged but guilty of obtaining money by false pretences in respect of Counts 7 and 8; and guilty as charged in respect of Count

9. In respect of each conviction the learned judge imposed a punishment of a fine or imprisonment in default thereof. The three respondents appealed to the Court of Appeal against conviction. In addition the first and the third respondents appealed against sentence. The appeals were heard by the Court of Appeal (Tejan JSC, Warne and Short JJA) in September 1980. Judgment was delivered on 27 January 1981. Three separate judgments were delivered. The main judgment was delivered by Tejan JSC and Warne JA concurred with him adding a few observations of his own. All three justices were in agreement in allowing the appeal of the first respondent against conviction. Tejan JSC and Warne JA allowed the appeals of the second and the third respondents against conviction, whilst Short JA dismissed their appeals. In the result the appeals of all the three respondents were allowed and their convictions were quashed. It is against that decision that the State has appealed to this Court. Seven grounds of appeal were filed by the Director of Public Prosecutions on behalf of the State. The main issues raised in this appeal may be summarized thus:

1. Whether there is any obligation on a trial judge sitting without a jury to warn himself that the oral or written statement of one accused person is not evidence against a co-accused.

2. In what circumstances are a challenged oral or written confession by an accused person admissible in evidence at a trial?

3. What is the standard of proof to be applied in deciding on the admissibility of a confession statement?

4. If the confession of the first respondent was not properly admitted in evidence at the trial, what is the effect?

5. Was there any circumstance that rendered the trial unfair or unsatisfactory? The question whether the proper verdicts on Counts 1 to 8 should have been larceny as charged was not raised before us. So, it is not necessary to deal with it. With regard to the first issue formulated above, Tejan JSC stated in several parts of his judgment that there was an obligation on the trial judge to warn himself that the statement of an accused person not on oath was not evidence against a co-accused. He went further to state that where a judge had failed to give himself such a warning, a conviction will be quashed. Mr Tejan- Cole submitted that there is no rule of law or practice that imposed such an obligation on a trial judge sitting alone. I am myself at a complete loss to find any authority to support the propositions of the learned justice. He relied on four cases, namely R v Gunewardene (1951) 35 Cr App R 80, R v Rhodes (1959) 44 Cr App R 23, R v Bowen [1972] Crim LR 312 and R v Rogers and Tarran [1971] Crim LR

413. There is no doubt that it is a fundamental rule of evidence that statements made by one accused person either to the police or to others (other than statements, whether in the presence or absence of a co-accused, made in the course and in pursuance of a joint criminal enterprise to which the coaccused was a party) are not evidence against a co-accused unless the co-accused either expressly or by implication adopts the statements and thereby makes them his own: see R v Rudd (1948) 32 Cr App

138. And it has repeatedly been said by the courts not only in England but also in this and other Commonwealth jurisdictions that it is the duty of the judge to impress on the jury that the statement of one accused person not made on oath in the course of the trial (and not falling within any other recognised exception) is not evidence against a co- accused and must be entirely disregarded: see R v Gunewardene (1951) 35 Cr App R 80, a decision of the English Court of Criminal Appea1, where Lord Goddard LCJ said, inter alia, at p 91, “if no separate trial is ordered, it is the duty of the Judge to impress on the jury that the statement of the one prisoner not made on oath in the course of the trial is not evidence against the other and must be entirely disregarded.” I shall now refer briefly to the other cases relied on by the learned judge. In R v Rhodes (1959) 44 Cr App R 23 the appellant was indicted and tried, together with a man named Mills, of burglary and larceny. It was not disputed that they were together during the whole of the material time. A substantial part of the case against Mills consisted of a statement implicating the appellant, which Mills was alleged to have made and which Mills denied having made. The Chairman, after warning the jury that the statement could not be evidence against the appellant invited the jury first to consider the case against Mills in the light of his alleged admission and then, if they convicted Mills, to consider the case against the appellant on the footing that the two men were together at the material time. It was held by the English Court of Criminal Appeal that by the way in which he invited the jury to consider the case against the appellant, the Chairman w as, for all practical purposes, negativing and nullifying his previous warning that Mills’ alleged admission was not evidence against the appellant. R v Bowen [1972] Crim LR 312 was a case where one of the accused persons changed his plea to guilty at the end of the prosecution’s case. The judge did not ask the jury to return a verdict on him at that stage. The accused who changed his plea had made a number of statements admitting his guilt and implicating his co-defendants and copies had gone to the jury during the prosecution case. In his summing up the judge used the statements of the accused who had changed his plea extensively to fill in the background of the case, and also to fix the date of the offence which according to the statements had taken place on a Saturday, though he repeatedly warned the jury that they were not evidence against the other accused persons. The main point of the appellant’s defence was that there was no admissible evidence as to the time of the offence. It was held by the English Court of Appeal (Criminal Division) that it was not open to use the statements as he did. So, although the judge gave the jury the requisite warning, he was at the same time directing them to use the statement of one accused person against another, thereby nullifying his previous warning. R v Rogers and Tarran [1971] Crim LR 413 was a case on which Crichton J sitting at the Mold Assizes ruled against the admissibility of a confession statement of one accused person in a joint trial on the ground that its prejudicial effect against the co-accused outweighed its probative value against its maker. In the course of his ruling the learned judge acknowledged that the statement was not evidence against the other accused person. But otherwise the case is irrelevant to the issue under consideration. Admittedly, all the cases relied on by the learned justice acknowledged the fundamental rule stated above to the effect that the statement of one accused person is not evidence against a coaccused. The first three cases also acknowledge the duty of a trial judge to explain and impress that rule upon the jury. But with respect to the learned justice, none of the cases lays down any rule that a judge sitting alone should impress that rule upon himself. It is perhaps relevant to note that all the cases relied on by the learned justice were cases of trial by jury. There are many good reasons why it is necessary to impress the rule upon juries. Apart from being laymen, jurors do not give reasons for their verdicts. So, it is not possible to know whether the jury has taken into consideration the statement of one accused person to convict a co-accused. But in the case of a judge sitting alone, the position is different. He gives reasons for his decision. And it could be ascertained by a perusal of his judgment whether he relied on the stamen of one accused person in convicting a co-accused. And if it is ascertained that a judge sitting alone so relied on a statement of an accused person, that irregularity can be remedied by an appellate court. But in the case of a jury, if in spite of a proper direction against relying on the statement of the accused against a co-accused, they still relied on such a statement in convicting a co -accused, an appellate court would be in the dark. In my judgment, the learned justice’s proposition of law on this issue is not supported by any authority and in any case is wrong in principle. It is relevant to state that the learned justice mentioned briefly in his lengthy judgment that the learned judge “in effect made use of the unsworn statement of each appellant against the others.” Unfortunately, the learned justice did not substantiate that accusation. I have carefully read the judgment of the trial judge and I have not been able to find any material to support that accusation. In my judgment therefore, the judgment of the learned trial judge cannot be faulted on the ground that he relied on the statement of one of the accused persons tried by him in convicting any of the co-accused, including any of the respondents. I shall now proceed to consider the issues relating to the admissibility of a confession statement. It has long been an established rule of English Law that to render a confession by an accused person admissible at his trial, the confession must be proved by the prosecution to be voluntary in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. The rule was stated by Cave J in R v Thompson [1893] 2 QB 12 at p 15 in these terms: “By that law [i.e., the Law of England], to be admissible, a confession must be free and voluntary. If it flows from hope or fear, excited by a person in authority, it is inadmissible.” That rule has been stated and restated over the years by the English Courts and has been transported from English soil and transplanted in many Commonwealth countries all over the globe, where, in most cases, it has taken firm root. In this connection, it is not surprising that the most classic statement of the rule was made by the Privy Council in an appeal from a British Colony. That appeal, Ibrahim v R [1914] AC 599, was from the judgment of the Supreme Court of the Colony of Hong Kong.