S v Younge And Others (CR APP 1 of 1977) [1977] SLCA 1 (28 June 1977)

(1974591 SLDALR The Sue» Youge & Obes 12 | pabcsieecit mare la eto “THE STATE v YOUNGE & OTHERS sc ‘SUPREME COURT OF SIERRA LEONE, Criminal Appeal 1 of 1976 and tof 1977 Hon {hietJusice C O E Cole, Hin JusiceE Livesey Luke ISC, Hon Jusice C A Harding 1SC. Hon lusice © B R Tejan JSC, Hon Mr Justice KE O During JA, 28 une 197 |

[1] Criminal Law and Procedure ~ Falsiication of accounts ~ Evidence — Whether rat Judge's findings of fact ought to have been overturned by Court of Appeal {Wether accused concurred in making of fase document ~ General principles — Falafeation of Accounts Act 187551 12). Criminal Law and Procedure ~ Evidence ~ Circumstantial evidence ~ Where case thaved largely on circumstantial evidence court must ensure facts consistent with fll of accused and inconconsistent with any other reasonable concusion ‘The respondent and the cross appellant were employed by the Siena Leone Goverment ’ vMihin the Sub-Treasury ofthe Judicial Departmen. The respondent was a Sub-Accountant Malthe crow apelin. was a Cashir. Iwas alleged that they made fale ensies on the slips. shade payment vouchers asa result of those slips and omitted 10 make enry of a material Trtcular in the Revenue Cash Book, and by such acts stole cerain sums of money belonging eit Siema Leone Government. The coss-appellant as alleged to have made the false ’ ‘Sires onthe payment sips and omited to make entes of material particulars in tbe Revenue Gauh Book and the appellant was alleged to have concued in making the payment vouchers. ‘They were convicted at wal of offences for falsifiation of accounts under the Falsfiaton of pecans Act 1875 and larceny by a servan under the Larceny Act 1916. n 6 July 1976 the Cor of Appeal firmed the conviction ofthe cross appellant as regards the counts relating to falcon of accounts and. quashed the convicions of the respondent on the whole fadictment The Atfomey General appealed against this decision and the cross appellant appealed against the decison affirming his conviction. ‘Held per Cole CJ allowing the States appeal and allowing the cross appellants appeal in part:

1. The counts inthe indictment in every respect substatlly complied withthe provisions Gite Criminal Procedure Act 1968. The question ofthe elect of aba or defective indictment did not therefore as. 2 Based on the evidence, it was open forthe wial judge to find thatthe respondent had procured her colleague, who was an innocent agen 0 prepare or cause to be made the Poacher in question. was also open to find that as a matter of fact the respondent "Gime inthe making the fase document. There was abundant thatthe respondent Sfgned the payment voucher in question, There was no beter evidence of eoeurenc i the oninary sense ofthe wor.

4. Iewas within the competence of the Court of Appeal o reverse the tial judge's findings vrnee However it was sted lw that it should be on the rarest occasion and in eircanctanoes where the appellate court i convinced by the plainest considerations, that Gould be tied in finding thatthe tal judge had formed a wrong opinion, In this Ao jusifiable reason had been shown in the Court of Appeals judgement for Gieuung the findings of fact ofthe ial judge. On the contrary, twas clear from the Jdgencnt tat what operated in thir minds was the fact that agreement in the lgal ese seine crime of conspiracy fr example, was a necessary ingredient of the offence of aaa pre akin a ike document with intent defrad cotary tothe Falsifation

16 ‘Siar Leone Bar Assocation Law Repos (097442) SLOALR of Accounts Act 1875. This was not necessarily the case, El Nasr Export &mport ‘Company Limited v Mohie El Deen Mansour Supreme Cour, Civil Appeal No 373, 25 ‘April 1974) applied.

4. Taking the evidence as a whole, the prosecution proved their case beyond reasonable ‘doubt and the trial judge was justified in saying that that was the case as regards counts S ‘and 9 with regard to the respondent. The Cour of Appeal in considering the case ofthis respondent applied wrong principles of law.

5. The evidence on which the State relied for its case on the counts agains the crssrespondent were in substance circumstantial t was a well-established legal principe that circumstantial evidence is receivable in criminal cases. What the High Court as well as an appellate cout should seek to addres is that where the prosecution's casei substantially based on circumstantial evidence the evidence must be such as to satisfy the eamed trial judge thatthe faets proved are not only consistent with the gut ofthe accused, but also

‘Such as tobe inconsistent with anyother reasonable conclusion. In the present case, there ‘was no evidence of any such co-existing circumstances Mogroy v Director of Public Prosecutions (1973) 1 AILER 503 applied.

‘Cases referred to

Ababio v The State (1966) GLR 422

‘Brian Gider Astor and Malcolm Thomas Holly $5 Cr App R48

£1 Nasr Export &lmport Company Limited v Mohie El Deen Mansour (Supreme Court, Civil

“Appeal No 373,25 April 1974)

Michael Wiliams Holly and Others 53 Cr App R519

Mogray v Director of Public Prosecutions (1973) 1 AlLER 503

Mubashion Aiyepole 14 WACA 152

Paarick Cole vTe State (1974-82) | SLBALR 87

R v But 15 Cox 564

Rv McVite (1960)2 AUER 498

Rv Oliphant (1905) 2 KB 67

Rv Solomons (1908) 2 KB 980, 2 Cr App R288,

2 Effong Edat ah (1943)9 WACA 35,

State v Lawmann (1961) GLR 698

The Comperoller of Customs v Micheal Niio Effone 7 WACA 35

Tommy Kargbo & Ors v The Siate (1975, Cau of Appeal)

Legislation referred to

Court of Appeal Rules 1973 (Public Notice No 28 of 1973) nile 21

Criminal Procedure Act No 32 of 1965 s 50, 51(1),(2) Sch 1, r3(5), Form 19

Falsification of Accounts Act 1875 51

Larceny Act 1916

Appeal

‘This was an appeal to the Supreme Court by the State against the judgment ofthe Court of

Appeal of Siera Leone which on 6 July 1976 quashed the convictions of the respondent Irene |

‘Young, and a cross appeal by the 2 respondent, Joseph Koroma, agaist the same judgement

ofthe Court of Appeal which affirmed his conviction for falsification of accouns. The fats

appear sufficient inthe following judgment.

Solictor-General and Dr Bankole Thompson, Senior State Counsel, forthe State

MrJH Smythe QC and Mrs Hannal Aled for the I" respondent.

[MrN D Tejan-Cole forthe ™ respondent. : I

{197482} SLBALR ‘The Ste v Younge & Others vot COLE CJ: The respondent, Irene Younge, one Joseph Koroma sad one Samuel Fowler (who is now dead) were charged on an indictment dated the 16" day of July, 1974 on 13 counts of falsification of accounts under the Falsification of Accounts Act 1875 and larceny by a servant under the Larceny Act 1916.

Irene Younge was charged separately in counts 1, 5, 9 and 10 with falsification of accounts. She and Joseph Koroma were charged in counts 4 and 8 with larceny by servant

Joseph Koroma was charged in cours 2,3, 6 and 7 with falsification of accounts. Samuel Fowler (with whom we are not concemed for the purposes of this appeal) was separately ‘charged in counts 11 and 12 with falsification of accounts. In count 13 he was also charged with Irene Younge with larceny by a servant.

‘On the 6* July 1976, the Court of Appeal finally determined the appeal. The convictions ‘of Joseph Koroma and Samuel Fowler were affirmed as regards the counts relating to falsification of accounts. The convictions of Irene Younge on the whole indictment were “quashed, the sentences were set aside and verdicts of acquittal and discharge were substituted. ’

“The Attomey-General on behalf of the State being aggrieved with the judgement of the ‘Court of Appeal as regards the respondent Irene Younge, sought leave ofthe Court of Appeal ‘to-appeal tothe Supreme Cour of Sierra Leone against the judgement on two grounds namely:

() Whether in law persons named and charged with an accused person on same indictment can be regarded as innocent agents of that person;

(@) Whether agreement isa necessary ingredient in the offence of concurring in making a false document with intent to defraud contrary to section 1 of the Falsfiation of ‘Accounts Act 1875.

‘The Court of Appeal by order dated the 20* day of August, 1976 granted the State leave

‘to appeal to this court on those two grounds.

‘As Thave already stated the appeal by the State does not affect the respondent Joseph Koroma.

“The respondent, Joseph Koroma, however, sought special leave from this court to appeal from his conviction. On the 15" March, 1977, after listening to argument on both sides, we granted special eave t appeal to the 2" respondent with regard to grounds 12), () and (©) as filed. (I shall hereafter refer to Joseph Koroma asthe “cross appellant.) These grounds read 3s follows

1(a) In a trial by judge alone, when the main contention isthe alteration of figures on

charges of falsification of accounts, the court ought not to be assisted before arriving atts conclusion. (@) Whether as (1) above, circumstantial evidence against one accused can be used ‘against another accused charged in the same indictment but not on the same count.

(©) Where a clerk or servant is charged with falsification of accounts by making false ceniry on a document belonging to his employer. whether he commits a further falsification of accounts if he omits the false entry in another accounting book of his ‘employer but enters the correct entry.”

In the course of the arguments some doubts were raised as to whether the indictment was bad, defective or good. This was because the particulars of offence were notin the Form set out

. in Form 19 of the Appendix to Rules to the First Schedule of the Criminal Procodure Act No

32 of 1965. In this connection sections 50 and 51(1) and (2) of the Criminal Procedure Act

(hich relate to informations and indictments are relevant. These sections read as follows:

16s Sia Lame Bar Asociation Law Reps [1974821 SLBALR “50, The rules contained in the first Schedule with respect to informations and indictments shall have fect as if enacted inthis Act, but these rules may be added to, varied, revoked, or replaced by further rules made by the Chief Justice withthe approval of Parliament, and the Chief Justice is hereby empowered to make such further rls 51(1) Every information or indictment shall contain, and shall be sufficient if it contains, 4 statement ofthe specific offence or offences with which the accused is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge. (@) Notwithstanding any rule of law or practice, an information or indictment shall subject tothe provisions of this Act. no be open to objection in respect of its form ‘of contents if itis framed in accordance with the rules under this Act.” In order to appreciate the true postion, perhaps it would be of interest to set out the ; relevant parts of the indictment which relates, to this appeal. They consis of counts 5 and 9s regards the I" respondent Irene Younge and counts 2, 3, 6 and 7 as regards the cross appellant Joseph Koroma. ‘The relevant counts in question ie, counts 2, 3,5.6,7 & 9 areas follows: Second count ‘Statement of offence: Flsifcation of accounts, contrary to section 1 of the Falsification ‘of Accounts Act, 1875. ‘Paniculars of offence: Joseph Koroma. On the 26% day of July, 1972 in the Judicial ‘Department, Freetown inthe Westem Area of the Republic being a Clerk or Servant to the said Republic, with intent to defraud made false entry on a payment slp belonging to the said Republi, his employer purporting to show that on the sid day the sum of 1Le801,00 had been pid into the sub-Treasury of te sad department by A'S Kamara in favour of SB Prat. ‘Tid count ‘Statement of offence: Falsificaton of accounts, contrary to section 1 ofthe Flsification of Accounts Act, 1975 aniculars of offence: Joseph Koroma on the 26" day of July, 1972 in the Judicial ‘Department. Freetown in the westem Area ofthe Republic, being a Clerk or Servant to the said Republic, with intent to defraud omited from or in a Revenue Cash Book belonging to the said Republic his employer a material particular, to wit, thatthe sum of 1Le801.00 had been paid into the sub-Treasury of the said department by A B Kamara in favour of SB Prat. if count ‘Statement of offence: Fasfication of accounts, contrary to section of the Falsification ‘of Accounts Act, 1875. ancularof offence: Irene Young on the 20° day of November 1972 inthe Judicial Department, Freetown in the Westem Area of the Republic, being a Clerk or Servant to the said Republic with intent to defraud concurred in making a payrient voucher No 74282 belonging to the said Republic her employer, purporting to show thaton the said day the sum of Le375.65 which had been previously paid into the sub-Treasury ofthe said Department by A E Cole in favour of A S Johnson was onthe said date payable to thes A S Johnson,

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