Santigie Kanu v Commissioner of Police (SC 13 of 1963) [1963] SLSC 56 (13 September 1963)

[SUPREME COURT] sAN'fiGIE KANU coMMISSIONER OF POLICE v. Appellant Respondent ~ . . l Procedure-Form of change in magistrate's court-Whether strict cmruna liance with Criminal Procedure Rules necessary-Criminal Procedure Act ~;;::: J9, Laws of Sierra Leone, 1960), ss. 42, 43-Rules 1-5 of Criminal Procedure Rules (Criminal Procedure Act, Sched. 1). On June 28, 1963, appellant appeared before the magistrate's court at Magburaka on a charge of assaulting a police officer in the execution of his duty. The charge read: " The accused is charged with contravening section 45 of Cap. 150 in that he on Thursday, May 2, 1963, at Fomaya Road, Massingbi, in the Kunike Chiefdom, in the Tonkolili Judicial District of Sierra Leone, did assault Police Officer No. 430 Conteh, whilst in the due execution of his duty." Appellant objected to this charge on the ground that it did not comply wit.': sections 42 and 43 of the Criminal Procedure Act and rule 3 (3) of the Criminal Procedure Rules. Sections 42 and 43 state: " 42. The rules contained in the First Schedule with respect to charges and informations shall have effect as if enacted in this Act .... "43.-(1) Every charge or information shall contain, and shall be sufficient if it contains, a statement of the 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. "(2} Notwithstanding any rule of law or practice, a charge or information shall, subject to the provisions of this Act, not be open to objection in respect of its form or contents if it is framed in accordance with the ruies under this Act." ''"'"''f!.J.U'<. 3 (3) states: " The statement of offence shall describe the offence shortly in ordinary ianguage, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and if the offence charged is one created by enactment shall contain a reference to the section of the enactment creating the offence." Appellant argued that the charge was defective because it did not contain separate statement of offence. The magistrate ruled that the charge was properly framed, but stated a case for the opinion of the Supreme Court on the question whether the charge was bad in law. Held, that the charge was good in law. Section 43 (1) of the Criminal ~rocedure Act does not require that the statement of offence and particulars in a charge must appear as separate paragraphs. It is sufficient if the charge clearly states the offence and the particulars, i.e., the date, the place and the criminal act alleged to have been committed by the defendant. 65 3 S.L.-5 Bo Sept. 13. 1963 Dobbs J. s.c. 1963 KANU V. CoM­ MISSIONER OF POLICE. ~egardin~ summar~ t:ials, the court said, obiter : " It w~ll be noted that t sectiOn [sectwn 86, Cnmmal Procedure Act] does not reqUire the charge • he read to the accused-it merely requires that the substance of the charge'\ be be stated to him. This being so, I do not think it is open to the accuse~ an object to what appears on any charge sheet which may be in front of t~o magist~ate _or his clerk and from which the ma_gistrate or. his clerk may be extractmg the substance. So long as what the magistrate or h1s clerk says to h' e clearly indicates the nature of the offence with which is is charged and when a'rn where and, where relevant, against or concerning whom he is alleged to hand committed the offence, that is sufficient." ve lames E. Mahoney for the appellant. Kanja A. Daramy for the respondent. DoBBS P.J. This is a case stated by the Police Magistrate Magburakaana is as follows: In the Supreme Court of Sierra Leone SANTIGIE KANU, appellant and COMMISSIONER OF POLICE, respondent. Whereas the said Santigie Kanu has appeared before me, the under. signed, in the Police Magistrates' Court at Magburaka in the Northern Province of Sierra Leone on June 28, 1963, on a charge of assaulting a police officer whilst in the due execution of his duty and by his counsel raised a preliminary objection in law to quash the said charge. And whereas the appellant has stated the said charge to be irregular due to the non-compliance of the prosecution with certain statutory pro­ visions, namely: sections 42 and 43 of Cap. 39 of the Laws of Sierra Leone and paragraph 3, sub-paragraph (3), of the First Schedule to Cap. 39, ibid. And whereas the appellant has alleged that the said charge does not contain a statement of offence nor is there any specific information about the charge aforesaid. And whereas the said charge reads : " Tne accused is charged with contravening section 45 of Cap. in that he on Thursday, May 2, 1963, at Fomaya Road, Massingbi, in the Kunike Chiefdom, in the Tonkolili Judicial District of Sierra Leone, did assault Police Officer No. 430 Conteh, whilst in the due execution of his duty." And whereas I have ruled, after hearing counsel for the defence and the prosecuting officer respectively on the motion of the defence to quash the said charge, that the said charge is properly and explicitly framed, the opinion of the Supreme Court aforesaid is sought on the following point, namely- " Whether the said charge is bad in law." Dated July 10, 1963. 66 (Sgd.) Sam J. Forster, Police Magistrate, Magburaka Mahoney for the appellant has put forward an attractive argument Mr. ' harge does not comply with sections 42 and 43 of Cap. 39 and ... • the c . C D C rn~• a· h 3 (3) of the FirSt Schedul~ to .a?. 39. Mr. ar~my, rown r:':,ag;ef, has submitted that th~ charge. IS exphc1t but d~es no~ str::tly comply <::~~nthe legislation; that as th1s pra~tlce of ~on-comph~nce IS wwespread he v.J•n t intend to oppose the contentiOn that tne charge IS bad. ~ 0 es no " I understand Mr. Mahoney's argument, he submits that the charge does ~ • A:omply with the legislation because it contains only particula_rs ~f t~e ,~:h and not a separate statement of offence. The relevant legislatiOn 1s offence 1 - as follows: Cap. 39,s. 42: -.. The Rules contained in the First Schedule with respect to charges ..,.,d informations shall have effect as if enacted in this Act." First Schedule (so far as relevant): " 1. These Rules may be cited as the Criminal Procedure Rules. " 2. Figures and abbreviations may be used in a charge or informatiOn for expressing anything which is commonly expressed thereby. "3. (1) A description of the offence charged in a charge or information, or where more than one offence is charged in a charge or information, of each offence so charged, shall be set out in the charge or information m a separate paragraph called a count. " (2) A count of a charge or information shall COITh'nence with a statement of the offence charged, called the statement of offence. "(3) The statement of offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and if the offence charged is one created by enactment shall contain a reference to the section of the enactment creating the offence. "(4) After the statement of the offence particulars of such offence shall be • set out in ordinary language, in which the use of technical terms shall be necessary : " Provided that where any rule of law or any Act or statute limits the >•>•>• n•>rtii"nh of an offence which are required to be given in a charge or ·····•·•·•·>mfoJrmation, nothing in this rule shall require any more particulars to be given than those so required. "(5} The forms set out in the appendix to these Rules, or forms conforming thereto as nearly as may be, shall be used in cases to which are applicable ; and in other cases forms to the like effect or con­ forming thereto as nearly as may be shall be used, the statement of offence arid the particulars of offence being varied according to the circumstances in each case." Section 43: "(1) Every charge or information shaH contain, and shall sufficient if it contains, a statement of the 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. ·: (2) Notwithstanding any rule of law or practice, a charge or infor­ mauon shaH, subject to the provisions of this Act, not be open to objection 67 s. c. 1963 KANU V. CoM­ MISSIONER OF POLICE. Dobbs J. s. c. 1963 KANU V. CoM­ MISSIONER OF PoLICE. Dobbs 1. in respect of its form or contents if it is framed in accordance with the rules under this Act." Section 45 of the Police Act (Cap. 150) makes the assaulting, obstructing resisting of any police officer in the execution of his duty an offence, triab~r summarily. Mr. Mahoney contends that by following the forms set out ~e the appendix the correct form of the charge should have been as follows. 111 Statement .of ofjence · Assault on police officer contrary to section 45 of Cap. 150. Particulars of ofjence Santigie Kanu, on Thursday, May 2, 1963, at Fomaya Road, Massingbl, in the Kunike Chiefdom, in the Tonkolili Judicial District of Sierra Leone, did assault Police Officer No. 430 Conteh whilst in the execution of his duty. Mr. Mahoney contends that section 42 of Cap. 39 is mandatory and any charge which does not strictly conform to the form laid down by the Act is bad. With respect, I do not agree with him. I think due weight must be given to section 43, especially subsection (2). My reading of section 43 (2) is that if a charge is in the form prescribed by the Act it is not open to objection but that this does not mean that a charge not down in a form prescribed by the Act is automatically bad. It merely means that it can be objected to and if it does not satisfy section 43 (1) it can be declared bad. Section 43 (1) does not stipulate that the statemen,t of offence and the particulars shall appear as separate paragraphs. In my view, the charge as drawn complies with section 43 (1). It states the offence, viz.: assaulting Police Office 430 Conteh contrary to section 45 of Cap. 150. It gives the particulars, viz. : date, place, act alleged and that Police Officer Conteh was in the execution of his duty. It is perfectly clear what was the offence and the nature of the charge. On this reasoning above I am prepared to hold and do hold that the charge is good in law. My researches in the matter have caused me to consider other points which tend to confirm me in my decision. So far as I can ascertain there is no provision that charges shall be in writing except informations (section 118 of Cap. 39)-here the reference i~ to an information signed by the Attorney-General, etc. Incidentally, all the forms in the appendix to the rules are of indictable offences and the appendix is headed "Forms of Information." Under section 121 the accused gets a copy of the information, but, so far as I am aware, an accused does not normally receive a written copy of the charge or charges in the magistrate's court. With very few exceptions an accused does not appear before the Supreme Court without having appeared before a magistrate. The ways in which an accused person appears before a magistrate are: 1. On arrest without warrant. 2. Under section 21 of Cap. 39 by arrest under warrant. In both these cases he must, by section 17 of Cap. 39, be brought as soon as possible before the court having jurisdiction in the case. In neither of these cases does he receive any document and even the form of warrant of arrest has only to contain a statement of the offence for which he is to be arrested and needs only to be shown to him. 3. Under section 21 of Cap. 39 by summons. 68 this case he is ser:ed with a copy of the summons. The form of In which is No. 3 m the Second Schedule to the Act does not provide sul11:" 011~harge to be set out-it merely provides for the statement of offence for ,h: serted. When the accused is before the magistrate the matter will be '" be 111 "1 1" . . . . d" t h t •" .• . ith summan y or as a pre 1mmary mvestigat10n accor mg o t e na ure ~ea~~: offence charged. If it. is a matter which can be ~ried summarily t~e ,J dure is laid down by sectwns 83-96 of Cap. 39. Sect10n 86 of Cap. 39 IS proce .· as follows: " The substance of the charge shall be stated to the accused and he shall be asked if he admits or denies the truth of the charge" (emphasis supplied). •• will be noted that the section does not require the charge to be read to the •:."u;ed~it merely requires that the substance of the charge shall be stated to ~~~. This being so, I do not think it is open to the accused to object to what " 1 ea~s on any charge sheet which may be in front of the magistrate or his ~f;~k ~nd from which the magistrate or his clerk may be extracting the sub­ ;;ance. So long as what the magistrate or his clerk says to him clearly indicates the nature of the offence with which he is charged and when and where and, where relevant, against or concerning whom he is aileged to have committed the offence, that is sufficient. If the offence is an indictable one and the proceedings before the magis- trate are a preliminary investigation the procedure is laid down by sections 97-117 of Cap. 39. Section 99 of Cap. 39 is as follows: " Where the accused comes before the court on summons or warrant, or otherwise, the court shall, after explaining to the accused the nature of the charge or charges against him, proceed in his presence to take the statements on oath of those who know the facts and circumstances of the case, and put them in writing, and these statements so taken shall be called the depositions." It will be noted that the section does not require the charge to be read to accused-all that is required is that the nature of the charge be explained accused. In neither of these cases does the accused get a charge in 112 of Cap. 39 reinforces my view that no written charge is neces­ i<l the magistrates' court-the relevant portion of the section is: " The charge (if any), the depositions ... shall be transmitted in proper time the Supreme Court .... " The inference to be drawn from the words "if is that a written charge is not essentiaL Ii' I am right in my view that a written charge is not essential in pro­ before the magistrate, it seems to follow that the accused is not to:ncern<•rl with the form of the charge. the Supreme Court the position is different, because the accused receives copy of the charge or charges and can take an objection by virtue and subject to the provisions of section 129 of Cap. 39. . . . I, therefore, hold that, this case being one before the magistrate, the charge was good in law. I direct that a copy of this opinion be sent to the Police Magistrate Magburaka and a copy served on Mr. Mahoney as solicitor for the appellant. 69 s. c. 1963 KANU v. COM­ MISSIONER OF PoLICE. Dobbs J.