Sesay & Kamara v S (SC CRIM APP 7 of 1982) [1984] SLSC 6 (12 December 1984)

SESAY & KAMARA v THE STATE SC SUPREME COURT OF SIERRA LEONE, Supreme Court Criminal Appeal 7 of 1982, Hon Mr Justice Livesy Luke CJ, Hon Mr Justice CA Harding JSC, Hon Mrs Justice AVA Awunor- Renner JSC, Hon Mr Justice OBR Tejan JSC, Hon Mr Justice S Beccles Davies JSC, 12 December 1984

[1] Criminal Law & Procedure – Evidence – Involuntary statement – Obligation of judge to hold voir dire to determine voluntariness and admissibility

[2] Criminal Law & Procedure – Sentencing – Death sentence – Whether mandatory – “Shall be liable” – “Liable” imports element of discretion – Death sentence discretionary – Larceny Act 1916 s 23(1)(a)

[3] Criminal Law & Procedure – Sentencing – Aggravated robbery – Exercise of discretion – 90 years imprisonment manifestly excessive

[4] Courts – Stare decisis – Exceptions to principles of stare decisis not applicable to Court of Appeal in Sierra Leone – Critical to stability and development of the rule of law that the Court of Appeal follow its previous decisions and that of the Supreme Court unless distinguishable – Constitution of Sierra Leone 1978 ss 102(2), 107(3)

[5] Words and Phrases – “Liable” – “Shall be liable” – Larceny Act 1916 s 23(1)(a) The appellants were convicted by a jury of aggravated robbery contrary to s 23(1)(a) of the Larceny Act 1916 and other offences under the Offences Against The Person Act 1861. The first appellant was sentenced by Williams J to 90 years’ imprisonment and the second appellant was sentenced to 50 years’ imprisonment. On appeal, the Court of Appeal dismissed the appeals against conviction, set aside the sentences of imprisonment on the aggravated robbery charge and substituted the death sentence against both appellants, against which the appellants appealed to the Supreme Court. The first issue was the admissibility of the second appellant’s signed statement to the police, as he claimed at the trial that he did not make the statement and was forced to sign it. The second issue was whether the Court of Appeal was right to hold that the death sentence was mandatory for a conviction under s 23(1)(a) of the Larceny Act 1916. The third issue was whether the words “shall be liable” provided the trial judge with a discretion as to whether the death sentence should be applied. Held, per Livesy Luke CJ, dismissing the appeal of the first appellant against conviction, but allowing the appeal against sentence, and allowing the appeal of the second appellant against conviction and sentence:

1. The second appellant did not formally object to the admissibility of his statement to police as he was not represented by counsel at the trial. The failure of an accused person or his counsel to take a formal objection to the admissibility of a statement did not absolve a trial judge of his duty of determining the issue of voluntariness of a statement if it is raised. During the trial the second appellant indicated that he did not make the statement and that he was forced to sign the statement. These assertions by the second appellant clearly raised the issue of voluntariness of the statement and consequently challenged its admissibility.

2. As the second appellant had challenged the authorship of his statement and the voluntariness of his signature, the trial judge was under a well-established duty to hold a trial within a trial (voir dire) in order to determine the issue of voluntariness of the statement and to rule thereon. Therefore, the judge wrongly admitted the statement complained of. As the second appellant’s statement was the only evidence submitted against him by the prosecution against him, the verdicts could not be supported and the convictions against him were quashed and the sentences set aside. The State v Turay & Ors (Supreme Court Criminal Appeal 2/81, unreported, 13 July 1982) and Ajodha v The State [1982] AC 204, [1981] 2 All ER 193, [1981] 3 WLR 1 followed.

3. The issue in this case was identical to that determined by the Court of Appeal in Fornah’s case, which decided that the words “shall be liable” in the Treason and State Offences Act 1963 provided the judge with discretion as to whether a death sentence should be passed. As such, under s 107(3) the Constitution 1978, the decision in Fornah’s case was binding on the Court of Appeal, which erred in holding that the sentence of death was mandatory under s 23(1)(a) of the Larceny Act 1916. Fornah & 14 others v The State [1974-82] 1 SLBALR 48 followed.

4. Even if the exceptions to the general principles of stare decisis that existed in England are applicable in Sierra Leone, the Court of Appeal could only overrule a previous decision if satisfied that the case comes within one of the recognised exceptions. In the instant case the Court of Appeal did not even consider or refer to Fornah’s case, nor did they give any consideration to the question whether the case came within one of the recognised exceptions. In any event, the circumstances in the present case did not show that any of the recognised exceptions were present to justify the Court of Appeal d eparting from its previous decision. Young v Bristol Aeroplane Co Ltd [1944] KB 718, R v Taylor [1950] 2 KB 368 and R v Gould [1968] 1 All ER 849 distinguished.

5. However, exceptions to the principle of stare decisis were not applicable to the Court of Appeal. Section 107(3) of the Constitution was clear and unambiguous. It says in simple language that the Court of Appeal shall be bound by its previous decisions. In contrast, under s 102(2) of the Constitution the Supreme Court may in certain circumstances depart from its own previous decisions. In view of the position occupied by the Court of Appeal in our hierarchy of courts, it is of the utmost importance that its decisions on the same question of law be consistent. The Justices sit in panels and the panels change from time to time, and sometimes from case to case. If each panel is allowed to reach its own decision on the same point of law, in total disregard of a previous decision of the court, then the result would be chaos. Conflicting decisions on the same point of law would be given by the same court resulting in uncertainty in the law. Such a state of affairs would not be good for the development of the law or for the public that come before the courts for redress in both civil and criminal matters. It is of the utmost importance that the Judges of the Court of Appeal should loyally follow not only previous decisions of the Supreme Court but also previous decisions of the Court of Appeal; even if they disagree with the previous decisions, unless they can distinguish them from the case before them. Farrell v Alexander [1977] AC 59 applied.

6. The plain and ordinary meaning of the word “liable” is “exposed to possibility or risk,” “exposed or open to.” Therefore, when it is provided that a convicted person shall be liable to a specified punishment, it means that he runs the risk of that sentence being passed on him, or he exposes himself to or leaves himself open to that sentence. It does not mean that the sentence will be passed on him. He merely exposes himself to that sentence and runs the risk of or opens himself to that sentence being passed on him. “Liable” imports the element of discretion and confers a discretion on the trial judge as to whether or not the death sentence should be imposed. James v Young (1884) 27 Ch D 652 and Re Loftus- Otway (1895) 2 Ch 235 applied.

7. The words “shall suffer death” or “shall pronounce the sentence of death” provide for a mandatory death sentence, whilst the words “shall be liable to suffer death” provide for a discretionary death sentence. In the former case the trial judge must pass the death sentence. But in the latter case, the judge has a discretion whether to impose the death penalty or not. Opoya v Uganda (1967) EA 752 applied.

8. Therefore, the proper construction to be put on s 23(1)(a) of the Larceny Act 1916 is that it provides for a discretionary death sentence. It gives the judge a discretion as to whether to pass the death sentence or not. Of course, in exercising his discretion, the judge needs to take into consideration all the relevant circumstances of the case. If the judge decides not to impose the death penalty he will have to decide, in the exercise of his discretion, what other punishment, warranted in law, to pass and the extent of such punishment. So, if he decides to impose a custodial sentence, he will have to decide the length of such sentence.

In the present case, it had not been suggested that the trial judge had exercised his discretion wrongly in imposing a custodial sentence. Fornah & 14 others v The State [1974-82] 1 SLBALR 48 affirmed.

9. Taking into consideration all the circumstances, there could be no doubt that the sentence of 90 years imprisonment imposed on the first appellant was manifestly excessive as it would amount to more than life imprisonment. This was a proper case in which the court should interfere with the sentence. The sentence on count (1) was therefore reduced to 30 years’ imprisonment, and each of the other counts to 25 years’ imprisonment, both to run concurrently. [Editorial note: this case highlights the criticality of law reporting in Sierra Leone. The ability of courts to adhere to and apply the principles of stare decisis depend on the availability of reported decisions. In this case, the failure of the Court of Appeal to consider Fornah’s case, which was unreported at the time, led to the Court of Appeal incorrectly holding that the death sentence was mandatory and imposing the death sentence on the appellants.] Cases referred to Ajodha v The State [1982] AC 204, [1981] 2 All ER 193, [1981] 3 WLR 1 Director of Public Prosecutions v Ping Lin [1975] 3 All ER 175, [1976] AC 574 Farrell v Alexander [1977] AC 59 Fornah & 14 others v The State [1974-82] 1 SLBALR 48 Ibrahim v The King (1914) AC 599 James v Young (1884) 27 Ch D 652 Loftus-Otway, Re (1895) 2 Ch 235 Miliangos v George Frank (Textiles) Ltd [1975] 1 QB 487 Opoya v Uganda (1967) EA 752 R v Gould [1968] 1 All ER 849 R v Taylor [1950] 2 KB 368 The State v Turay & Ors (Supreme Court Criminal Appeal 2/81, unreported, 13 July 1982) Young v Bristol Aeroplane Co Ltd [1944] KB 718 Legislation referred to Dockyards etc. Protection Act 1772 Constitution of Sierra Leone 1978 ss 101(1), (2), 107(3) Imperial Statutes (Criminal Law) Adoption (Amendment) Act 1971 s 2 Larceny Act 1916 ss 23(1)(a) 24, 25 Piracy Act 1837 s2 Offences Against The Person Act 1861 ss 2, 11,14, 18 Treason and State offences Act 1963 s 3(1) Other sources referred to Halsbury’s Laws of England [3rd Ed] Vol 10 para [888] pp 486-487 Appeal This was an appeal against a decision of the Court of Appeal on 15 November 1982 to dismiss the appellants’ appeals against conviction, set aside their sentences of imprisonment and substitute the death sentence. The facts appear sufficiently in the judgment of Livesey Luke CJ. Mr Ade Renner-Thomas for the appellants. Mr MT Ngobeh for the State. Livesey Luke CJ: The appellants, Abdulai Sesay (alias Ibrahim Kamara) and Abdulai Kamara (alias Blackie), were in November 1980 tried in the High Court sitting in Freetown for offences alleged to have been committed in Koidu Town in the Kono District in October 1979. The trial was by William J with a jury. The indictment on which the appellants were tried contained six counts: Count 1: Robbery with aggravation contrary to s 23(1)(a) of the Larceny Act 1916, as amended by s 2 of Act No 16 of 1971.

Count 2, 3, 4: Wounding with intent to murder contrary to s 11 of the Offences Against The Person Act 1861. Count 5: Shooting with intent to murder contrary to s 14 of the Offences Against The Person Act 1861. Count 6: Wounding with intent contrary to s 18 of the Offences Against The Person Act

The trial concluded on 12 November 1980 when the jury returned a unanimous verdict of guilty on all six counts against the first appellant, along with a unanimous verdict of guilty on counts 1, 2, 3, 4 and 6 against the second appellant. The jury returned with a not guilty verdict on count 5 against the second appellant. The first appellant was accordingly sentenced: count 1: 50 years’ imprisonment; count 2: 25 years’ imprisonment; count 3: 25 years’ imprisonment; count 4, 25 years’ imprisonment; count 5: 40 years’ imprisonment and count 6: 25 years’ imprisonment. Count 1 and 5 were to be served consecutively, counts 2, 3, 4 and 6 would run concurrently with the sentence for count 1 and

5. The second appellant was sentenced to 25 years of imprisonment on each of the 5 counts, count 1 and 2 were to run consecutively and counts 3, 4 and 6 were to run concurrently with the sentence for count 1 and

2. The result therefore was that the first appellant was sentenced to serve a total of 90 years in jail, whilst the second appellant was sentenced to serve a total of 50 years in jail. Both appellants appealed to the Court of Appeal against their respective convictions and sentences. The appeals were heard by the Court of Appeal (During, Warne and Navo JJA) in September 1982. Judgment was delivered on 15 November 1982, dismissing the appeals against convictions, and setting aside the sentences of imprisonment imposed in respect of the convictions on count 1 and substituting therefore a sentence of death against both appellants. It is against that decision that the appellants have appealed to this court. The facts of this case make gruesome reading and it is necessary to set them out briefly. Hassan Hussein Srour (Hassan for short), a business man and diamond dealer, lived with his wife and two daughters at No 31 Yengema Road, Koidu Town in the Kono District. On the night of 25 October 1979 Hassan and his family retired to bed at about 11pm. Early on the following morning, they were all aroused from sleep by a loud noise. Hassan got out of bed to find out what was happening. He discovered that the front door of his house was being hit from outside and that the door had already been cracked. He tried to hold on to the door while raising an alarm. His children were also shouting “thief”. He then heard a gunshot from outside. The shot penetrated one of the windows near where the children were standing. The front door was then broken open and five men forced their way into the house. All the five men were masked and armed with a shot gun, a pistol, a wooden pestle and a crow bar. They rushed at Hassan and demanded the key to his safe. He told them that he did not have the key with him. Whereupon the intruder armed with the matchet hit him on the head, a result of which he sustained a wound on the head, and he fell to the ground with blood oozing from the wound. He became dizzy, but the intruders continued to demand the key. The intruder armed with the matchet and the one armed with the pestle rushed at the wife who was about 4 months pregnant at the time. The intruder holding the matchet attempted to hit the wife with it, but one of daughters (Rima) went to the mother’s rescue. The intruder then turned on Rima and hit her on the head with the matchet. As a result she fell to the floor and became unconscious. The wife begged the intruders not to hit her husband, but she also suffered the same fate. They demanded the key to the safe from her and then proceeded to beat her all over her body with the pestle and to strike her on the head with the matchet, as a result of which she collapsed, and fell to the floor. The intruders then turned their attention to Hassan. One of the intruders held a pistol to his (Hassan’s) back, whilst the others pushed him around the house hitting him all over the body with the pestle and the crow bar. In the process the intruders broke open the doors of three rooms in search of the safe.

They then broke open the door of a fourth room. That room was the office and the safe was located therein. The intruder armed with the crow bar then hit Hassan on his right side which caused him to fall to the ground. In his semi-conscious state, he heard one of the intruders saying to the others that they should “shoot and finish” the occupants of the house. He soon became unconscious. Hassan’s brother, one Khalil, who lived next door, heard the cries for help of his brother’s family. He attempted to go to their rescue. He heard shooting and noise outside. He heard his brother’s children shouting that they were being killed. He went outside and almost immediately he was shot at, as a result of which he sustained injuries in both legs. Fortunately, two police constables who were on patrol duty that night heard the sound of gun shots coming from the direction of Yengema Road. They informed another constable on patrol duty. They then boarded a vehicle and went to Yengema Road. They heard the sound of gunshot coming from 31 Yengema Road. They ordered the driver to stop the vehicle. The driver stopped the vehicle but left the headlights on. The constables then saw armed masked men dressed in black coming from 31 Yengema Road. They gave chase and succeeded in apprehending one of them, the first appellant. He was holding a gun while running but he dropped it before he was caught. He was still masked when he was apprehended. The constables took off the mask. The constables took the first appellant to 31 Yengema Road. A doctor was summoned to the scene. He arrived there within a short time. On entering the house he found that several of the inmates were wounded and also saw blood all over the house. He examined Hassan, his wife, his daughter (Rima) and Khalil. He found that all four of them were bleeding profusely from wounds recently inflicted. In his opinion the wounds sustained by each of the victims were very serious. All the four victims were taken to a private hospital in Kono where they received emergency treatment. Later that day the doctor took the victims to Freetown by plane, and had them admitted at the Military Hospital at Wilberforce. All the four victims later went abroad for further medical treatment. The main issues raised in this appeal may be summarized thus: Ground (1): Whether the trial judge had misdirected the jury in his summing up. Ground (2): Whether the statement to the police of the second appellant (exhibit “O”) was properly admitted in evidence at the trial. Ground (3): Whether the verdicts of the jury against the first and second appellants were unreasonable and could not be supported having regard to the evidence. Ground (4): Whether the Court of Appeal was right in law in holding that the sentence prescribed by section 23(1)(a) of the Larceny Act 1916, as amended by s 2 of Act No 16 of 1971, was a mandatory death sentence. Ground 1 With regards to the first issue stated above, I think that it is sufficient to say that I find no merit in any of the misdirections alleged. Ground 2 With regard to the second issue, the statement complained of was tendered in evidence by Police Detective Sergeant Sonny Albert Macfoy (PW12). He testified that he obtained a voluntary statement from the second appellant on 12 April 1980. When he attempted to produce the statement, the trial judge Judge made the following record of what transpired: “At this stage the second accused states that he did not make any statement. The second accused is shown the statement and he identifies his signature thereon. He states further that he was forced to sign the document but he did not say anything to the witness.” Court: The statement is admitted in evidence and marked exhibit “O”. Statement read.” Mr Renner-Thomas submitted that in view of what was said by the second appellant the learned judge should have held a trial within a trial to determine whether the statement was