Soluku J. Bockarie v S (CR APP 7 of 2000) [2008] SLCA 55 (10 April 2008)

cr apr 7/2000 | THE COURT OF APPEAL OF SEERA | m APPEAL OI LEONE SOLUKU JERMILL BOCKARIE — - APPELLANT ‘AND THE STATE = RESPONDENT

Coram

Hon Mr Justice Bode Rhodes Vivour, JSC Hon Mv Justice P.O. Hanitton,JA Hon Me Justice NC. Browne-Marke.JA Solicitors/ Counsel RA Caesar Esq for the Appellant 5 ABoh Esq for the Respondent {YRSHENT DELIVERED ON THE DAY OF APRIL.2008 ROWNE- AUCETA.

Introduction

1.This is an appeal brought by woy of Notice of Appea! dated August,2000 by the Appellant, SOLUKU JERMILL BOCKARTE against his conviction ond tenterce for the offence of Larceny controry to Section 17(2Ka) of the Larceny Act,1916, by the High ‘Court sitting in Freetown ‘The Hon Mr Justice S.A. ADEMOSY, presiding, 0” ‘August, 2000. “The Notice contains five grounds of appeal, Later, another, three grounds were added: and in January this yeors ground 9, was added on.

2. The grounds of appeal essential” rete misirectons on _ { _ Standard of proof: failure 10 ‘adequately consider — Et wot pion ‘Appellant; that the aggregate Su” ‘of money bat ¥ Pen of sierra of stealing could not have been property ©: that the Indictment ws bod Leone, in that it wos money ‘obtained from 2 berry sealing any particular sum of in law in that it did not charge *he ‘pela wi verdict Os Preasonable and mnoney between certain stated dates and that Tree can not be supported having regard 10 Te evi THE TRIAL rr oniander, High Court Judge. 3.0m 25 august 1999 The Hon A Jatt of _ ount Indictment For gove his congent in writing for the prefermen! “ction 17110) of ‘the Larceny the offence of Larceny bY Servant contr jered that *he ‘accused be arrested Act,1916 against the Appellan’- He also

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Warrant. On 26 August,1999 1 Pernt Judge: ee ee rede qPPelenteypeared before the seid Learned Judge: fentified as the person named in the Indictment: and his date of trial was fixed for 17 September 1999 43, The Indictment read as follows: STATEMENT OF OFFENCE: LARCENY CONTRARY TO SECTION 17(2\a) of the Larceny Act 1916

Particulars of Offence

SOLUKU BOCKARIE on a day unknown between 1" and 30" June.1999 at Frectown in the Western Area of Sierra Leone, being Clerk or Servant to the Gowrnment of Sierra Leone stole the sum of Le294,433,411/00 from the said Government of Sierra Leone, ‘There is no indication in the Record, the number of witnesses listed of the rckaf the Endictment, but a perusal of pages 6-19 of the Record shows that saeco ore about 10 additional witnesses, the respective summaries of whese evidence, oppeared in these pages. The brevity of these summaries, (save for at least two, which were copies of statements ‘obtained from these witnesses by the Poles), apparently filed in pursuance of Section 108 of the Criminal Pracedine Act 1965 when contrasted with the length of evidence led from Foon nesses, provides considerable food for thowght os 12 whether | the prosecution quite knew what its case wos at its commencement, or whether it merely wished to ‘ambush’ the Defence. ‘This practice, or rather ‘ambush tactic though not unlawful in my judgment detracts from the cohesiveness and consistency of the prosecutions case ad has the tendency to way-ley prosecution,

5. Though the trial date was fixed for 17 September 1999, the acre ot at show that dings were taken that day, The case wos ‘ony proceeding} ‘Mr Justice MO TAJUfor hearing on 21 September 1999 before the Hen Me are other OEE ee aaah No plea was token on ths Ne: rT Not Guilty 10 djourned dates until 2 March.2000 when the APPS leet eat the . matter was again odjourned ot the Indictment before the same Judge, ‘The Wer dates until 30 vest of the prosecution 19 another 40, nse of Page 25 of the Record, Nay 2000 when the said Judge nated at the DOTENT cegsons for so ‘hat he was disabling himself From this C28 HS Toop, thing were given, The cose was adjourned "2 8 June ‘Minister of Justice filed an &-On 8 October 1999 the then Aarorney- Gene racer Act. 1905 for ‘pplication pursuant 10 Section 144(2) of the

7,018 June,2000 the Appellant appeared before The Hon Mr Justice S A ADEIMOSU, then High Court Judge. The charge was ogain read over to the ‘Appellant, and he pleaded Not Guilty to the same. The prosecution began leading ‘evidence on that day. 14 witnesses in all were called by the prosecution. The prosecution closed its case on 8 August,2000. On 11 August,2000 after his fights had been explained to him, the Appellant elected to rely on his statement to the Police. He had no witnesses. The matter was ‘adjourned for addresses. The then DPP addressed the Court on behalf of the prosecution on 17 August, 2000; and the Appellant's Counsel, R.A CAESAR esq on 21 August 2000. Judginent was reserved for 30 August 2000 on which date it was delivered. » ISSUES saat et matter which has exercised my mind, isthe charge in respect of wich Mr Justice Nylander gave his consent on poge 2 of the Record. The Charge there is Section 17(1}(a) of the Lorceny Act.1916. The ‘Application for tral by Judge alone, also refers to Section 17(1Xe) of the sme Aa”, The Tratetsent filed, end which appears on page 1 refers t0 Section 17(2X0) The Tudgnient at page 133, also refers to Section 17(2Xa). At page 35 of the ecard, the DPP applied for the Indictment to be omended <9 that 17(1}(0) shoul! be read as 17(2X@). The Application was granted. Bu Wo consequential amendments were made, s0 that the Order for Trial by Judge Alone which governed the conduct of the trial applied only 40 ¢ trial for an offence under Section 17(1)(a). The question which arises here is, could the Appellant be lanflly convicted of an offence in espeet of wich Consent was given BY @ Judge, and in respect of which he had not been ‘committed for trial, notwith- Stonding Section 148 of the CPALGB? Also could ie lfuly be tied by Judge lone, notwithstanding the absence of an ‘Order authorizing him to be so tried in respect of the amended charge? Tf ‘the answer to these questions is no, then it would seem the trial was a nullity.

The Charge

2 Notwithstanding the ery Thee posed oe Te The Seg eters ubstance | T shall start off ba lump pei creel oo which the Appellant is alleged 19 7 stolen «on a day unknown between two days: AS this is an 099" eo pair 5 eum in'one: Ahestionenece whether tis proper 10 cNAPGE larceny ion to bring @ Count, or in other words, whether itis POP for the Prvies, The Sub ject charge where there hos been a general aeficieneY of monies. :

P ls

rier of the charge is the proceeds of the encashment oni ois clar that 24 of these cy Aap aad a en ‘4 June,1999 veques ore dated 3 June,1999 and the ining 1, 1999. remaiing " priaits oo, of these cheques, 651153945 - pages 2634264 af Volume I 0 1ecord, and GSL153936 ~ pages 2734274 of the same volume, were ‘encashed on 9 June,1999 by PWS FRANCIS JOHNNY TOMA: and the others were encashed by PW6 ALLTE KHADAR on 8, 9”. 10,11", 1 an Man! 23° Jue, 1999 respectively ~ ee pages 253 = 297 of the some vokme. rece cheques were dravn for specific amounts of money. Clearly, the offence Vearceny was committed on several days and not, as wos canvassed by the prosecution, ond held by the Learned Trial Judge (LTI) on a day unknown between two days. The substance of the prosecution's case, is not that the Apellat received these monies on a particular day, but on different days titer the same had been collected by PW5 & PW6 ~espectively. The evidence led, wos thus at variance with the chargeto-Rule 3(1) of our HEndictment Fle which ofe to be found in the 1" Schedule to the CPA,1965, tells us that where mare than one offence is $0 charged..each offence shall be se? OV1 Fhe information or indictment i” & separate paragraph called a count.” Archbold 35" Edition tells us at paragraph 1738 that "It is not sufficient t0 prove a. er he of | — pal specific sum must be ved to have been embezziec, manner as @lrceny | sei mt be ene etn Sen PT 1738 it is stated further that” Where the “tadictment cones ony One cont, charoeg te fre et pret a repr on the money was received in different sums on differen oem mej ane dey But will be put to his election and must confine himself toa ne a over al ithe been the duty of the employee 1 rene a a embezzling the mnonies received on a certain day. he could be cn account. This wos whole omount on the day he wos due 12 render suc there itis possible to certainly not the case here- tris stated further, pepe idl propertY trace the individual items and 10 Prove on embezsiment © general ¢r money, it is undesirable 10 include them in COS ca. i sufficient deficiency. R v TOMLIN (1994) ol. 2 All ER 2 cag of that case, Me cuthority for this proposition of Law, though oP re PEARSON. J stated individual amounts embezzled could not be once! ‘can BE ‘charged in separate °t page 274 para. rere seperate TFA ant inn cunts the court regards 05 Improper a vg period” THe Court approved the + charging an aggregate or offences VA iq RY LAWSON [1952] Volt "easoning along the same lines oof LYNSKEY AIIER 804 at page 608-

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