Soluku J. Bockarie v S (CR APP 7 of 2000) [2008] SLCA 67 (17 April 2008)

CR APP 7/2000 IN THE COURT OF APPEAL OF STERRA LEONE ‘ SOLUKU JERMILL BOCKARIE = - API'ELLANT AND 7 THE STATE ~ RESPONDENT CORAM ; Hon Mr Justice Bode Rhodes Vivour, JSC Hon Mr Justice P.O. Hamilton, JA Hon Mr Justice N.C. Browne-Marke,JA Solicitors/ Counsel RA Caesar Esq for the Appellant SA Bah Esq for the Respondent sq por ; + ae \ . THnOM EN DELIVERED ON ~ # SO THE i DAY OF APRIL,2008 Rowen AUGETA.

Introduction

1. This is an appeal brought byaway of Notice of Appeal dated August,2000 by ‘the Appellant, SOLUKU JERMILL BOCKARIE against his conviction and sentence for the of fence of Larceny contrary to Section 17(2)(a) of the Larceny Act,1916, by the High Court sitting in Freetown, The Hon Mr Justice S.A. ADEMOSU, presiding, on August,2000. The Notice contains five grounds of appeal. Later, another, three grounds were added; and in January this year, ground 9, was added on,

2. The grounds of appeal essentially relate to misdirections on the burden and standard of proof: failure to adequately consider the case presented by the Appellant; that the aggregate sum of money which the Appellant was convicted * of stealing could not have been the property of the Government of Sierra Leone, in that it was money obtained from a Bank; that the Indictment was bad in law in that it did not charge the Appellant with stealing any particular sum of money between certain stated dates; and that the verdict was unreasonable and con not be supported having regard to the evidence. THE TRIAL :

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3. On 25 August ,1999 The Hon, Mr Justice L B O Nylander, High Court Judge, gave his consent in writing for the preferment of a one count Indictinent ior the of fence of Larceny by Servant contrary to Section 17(1)(a) of the Larceny Act 1916 against the Appellant. He also Ordered that the Accused be arrested

| Ns he. by Warrant, On 26 August,1999 the Appellant appeared before the said | Learned Judge: he was identified as the person named in the Indictment: and «| his chite of trial was fixed for 17 September,1999,

3. The Indictment read as follows: STATEMENT OF OFFENCE: LARCENY CONTRARY TO SECTION 17(2)() of the Larceny Act 1916,

Particulars of Offence

‘SOLUKU BOCKARTE on a day unknown between 1** ‘and 30" June,1999 at Frectown in the Western Area of Sierra Leone, being Clerk or Servant 10 the Government of Sierra Leone stole the sum of Le:294,433,411/00 from the said Government of Sierra Leone.

4. There is no indication in the Record, the number of witnesses listed at the ‘ back of the Indictment, but a perusal of pages 6-19 of the Record shows that there were about 10 additional witnesses, the respective summaries of whose Evidence, appeared in these pages. The brevity of these summaries, (save for at least two, which were copies of statements obtained from these witnesses by the Police), apparently filed in pursuance of Section 188 of the Criminal Procedure Act,1965 when contrasted with the lenuth of evidence led from these same witnesses, provides considerable food for thought as to whether the presecution quite knew what its case was at its commencement, or whether it merely wished to ‘ambush’ the Defence. This practice, or rather ‘ambush {actic though not unlawful, in my judgment, detracts from the cohesiveness and consistency of the prosecution's case and has the tendency to way-lay the prosecution.

8. Though the trial date was fixed for 17 September 1999, the Record docs not show that ony proceedings were taken that day. The case wos first mentioner for heaving on 21 September,1999 before the Hon Mr Justice MO TAI. DEEN, now deceased. No plea was taken on this date, nor on the 9 other adjourned dates, until 2 March.2000 when the Appellant pleaded Not Guilty to ‘he Indictment before the same Judge. The matter was again ad, {journed at the Vequest of the prosecution to another date, and to other dates until 30 ‘May.2000 when the said Judge noted at the bottom of Page 25 of the Record, Ihat he was ‘disabling himself from this case as Frovn now No reasons for ap doing were given. The case. was adjourned tu 8 June, 2000. : © On 8 October.1999 the then Attorney-General & Minister of Justice filed wn Application pursuant to Section 144(2) of the Criminal Procedure Act 1965 fox

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7. On U June,2000 the Appellant appeared before The Hon Mr Justice $ A ADEMOSU, then High Court Judge. The charge 1vas again 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 ease on 8 August, 2000. On 11 August. 2000 after hie rights 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 ¢3q on 21 August,2000. ‘Tudginent wes reserved! For 30 August,2000 on which date it was delivered, + Issues

8. The first matter which has exercised my mind, is the charge in respect of which Mr Justice Nylander gave his consent on page 2 of the Record. The charge there is Section 17(1)(a) of the Larceny Act,1916. The Application for ‘rial by Tudge alone, also refers to Section 17(1\a) of the same Act. The Indictment filed, and which appears on page 1 refers to Section 17(2\(a), The ‘udgment at page 133, also refers to Section 17(2)(a). At page 35 of the Record, the DPP applied for the Indictment to be amended so that 17(1}(a) should be read os 17(2X(a). The Application was granted. But no consequential ‘mendients were made, so that the Order for Trial by Fudge Alone which governed the conduct of the trial applied only to «trial for an of fence under Section 17(1Xa). The question which arises here is, could the Appellant be Lcwfully convicted of an offence in respect of which no consent was given by a Judge, and in respect of which he had not been committed for trial, notwithstanding Section 148 of the CPAIG5? Also could he lawfully be Tried by Judge alone, notwithstanding the absence of an Order authorizing him to be ¢o tried in respect of the amended charge? If the answer to these questions is no, then it * would seem the trial was a nullity.

The Charge

9. Notwithstanding the query I have posed above, I propose to deal with the substance of the appeal. I shall stort off with the charge. The charge refers to 1 kamp sum of Le 294,433,411 /00 which the Appellant is alleged to heve stolen on.a day unknown between two days. As this is an aggregate amount, the ~ ‘qwestion arises whether it is proper to charge she larceny of « lump <u in one count, or i other words, whether itis proper for the prosecution to bring a charge where there has been a general deficiency of monies. The subject

\is to | matter of the charge is the proceeds of the encasiment of 35 cheques. On the le | evidence, it is clear that 24 of these cheques ore lated 3 June,1999 and the - remaining 11, 4 June,1999, Two of these cheques, 6SL153945 ~ pages 2634264 of Volume II of the Record, and GSL153936 - pages 2734274 of the same . volume, were encashed on 9 June,1999 by PW5 FRANCIS JOHNNY TOMA; and ‘the others were encashed by PW6 ALLTE KHADAP on 8", 9", 10", 11°", 147, 18", and 23" June,1999 respectively ~ see pages 263 - 297 of the same volurne. These cheques were dravm for specific amounts of money. Clearly, the offence of Larceny was committed on several days and not, as was canvassed by the | Prosecution, and held by the Learned Trial Judge (ITT) on a day unknown between two days, The substance of the prosecution's case, is not that the Appellant received these monies on a particular day, but on different days after the same had been collected by PW5 & PW6 respectively. The evidence led, was thus at variance with the charge.

10. Rule 3(1) of our [Indictment Rules which are to be found in the 1° Schedule to the CPA,1965, tells us that *...where more than one offence is so charged...each offence shall be set out in the information or indictment in a separate paragraph called a count.” Archbold 35" Edition tells us at paragraph 1738 that *I1 is not sufficient to prove a general deficiency of money: some specific sum must be proved to have been embezzled, in like manner asa larceny * some article must be proved to have been stolen" (tn paragraph 1738 it is stated further that " Where the Indictment contains only one count, charging the receipt of a gross sum on a particular day, and it appears in evidence that the money was received in different sums an different days, the prosecutor will be put t0 his election and must confine himseli' to one sum and one day.” Bust if it had been the duty of the employee to render an account and hand over all monies received on a certain day, he could be charged with embezzling the whole amount on the day he was due to render such an account, This was certainly not the case here. It is stated further, that where it is possible to trace the individual items and to prove an embezzlement of individual property or money, it is undesirable to include them in a count alleging a general deficiency. R vy TOMLIN [1954] Vol. 2 All ER 272 , C.A. is sufficient ‘authority for this proposition of Law, though on the facts of that case, the individual amounts embezzled could not be traced There. PEARSON, J stated at page 274 para. A" Where separate of fences can be charged in separate counts the court regards as improper an “omnibus count in an indiciment e . charging an aggregate of offences over a long period" The Court approved the + ©" reasoning along the same lines of LYNSKEY,J in B vy LAWSON [1952] Vol. AER 804 at page 808.

The pages read for this report end here. The judgment continues in the PDF.