Vandi Johnson v S (CR APP 10 of 2004) [2008] SLCA 53 (13 April 2008)

cr. App. 10/2004 IN THE COURT OF Al \F NI BETWEEN: VANDI JOHNSON : APPELLANT AND THE STATE : RESPONDENT

Coram

HON. MR. JUSTICEJONKAMANDA - J.-A. (Presiding) y HON. MRS. JUSTICE S.BASH-TAQ) = JA. | HON. MR. JUSTICE S.A.ADEMOSU | - JA. E. KARGBO ESQ. FOR APPELLANT S.A. BAH ESQ. PRINCIPAL STATE COUNSEL FOR THE RESPONDENT Judgment delivered on the day of 2008 S.A. ADEMOSU J.A. | ‘At the High Court Kenema presided now by Hamilton J.A. sitting with a jury on the 20" day of October 2003 the appellant was charged with the offence of murder of one Sorie Kamara. On the 13" of May 2004 he was found guilty by the unanimous verdict of the jury and sentenced to death. He has appealed against his conviction on the following grounds. 1. ‘That there was no substantial evidence before the Court to support the charge against me. | 2, The leamed trial judge exercised power by passing sentence on me even though my case clearly indicates that I am innocent. 3. ‘That the sentence is manifestly excessive. | \ Pursuant to the order of this Court Elvis Kargbo Esq. filed two grounds of appeal ‘The new and amended grounds of appeal as can be gleaned fort the records are: . (a) ‘That the judgment is unreasonable and cannot be supported having regard to the }

Evidence

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(0) That the learned trial judge failed to put or direct the jury in his summing up the possible defence open {© the appellant which is very vital in Criminal Law Kamara (deceased) were together at The case forthe prosecution was that the appellant and Sone D Beni Buima market, Tongo Fields on 21" July 2002- his there a quarrel ensued betvecn emt | Culminating it , Whilst they were fighting one Fatmata Kamara who was the sister of the ing in a fight. Whilst they

{ur deceased went and informed one Mohamed Bangura about the fight. Mohamed Bangura and others rushed to the scene and separated them.

The prosecution’s side alleged that after the separation of the two parties the appellant went his way and the deceased too went his own way. That the accused went and removed a fence stick witha | nail on it and rushed at the deceased and hit him heavily on the head at the point where the nail was.

‘The deceased collapsed and the appellant wanted to run but was apprehended,-With the stick and taken to the Police Station. The deceased was taken to Kenema government Hospital where he was admitted and died the following day. This was the version of the prosecution's case which was putto | the jury: | [At the trial the prosecution called four witnesses but only one was a witness of fact whilst one of the three others was the Doctor who performed the autopsy,’ One Dr. David Fatta Sesay was the doctor. In his testimony he said he found a deep laceration meaning a big wound caused by a sharp object which poisoned the blood. He explained that the may be caused by @ nail. | One Mohamed Bangura was P.W.

1. He deposed that on the material day and time he was at | where he was doing his business when the deceased’s sister came and informed him about the fights. | He said he went there and met the deceased and the accused fighting, and separated them. He further | told the court that after the parties went their separate ways- The appellant collected a stick with | | which he hit the deceased on the head. That the stock had a nail on it and the deceased fell o the ground. The appellant was apprehended whilst he was trying (© run away. The deceased became | unconscious with blood flowing from the head. He was taken to Kenema Government Hospital where | he later died. The witness could not tell where the appellant got the stick. The other two witnesses were Police Officers; one of them was the Exhibit Clerk who produced and tendered the stick with | - ‘ tained caution statements from the appellant. | mai he ter was he investiaer "PS ant eled on bs statements tthe Police and At the close of the prosecution's case the apPe' . : which he relied as far as relevant IS briefly as called no witnesses. The accused's statement OM i neadii twas at my brother Mohamed market table “On the 21° of July yer 2002 at about? a shirt and trousers including watches. Whilst Labour market, Tongo field selling for him ready m: oe sy end “atled Gibilla. All ofa | there I was playing a workman which I borrowed from ¢ jw together with a comment (Borbor you de sudden the deceased came and slapped me on MY poth ja enjoy — 0) meaning I am enjoying: |

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Added further saying I have many girl covers because 1 am now doing busi gic i fact he made me to eye fitted them. After whi g business for somebouy : After which he steps forward to go to his market table | wherein. [then remarked telling him that since he had he mit do came i ¢ had taken in palm wine and behaved to me in such anner he same thing to ol i " ami ‘ 1g to other people in the market. Immediately I told him this, he | ed and gave me a hot slay ight jaw i | return . 1p on my right jaw in an attempt to blow me again I held him tightly pleading to him not to beat me again. Sooner I released him he left me telling me that I do not regard his position as Watch Seller Chairman eye fitting him so he is going to call his boys which he did. He retumed with two people Mohamed Bounzing and Yarroh I was then collared (sic) by Mohamed | Bounzing without asking me.to explain what transpired between me and their brother (deceased). At this point there was 2 scornful (sic) with them three of them started beating me all over my body. Mohamed Bounzing took a stone hit me with it on right jaw as a result I sustain injury The stone which fell near me I also took it sent it 0 Mohamed Bounzing but he escaped it so the stick hit on the iB head of Sorie Kamara (deceased). After which I saw blood oozing from his head where the stone landed. Because of that people came ‘and held me took me to the Police Station both of us explained” See exhibit B dated 23/7/02. I shall now tum to the grounds of appeal. Ground 1_ In arguing this ground Mr. Kargbo referred to the evidence of Mohamed Bangura the only eye witness. He drew the Court’s attention to the records which show that there was no evidence of how the incident started. He referred also to the statement of the appellant in which he explained how the fight started. He expressed the view that the prosecution should rely on the statement of the accused to a there is no contrary evidence. He submitted that the evidence reveals provocation 0 In rt and self-defence. He argued that the issue of provocation should have been put to the Jury suppor . a V Regina (1964-66) ALR S.L.

542. In that case the of this proposition, he cited the case of Korom iy the Supreme Court (High Court) . The ease arose out of a fight appellant was convicted of murder by ed by the deceased. The prosecution called no eye-W itmess vol which handing to the appellant WS prove ‘entirely for thei 88° con an alleged confession made by to the occurrence to give evidence but relies stowed andthe conviction was quashed on the grounds . as the appellant tothe police: THE appeal the manner he oughE® have done. that the trial judge did not direct the jUrY in einen trial judge simply read the statements made by e le in this matter the records SHON la any specifically ro acquit the appeant aly failed to direct the jury sP the appellant to the Police. He jnadvertenly « cadge should have put the appellant's case . ‘the learned arial juds . if his explanation left them 'P doubt. egw which tat ‘while the prosecution must «attention t© : adequately to the jury and dra” their atten! ” pyurden tid on tHE prisoner to prove his innocence and : C | prove the guilt of the prisoner there is no

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{uu ih that he is not bound to satisfy them of his innocer nce. See We is gat page 95- foolmington V. D.P-P. (1935) 25 Cr App ‘Ast have already stated the learned trial P : 5 . Judge simply glossed over the appellant's statements which constituted his defence. For instance, the appellant said it pounzing who had stoned him on hi = jounzit ned him on his right j ; : ; ° iis right jaw that hit the deceased on the head. In his summing up the learned trial judge in referring to the stick with the nail, also said: The accused in using the stick to hit the deceased is a cruel act from which implied malice can be implied.” \ I think that by the foregoing passage the learned trial judge must have left the jury with the | impression that the prosecution had satisfactory proved the essential ingredients of the offence of murder. | ‘The question whether the prosecution had proved the elements of the offence charged was one | oftact for the jury to determine and in my view the eared judge was therefore not justified in | usurping that function. While a judge is entitled to express his own views and express then strongly he | must go further and tell them that they are not bound to accept his own because the decision on facts is theirs, See R vO Donnel (1917) 12 Cr. APP: R219 atp.221. It is now trite law that it is the duty of a trial judge to put specifically to the jury the essential | aspect of the defence however weak or stupid that defence may be. See R v. Barima 1945) Il WACA seo i a h |

49. Ithas been held in a long line of cases In which it has been consistently ne that vm = omission Rv, Murtagh (1955) 39 Cr. App. R-72- willbe fatal, See R V. Mills (1955) 25 CF APP: 138; R v. Murtagh ( nr App. | i sch his defence is based raised the issues of self | . ts to the police on whic The appellants’ statemen' is te vali ‘urden of proof 4 jg settled that where self defence is raised the burden of proofs on | | lefence and provocation. The Jaw is 'AC.206:R¥ Lobell (1957) | All E.R. 734 and R v Porritt | | 4 .C. 206; | eproseeution Chan Kan v R-(195) pe accused 10 establish this defence-Chan-Kan v.R | (1961) 3 AIL E.R.

463. The onus is never upon t! (supra) ted by Lord Goddard in Kwaku jon the law on this point was clearly st y On the issue of provocation 9, He said inter alias Mensah V R. (1946) A.C. 83 at PaBeS = % arises 3 question whether or not the offence might be | “But ifon the whole evienee there at ag well as on any Ome round the judge must put that | jon as + manslaughter only on the ground of provocation er) a appeal against conviction for murder was vy. Regin® uestion to the jury etc etc: In Korom@

cause the trial judge omit A ailowed be judge omitted to put a defence of accident or misadventure to the jury Held that this was @ fatal error. After a se eorehth comida ‘of the whole evidence. I am satisfied that there was sufficient material on which it might fairly be taken that there wasprovocation which was likely the appellant being beaten by three people was likely to deprive the appellant the power of self control in the circumstances in which he found himself. Consequently, I hold that the learned trial judge erred 19 dismissing the issue of provocation. As I have already started, the learned trial judge, failed to put the defence of the appellant fully and fairly to the jury. | For all the reasons I have stated above, I quashed the sentence of death, set aside the finding that the appellant is guilty of murder and substitute a finding ‘of manslaughter. The appellant to a sentenced to Ss years imprisonment. The conclusion I have reached above makes it unnecessary to consider other inconsequential points raised by counsel for the appellant. ALE HON. MR. JUSTICE S-A- ADEMOSU - JA agree PPAR 110" MRS. JUSTICE S. BASH-TAQI -J.A- JON. KAMANDA ~ J-A- 1 pase ene ON MR. JUSTIC.