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NO RAPE CASE FOR MAHMOUD TARAWALLIE: Defence team submits

NO CASE SUBMISSION ON BEHALF OF THE ACCUSED

IG

VS

MAHMOUD TARAWALLY

 

INTRODUCTION

 The accused stands charged before the court on four counts of statutory rape, wounding with intent, wounding and assault occurring actual bodily harm

It is important to point at this stage that because of count one and two the court is only conducting a preliminary investigation as stipulated in Section 108 to 124 of the Criminal Procedure Act No. 32 of 1965 hereinafter referred to as the CPA.  What the court is concerned with at this stage is not whether the accused is guilty or not but rather whether there is sufficient evidence adduced by the prosecution to put him on his trial in the High Court.  The standard of proof at this stage for the prosecution is not proof beyond reasonable doubt but sufficiency of evidence. If the evidence is not sufficient then the court is bound to discharge him under Section 18; however such a discharge is not a bar to subsequent proceedings on the same charge.

 

THE COMMON LAW

The leading authority on the test a trial judge or Magistrate sitting in a Preliminary Investigation should apply in determining whether there is a case to answer is Galbraith (1981) IWCR 1039 Land Lane C.J said:

“How then should the Judge approach a submission of no case?

Legal-Practitioner-of-the-Year-2012-Sulaiman-Kabbah-Koroma-Esq

  1. If there is no evidence that the crime alleged has been committed by the Defendant herein no difficulty.  The Judge will of course stop the case.
  2. The difficulty arises where there is some evidence but it is of a tenuous character for example because of inherent weakness or vagueness or because it is inconsistent with other evidence.

 

  1. Where the Judge comes to conclusion that the prosecution evidence taken at its highest is such that a jury properly directed could not properly convict upon it, it has his duty, upon a submission being made to stop the case.
  2. Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability or other matters which are generally speaking within the province of the jury and whereon on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the Defendant is guilty then the Judge should allow the matter to be tried by the jury”.

 

The phrase “no evidence that the crime alleged has been committed by the Defendant” convey the same meaning as the words of Lord Parker C.J in his

 

Practice Direction (Submission of No Case) 1962 1WLR 227 when he told Magistrate that the submission of no case to answer to summary trial should be upheld inter alia there has been no evidence to prove an essential element in the alleged offence.

 

Apply the above tests in the Galbraith under the present case one is of the view that the prosecution have failed to prove its case under the 2nd limb to warrant this court commit the matter for trial on the High Court.  It is my submission that there are three areas the defence will highlight.

 

One whether consent was given or not.

 

Two

the inconsistencies in the testimony of the witnesses for the prosecution and the inconsistency in the case for the prosecution itself.  Three the lack of corroboration or the absence of corroboration itself.  It is my submission that if the Magistrate is of the opinion that there is no realistic prospect of the accused to be convicted in the High Court then it is a waste of resources and a travesty of justice just to commit him in the High Court for the sake of committal.

 

1)      CONSENT OR THE LACK OF IT

The case against the accused is not centered only on rape but other offences like wounding and assault.  However from the totality of the evidence available it seems to me that both offences of wounding and assault are subsume under the offences of rape hence it is critical to ascertain whether in fact rape took place at all between the accused and PW2 Umu B. Bah.

 

The accused is charged with rape under Section 6 of the Sexual Offence Act No. 12 of 2012.  Under Section 2(1) of the same Act “consent means agreement by choice with the Freedom and Capacity to make that choice”.  And Sub Section (2) shows the various circumstances in which a person does not consent.  Suffice it to state at this stage that the prosecution is stating that the accused used force and violence to obtain sex hence he committed rape and in the course of the violence he inflicted the other injuries to the victim.  PW2 herself the victim admitted violence and force used upon her for sex and that all throughout she did not consent.

 

In the present case the accused is not denying having sex with the victim, what he denied is the fact that he did not use violence and according to him it was a consensual sex that happened between him and the victim.  So what we are concern with at this stage is whether the sex was consensual or not.  The question whether the victim consented or not is a question of fact and not law.  There is no requirement that the complainant demonstrates or communicates a lack of consent to the accused.  There must, however, be some evidence to be put before the jury of lack of consent and the nature of that evidence depends on the circumstance of each case.  Agreed that since the case of Olugboja (1982) QB 320 the law does not require a woman to have resisted physically.

 

However the leading authority on consent is the case of D.PP V. Morgan 1976 AC 182.  In the present case before the court the victim in her statement to the police and the court said she did not consent to the act of sex.  The accused in his statement to the police said the victim consented to sex.  So it is the word of the victim against the word of the accused.  I must point out at this stage that the accused does not bear any burden to discharge; it is for the prosecution to show that the sex occurred without the consent of the victim.  It is a question of facts to be decided upon and on the authority of Morgan the court will have to look at the surrounding circumstances to infer whether in fact consent was given or not or whether it falls within Section 2(1) of the Act.

 

The victim’s narration of event was stated both in her testimony to the police Exhibit E 1-17 and her evidence before the court.  I wish to point out at this stage that I shall elaborate later on the inconsistencies contained in the victim’s narration of events both to the police and in the court inclusive of cross examination.

 

Looking at the evidence, the court ought to look at the fact that a 24 (twenty four) years old university student will follow a man in his vehicle and go with him to a different location, entered into a room, sit on the bed, eat food, had sex and she went to report to a journalist before going to the police.  My Lord applying the common women test in Sierra Leone it is highly impossible for such a woman to say she was raped.  In her testimony she said she has been asked by the accused to go out and relax.  On her way she called her boyfriend, she did not tell him that she was going somewhere else with the accused.  She went into the four- storey- building (voluntarily) and she said she was wearing a tight jean which was removed with one hand (no damage done to the said jean) and another hand used to seize her two arms.  She said she was already beaten by the accused before the sex and according to her she sustained a cut on her lip and bruises on her arm, yet in all of these not a single drop of blood was seen on the sheet.

 

It is my submission that the victim was aware of the nature of the act she was going to do with the accused at Kingtom and she consented to it.  My Lord looking at the surrounding circumstances there is no way a jury properly directed will not infer that the said sex was done consensually.  It is a principle that where the prosecution failed to prove essential element of the offence the case must fail.  I therefore respectfully submit that they have failed to show that what actually transpired was without consent of the victim.

 

WOUNDING

The victim said she sustained physical injuries before she was raped.  But under cross examination she said she was slapped several times and she felt dizzy and sustained a cut in her lower lip but the photograph of the injury shows no face and I respectfully submit that a slap on either side of the jaw would not cause a cut on the lower lip.  The prosecution has failed to explain with certainty how the victim sustained the several wounds she complained of.  And I must also repeat that not a drop of blood was seen on the bed sheet.

2)      Inconsistency in the testimony of the prosecution witnesses and the case for the prosecution

The second limp of the Galbraith test indicates that where there is some evidence but it is of a tenuous character for example because inherent or vagueness or because it is inconsistent with other evidence.  The Magistrate is not obliged to accept everything a prosecution witness has said however implausible, but may at least ask whether it is too inherently weak or vague for any sensible person to rely on it.  In other words he should give the witness evidence the greatest weight that any reasonable jury could give to it but need not pretend to believe arrant nonsense.  Thus, if the witness undermines his own testimony by conceding that he is uncertain about vital points or if what he says is manifestly contrary to reason the Magistrate or Judge may be entitled to hold that no reasonable jury properly directed could rely on the witness evidence and therefore (in the absence of any other evidence), there is no case to answer).  The leading authority on this point in relation to rape cases is the case of Shippey 1968 Crim LR 767.  The prosecution relied upon the virtually uncorroborated evidence of the complainant and the defence conceded that there was some evidence which supported on a minimum basis the allegation that the accused had committed the offence.  However the Judge agreed with the defence that parts of the complainant’s evidence were totally at variance with other parts supportive of the prosecution case.  The judge found that the victim’s evidence as a whole contained really “significant inherent inconsistencies and was ‘frankly incredible”, Turner J’ has this to say “taking the prosecution case at its highest did not mean taking out the plums and leaving the duff behind”.  It was for him to assess the evidence and if it was self contradictory and out of reason and all common sense then he could properly conclude that it was “inherently weak and tenuous” within the meaning of the second limb of the Galbraith test.  In forming its decision the court could take into account both internal inconsistencies in a witness testimony and inconsistencies between one prosecution witness and another.

 

  1. a.      Internal inconsistencies in prosecution witness

 

  1. a) PW 1 in his evidence in chief he said he confronted the accused with the pant found at the scene of crime whilst obtaining statement from him and doing the contemporaneous interview.  Under cross examination he admitted that he did not confront him with the pant issue and that it was a lie when he admitted so under evidence in chief.

 

b) PW Umu B. Bah – the victim of the alleged rape gave several inconsistent testimonies in her evidence in chief and the statement she made to the police.  She also gave inconsistent testimony under cross examination and when she was recalled.  Several instances abound, but below is a list of some of her inherent inconsistency.

 

  1. In evidence in chief she said

 

“I left my pant at the scene; I only wore my trousers…… I saw the pant at the scene the day I went with the police”.

 

In cross examination on the same day she said this is on the same issue.

 

“I tell the police that I wore the pant back home it was not the pant I wore that the police found at the scene on that date”.

 

When she was recalled on the 2nd of October 2013 to re-identify the exhibits tendered with regards to the same pants this is what she said under evidence in chief.

 

“Exhibit P (the pant) is the one I spoke of I submitted it to the police”.  Under cross examination on the same day this is what she said:

“I did say I submitted exhibit P (the pant) to the police…….. I did submit the pant to the police.  The police did not discover the pant at the crime scene…………… I told the court that after the incident I wore my pant and left the scene……….. I submitted the pant to the police investigator”.

The other area of the victim inconsistency is her narration of what happen in the room when this alleged rape occurred.  In her statement to the police Exhibit E at pages 10 – 4 she had this to say:

“The said suspect told me to wait for him to give me lift …………. We drove along King Harman Road …….. my boyfriend called me I told him I will see him later.  On arrival at Kingtom I climbed down the vehicle he took me to a room in the house.  He took plate and put the food and we ate together…… after all he undress himself I then told him “ah bo why are you undressing yourself without no agreement of going out to do such thing”…….. from that point suspect started roughing me by drawing my hands.  I wanted to go out of the room he held my hand again and drowned (sic) me.  He then slapped me on my face I shouted he slapped me for the second time I felt pain and my lower lip got wounded, my body sustained blister.  After that he drown (sic) me on the bed he used his big tombs (sic) and forcefully pressed me on my stomach and legs (sic) on my two hands he used his one hand and removed my pants (dross).  At that time suspect was with his pants (white pants) and white socks in his feet” he used his feet and separated my two legs and he used his botex (sic) put his penis (tone) into my vagina (sic)…. I then in search my pant which is green…………….and dressed up……….. I tried to open the door to get outside the room he insisted and I forcefully opened it in the process of that he hit himself.  Later I went to the house of my boyfriend Ishmael and he took me to the New England Ville Police station”.

This same witness narrating the same ordeal but in a different version under evidence in chief had this to say at pages 12 to 16.  “I then left with my original documents.  He then met me at the entrance he asked me if he will give me a ride as he was done for the day, I agreed we went into his vehicle……  I attempted to go down the vehicle it was centrally locked…… he collected my phone a Samsung Galaxy SIII.  By the time I knew it we were at Kingtom round about…. I did not want to create a scene so I followed him considering his position…… We went into an unlocked room, we ate…. By 5:30 I told him I want to go home, he said “no tiday you no de go no sie we nor fuck” I attempted to go out he pulled me towards the bed.  I then shouted he then slapped me on my right jaw.  I felt dizzy he then said again “you nor know say me na big man way you dey halla people dem day na door”.  If I continue to shout he will continue to beat my face until it is swollen and nobody will save me I continued to shout he continued to beat me.  I was crying.  He lied across my tummy…. He undress me but he was still unable to get access to me.  I was wearing a jean trousers and blouse and white and grey jeans.  He used his thumb and pressed my pelvic area.  I was closing my feet.  I released my feet immediately by then he was kneeling down.  He attempted to climb on top of me.  I closed them again.  He was naked by then and only with socks on.  He then inserted his penis into my vagina in less than two minutes he was up”.

From the above the inconsistencies between what she said at the police and the court could be discerned.

Principal amongst the inconsistencies is how the accused managed to insert his penis into the victim’s vagina.  According to exhibit E at page 14 she said:

“He used his feet and separated my two legs and he used his botex (sic) and put his penis into my vagina”.

In her evidence in chief and page 14 of the last six lines she said as follows:

“I was closing my feet.  I released my feet immediately by then he was kneeling down.  He attempted to climb on top of me, I closed them again……. he inserted his penis into my vagina”.

From the above it could be seen that she did not tell the police that when the accused attempted to climb on her, she closed her legs. She said the accused forcefully opened her legs with his feet and inserted his penis.  In her evidence in chief she said she closed her legs twice when the accused attempted to climb her.  She did not tell the court at what point the accused was able to insert his penis?  This now leaves us with the following questions, did she voluntarily open her feet, for the accused to insert his penis or did the accused use force to open her feet and insert his penis?  This inconsistency is crucial and germane into how the accused was able to insert his penis, because if the prosecution cannot tell the court with certainty how it happened then definitely it creates doubts and at best inconsistent with her earlier testimony to the police.

The victim in her evidence in chief at page 16 to 17 said

“I went with the police; the police took pictures of the scene.  These are pictures of the scene Y 1-5 re-identified.   The police took pictures of me the same day.  These were taken the very day Z 1-8 re-identified”.

3)      Under cross examination at page 27 she said

“It was during my contact with AYV that photographs of me were taken.  I took the phone to the police.  I then showed the photographs to the police”.

From the above it can be discerned that the victim has given two different sources of who took her photograph, where it was taken and when.

Having looked at the internal inconsistencies of the witness one can now look at the inconsistencies of the prosecution case.  Below is just a list of some inconsistencies in the case of the prosecution.

PW 1 under evidence in chief said he discovered a green pant at the crime scene and the victim identified it as her pant.  PW 2 in her evidence in court admitted that her pant was seen at the crime scene and she identified it.  But under cross examination she admitted that she wore her pant after the incident and that the pant discovered at the crime scene was not her own.  However, when she was called to identify the exhibits she admitted that she submitted her pants to the investigator and that her pant was not at the crime scene.

  1. The police investigator PW 1 said it was at the crime scene that the S.O.C.O took photographs of the victim.  PW 2 said that it was at the scene crime that here photos were taken but under cross examination she admitted that her photos were taken even before going to the police by PW 4.  PW 4 said it was him that took the photos of the victim on two different occasions.

Now what is the effect of the previous inconsistent statement of the victim and the inconsistency of the prosecution case under the law.  The leading authority in Sierra Leone is the unreported case of Peter Halloran V. state Cr App/2005 the Court of Appeal in a majority decision of Justice Sir John Muria JA and Hon. Justice U.H Tejan-Jalloh J.A (as she then was) now Hon. Chief Justice U.H. Tejan-Jalloh had this to say at page 5 when dealing with previous inconsistent statement:

“The law regarding previous statement made by a witness has been well settled.  The authorities are abundant.  We refer to R.V White (1922) 17 Cr. App. Rep 60 which was followed in R.V. Harris 1927 Cr. App. Rep 141 for the principle of law in this regard namely that previous inconsistent statements made by a witness are inadmissible and so do not constitute evidence on which the court can act.  They can only be used to discredit the witness and thereby rendering his evidence at the trial negligible.  These two cases were followed in R.V Golder (1960) 2 All ER 457, Reiterating the principle just stated the court in R.V Golder said at 459, (1).

“When a witness is shown to have made previous statement inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable; they should also be directed that the previous statements; whether sworn or unsworn, do not constitute evidence on which they can act”.

The same directions apply in a trial by a judge alone.  Failure to properly direct the jury or judge himself (where he is sitting alone) along the line stated in R.V Golder amounts to a serious error”.  Ultimately the court of Appeal quashed the conviction of the appellant Peter Halloran.

This same principle is explained in Blackstone Criminal Practice 2003 at page 2052/2053.  Therefore will this court commit the matter for trial in the High Court with the notion that the accused will be acquitted in the trial? Such an exercise is a travesty of justice and an exercise in futility.

4)      Corroboration and the absence of it and recent complaint

Though corroboration of the evidence of the prosecution is not essential in law, in this kind of cases, it is, in practice always looked for and it is the duty of the judge to warn the jury against the danger of acting upon her uncorroborated testimony.  Particularly, where the issue is consent or no consent.  In the present case there, is no corroboration and I must point out that the testimony of PW 3, PW4 and PW5 is not corroboration because they all admitted that what they spoke in court is what they are told and the law on this area is the fact that a complaint was made by the victim shortly after the alleged offence and the particulars of such complaint may be given in evidence not as evidence of the facts complained of but as evidence of consistency of the victim and such evidence cannot be regarded as corroboration.

In Blackstone Criminal Practice 2003 Edition paragraph F. 4:16 states that “In so far as complaints are admitted as tending to negative consent it is submitted that they are not admitted as if by way of exception to the hearsay rule, as evidence of lack of consent, but merely as evidence of consistency with the complainant’s evidence, it given as to lack of consent”.

From the foregoing one can safely deduce the following on this no case submission.

If there is no evidence to prove an essential element of the offence a submission must obviously succeed.

If there is some evidence which taken at face value establishes each essential element then the case should normally be left to the jury.  The judge or magistrate does however have a residual duty to consider whether the evidence is inherently weak or tenuous.  If it is so weak that no reasonable jury properly directed could convict on it, then a submission should be upheld.  Weakness may arise from sheer improbability of what the witness is saying from internal inconsistencies in the evidence or from its being of a type which the accumulated experience of the court has shown to be of doubtful value.

I respectfully submit that the accused be discharged.

 

SUBMITTED BY

SULIAMAN KABBA KOROMA ESQ.

SOLICITOR OF THE ACCUSED

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