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The Marathon Road To Justice

It has been a boring and uninteresting journey. One that contains embarrassments, humiliations and a total rejection of those involved in the marathon exercise to achieve the lone goal which is justice. The concept of justice is relative, so with its interpretations; depending on the individuals that are seeking for it or enjoying it at a given time.

It is an intangible commodity with no fixed monetary value, but its relevance cannot be measured. It is very hard to come by in any situation, which makes its relevance very significant to society and humanity as well. For the past seven years, running to eight; Adrian Fischer a renowned Magistrate in the Judiciary was in a desperate search of this valuable commodity.

Touring the length and breadth of this nation-state called Sierra Leone fruitlessly sent the searcher to another level, which was described as a level of frustration due to the fact that no sign was in place or light at the end of the tunnel which even suggested that Justice would not be achieved.

So for quite a considerable period, the search had continued fruitlessly and vigorously. So with many other people who had been engaged in a similar exercise to achieve this lone and important objective. Some have given up the ghost, whilst others are still trekking hard on the endless journey to search for Justice.

One could imagine the state of mind such people searching for this valuable commodity may find themselves. It is a Journey with no boundary, colour or race and when one is involved in it, its becomes a bitter experience.

As indicated, Adrian Fischer was in such situation, one that gives him no hope and one that makes him feels inferior when he considers how deplorable and disappointing it had been for him to achieve what he wanted. He could not sleep well nor can he freely discussed with his usual friends without them making mockery of him and pointing fingers at him, saying there goes the man who was indicted for corruption by the Tejan Cole Anti Corruption Commission.

He continues to maintain his innocence and continues to be on defensive position for the past seven years. Unfortunately, not all friends, relatives and loved ones would listen to and subscribed to his defence, saying we believed what you are saying. Unfortunately, the Courts where Adrian Fischer had worked, where he claims to be the crusader of Corruption was the very venue he was prosecuted and found guilty of Corruption, the disease that is an embargo to national development and growth. Does this mean he was just paying a lip service to the fight against corruption and sending people to Pademba Road Prison unjustly and innocently?

How did he feel when he too got a taste of what others had gone through, whether innocently or not? It would be nice and appropriate also for the former Anti Corruption Commissioner; Abdul Tejan Cole who pioneered his exit from the Judiciary and limited his freedom to get a taste of the same pie Adrian Fischer tasted and chewed for seven years. But his time would surely come when the leaves from the trees would begin to fall down and the message of the hot burning sun rallied out to his compatriots.

The long awaited day came last Tuesday, 28th July, 2015 when two wise men and a woman pronounced in a small court room that Adrian Fischer who was indicted some seven years back, found guilty of corruption was not guilty of the offence and the indictment and sentence imposed on him was unfair and betrayed fair principles of justice.

To Adrian Fischer, when the message of the two wise men and woman was encoded to him through telephone communications and decoded in the United Kingdom, it sounds incredible. The message was received, but the reaction was a bitter-sweet one. Because he had on numerous occasion maintained that he was not guilty and never committed the offence that the Tejan Cole Anti Corruption Administration claimed he committed. So does that mean Abdul Tejan Cole was using his connection with the Judiciary and his grip on a state institution to penalize innocent men and women of the state and makes their lives miserable?

Most of the cases of corruption that he pursued and proffered charges against Sierra Leoneans have boomerang, and his victims have not relented in the search for Justice, though it took some of them very long time to get it, but at the end most of them were able to secure it.

This was the individual that many Sierra Leoneans had perceived to be a Daniel in the fight against corruption, the individual that was feared by many Sierra Leoneans. What has now beginning to come out is an unbelievable dossier about him. That he used the Anti Corruption Commission to fight his friends, his rivals and those he perceived as successful Sierra Leoneans in their vocations and professions. In addition to what so many people knows about him, he used the Anti Corruption Commission to pay back most of his colleagues who had helped him in the past. Those that contributed to where he finds himself and those that used to house him at Berry Street, the residence of the late Mr. Halloway. Those that helped to fund his University Education and provided accommodation for him, and those that taught him at the Law School and made him become a Lawyer. This is how he paid them back for the gratitude and assistance showed to him.

At long last the long, boring and uninteresting Journey ended with smiles on the face of Adrian Fischer and hopes rekindled once again that life is still useful for him. In this edition is a reproduction of the various steps adopted by Adrian Fischer to secure Justice, something that no amount of money can buy.

 

ON APPEAL FROM THE HIGH COURT OF JUSTICE AGAINST CONVICTION AND SENTENCE

BETWEEN

 

ADRIAN JOSCELYNE FISHER                          Appellant

And

THE STATE                                           Respondent

___________________________________________

Synopsis of argument of the Appellant Adrian Fisher

__________________________________________

INTRODUCTION

  1. This is an appeal by the Appellant, Adrian Joscelyne Fisher, against his conviction and sentence by Sey J, dated 10 June 2010.

 

BACKGROUND

 

  1. The appellant was appointed as a Magistrate in June 2004 and assigned to the Freetown Magistrates Court. The appellant worked as a Magistrate in Freetown until his reassignment to the Bo in April 2008. In September 2008, officers from the Anti Corruption Commission (ACC) arrived at the Bo Magistrate Court armed with a search warrant pursuant to the provisions of s71 of the Anti Corruption Act 2008 “the 2008 Act” and proceeded to conduct a search of the court premises, following which a number of court files were seized numbering over 120. The appellant was invited to the (ACC) a few days later on allegations of abuse of office and abuse of position contrary to s42 and 44 of the “the 2008 Act”. The ACC failed to proceed with the allegations having invited the appellant for investigations and in December 2008, proceeded to introduce for the first time allegations of Misappropriation of public and funds contrary to s12 of the Anti Corruption Act 2000, “the 2000 Act” (repealed). The appellant was subsequently charged with Misappropriation of Public Funds contrary to s12 of the 2000 Act to which he pleaded not guilty on all counts. He was subsequently convicted and of all twenty counts and fined one hundred million Leones (Le100,000,000.00) with an alternative of five years imprisonment.

 

LIST OF ISSUES

 

This appeal is brought on the basis that the conviction is

 

(1) is wrong in law;

(2) involves serious procedural or other irregularities; or

(3) one that no competent and reasonable tribunal of fact could properly have made;

(4) Unsafe and Unsatisfactory and amounts to a miscarriage of justice.

 

RELIANCE ON ADDITIONAL GROUNDS

 

  1. Whether Court of Appeal may entertain additional grounds apart from the grounds upon which notice to appeal was given.

 

  1. Whether Court of Appeal has jurisdiction to restrict additional grounds of appeal.

 

WHETHER THE HIGH COURT HAD JURISDICTION TO TRY THE APPELLANT AT 1st INSTANCE.

  1. Whether the indictment upon which the appellant was tried is bad for duplicity? Whether the indictment is defective in form by the failure of the prosecution to comply with the Indictment Rules 1915 and consequently whether it ought to have been quashed?
  1. Whether a prosecution for an offence under the Anti Corruption Act 2000 (“the 2000 Act” can properly be commenced in February 2009 notwithstanding the repeal of the 2000 Act in August 2008 and its subsequent commencement in September 2008 pursuant to the provisions of s141(4) of the Anti Corruption Act 2008, “the 2008 Act”?
  1. Whether the court below had jurisdiction to try the appellant having misdirected itself as to the commencement and conclusion of the investigations under the 2000 Act? Further and/or in the alternative whether the Learned Judge was plainly wrong in her conclusions that an “investigation can start with one thing and end up with something else?
  1. Whether an investigation can properly be commenced under the 2008 Act, abandoned and an investigation recommenced under the repealed 2000 Act?
  1. Whether the provisions of s141(4) on its true construction deprives the court of jurisdiction?
  1. Whether the Commissioner of the ACC has the power in law to give consent to the commencement of a prosecution under the 2000 Act in the light of the decision of the Supreme Court in The State v Adrian Fisher SC/1/2008? Further and/or in the alternative, Whether the Commissioner of the ACC can properly give consent to a prosecution under the provisions of the 2000 Act by relying upon the provisions of s89 of the 2008 Act?
  1. Whether in the light of the decision of the Supreme Court in the State v Adrian Fisher, the consent of the Attorney General and Minister of Justice is required as a matter of law prior to the institution of all prosecutions instituted under the 2000 Act?
  1. Whether the failure to seek and obtain the consent of the Attorney General pursuant to s48 of the 2000 Act prior to the institution of proceedings deprives the court of jurisdiction to try the case resulting in the entire proceedings being a nullity? Further and/or in the alternative, whether the Commissioner of the ACC can validly give consent to ta prosecution under the 2000 Act in place of the Attorney General?
  1. Whether in the light of the provisions of s141(4) of the 2008 Act and s130 of the Criminal Procedure Act 1965 and s89 of the 2008 Act the Commissioner of the ACC has the power in law to sign an indictment for a prosecution under the provisions of the 2000 Act?
  1. Whether s89 of the 2008 Act upon its true construction gives the Commissioner of the ACC the power to sign indictments preferred in accordance with the provisions of s130 of the Criminal Procedure Act 1965?
  1. Whether the trial and conviction of the appellant was manifestly unfair and contrary to the provisions of the s23 of the Constitution of Sierra Leone Act no 6 of 1991?
  1. Whether the provisions of s144(2) of the Criminal Procedure Act 1965 as repealed and replaced by s3 of the Criminal Procedure Amendment Act No 11 of 1981 is inconsistent with the provisions of s23 of the Constitution of Sierra Leone Act no 6 of 1991 and consequently void and of no effect in accordance with the provisions of s171(15) of the Constitution of Sierra Leone Act no 6 of 1991.
  1. Whether the trial by the appellant (a serving member of the judiciary) by judge alone constitutes an independent and impartial tribunal as provided for by s23(1)and(2) of the Constitution of Sierra Leone Act no 6 of 1991 in the light of the comments made by the trial judge at page 206 lines (1-12).
  1. Whether material non-disclosure of relevant evidence by the prosecution in addition to a failure by the Learned Trial judge to record material evidence in the proceedings rendered the trial manifestly unfair?
  1. Whether the judgement of the trial judge is vitiated by material errors of law and material procedural irregularities in the trial?
  1. Whether the Prosecution case taken at its highest satisfied the Woolmington test?
  1. Whether evidence not contained in the court records in accordance with s4 of the Courts Act 1965 is admissible as evidence of the truth of its contents?
  1. Whether the Learned Trial judge erred in failing to comply with the provisions of s141(4) of the 2008 Act by failing to conduct the trial entirely in accordance with the provisions of the 2000 Act?
  1. Whether the Learned Trial Judge erred in treating PW1 as a protected witness under the provisions of the 2008 Act in a matter that ought to have been conducted entirely under the provisions of the 2000 Act as opposed to an accomplice whose evidence ought to be treated with extreme caution and whose evidence required corroboration as a matter of law?

 

  1. Whether the Learned trial judge erred in law in admitting the police prosecution case records (Exhibits B1-15) as evidence of the truth of its contents therein?
  1. Whether the Learned trial judge erred in law in admitting into evidence Exhibits A1-15 without evidence of their origin? (ie a bonafide search warrant).
  1. Whether the Learned trial judge erred in her conclusions that PW1 was never treated as a suspect by the prosecution?
  1. Whether the failure of the Learned trial judge to apply a LUCAS direction amounts to a fundamental error of law?
  1. Whether the conclusions of the Learned trial judge at {page 318-319} are ‘plainly wrong’? Further and in the alternative whether the conclusions of the Learned trial judge in pronouncing that the appellant was guilty of all offences as charged was plainly wrong owing to the fact that no evidence was adduced by the prosecution in relation to counts 5,10,11,13, and 17?
  1. Whether the failure of the Learned trial judge to make a specific findings of fact in relation to whether there was corroborating evidence to support an assertion by the prosecution that monies were given by PW1 to the appellant in light of the inconsistency of evidence of PW3 who stated very clearly that he had never seen PW1 giving monies to the appellant amounts to a material error of law?
  1. Whether the Learned trial judge erred in law in allowing the prosecution to call evidence in rebuttal which amounts to a material irregularity in the trial?
  1. Whether the verdict reached by the trial court is wholly unreasonable having regard to evidence adduced?
  1. Whether the sentence passed by the Learned trial judge was manifestly excessive and/or wrong in principle by reason of the sentence being too

harsh given the facts of the offence and/or in light of any available personal mitigation of the appellant?

  1. Whether the Learned judge erred in law in failing to invite counsel for the appellant to make submissions on sentence?
  1. Whether the failure to take into account relevant considerations amounts to passing a sentence considered to be outside the range for the offence and the appellant?
  1. Whether passing of a disproportionate sentence in all the circumstances of the case amounts to an error of law?
  1. Whether it is right and proper for this court in the light of an absence of guideline sentences for corruption offences to produce such guidelines for lower courts?

PROPOSITIONS OF LAW

RELIANCE ON ADDITIONAL GROUNDS

WHETHER FURTHER ORIGINAL GROUNDS OF APPEAL MAY BE ARGUED ADDITIONALLY TO THAT ON WHICH THE APPEAL WAS LODGED.

  1. The notice of appeal to the Court of Appeal did not include all the grounds upon which the appeal was proposed to be argued, on account of the fact that the records were not readily available.
  1. The court of appeal it is submitted has jurisdiction to allow additional grounds not lodged with the notice of appeal to be heard pursuant to s23 of the 1991 Constitution Act no 6 of 1991.

See: Adel Osman v The State

The State v Adrian Joscelyne Fisher Per Tejan –Jalloh CJ “ This court has pointed out on numerous occasions that a reference should not be treated lightly and referring issues to the Supreme Court does not relieve the High Court or any court for that matter of the responsibility of the issues itself…. In appropriate cases the High Court can decide such questions (of constitutional provisions) without reference to the Supreme Court….. questions of interpretation only arises where there is doubt as to the meaning to be attached to any provisions of the constitution”

  1. In furtherance of the above the appellant would wish to raise three additional grounds of appeal in the following order:
  1. That the indictment upon which the appellant was tried was duplicitous and contrary to the Indictment Rules 1915 and is therefore lacking in form.
  1. That the decision to prosecute and maintain the prosecution of the appellant amounts to an abuse of the process of the court;
  • That the admission of Exhibits B1-15 by the Learned trial Judge was wrong in law on account of the said exhibits being inadmissible hearsay evidence;

See The State v Zouzouko Degui SC

Satra Dwipayana and 14 others v Inspector General of Police CA

  1. That the indictment upon which the appellant was tried is duplicitous and lacking in form and therefore contrary to the Indictment Rules 1915 in that;
  2. The indictment charges the appellant with misappropriation of public funds by wilfully depriving the government of Sierra Leone of various sums of moneys as set out in the indictment. See (page 1-11.)
  1. That the provisions of s12 (2) of the 2000 Act require an accused to have wilfully committed an act which deprives the government of funds. By virtue of the said provision, the act that results in deprivation must be a specific act which must be charged in the indictment.
  • That the wilful act must result in deprivation;

 

  1. That the offences charged were based on relevant court proceedings which occurred on specific dates; (See Exhibits A1-15 on page 211-267)
  1. That the indictment fails to disclose the specific wilful act that resulted in deprivation;
  1. That the prosecution’s case on the one hand was based on a variance between fines recorded in the court files and fines pronounced in open court. (see page 170 lines 16-18) and (see page 52 lines 6-12)whilst on the other hand they claimed that PW1, Haruna Haku was a conduit pipe for the criminal acts of the appellant. (See page 203 lines 27-31).
  • That the learned trial judge failed to identify the specific act complained of by the prosecution that resulted in deprivation. (see page 205 lines 4-13)
  • The Learned Trial judge concluded in her judgement that the specific act that resulted in deprivation for the purposes of s12(2) was done by the appellant through PW1 as a ‘conduit pipe’. (see page 205 lines 14-21) which is entirely inconsistent with the basis of the prosecution’s case as identified by the trial judge at page 170 (paragraph 4(vi) above.
  1. That by charging the offences as occurring on dates unknown between two dates, the acts of misappropriation is extended to cover future acts of misappropriation in a different form, thereby denoting a separate offence;
  1. That the prosecution’s case of misappropriation is therefore duplicitous on the basis that having failed to identify the specific act relied upon, relied upon two separate and distinct acts in a single count to prove the act resulting in deprivation.
  1. That each count must on its face allege one offence only and must not contain two or more offences wrapped up in a single count. The said counts are therefore duplicitous. Where the offence charged consists of one single act, they must be the subject of a single count in order to avoid duplicity.
  • That the said indictment as charged discloses more than one transaction.

See s3 of the Indictment Act 1915 (1) Every indictment shall contain and shall be sufficient if it contains a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge”

  • That the indictment as charged is contrary to s3 of the Indictment Act 1915, on account of the failure to provide reasonable information as to the nature of the charge.
  • Rule 5 (1) of the Indictment Act 1915- Statutory offences prohibits the inclusion of two or more separate offences in one count
  1. Rule 9 of the indictment Act 1915 – General rules as to description. That the said indictment is contrary to rule 9 of the Indictment rules 1915 on account of the failure to make clear the specific act relied upon to prove misappropriation.
  1. The appellant would rely upon the following proposition of law in support of the contention that the trial and subsequent conviction was an abuse of the process of the court. The power of the court to stop a prosecution arises in two instances:
  2. Where the prosecution has misused or manipulated the process of the court so as to deprive the appellant of its protection or has otherwise acted unfairly;
  1. On grounds of delay.
  1. That the decision to prosecute and maintain the prosecution of the appellant amounts to manipulation or an abuse of the process of the court in that;
  1. The offence of Misappropriation of public funds contrary to s12(1) of the Anti Corruption Act 2000 for which the appellant was charged was no longer law at the date of institution of the prosecution, the said law having being repealed by virtue of s141(1) of the Anti corruption Act 2008. It is submitted that the Learned Trial Judge ought to have used the inherent powers of the court to stay the proceedings on the grounds of abuse of the process or where the continuance of the proceedings amount to oppression.

See: Christian v The Queen 2007 2 A.C.400 PC

Metropolitan Bank Ltd v Pooley 1885 10 AC 210 P214 Per Selbourne LC

  1. The said law having being repealed, the court was deprived of jurisdiction to try the said offences and maintaining a prosecution in such circumstances, amounts to an abuse of the process of the court and such prosecution ought to have been stayed by the trial judge in order to protect the fair trial rights of the appellant and to protect the integrity of the criminal justice system from abuse of Executive power.

See: R v Chairman of London County Sessions ex p Downes 1954 37 Cr App R 148

Connelly v DPP 1964 a.ac.1254 HL

DPP V Humphreys 1977 A.C. 1 HL –

R v Maxwell 2011 2 Cr App R 31 SC

Warren v Att-General for Jersey 2012 1 A.C. 22

R v Horseferry Road Magistrates Court ex p Bennett 1994 1A C 42 HL.

Hui Chi-Ming v R 1992 1 AC 34 PC – An abuse of process is something so unfair and wrong that the court should not allow the prosecutor to proceed with what is in all other respects a regular proceeding. Per Lord Lowry

  • The failure of the prosecution to disclose relevant material to the defence amounted to an abuse of the process. The following are crucial:
  1. The search warrant upon which relevant material was purported to have been seized was not disclosed;
  2. The s57 notices served upon the Sierra Leone police was not disclosed or adduced in evidence;
  3. The court diary which was removed from the court by the ACC was not disclosed to the defence;
  4. The police diary of files allocated to the court on a daily basis was not disclosed to the defence.

See page 63 lines17-18

See defence closing address page147 lines 4-11

See: R (Ebrahim) v Feltham Magistrates’ Court;

Mouat v DPP [2001] 2 Cr. App. R. 23.

  1. The use of the 2008 Act by the ACC to facilitate seizure of court documents which are used in a 2000 Act prosecution instituted without the consent of the Attorney General amounts to manipulation or misuse of the process of the court. Further and in the alternative the use of the said search warrant to seize judicial documents was in contravention of s141(4) of the 2008 Act, in that the said 2000 Act had been repealed.
  2. The use of the 2008 Act on a selective basis to prosecute the appellant was contrary to s141(4) which required proceedings to be conducted in all respects as if the 2000 Act had not been repealed amounted to an unfair manipulation of the court process designed to deprive the appellant of the protection of the court.

This Honourable court is referred to the following:

  1. Page 18 lines 9-13
  2. Page 52 lines 13-15
  3. Page 53 lines 1-6, 8-11
  4. Page 54 lines 8-13
  5. Page 57 lines 25-26
  6. Page 98 lines 6-11

That the above matters are evidence of the non-compliance by the prosecution with s141(4) of the 2008. The evidence reveals that contrary to the evidence of PW2, no investigation was commenced under the provisions of the 2000 Act but investigations were commenced under the provisions of the 2008 Act

  1. That the admission of Exhibits B1-15 by the Learned trial Judge was wrong in law on account of the said exhibits which are private documents of police officers, being inadmissible hearsay evidence at law.
  1. The admission of Exhibits B1-15 was a material irregularity in the trial in that;
  2. The Learned trial judge placed undue reliance on these exhibits as proof of the fact that the contents of the said exhibits are an accurate portrayal of the record of proceedings of the court.

See page 148 lines1-10 and lines 16-18

       Page 184 lines 23-30

       Page 185 lines 1-3

       Page 201 lines 14-19

       Page 204 lines 25-29

  1. The exhibits were tendered as proof of the contents therein and was relied upon by the prosecution and the learned judge as proof of the matters stated therein.
  • The statements contained in Exhibits B1-15 are statements not made in oral evidence in the trial and any such statement in a document will be hearsay and inadmissible if the purpose for which it is sought to tender it in evidence is to rely on the truth of the statement.
  1. The authors of the contents of the said exhibits are unknown and consequently the authenticity of the contents cannot be verified. In any event the said records are irrelevant as proof of court proceedings.

 

See evidence of PW3 Page 69 lines 31-34

                                             Page 73 lines 1-2

 

  1. The statements contained in Exhibits B1-15 do not amount to an exception to the hearsay rule.
  2. The statements do not form part of the res gestae on account of the possibility of concoction.

See Ratten v R 1972 A.C.378 Per Lord Wilberforce The possibility of concoction where it exists is an entirely valid reason for exclusion” The evidence of PW3 is conclusive of the fact that with the exception of exhibit B15 he did not record the statements in Exhibits B1 to 14, with the exception of Exhibit B15. contrary to the assertions in the extract of findings that it was PW3 who made the entries in exhibit B1-15. If he did not, the fact that the statements in Exhibits B1-15 mirror the evidence of PW4-14 clearly shows the possibility of concoction.

       See Evidence of PW3 page 73 lines 1-2

       See extract of findings page 12 (para 4,7,10)

                                         Page 13 (13,16,19)

                                         Page 14 (22,25,28,31)

                                         Page 15 (34,37,40)

                                         Page 16 (44,45,49,50)

See Summary of findings page 20 lines 8-13

See prosecution opening address Page 52 lines 7-9    

See prosecution closing address page 118 lines 1-2

                                                Page 123 lines 2-4

WHETHER THE HIGH COURT HAD JURISDICTION TO TRY THE APPELLANT AT 1ST INSTANCE.

 

  1. The Jurisdiction of the High Court to try offences involving corruption is under the 2000 Act is set out in law.
  2. See s1 of the Anti Corruption Act 2000.
  3. In view of the date of commencement of proceedings, s89 of the 2008 Act was already in force. In addition, the constitution of Sierra Leone had been amended in July 2008. See s89 of the Anti Corruption Act 2008 and the Constitution of Sierra Leone (Amendment) Act 2008.
  4. The transitional repeal and savings provisions in the 2008 Act provides conditions for the commencement or continuation of prosecutions pursuant to the 2000 Act prior to the commencement of the 2008 Act. See s141(4) which provides:

All investigations, prosecutions and other legal proceedings, instituted or commenced under the Act hereby repealed and which have not been concluded before the commencement of this Act, shall be concluded in all respects as if that Act had not been repealed.”

  1. Contends that upon a proper interpretation of the provisions of s141(4) the use of the words “commenced under the Act hereby repealed and which have not been concluded before the commencement of this Act” clearly and unambiguously shows the High court lacks jurisdiction to try the appellant for a number of reasons:
  • The above section only permits the prosecution to commence prosecutions under the 2000 Act, (only if):
  • Such prosecutions were commenced prior to the commencement of the 2008 Act;
  • Where any investigations or prosecutions or other proceedings commenced under the 2000 Act had not been concluded before the commencement of the 2008 Act;
  • That the jurisdiction to try such offences under the 2000 Act is entirely predicated upon such prosecutions commencing prior to the commencement of the 2008 Act or where such prosecutions were ongoing upon commencement of the 2008 Act, such prosecutions must be continued in all respects under the repealed Act as if the Act had not been repealed.
  • That no prosecution pursuant to the 2000 Act (repealed) may be commenced as a matter of law after the commencement of the 2008 Act, or where instituted prior to commencement of the 2008 Act must be continued and concluded in all respects under the repealed Act.
  • It is submitted that in relation to paragraphs 5(i)(a-d) above, proceedings or prosecutions under the repealed Act could not be instituted after the commencement of the 2008 as a matter of law on account of the requirement under the provisions of s141(4) for such prosecutions to be concluded in all respects as if the Act had not been repealed. The provisions of ss1 and 2 of The Constitution of Sierra Leone (Amendment ) Act 2008 Act no 9 of 2008 having removed the Attorney General and the DPP from instituting and undertaking prosecutions for corruption under the 2000 would be contrary to the provisions of s48 of the Anti Corruption Act 2000 which required the consent of the Attorney General to be given prior to the commencement of any such prosecution under the 2000 Act. Further any such prosecution had to comply with the provisions of s141(4) of the Anti Corruption Act 2008, hence the emphasis on the words “which have not been concluded before the commencement of this Act”, Consequently any interpretation of s141(4) of the 2008 Act that purports to suggest that a prosecution under the repealed Act may be instituted after the commencement of the 2008 would be contrary to s171(15) of the Constitution of Sierra Leone Act no 6 of 1991.
  • That the Anti Corruption Commission commenced its investigations by relying upon specific provisions of the 2008 Act to:
  • Seize the passport of the appellant; (see page 98 lines 7-9, 25) and Exhibit O on page 455). It is noteworthy to that Exhibit O dated 30th September 2008, clearly states “Whereas you are under investigation for an offence(s) under the Anti Corruption Act No 12 of 2008is clear evidence that as at 30th September 2008, no investigation was being carried out under the repealed 2000 Act.
  • Carry out a search of the court building by means of a search warrant issued by the erstwhile Commissioner Abdul Tejan Cole, by relying on the provisions of s71 of the 2008 Act; (see page 98 line 57)
  • Issuing an ‘unless’ order to the Sierra Leone police to produce documents to the Commission by relying upon the provisions of s57 of the 2008 Act; (see page 57 line 25-27).
  • Interviewing the appellant at the offices of the ACC on allegations of abuse of office and abuse of position contrary to ss42 and 44 of the 2008 Act as at September 2008;
  • That the evidence of PW2 confirms that the investigations conducted into the Bo Magistrates court were done under the provisions of the 2008 Act even at a time when the Act was not yet in force and most importantly, he never disclosed what investigations were carried out in August 2008. (See page 56 lines 28-29.)
  • Further none of the evidence adduced in the trial reflected an investigation that commenced in August 2008.
  • The inescapable conclusion to be drawn is that no investigation under the 2000 Act was being conducted prior to the commencement of the 2008 Act.
  • That the appellant was only interviewed in December 2008 about allegations under the 2000 Act after PW1 was ‘coerced’ into making a statement in November 2008 against the appellant or at a time when the status of PW1 was changed from suspect to witness; Further the statement of the witnesses who testified were obtained between 8th October 2008 (after PW1 had made a statement against the appellant) and 13th January 2009.
  • That no investigations for offences allegedly committed under the provisions of the 2000 Act were being investigated upon commencement of the 2008 Act.
  • That an indictment for offences under the 2000 Act was only signed and preferred in February 2009, indicating the commencement of the prosecution; (See page 1)
  • That the said investigation by the ACC under the 2000 Act was commenced after the commencement of the 2008 Act.
  • That the said prosecution under the 2000 Act was not commenced before the commencement of the 2008 Act. Further and in the alternative, the said prosecution having commenced in 2009 was not concluded in all respects as if the 2000 Act had not been repealed.
  • That prior to the commencement of the said prosecution in 2009, the provisions of s141(4) upon its true construction required the consent of the Attorney General and Minster of justice pursuant to s48 of the 2000 Act which provides:
  1. (1) Except where the prosecution is instituted by himself, no prosecution shall be instituted under this Act without the written consent of the Attorney-General and Minister of Justice.
  • That the said prosecution having being instituted by the ACC Commissioner and not by the Attorney General pursuant to powers provided in s89 of the 2008 Act, is in direct contravention of the requirement for the written consent of the Attorney General to be sought and obtained prior to the commencement of the proceedings;
  • That the said prosecution having been instituted without the written consent of the Attorney General and Minister of Justice makes the said proceedings a nullity; see Zouseke deige v The State SLSC.
  • That the said s89 of the 2008 Act cannot properly be relied upon as a matter of law to provide the consent required by s48 of the 2000 Act.
  • That the said Commissioner of the ACC failed to comply with the provisions of s36 of the 2000 Act.
  1. Contends that the indictment is not properly before the court and therefore a nullity on account of the said indictment having being signed by the Commissioner of the ACC (see page 11) rather than by a law officer as provided for by the provisions of s130 of the Criminal Procedure Act 1965 in that;
  • The said s130 of the Criminal Procedure Act 1965 provides a specific legislative procedure for the signing of indictments in criminal proceedings;
  • That neither the 2000 Act not the 2008 Act makes any provision for the signing of indictments in criminal proceedings generally or in relation to criminal proceedings for corruption;
  • That where there is a specific legal provision of law a general provision of law cannot be used.
  • That the decision of the Supreme court in the State v Adrian Fisher is authoritative on the point that:
  1. Neither the 2000 Act nor the 2008 Act have rendered the operations of the Criminal Procedure Act 1965 redundant.
  1. Further the Constitution of Sierra Leone (Amendment) Act 2008 does not affect the operations of the Criminal Procedure Act 1965.

See the State v Adrian Joscelyne Fisher SC.2/2009 Per Tejan Jalloh CJ “The Criminal Procedure Act 1965 (as amended) is in daily use in court and as far as the two recent legislations, which are the subject matter of the present proceedings, they have not amended or repealed the Criminal Procedure Act 1965…. A law is not repealed by becoming obsolete. Admittedly the Criminal Procedure Act 1965 is a statute of general application and the Anti Corruption Act 2008 is not an Act passed on the same subject and therefore, it will be wrong to say that the subsequent Act impliedly repeals the former”.

WHETHER THE TRIAL OF THE APPELLANT WAS CONDUCTED IN CIRCUMSTANCES OF MANIFEST UNFAIRNESS

  1. That the provisions of s144(2) of the Criminal Procedure Act 1965 as repealed and replaced by the Criminal Procedure Act 1981 which provides for applications for judge alone trials made by the Attorney General and Minister of Justice to be granted as of right (without the involvement of the accused) is manifestly unjust and inconsistent with the right of the accused to a fair trial as provided for by s23 of the Constitution of Sierra Leone, Act no 6 of 1991 and the said provision is inconsistent with s171(15) of the said Act no 6 of 1991, in that;
  1. The Attorney General certifies that the application is in the interest of justice without any requirements to say why the application is in the interest of justice.
  1. That the appellant had a right to trial by jury and a law that prevents the accused from accessing that right is manifestly unfair;
  • That the nature of the charges faced by the appellant required an independent tribunal of fact to consider the question of guilt or innocence.

See page 27

       Page 47 lines 21-27

       Page 48 lines 1-2

  1. The appellant was charged with offences under the 2000 Act. The investigation was conducted using the provisions of the 2008 Act. The trial judge conducted the proceedings under the provisions of the 2008 in breach of the provisions of the provisions of s141(4) of the 2008 which requires prosecutions under the 2000 Act to be conducted in all respects as if the 2000 Act had not been repealed. The said failure led to manifest unfairness in that;
  1. PW1 was given a status as a protected witness which was undeserved and which was not in accordance with the provisions of the 2000 Act. This was yet another example of a lack of compliance with s141(4) of the 2008 Act. (See page 52 lines 13-15). Page 53 lines 1-11 (See page 54 lines 8 -9 )
  1. It is necessary to make reference to the decision of the House of Lords in the R v Secretary of State for the Home Department Ex parte Pinochet case in so far as related to the issue of bias and or apparent bias. Their Lordships in relation to the deliberation of matters relating “to bias and or apparent bias” in the above matter had observed as follows:

If the absolute impartiality of the judiciary is to be maintained, there must be a rule which automatically disqualifies a judge who is involved, whether personally or as a Director of a company, in promoting the same causes in the same organisation as is a party to the suit. There is no room for fine distinctions if Lord Hewart’s famous dictum is to be observed: it is “of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” (see Rex v. Sussex Justices, Ex parte McCarthy [1924] K.B. 256, 259)

  • The ACC in the instant proceedings has not produced any evidence granting immunity from prosecution to PW1 in so far as the admission and reception of his evidence was concerned which inevitably resulted in the conviction of the appellant in the appeal. Such error does not only vitiate the entire proceedings and conviction but further calls into question the neutrality and or impartiality of the proceedings against the appellant. That PW1 was a suspect in the case, it was highly undesirable for such an application to be made which gave the court the impression that he was a honest witness as opposed to a suspect who was only turning to a prosecution witness in order to hide his true participation in the offences as a suspect. The application was wholly misleading in that respect and was designed to artificially enhance his credibility.
  1. There are clear grounds for the trial Judge to have discountenanced the evidence of PW1, particularly in the light of the letter written by counsel for the appellant who drew attention to the fact that the prosecution had misled the court into granting protected witness status to PW1 on a false pretence. ( The letter clearly identified the fact that PW1 was sitting in the court building laughing and joking with his colleagues notwithstanding the misleading application by the prosecution that he was in fear of his colleagues as a result of his evidence to the court that necessitated his protected status.) This was significant for the neutrality and impartiality of the judiciary to be maintained, particularly as PW1 is himself a member of the Judiciary and remains so.
  1. There would result to the appellant a serious lingering sense of injustice and miscarriage of justice for the Court of Appeal to uphold the conviction in these circumstances as there is clear evidence for concluding on the basis of the above arguments that the ambit of the ACC activities seeks to pursue a class of certain individuals and was akin to a witch-hunt. These matters call into question the basis the proceedings and the history and connections of key prosecutors within the ACC albeit reference is made to the role of a number of officials with direct conduct and control of the prosecution at the material time. There can be no doubt that to proceed to the extent of prosecuting an individual under a repealed Act of parliament is indeed unprecedented.
  1. The granting of protected witness status to PW1 led to part of the trial being conducted in camera which was a fundamental breach of s23(3) of the 1991 Constitution Act No 6 of 1991. In support of this contention the appellant would rely upon the following:
  1. Granting a suspect immunity from prosecution without any legal basis for doing so with a view to that witness testifying in a subsequent trial is a fundamental assault on the right of the appellant to be fairly tried.
  1. That the order of the trial judge mark such a significant departure from the principle of open justice that they are inconsistent with the rule of law and democratic accountability, and the 1991 Constitution 1991, such that this honourable court
  1. That this appeal raises important issues relating to not only the constitutional principle of open justice (as enshrined in the constitution) but also the equally important principle of fairness and natural justice and represents a totally unprecedented departure from the principle of open justice and require the most anxious scrutiny.
  1. That the comments of the trial judge show that the issues raised at Ground 2 of the grounds of appeal (page 483 lines 8-31)are of fundamental significance when compared with the trial judge’s conclusions at page 206 lines 1-12 and show a clear bias against the appellant thereby depriving him of a fair trial.
  1. The Learned Trial Judge failed to proceed with caution in evaluating the evidence of PW1 whose evidence was tainted by an improper motive, to wit, the avoidance of prosecution himself. It is clear that PW1 made a statement under duress in detention after having being detained unlawfully for 11 days. (See page 62 lines 4-12) This is corroborated by the evidence of the appellant at page 95 lines 1-34 in particular line 24 where he expressed he fact that he was tired at being detained.

See R v Beck 74 Cr App R 221 LJ Ackner – A judge in a criminal trial has a duty to advise a jury (or even more important where the judge sits alone) to proceed with caution where there is material to suggest that a witness’s evidence may be tainted by an improper motive” (particularly where the improper motive derives from the witness’s own involvement in the crime).

  1. The Learned trial judge failed to record material evidence in the record of proceedings, in particular;
  1. The evidence of PW1 that he had embezzled funds paid to him as court fines leading to remarks made by the Learned Trial judge that she could not understand why PW1 was not charged.
  1. The fact that the Learned Judge had remarked during the trial that she did not know why PW1 was not charged during his evidence.
  2. The fact that counsel for the accused raised the issue of the improper association with the court personnel whilst the witnesses PW1 was claiming to fear reprisals. These issues were raised at trial in the defence closing arguments. (See page 141 lines 16-29)
  1. The Learned Trial judge failed to evenly sum up the evidence in the case and carried out an unbalanced summing up with undue reliance placed on the prosecution’s case, notwithstanding the failure by the prosecution to controvert any of the evidence given in the defence case. Further the Learned trial judge failed to make any material findings of fact in respect of the defence evidence, in particular in relation to the fact that the prosecution did not lead any evidence in relation to a number of counts. (5,10,11, 13 and 17). In respect of this contention the appellant would rely upon a number of factors that shows the Learned judge was not even- handed in her conduct of the matter:
  1. In support of the contention at paragraph 11(above) the attention of this Honourable court is drawn to the following:
  1. The learned judge in her judgement simply repeated parts of the prosecution’s case rather than carry out a proper evaluation of both the prosecution and defence case as the sole trier of fact and law.

See page 202 lines18-29 compared to page119 lines 23-29

See page 120 line 1

See page 203 line 21-31 compared to page 122 lines 21-23

See page 204 line 9-24 compared to page 122 lines 21-30 and page 123 lines 1-2.

See page 204 lines 25-29 compared to page 123 lines 2-4. (Defence does to have to explain or prove anything. Burden is on prosecution to prove its case.)

See page 205 lines 31-33 and page 206 lines 1 compared to page 131 lines 14-15  

  1. The trial judge failed to make material findings of fact in relation to key evidence led by the defence. In particular in relations to counts 5, 10, 11, 13, 17 and 20.

 

Count 5

(See page 3). No witness testified in respect of this count as to what the subject of the charge was fined, in relation to this count the evidence as given by PW1 was that he collected total sums of monies and paid to the NRA in bulk and most importantly his evidence was that he could not recall what was pronounced in respect of this count. (see page 66 lines 17-26) see also page 94 lines 4-12.

 

Count 10

 

(See page 6) No witness testified in respect of this count. PW1 testified that the amount pronounced in court was £750.00 (page 61 lines 13-16). The alleged accused was never called as a witness nor a witness statement provided for him. In contrast the court is referred to Exhibit D which was the monthly returns prepared by PW1 at page 418 in which PW1 clearly endorsed the sum of Le250,000 as the penalty levied against the said accused. (See page 96 lines 10-12)

 

Count 11

 

(See page 6) No witness testified in respect of this count. PW1’s evidence merely repeated the evidence as shown in exhibit A6 as to the level of fine imposed. The evidence of misappropriation appears to have been based only upon the inadmissible police files. See page 96 lines 13-14.)

 

Count 13

(See page 7) No witness testified in respect of this count. PW1 merely repeated the evidence as found in exhibit A8. See Page 60 and page 96 line 18 and the additional evidence which was referred to including the committal warrant which showed no monies were paid and the accused was committed to prison. In the absence of any evidence of misappropriation a verdict of guilty ought not to have been returned on this count.

Count 17

See page 9 No witness testified in respect of this count. PW1 merely repeated the evidence as found in Exhibit A12. See page 96 lines 29-30 of the defence evidence.

 

Count 20

(See page 11) This file was never presided over by the appellant. The appellant said so in his evidence. (see page 97 lines 6-10) The prosecution claimed this count was subject to misappropriation and in support adduced Exhibit A15 and B15. In support they made the assertions at page 16 paragraph 42 and 43. PW1 when cross examined could not explain how he came to put a NRA receipt in the file for Le50,000 when the matter never appeared before the court or was presided over by the appellant. He claimed the accused would come to court to testify which never happened. (See page 66 lines 3-16) PW3, when cross examined on the same issue confirmed there was no record of proceedings but claimed he wrote the fines pronounced in exhibit B15. See page 72 lines 27-34

  1. A key part of the defence case was corruption at the Magistrate court when he took over which led to the grand conspiracy against him. Evidence of that was given by the appellant. See page 90 lines 15-26, page 97 lines 10-34. The trial judge failed or neglected to make any findings of fact based on this defence in evaluating the burden of proof. This Honourable court is drawn to the evidence of PW2 in which the s57 notice served upon the Bo police was actioned through PW3 who had no business in facilitating any such request and to whom the notice was not addressed. This shows clear evidence of collusion in the production of exhibits B1-15. (See page 57 lines 25-32 and page 58 lines 1-4)

 

 

 

  1. The Learned trial judge failed to accord the defence adequate opportunity to present its case in particular in the absence of senior counsel who was ill and away from the jurisdiction on medical grounds, having afforded the prosecution an extraordinary amount of time to present its case. The Learned trial judge having afforded the prosecution a generous amount of time was in a hurry to conclude the matter by placing the defence under pressure to conclude its case so she could leave the jurisdiction for another job. The learned trial judge remarked that “she did not want to spend any more time on this matter and wanted to conclude as soon as possible” This placed the defence under considerable pressure to conclude its case. Most importantly this unnecessary pressure led to the failure to require the prosecution to provide the original evidence of the appellant’s CV rather than admit into evidence a copy of the same which was tendered in breach of the evidential rules.

 

See page 84 – having granted an adjournment on the previous adjourned date to the prosecution on the basis that the leading prosecutor was not yet back from vacation, she then refused an adjournment to the defence when such application was made on the basis of ill health by lead defence counsel. See page 85 lines 1-9. Such conduct was very unfair to the defence in particular the fact that the learned judge was aware that the 11 defence counsel had not appeared for the appellant throughout the prosecution’s case and lead defence counsel had always appeared. He defence had intended to make a no case submission as indicated to the trial judge on the 19th November 2009 (See page 83 lines 22-28) The appellant was thus deprived of the opportunity to make a no case submission by lead defence counsel who had been fully prepared to do so but for ill health.

WHETHER THE CONVICTION IS UNSAFE, UNSATISFACTORY AND AMOUNTS TO A MISCARRIAGE OF JUSTICE ON ACCOUNT OF MATERIAL EVIDENTIAL AND PROCEDUREAL IRREGULARITIES AS WELL AS PERVERSE FINDINGS OF FACT WHICH ARE SO UNREASONABLE AND CANNOT BE SUPPORTED HAVING REGARD TO THE EVIDENCE AND WHETHER SUCH MATERIAL MISDIRECTIONS OF LAW AND FACT VITIATES THE SAFETY OF THE CONVICTION

 

  1. It is submitted that the prosecution was in material breach of its duty of disclosure as required by the fair trial provisions of the Constitution of Sierra Leone Act no 6 1991. The duty to disclose evidential material in a criminal trial is in accordance with the provisions of the fair trial rights that is guaranteed to the accused. It is further submitted that the breach of the duty to disclose by the prosecution in this case was done with bad faith or amounted to serious fault on the part of the prosecution and is such that on a balance of probabilities, the absence of the relevant material caused serious and considerable prejudice to the appellant at trial such that the trial could not be conducted fairly or in the alternative the continuance of the trial amounted to an abuse of the process of the court, in that the prosecution failed to;

 

  • Disclose the Court diary which was “unlawfully” seized and in their possession. The appellant in oral evidence told the court that the court diary as well as the prosecution diary was crucial in his defence and those documents had not been produced. (see page 98 lines 2-5) PW1 admitted having a court diary. (see page 63 line 10). Notwithstanding his denials that he never recorded fresh files in the court diary which was the procedure, he admitted in evidence, that the prosecution took up to 3 diaries which the defence maintains contained crucial exculpatory evidence. (See page 66 lines32-33)
  • Disclose the search warrant which authorized them to search the court premises and upon which the court files which formed exhibits A1-15 were seized. There was clearly no lawful basis for admission of those files in the absence of the search warrant; (see the evidence of PW2 Page 56 lines 26-28 and page 57 lines 1-21)

 

  • The police diary of new files (in the possession of the police) sent to court on a daily basis, which is in their possession. (See the evidence of PW3 Page 71 lines 32-34)

 

  • The s57 notice (sent to the police) which authorized them to retrieve the police files from the police, which formed the basis of Exhibit B1-15 was not disclosed. (see the evidence of PW2 Page 57 lines 25-32)

The Learned Trial Judge made material errors of law which vitiated the safety of the conviction and amounted to a miscarriage of justice in that;

  • The Learned Trial Judge deliberately adopted an erroneous interpretation of the provisions of s1(i) of the 2000 Act. The Honourable court is referred to the following cases that were decided prior to the date of conviction and after the date of conviction by the learned trial judge and another senior Judge Browne-Marke JA:

See The State v David Lewis Walker (2/3/10) (Sey J)

The State v Ernest Joseph Kasho Wellington (25 May 2009) Per    Browne Marke JA.

The State v Aiah Chrispin Ngaujah and Samuel Kainde Huggins            (15/10/2010) (Sey J)

The State v Paul Joe Lappia (15 October 2010) (Sey J)

 

  • The definition of s1(i) adopted by the Learned Trial judge was ‘deliberately’ at variance with previously decided cases and the provisions of the Act which provided an interpretation of the relevant provisions which she decided and there is no discernable basis upon which she chose to adopt such a definition which is outside of the Act’s interpretation and her own declared interpretation of the relevant provision. Having correctly declared the interpretation of the relevant provision, the Learned judge went beyond the declared interpretation of the Act in a bid to convict the appellant which amounts to a miscarriage of justice (See page 194 lines 9-30 and page 195 lines 1-12) The learned judge then misdirected herself. See page 195 lines 13-30 and page 196 lines 1-29)
  • That the funds in question were not public funds within the meaning of s1(i) of the 2000 Act and that her conclusion that the funds in question amounted to public funds by virtue of the National Revenue Authority Act is erroneous and misleading. Her conclusions at page 196 lines 19-29 are a clear misdirection of law when contrasted with her conclusions at page 195 lines 1-6) The Public funds definition in the 2000 Act incorporates “monies paid from the consolidated fund or any fund under subsection (2) of Section 111 of the constitution and not monies payable into the consolidated fund”
  • That the 2008 Act has a separate and distinct definition of public funds and the failure to prove a crucial element of the actus reus of the offence renders the decision to convict a nullity.

 

  • That the finding by the Learned trial Judge that the Constitution of Sierra Leone (Amendment) Act 2008 “gives the Anti-Corruption Commissioner the power to prosecute and therefore to sign indictments as of the 31st July 2008” is erroneous and flawed by virtue of the decision of the supreme court in The State v Adrian Joscelyne Fisher which affirmed the provisions on the signing of indictments as still operational under the provisions of the Criminal Provision Act 1965. (See page 198 lines 24-32). It is submitted that the power to prosecute as granted to the ACC is separate and distinct from the signing of indictments. This Honourable court is referred to the arguments raised at page 480-482 and page 137-138.

 

  • That the finding by the Learned Trial Judge that it stands to reason that investigations can start off with one offence and expand to include others not originally envisaged” Is erroneous and misleading in that it fails to consider the fact that that investigations relied upon by the prosecution were with respect to separate Acts of parliament, one of which was repealed and deprived the court of jurisdiction to hear the case. Further the continuance of such investigations was dependent upon a correct interpretation of the provisions of s141(4) of the 2008 Act.

 

  • That the Learned Trial Judge erred in her interpretation of the word ‘misappropriation’ for the purposes of the 2000 Act.

 

  • That the Learned trial judge erred in law in failing to make a specific finding of fact on whether the Government was deprived of funds or not. She simply concluded that there was a plan to deprive the government of funds. Deprivation is an essential element of the actus reus of the offence and the absence of proof of deprivation leaves an essential element of the actus reus unproven.

 

  • That there was no evidence to support the findings of the Learned Trial Judge that the Government of Sierra Leone was deprived of funds to which it was legitimately entitled either by the appellant or by some other person, which would evidently be a basis for a finding of guilt, It is further submitted that the Government was not deprived of funds to which it was entitled on the basis that;

 

  • No forensic audit was carried out to ascertain whether the government was deprived for funds;

 

  • The Government only became legitimately entitled to funds recorded on the court file in accordance with s4 of the Courts Act 1965;

 

  • There were NRA receipts on the court files which showed that the government was not deprived of funds to which it was entitled and on the contrary it received what it was legitimately entitled to, Save for the files which did not disclose evidence of funds having being paid to the NRA by PW1.

 

 

  • The Learned trial judge erred in allowing an application for PW1 to be treated as a protected witness on two grounds:

 

  • There were no provisions in the 2000 Act for PW1 to be treated as a protected witness;
  • The application was made pursuant to the 2008 Act in proceedings that ought to have been conducted in all respects under the provisions of the 2000 Act and ought not to have been entertained on the basis that the matter was not being proceeded with pursuant the 2008 Act, and to do so was materially unfair as it provided a cloak for PW1 thereby providing a shield for the true basis of the credibility of his evidence; (see page 52 lines 13-15), page 53 lines 1-6)
  • PW1 was clearly an accomplice and care and caution ought to have been exercised in relation to his evidence. Further the learned judge misdirected herself and reached a perverse finding that at no stage of the process was PW1 treated as a suspect. At page 204 lines 19-24 the learned judge clearly misdirected itself in her conclusions. PW1 himself told the court in evidence that he was detained by the ACC for 11 days and investigated. (See page 62 lines 4-12) It is perverse to suggest that a person who was detained for 11 days was never considered a suspect and the assertion by the prosecution in their closing address was false and materially misleading. See page 122 lines 21-23. Further the prosecution at page 122 line 23 clearly conceded that if PW1 was a suspect, the case of Beck was applicable and caution had to be had by the trial judge. It is submitted that the evidence of PW1 himself is clear evidence of his status as a suspect and the failure by the trial judge to approach his evidence with caution is a material misdirection.

 

  • The Learned Trial Judge erred in equating the official records of the Court with the records of the police files as authentic and reliable evidence of official court proceedings which assert facts upon which reliance can be placed and thereby proceeded to conclude there was a disparity between the two sets of documents. This error materially affected the outcome of the trial in that;
  • The police records are not official documents from which comparison with court records could be made as to their authenticity.
  • The evidence contained in the police files were admitted by the prosecution as evidence of the truth of their contents which amounts to inadmissible hearsay evidence. She further erred in admitting the evidence of police files for the truth of their contents. It is submitted that the prosecution adduced the police files for the truth of their contents and the said police files in question were inadmissible hearsay and ought not to have been admitted for the truth of their contents, in that:
  • There was no evidence adduced in court to show the author of the records in question, contained in the police files. PW3 clearly stated in evidence that he did not write all the records on the police files and his other prosecutors did but he could not identify who wrote the figures on those files. (PW3 page 73 lines 1-2)
  • There was no evidence before the court to demonstrate the fact that the notes were taken down contemporaneously (and by whom).
  • In the absence of the maker of those records in the police files, the learned Judge fell into error in admitting them for the truth of their contents.
  • There was no evidence of the legality of such documents and how they had been adduced before the court and how the information contained in them had been obtained.
  • The admission of such evidence did not fall within the exception to the any known rules on hearsay evidence.
  • The learned judge erred in her conclusions that the evidence of PW3 to PW14 amounted to corroboration of the evidence of PW1.          The Honourable Court is requested to review of the evidence of the       said witnesses and the inevitable conclusion is the evidence of        those witnesses differ in material respects in terms of establishing           guilt and in any event are exculpatory of the appellant.
  • The learned trial judge failed to carry out a proper balancing exercise of the evidence adduced in the trial in order to reach a       reasoned conclusion. She failed to assess the evidence on a count     by count basis in a bid to discover whether the prosecution had       adduced sufficient evidence on each count to justify a conviction      on each count. As both the tribunal of fact and law, she ought to    have given equal weight to the evidence adduced by the defence          and where she chose to reject the evidence given, she ought to have    given reasons for rejecting the same on the basis that:
  • Having concluded that the appellant lied in his defence, there were no findings of fact to show what lies the appellant had told and how these lies, if shown, were told out of a realisation of guilt as required by R v LUCAS.
  • An appellate court is left in the dark as to what relevant matters the trial judge took into account in reaching her conclusions and whether any irrelevant matters formed the basis of her conclusions.
  • The prosecution’s case taken at its highest cannot support the conclusions of the Learned Trial Judge as to guilt for the reasons    set out at ground four of the grounds of appeal.

See the defence closing arguments page 132-167.

THE FINDINGS OF THE LEARNED TRIAL JUDGE THAT FORMED THE BASIS OF THE CONCLUSIONS ON THE ISSUE OF GUILT ARE PERVERSE AND CANNOT BE SUPPORTED HAVING REGARD TO THE EVIDENCE.

  • It is submitted that the crux of the reasoning supporting the findings of the trial judge is contained in pages 202-204 of the judgement of the court,   The basis of those conclusions the          appellant contends are perverse in that:
    1. The trial judge made credibility findings in favour of witnesses in the case without there being any evidential basis to support those findings. In the case of PW1 the basis for the credibility findings are perverse notwithstanding the fact that the trial judge failed to explain why she found him credible. This honourable court is referred to the evidence of PW1 himself at page 55 lines 5-10. The evidence of PW1 is even more perverse when his evidence at page 55 lines 12-17. Further in relation to exhibit A15 PW1’s evidence is even more perverse as there are no record of proceedings evidencing the fact that the matter was ever heard by the court. CRUCIALLY if PW1 is to be believed and the entire prosecution case is to be believed, PW1 and 3 were in court at all material time but most importantly PW3 contrary to the evidence of PW1 and other witnesses stated he had never seen monies being given to any Magistrate (let alone the appellant in all his 17 years as a police officer. (See page 73 lines 4-7). This is in direct contrast to the evidence of PW4 who claimed that after his uncle was fined he paid the money to PW1 who passed the money over to the appellant in open court
    2. The evidence of PW4-14 calls into question the findings of the trial judge in particular the evidence of PW13 who testified that he did not understand the language spoken in the court or how much he was fined. See page 82 lines 20-22. A common thread exists between the evidence of PW4 -14. Almost all of them were never issued receipts by PW1 and in cases where receipts were issued, they were only temporary receipts with no official receipts issued
    3. This honourable court is drawn to the fact that the learned judge failed to record that all these witnesses who testified (PW4-14) spoke through interpreters. None of them spoke a word of English. It is difficult to understand the trial judges conclusions that they how they understood the pronouncements in court when by their own admissions they did not understand English. Similarly PW5 when challenged that he was in court whilst evidence was being led clearly stated that he does not understand English and did not understand the proceedings yet he was able to understand English when he was fined. (See page 75 lines 1-5) The learned judge noted the issue yet proceeded to make positive credibility findings based on the fact that this witnesses understood English and hence they knew what they had to pay.
    4. This Honourable Court’s attention is further drawn to the evidence of PW4 – 14. PW4 claimed he was negotiating with PW1 as to the amount of fine to pay notwithstanding the fact that he knew the amount of fine to pay from the pronouncement. PW5 corroborates the evidence of PW4 in like manner. Interestingly PW5 stated the court was over when the fine was paid yet PW4 claimed the appellant was still sitting in court when the fine was paid to PW1 and the money handed over to the appellant by
    5. PW6 testified that they had lawyers and none of the lawyers were ever called by the prosecution to corroborate the amounts their clients were fined.
    6. PW7 Testified that he paid to monies to ‘one of the people sitting in front of the court’ It was clear from his evidence that he could not convincingly say he had paid to PW1. If he did not pay the fine to PW1 there is a significant doubt as to the safety of the conviction on count 16 and it is difficult to understand the basis of the learned judge’s conclusion that the appellant was guilty on this count on the basis that PW1 was a conduit for the appellant’s actions. Crucially when cross examined, the witness confirmed that he had challenged the ACC about the accuracy of his statement.

See page 77 lines 25-28 and page 78 lines 1-2

See Exhibit D2 ON page 424 lines 10-14

  1. PW8 testified that he was unaware who the moneys were paid to but claimed the appellant told him how much to pay notwithstanding the fact that he could not understand English. In cross examination the witness stated he was heartbroken and could not remember anything. See page 79 lines 4-6
  2. PW9 testified that he paid the fine to workmen in the court whilst the appellant was in court sitting in his chair. Under cross examination, the witness admitted he was he was sitting outside of the court when the fine was pronounced, but yet he was able to hear from outside the court room and most importantly he did not understand nor speak English but yet he claimed he was able to hear and understand. The evidence of this witness is frankly incredible and calls into serious questions the conclusions of the trial judge.

See page 79 lines 21-30 and page 80

  1. PW10 testified that he asked how to pay he was directed to the PW1 by the police and the police and PW1 were in consultation paid the fine to PW1 and police officers who were present.
  2. PW11 Testified that he only had 200.000 and it appears he tried to negotiate the fine with PW1 who told him if he did not have 250,000 there would be no mercy until the full Le250,000 was paid. He was not issued with a receipt.
  3. PW12 testified he paid his fine to PW1 but was not issued with a receipt.
  4. PW13 testified that he did to know how much he was fined because he did not understand the language or the amount of the fine.
  5. PW14 Testified that he was fined Le200,000 and he paid the money to PW1 In re- examination, he claimed to have been fined 200,000 notwithstanding the evidence of PW3 that he was fined Le150,000.

See page 83 lines 19-20

It is of some significance that the trial judge misdirected herself significantly in holding that PW4-14 ‘understood’ what they had to pay from the pronouncement made by the appellant notwithstanding the fact that the pronouncements were in English which they neither spoke nor understood.

                        See page   202 lines 16-29

  • The Trial Judge made material a misdirection in her ruling in which was arguably significant in leading the trial judge to        erroneously conclude that PW1 was a credible witness. PW1 in    evidence in relation to exhibit A9 claimed the file was endorsed by       the appellant for Le 50000 but he could not recall what was      pronounced but then went on to state categorically that whatever is      pronounced is being written down by the police. Counsel for the    appellant objected but the trial judge admitted the evidence by         ruling it was admissible evidence. It is submitted that this was a          material misdirection in that:
    1. The evidence was clearly inadmissible as PW1 had no way of knowing whether the police did write what was pronounced or whatever was recorded by the police was accurate as he had no knowledge of what was contained in the police files; (See page 143 lines 16-30)
    2. The evidence was not credible as PW3 subsequently admitted that he did not write the contents of exhibits B1-15 and had no idea of the author or authors and most importantly he could not confirm whether they were contemporaneous;
    3. The evidence was clearly designed to bolster the prosecution version of events, and demonstrated that PW1’s evidence ought to have been treated with caution on account of his evidence being clearly tainted by an improper motive.
    4. Most importantly it led the trial judge to misdirect herself in holding that cumulatively, the police prosecution files and the evidence of witnesses (PW1-14) albeit riddled with inconsistencies, formed the basis of the prosecution’s case was strong corroborative evidence against the appellant and as relied upon by the prosecution.

See page 184 lines 25-30

Page 185 lines 1-11

Page 201 lines 13-19

Page 204 lines 25-29

Further in relation to page 204 lines 25-29, the conclusions of the trial judge had the effect of reversing the burden and standard of proof rom the prosecution to the defence and therefore amounting to a material misdirection

 

 

  • The Learned trial Judge erred in allowing the prosecution to call Monfred Sesay as a rebuttal witness. The Criminal Procedure Act   1965 s196 provides the basis for the calling of evidence of rebuttal.         The calling of Monfred Sesay was simply to remedy obvious        defects in the prosecution’s case.

See R v Day 27 Cr App R 168 rebuttal evidence must comply with the ex improvisio principle and where evidence did not arise ex improvisio and was simply called to remedy obvious defects in the prosecution’s case such a conviction would ultimately be quashed”.

 

  • That the sentence imposed by the Learned trial Judge was manifestly excessive for the reasons set out in ground 5 of the        grounds of appeal, having regard to the facts of the case and the      principles of sentencing in various decided cases:

See: R v Newman and Newman 1 Cr.App.R. (S) 252 CA

   R v Smith (David Thomas), 9 Cr.App.R.(S) 475 CA

   R v Blake [1962] QBD

R v Hussain (Mohammed) [2005] CA

R v Oosthuizen [2005] CA

R v Brewster (1980) CA

 

 

  • It is submitted that the sentence imposed by the Learned trial Judge cannot be justified in that:

 

  • The Learned Trial Judge did not indicate any basis upon which the sentence was passed.
  • The Learned trial Judge refused to listen to counsel for the appellant’s application under s230 of the Criminal Procedure Act 1965 or was otherwise indifferent to the application being made
  • The Learned Trial Judge indicated before the application was made that she was not going to grant it but counsel may proceed for what it was worth.
  • This court is requested to issue guidelines applicable for sentencing in criminal proceedings in order to avoid massive disparity in        sentences in order to ensure that:

 

  1. Judges and Magistrates can derive assistance in deciding the appropriate sentence for a criminal offence.
  2. The sentence imposed on an offender should reflect the crime they have committed and be proportionate to the seriousness of the offence.
  3. The guidelines may provide guidance on factors the court should take into account that may affect the sentence given.

 

  1. This honourable court is requested to allow this appeal in its entirety on the basis of the arguments advanced above and on the basis that it has been demonstrated that the errors of the trial judge were substantial and formed not only a part of the basis of the decision complained of but the entire decision and that it resulted in a miscarriage of justice.

 

See: The State v Matthew Mustapha Mannah and Mohamed Sylvanus Koroma Cr App 31 and 32 2006 Per Hamilton JA (as he was then)

 

Moreover to reverse the decision of the trial court which is based on its assessment of the quality and credibility of witnesses who testifies before it, the appellate court must not only entertain doubts that the decision of the trial court is right but must also be convinced that it is wrong…. It must be demonstrated that the error was substantial and formed part of the basis of the decision complained of and that it resulted in a miscarriage of justice…. With due respect to the Learned Trial judge, the contradictions ought to have been treated seriatim and pointed out in some detail by the Learned trial judge and see whether or not they ought to have contradictions whether minor or not to see whether or not they go to the material issues of the case alleged against the appellant since a material point in the prosecution’s case does create a doubt in their case that the appellants are entitled to benefit from. The Learned trial judge ought to have considered them however minor before dismissing them as not being material ones in the prosecution’s case. However it must be re-emphasised that it is not every minor contradictions that is fatal to the prosecution’s case but it must be pointed out clearly especially in a case of this nature where the Learned Trial Judge is both judge of law and fact”

6th June 2014

Appeal and judgement File

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