IN THE HIGH COURT OF SIERRA LEONE

Holden at Freetown

Criminal Jurisdiction

STATE

V

1. SEYON JEFFREY

2. FODAY KALLON 3. VARNEY KALLON

4. LAMIN MANSARAY

Coram                          Shuster J

Mr. Sowa for the Prosecution

Mr. Edwards for the                 1st Defendant

Mr. O Williams for the              4th defendant

Judgment delivered 7th June 2005

JUDGMENT

1. The defendants are charged on an indictment, dated 13th February 2005; signed by State Counsel on that date. The accused made their first appearance before the High Court on Monday 7th February 2005. The trial commenced on Monday 21st February 2005.

2. The counts contained in the Indictment allege, that

COUNT ONE.

the four accused, conspired together that on the 1st day of October 2003 at Freetown in the Western Area of Sierra Leone, and on divers days between that date and the 15th day of October 2003 they conspired together, and with other persons unknown to commit a felony to wit Robbery with aggravation against Samuel Kofi Woods.

COUNT TWO

FODAY KALLON AND VARNEY KALLON on the 15th day of October 2003 at Freetown in the Western Area of the Republic of Sierra Leone, being armed with a screw driver, an axe and a pistol robbed Samuel Kofi

Woods of one Gateway Silver lap top Computer valued at $2,227/- [two thousand two hundred and twenty seven United States Dollars} equivalent to Le 5,448,000.00 one Black Philips Pax Phone valued at $300.00 {three hundred US Dollars equivalent to Le 720,000.00 one silver coloured Motorola cell phone valued at $40.00 [forty US Dollars [ninety six thousand Leone} one black swatch model wrist watch valued at $40.00 [forty US dollars the equivalent of ninety six thousand Leones and other items all to the total value of 5,330.00 US dollars equivalent to Leone 18,250.000.00 property of the Foundation for International Dignity [FIND] whilst in the custody of Samuel Kofi Woods

3. On 21st February 2005 the prosecution applied for trial by Judge alone in accordance with section 144[2] of the Criminal Procedure Act Number 32 of 1965. It was agreed trial would be by Judge Alone.

PROSECUTION CASE. THE FACTS.

4. The Prosecution alleges the four accused conspired together with other persons to commit a Felony, that is an aggravated Robbery in October 2003. The prosecution say the accused conspired with persons still at large to commit a robbery against a Mr. Kofi Woods who was the Regional Representative of a International NGO known as the Foundation for International Dignity {FINE} with offices at 35A Wellington Street Freetown. The second count relates to the actual commission of the robbery on the 15th October 2003 when it is said the second and third accused with others [still at large] who were armed with weapons as defined in the indictment at 07.00am on that date entered the premises of FINE and held at gunpoint members of staff, who they tied up with tape. They stole items as depicted in the indictment. The prosecution says the crime was commissioned by the 1st and 4th accused. The trial commenced and evidence was called. It was apparent during the trial with the reluctance of witnesses named on the back of the indictment and a reluctance of the NGO FINE'S employees to return to Sierra Leone from America, to testify that the case against the First and Fourth accused could not be proved to the satisfaction of the court.

5. On the 3rd June 2005 the Prosecution asked the court to dismiss count 6ne against the first and fourth accused; they were acquitted and discharged with the file marked not to proceeded against; without the leave of this Court or the Court of Appeal. The prosecution closed its case against the second and third accused on that date, 3rd June 2005. The accused were told of their rights they each elected to make a statement from the well of the court.

6. Conspiracy, Just as it is a criminal Offence to steal, to rob, or commit murder so is it a criminal offence for two or more persons to agree with one another to commit that offence. An agreement to commit an offence is called a conspiracy and that is the offence with which the accused are charged before this court. Before I can convict the accused of the offence I must be sure,

 [a] That there was in fact an agreement between two or more persons to commit the crime in question, and

[b] That the defendants whose case I am trying was a party to that agreement in the sense that

[ii] He agreed with one or more of the other persons referred to in the count, that the crime should be committed and

[ii] At the time of agreeing to this, he intended that they should carry it out. That in essence is the crime of conspiracy

7. Robbery; Robbery is an aggravated species of larceny and is defined as "felonious taking of money or goods of any value from the person of another, or in his presence, against his will, by violence, or putting him in fear.

Every person who [a] being armed with any offensive weapon or instrument, or being together with one other person, or more robs, or assaults with intent to rob, any person or [b] robs any person and at the time or immediately before or immediately after such robbery, uses any personal violence to any person; shall be guilty of felony and on conviction thereof shall be liable to.................suffer death.

8. Joint Responsibility The prosecutions case is that the defendants committed this crime together with others still at large.. Where a criminal offence is committed by two or more persons, each of them may play a different part, but if they are in it together as part of a joint plan or an agreement then they are in it together as part of a joint plan or agreement to commit same, then they are each guilty. The essence of joint responsibility for a criminal offence is that each defendant shared the intention to commit the offence, and took some part in it. However great or small, so as to achieve that aim. My approach must be looking at the case as a whole, to see whether each accused took some part in the commission of this robbery on the date in question at the premises of FINE.

9. In accordance with established traditions, I remind myself the Prosecution brings this case, they must prove beyond any reasonable doubt so that I am sure the accused committed these offences. The evidence needs to be considered separately for each of the counts shown in the indictment. The accused do not have to prove anything, as they are innocent until they are proven guilty.

I have considered and apply the following well known case, widely used within the Commonwealth, in this my judgment.

R v Barrick 1985 7 CR APR [s] [test for Breach of Trust]. R v Ghosh 75 CR A 154 [test for Dishonesty] R v Gomez 1993 1 ALL ER page 1 [the test for appropriation/misappropriation of property]

EVIDENCE.

10. The prosecution case is, and the evidence reveals; the two accused with several other persons still at large, entered the NGO office known as [FINE] at 35A Wellington Street, Freetown, on the 15th October 2003 at approximately 07.30 hours. They are said to have robbed the occupants of property as detailed in the indictment. They were reportedly armed with weapons at the time of committing the alleged offence. The prosecution says the robbers tied up the occupants and stole a large amount of property of high value and which has not been recovered. They loaded the stolen property into a vehicle and made good their escape, spending approximately six minutes on the premises. Weapons left at the scene of the robbery have been recovered by the police, and are in evidence

11. The two accused stated in their police cautionary interviews they attended the offices of FINE at a later date in an effort to obtain payment for their part in the robbery, from the fourth accused. Payment was to have been in US dollars. They did not get what they wanted. They spoke to Koffie Woods the complainant, and gave him certain information. They were then arrested by the police at the FINE office and taken to the police station where they were detained.

12. Both accused admitted in their cautionary interviews they were willing participants in this robbery with other persons who are still at large. They implicated the first and fourth accused, but due to a lack of evidence and the fact the complainants would not return to Freetown to testify in this case from the United States of America, the First and fourth accused were acquitted and discharged.

13. Conclusion.

I have carefully considered this case in the light of all the evidence before me. Looking at the cautionary statements of both accused, which I find as a fact were obtained voluntarily in the true sense of the word; I can have no hesitation whatsoever in convicting both the second and third accused of the crime of aggravated robbery as charged in count Number 2 on the Indictment. Both accused admit to being present at the scene of the robbery on the date in question. Each described in detail their movements, and confirms the use of weapons by their co participants. They say property was loaded up, and removed by the same car in which they traveled to the scene of the robbery. Both accused say the occupants of FINE were tied up in an inner office during the commission of this offence. The third accused also admits possession of a screwdriver, found by the police at the scene, together with an axe, and other material used to tie up the witnesses in the case, with material used to disguise the appearance of the participants in this crime, and which have all been produced in evidence. The offence of aggravated robbery is made out. This is a strong case. Te prosecution

has proved its case against these two accused beyond any reasonable doubt so that I am sure they both participated voluntarily and for gain; or payment; by taking part in this crime. I convict them both of the crime of Aggravated Robbery. A voluntary confession is strong evidence on its own to convict. I accept the confessions in their entirety, and rule they were obtained voluntary. To their credit the accused were described as being co-operative and compliant by the police, both on their arrest and during interview. The accused's cautionary interviews speak for themselves to that effect.

14. I find as a fact both accused were present and willing participants to this serious crime of Aggravated Robbery. Each accused will however be given full credit for their early guilty plea to the crime of Conspiracy to commit a felony.

ShusterJ Judge of the High Court

Freetown 7th June 2004