IN THE MATTER OF THE STATE

VS. OMRIE COLLIE AND OTHERS FRIDAY 6th     

 BEFORE THE HON. MRS. JUSTICE

JULY, 2007.                                    M. SEY J.

Case Called

All three Accused persons present Mr. O. V. Robbin-Mason with him C. J. Peacock and A. S. Allieu for the Stale R. B. Kowa for the accused persons.

RULING

When this case was called on the 29th day of June, 2007, Mr. O. V. Robbin-Mason, Director of Public Prosecution announced the they were ready to proceed with the trial but defence counsel. Mr. C. F. Margai, intervened stating that he had two applications to make the first was for the accused persons to be tried by a Judge alone and the second application was for bail.

In support of his application for trial by Judge alone defence counsel referred to the Treason and state Offences Act No.21 of 1963 amending Section 3 of Act No. 10 of 1963. It provides as follows:

"3. Section 3 of the Principal Act is hereby amended by the addition at the end thereof of the following new subsection: -

"(3) A person charged with the offence of treason shall, unless he himself elects to be tried by a judge alone, be tried in the Western Area with a jury or in the

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Provinces with assessors in accordance with the provisions of Sections 14, 15 and 16 of the Courts Act.

Section 14(1) of the Courts Act Cap 7 of 1946, which has now been repealed by Courts Act No. 31 of 1965, provided inter alia that.

"(1) Any person charged with a criminal offence at any sessions of the Supreme Court held in the Colony shall - (a) if such criminal offence is punished by death, be tried by the Court with a jury consisting of twelve men;----------"

I shall deal with these Sections later, but it is convenient now to turn to the submissions made by counsel for the accused persons in respect of the application for trial by a Judge alone Counsel submitted that such a trial would ensure a for trial especially knowing how polarised the Sierra Leonean Society is. Counsel further submitted that S. 3(1) of the Treason and State Offences Act No 10 of 1963 envisages a discretionary power vested in the Court to impose imprisonment or even a fine on conviction of treason. Section 3 (1) provides that

"3. A person is guilty of treason and shall on conviction be liable to suffer death who either within Sierra Leone or else where - (a) prepares or endeavours to overthrow the Government by unlawful means;"

I entirely agree with learned counsel's submission that this enactment confers a discretionary power on the trial judge or any court to impose an alternative penalty upon conviction for treason. It was so held in the case of Mohamed Sorie Fornah v. The State which was decided by the Sierra Leone Court of Appeal in 1975. Reference may also be

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made to the Gambia Court of Appeal judgment in Metta Camara v. The State dated 10th July, 1987 in which the court observed, obiter, that unlike in a murder case, it is not mandatory for the court to impose the death sentence upon a conviction for treason and that it is only permissive or discretionary for treason.

Pausing here for comment, in my view, the fact that the Treason and State Offences Act No. 10 of 1963 vouchsafes to this Court an undoubted discretion to impose an alternative penalty does not mean that the Court cannot impose the death penalty upon conviction for treason. The option is still available to the Court. It therefore follows, in my opinion, and I so hold , that since the Court can still impose the death penalty upon conviction for treason then the accused persons shall be tried by the Court with a jury consisting of twelve men. I had earlier on referred to the provisions of Section 14 (1) of the Courts Act Cap 7 of 1946 which has now been repealed but it is pertinent to note that the exact provisions have been reproduced in Section 142 of Act No 32 Criminal Procedure Act of 1965. It provides for the mode of trial and specifically states viz:

"Any person charged with a criminal offence at any session of the Supreme Court shall: -

(a) if such criminal offence is punishable by death be tried by the court with a jury consisting of twelve men or

(b)  if such criminal offence is not punishable by death be tried by the Court with a jury consisting of twelve men; unless: -

(i) such person shall have elected to be tried or shall have been ordered to be tried by the court with the aid of Assessors in accordance with the provisions of Section 144;

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Or

(ii) such person shall have elected or shall have been ordered to be tried by a Judge alone in accordance with the provisions of Sections 145 and 144 respectively".

Section 145 provides for trail by Judge alone on election of accused. It reads as follows:

" any person charged with a criminal offence not punishable by death may at the time of being committed or referred for trial by the Supreme Court, or at any time thereafter up to two clear days at least before the trial of such person, elect to be tried by a Judge alone and if any person so elects be shall be tried by a Judge alone instead of being tried by a Judge and Jury and in every such trial by a Judge alone, the Judge shall record in writing his decisions and reasons therefore"

Construing Section 145 literally, it is clear that the election of an accused for trial by Judge alone is only in respect of a criminal offence not punishable by death. Having held as aforesaid that this Court can still impose the death penalty upon conviction of the accused persons for treason, it follows therefore that I cannot grant defence counsel's application for the accused persons to be tried by Judge alone. I therefore refuse the first application.

In respect of the second application which is for bail, Counsel submitted that the presumption of innocence as highlighted in Section 23 (4) of the Constitution of Sierra Leone Act No.6 of 1991 will be negated if the liberty of the accused persons is curtailed by perpetual incarceration Counsel further submitted that bail has been granted in treasonable charges in Nigeria, Ghana, Swaziland, Malawi and Zimbabwe and that the most recent occurred on the 14th day of June 2007 when the Nigerian Supreme Court granted bail to Mujahid Asari Dokubo. in Abuja, who had been incarcerated since September 2005. Defence Counsel further submitted the accused persons before this Court were taken into custody on the 12th of January 2006 and have since being there.

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He said justice is obviously a two way street and it behoves the prosecution to expedite as best as is humanly possible trials of accused persons who have been brought before the court. Counsel further submitted that monetary compensation, if at the end of the day the accused persons be found not guilty, will not be adequate. He urged the Court to grant bail and he submitted finally that there is no way the accused persons, if granted bail, will evade justice.

In reply, Mr. O. V. Robbin-Mason submitted that as far as the second application, which is for bail, goes, the state is aware of the presumption of the accused persons' innocence as enshrined in Section 23(4) of the Constitution, Act No. 6 of 1991. He said this why they have been brought before a competent court of law for a determination of the issues raised. He further submitted that the ability of the Court to grant bail falls under Section 79 of the Criminal Procedure Act, No. 32 of 1965 and that it is an issue of the discretion of the Bench taking into account the circumstances of the particulars case. The learned DPP further submitted that defence counsel's reference to cases outside the jurisdiction is untenable and should not form any guide by which this court can exercise its discretion. It is DPP's further submission that the State has charged the accused persons with offences falling under the Treason and Slate Offences Act No 10 of 1963 as amended and the implication is that questions of State Security will arise. He submitted that this is an issue to be taken into consideration before exercise of the Court's discretion. The D. P. P. finally submitted that defence counsel's reference to the fact that the accused persons were taken into custody on the 12th of January 2006 seems to suggest that this matter has not been expedited. He invited the Court to see the records which, he submitted, will disclose that within a few weeks after the accused persons were arrested trial was commenced and substantial evidence led by P. W 1 and thereafter several objections and applications were raised and made not only before this Court but right up to the Supreme Court. He submitted that Counsel prosecuting on many occasions was in court ready and able to proceed but, unfortunately, due to the absence of defence counsel the State could not proceed: The D. P. P. finally urged the court not to grant bail because of the fact that

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defence counsel has not referred to any cases in this jurisdiction in which bail has been granted for treason In reply, Mr. C. F. Margai submitted that in respect of the authorities he cited, the Court is not bound by those decisions and they are only persuasive.

Let me say at once that even though the decision by the Court to grant bail is discretionary, like all judicial discretions, it should be exercised responsibly, judicially and judiciously. As Lord Mansfield C. J. held in R V Wilkes (1770) in Burr 2527 at page 2539 "Discretion when applied to a Court of justice, means sound  iscretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful; but legal and regular". In short, it shall be in accordance with due process of law.

Section 79 of the Criminal Procedure Act, No 32 of 1965 states in subsection (1) thereof that "a person charged with murder or treason shall not be admitted to bail except by a Judge". Clearly, the issue is a matter of the discretion of the Judge and in exercising that discretion certain factors have to be taken into consideration. As a general rule, the accused need not be granted bail if the court is satisfied that there are substantial grounds for believing that the accused, if released on bail, would -

(a) fail to surrender to custody, or

(b) commit an offence while on bail, or

(c) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.

In opposing the application for bail, the D. P. P. has argued that the State has charged the accused persons with offences falling under the Treason and State Offences Act No. 10 of 1963 (as amended) and the implication is that questions of State Security will arise if the accused persons are released on bail. Defence Counsel on the other hand has urged this court to depart from the practice in this jurisdiction of refusing bail and to follow the

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trend in other jurisdictions such as Nigeria, Ghana, Swaziland, Malawi and Zimbabwe where bail has been granted in treasonable charges.

Having carefully considered all the submissions made by both Mr. C. F. Margai and Mr. O. V. Robbin-Mason, and having taken all the circumstances of this case into consideration, I am satisfied that there are substantial grounds for believing that the accused persons, if released on bail, would interfere with witnesses or otherwise obstruct the course of justice, whether in relation to themselves or any other persons.

For all these reasons 1 have come to the conclusion that I should not exercise my discretion in granting bail. The application for bail is therefore refused.

I wish to take this opportunity of dealing with the issue of delay which is so glaring in this case. On perusing the file, I have observed that the very first appearance in this case was on the 9th day of February 2006 when the indictment was read and explained to the accused persons and the plea was thereafter taken. On the 13th day of February 2006 the prosecution opened their case and started leading evidence by calling P. W 1 Hassan Bangura. Subsequent to this date, there were 55 (Fifty-Five) adjournments recorded before the file was put before this court on the 22nd day of June 2007. Almost 18 months have been wasted on various applications and objections made and raised respectively by the accused persons and their Counsel. It cannot be too often emphasised, and I hereby stress, that justice delayed is justice denied.

I would as much as possible ask, that as from today's date all Counsel in this matter should be ready to proceed with this trial with all diligence and promptitude from day to day. It is in the interest of justice to do so and I am also mindful of the fact that we as judicial officers are constantly being reminded that justice must be dispensed fairly and as expediously as possible.

SGD: - HON. MRS. JUSTICE. M. SEY JUDGE. 5TH JULY 2007. cbk/jsm