INT HE HIGH COURT OF SIERRA LEONE

THE STATE

VS

LUSENI JOE BAUN ALLIEU BADARA KAMASON DESMOND COLE MOHAMED ALIE BANGURA S. JAMIRU Esq for 1st Accused

C.F. MARGAI Esq (with him, C. J.PEACOCK Esq) for 2nd Accused C. J. PEACOCK Esq and M.S. BANGURA Esq for 3rd Accused C.F. EDWARDS Esq for 4th Accused

RULING ON NO LEGAL AND ON NO-CASE SUBMISSION MADE BY C.F. MARGAI ESQ ON BEHALF OF ALLIEU BADARA KAMASON - 2nd ACCUSED AND AS ADOPTED BY CJ. PEACOCK ESQ ON BEHALF OF THE 3rd ACCUSED

1. On 27th October,2008, C.F. MARGAI Esq, Counsel for the 2nd Accused made a No-Case Submission, and a Legal Submission on behalf of the 2nd Accused. The Legal Submission was that the Indictment under which the 2nd Accused has been charged has no validity, or does not confer jurisdiction on this Court on the basis that it is brought in the name of the State, rather than in the name of the Attorney-General and Minister of Justice, as required by Section 64(3) of the Constitution of Sierra Leone,1991. He submits that the fact that Indictments have been so laid in the past, is not sufficient reason for the continuation of the practice, and that for this reason, the Indictment in this case must be quashed. CJ. PEACOCK Esq who now appears with him for the 2nd Accused, and with M.S. BANGURA Esq for the 3rd Accused, adopted his arguments in this respect, and in the other respects stated below in relation to the No-Case Submission.

2. In support of his submission, MR MARGAI cited the civil case of SOCFIN CONSULTANTS SERVICES &ANOR v SAMUEL ASUAMAH [2002] 39

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WRN 61 at pages 71-72, head-notes 3-7, a case decided by the Calabar Division of the Court of Appeal of Nigeria. I agree entirely with the Judgment of EDOZIE, JCA at page 87 lines 15-24 where he says, inter alia, that" by jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or take cognisance of matters presented in a formal way for its decision......Jurisdiction is a threshold

issue in that a Court must have jurisdiction before it can enter into the cause or matter at all or before it can make a binding order in it...it is settled law that if a Court has no jurisdiction to hear or determine a cause or matter, anything done in such want of jurisdiction is a nullity..." Indeed, MR MARGAI did not have to go so far away to find authority for his submission. The Court of Appeal's decision in LANSANA v R [1970-71] ALR SL 186 is sufficient authority for this proposition. There, it was stated among other things, that the insufficiency of the Fiat required to institute a prosecution for the offence of Treason, and Duplicity in the Counts of the Indictment, deprived the trial Court of jurisdiction to try the Appellants.

3. I now turn to Section 64(3) of the Constitution of Sierra Leone,1991. It states thatu All of fences prosecuted in the name of the Republic of Sierra Leone shall be at the suit of the Attorney-general and Minister of Justice or some other person authorised by him in accordance with any law governing the same" It is clear in the wording of this provision that the prosecution has to be brought in the name of the State, not in the name of the Attorney-General and Minister of Justice. It must be brought at his suit or some other person authorised by him. On 17 July,2008 the AG&MJ signed the Indictment under which the 2nd Accused and the 3rd Accused persons are charged, and filed the same in

2 this Court's Registry, thereby instituting the present prosecution. Sections 2 and 130 of the Criminal Procedure Act,1965 respectively, and Section 4 of the Interpretation Act,1971 confer power on him, as a Law Officer, to sign Indictments. Additionally, Sections 37 and 38 of the Anti-Corruption Act,2000 as amended empowers him to prefer an Indictment in this Court without a previous committal, and such Indictment is deemed to have been preferred pursuant to Consent given by a Judge in writing. This is the Indictment upon which the 2nd Accused and the 3rd Accused, and their Co-Accused are being tried. Also, on the

same day, in exercise of the powers conferred on him by the said Section 64(3) and Section 48 of the Anti-Corruption Act,2000 as amended, respectively, the AG&MJ gave his Fiat to MR MANTSEBO and two others to prosecute this Indictment, in this Court.

4.  Section 66(4) of the Constitution, empowers the DPP to institute and undertake criminal prosecutions. Subsection (6) thereof stipulates that in the exercise of these powers, the DPP is subject to the Special or General Directions of the AG&MJ. Subsection (7) thereof stipulates that the powers conferred on the AG&MJ by Section 66 shall be vested in him to the exclusion of any other person or authority, provided that when a prosecution has been instituted by some other person or authority, that person or authority is free to withdraw those proceedings before the person against whom it has been brought, has been charged to Court. It is this Subsection, together with Sections 16,17 and 18 of the CPA 1965 which empowers the private individual to bring what is referred to as a private prosecution in these Courts. A criminal prosecution brought at the suit of a private individual, is brought in the name of that individual. Likewise, where there is Public prosecution, as against a private prosecution , in which the State is the Complainant, it is only right that the prosecution is brought in the name of the State. The case of WILLIAMS v R [1950-56] ALR SL 321 H.C. supplied after the close of arguments by C.J. PEACOCK Esq, bears me out. There, LUKE, Ag. J said inter alia, at pages 323 L38 to 324 L8, citing with approval the dicta of BEOKU-BETTS, Ag CJ. in R v MANSOUR Sup Ct Cr App No.15/1949 that " while on this matter it seems relevant to refer to when the title of cases of a criminal or quasi-criminal nature are entered as 'REX'.... the title REX against a party should only be used when the information is on behalf of the King or Government.......where a criminal summons is taken on the information of a private individual, or the prosecution is at the instance of a private person, the title should be in the name of the individual against the defendant."

5.  The other case provided by him, the civil case of DIRECTOR OF SUPPLIES v JALLOH AND OTHERS [1937-49] ALR SL 380 H.C does not help him. That case decides that the proper person to bring an action on behalf of the Crown, was the then Attorney-General. It does not state that the action should be brought in the name of the Attorney-General

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and Minister of Justice, as does for instance, the State Proceedings Act,2000.

6. The jurisprudential nature of the State was amply explained by COLE,CJ in the case of THE STATE v DAISY VENN in the Supreme Court Sup Ct App 2/77 and I need not here dilate on it. I am satisfied, as I indicated to MR MARGAI, at the commencement of this case, that this prosecution can be brought in the name of the State, so long as it is brought at the suit of the AG&MJ, and I SO HOLD. I hold also, that this Court has jurisdiction to try the 2nd Accused and the 3rd Accused and their Co-Accused on the charges laid in the Indictment. It follows therefore, that this Court is entitled to look into the merits of the case presented by the prosecution.

7. In his No-Case submission, MR MARGAI, argued that the prosecution has a duty to prove the case against the accused persorrbeyond all reasonable doubt. That burden has to be discharged before this. Court can return a verdict on the guilt or otherwise of the 2nd Accused. It is nor however, the burden imposed on the prosecution at the close of its case. At this stage, the true test to my mind, is that set out by LORD LANE, LCJ in the Court of Appeal Criminal Division in GALBRAITH [1981] 1 WLR 1039 at 1042B-D'. " ....If there is no evidence that the crime alleged has been committed by the Defendant, there is no difficulty. The Judge will of course stop the case.....where the Judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.....where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the Judge should allow the matter to be tried by the jury..."

8.  The Learned Editors of BLACKSTONE'S CRIMINAL PRACTICE 2002 Edition have succinctly summarised the position at paragraph D14-27 page 1431. "if there is no evidence to prove an essential element of the offence a submission must obviously succeed; if there is some evidence which - taken at face value - establishes each essential element, then the

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case should normally be left to the jury. The Judge does however, have a residual duty to consider whether the evidence is inherently weak or tenuous...." Our Court of Appeal in a Magisterial Appeal, SIAKA STEVENS & ANOR v COMMISSIONER OF POLICE [1960-61] Vol 1 SLLR 208 at 212 per AMES,P has held that where there is just a mere scintilla of evidence, the accused person should be acquitted on a No -Case Submission. Here, I am of the view that at the close of the prosecution's case, there is more than a scintilla of evidence probative of the matters which MR MARGAI has enumerated the prosecution has to prove, to wit, that the accused person was an employee of the NRA; that the sum of Le3,713,150 was revenue due the Government of Sierra Leone; that the 2nd Accused demanded payment in the sum of Le8m as assessed Customs Duty; that the 2nd Accused caused to be issued an official receipt short of Le8m in the sum of Le3,713,150; and that the NRA was deprived of the said sum.

9. Though I am trying this case as a Judge alone, I have taken into consideration, and I consider myself bound by the guidelines and principles set out in the two cases cited. My assessment of the case so far, is that, in its totality, the prosecution has led evidence to establish the elements of the offence with which the 2nd Accused and the 3rd Accused are charged, and which could be, at this stage, probative of each Accused person's guilt. Taken at its highest, it is evidence upon which a jury properly directed could convict. Whether a jury properly directed would certainly convict, is matter which I have to decide at the end of the case, and not at this stage.

10. MR MARGAI also argued that Count 3 of the Indictment, in which the 2nd Accused is charged is bad for uncertainty; and also probably for Duplicity

or Quasi-Duplicity. As to Duplicity, it is a matter of form, and not of evidence. The charge in Count 3 as it stands does not charge the 2nd Accused with committing two different offences as was the case in LANSANA v R. The charge is not therefore bad for Duplicity. As to Quasi-Duplicity, the Court is permitted to look at the evidence to see whether it points to the commission of two separate and distinct offences; or to whether it points to the commission of two identical offences committed on separate occasions. I am satisfied that the

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evidence in this case points to the commission of one offence only, on the date laid in the Indictment, i.e. 6 March,2008.

11.I now turn to the argument that the Charge is bad for uncertainty. MR MARGAI argued that the prosecution was wrong to have charged both the 2nd and the 3rd Accused in Count 3. They should have been charged separately. He says that charging them together in the same Count for committing the same offence, is bad for Uncertainty, in that it is not clear whom it is the prosecution actually alleges committed the offence. I do not think the charge is bad for Uncertainty. Section 52(2) CPA,1965 provides that" the following persons shall be charged and tried together, namely, (a) persons accused of the same offence committed in the course of the same transaction; (b) persons accused of an offence and persons accused of aiding and abetting or being an accessory to or of attempting to commit such offence.* BLACKSTONE (2002) points out at paragraph D10.30 at page 1287 that"All parties to a joint offence may be indicted for it in a single count. In drafting the count there is no need to distinguish between principal offenders and secondary parties" (Section 8 of the Accessories and Abettors Act,1861 which applies to our jurisdiction is cited in support of this proposition). The passage goes on to state that "nor need the count expressly allege that the unlawful acts of each accused were done in aid of the others - that allegation is implicit in the drafting of a single count....however, notwithstanding that the accused have been charged in a single count, the jury may convict all or any of them on the basis that they committed the offence charged independently of the others!' The case of DPP v MERRIMAN [1973] AC 584 HL is cited in support of this proposition. There, LORD DIPLOCK is reported to have said at page 607F: nwhen two or more Defendants are charged in the same count of an Indictment with any offence which men can help one another to commit, it is sufficient to support a conviction against any and each of them to prove either that he himself did a physical act which is an essential ingredient of the offence charged or that he helped another to do such an act, and, in doing the act or in helping the other defendant to do it, he himself had the necessary criminal intent."

12. It follows that two persons could be charged in the same Count in an Indictment, and tried together on the basis that they committed the

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offence together, or that one acted in aid of the other. It follows also, that both 2nd and 3rd accused were properly charged in Count 3 of the Indictment.

13. The last point raised by MR MARGAI was that of the position in law in Sierra Leone of evidence elicited from an agent provocateur. Into this category, MR MARGAI, I presume, includes, PW1,2,,5&6 respectively. PW1 probably because he was involved in the handing over of the sum of LE8m; PW2 because the consignment in question belonged to her, and she consented to the 'sting' operation; and PW5&6 respectively, because they activated the 'sting' operation. He cited in support of his argument, ARCHBOLD 2008 Edition paragraphs 4-63 - 4-64 at pages 380 to 382. In that citation, the case of R v LOOSELEY; A-G'S REF (NO.3) of 2000 [2002] 1 Cr App R 92 HL is also cited. There, the House of Lords laid down the ground rules for admission of such evidence. Their speeches were grounded in the Human Rights legislation imported into English Law by virtue of the UK's membership of the European Union, and the application of Human Rights Law by the European Court of Human Rights in the case of TEIXEIRA DE CASTRO v PORTUGAL 28 E.H.R.R 101. What is clear is that evidence of an agent provocateur is not excluded in English Law unless for instance, it amounts to an abuse of process generally, or contrary to the provisions of Section 78 of PACE,1984 or to the UK Human Rights Act. It is admissible, subject to the guidelines laid down by the House of Lords. Subject to UK Human Rights legislation and PACE, the position as stated in SANG [1979] 2AII ER 1222 HL appears to hold to date. There is no general duty, at Common Law, imposed on a Trial Judge to exclude evidence which may have been obtained through an agent provocateur, or by entrapment. The Trial Judge always retains a residual authority to exclude evidence, which though not ordinarily inadmissible under one of the exclusionary rules of the Law of evidence, but which ought to be excluded on the grounds of fairness and prejudice to the accused. It follows that I cannot exclude from consideration, nor ought I to have excluded at the relevant time, the evidence of any of the witnesses I have named as possibly falling within this description.

14. In the result, MR MARGAI's submissions fail. MR PEACOCK'S adoption of his submission also finds no favour with this Court. The 2nd and the 3rd

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Accused have to be put to their election in accordance with Section 194 CPA,1965

Justice of Appeal 5 November,2008.

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