S v ARCHILLA and Others ([node:field-casenumber]) [2009] SLHC 20 (16 March 2009);

















O.V. Robbin-Mason Esq, Ag DPP, & G Soyei Esq and Ms B Alhadi for the State C F Edwards Esq for 1st 13th and 14th Accused James Forna Sesay Esq for 2nd and 11th Accused S Jamiru Esq for 3rd Accused RSV Wright Esq for 4th Accused S K Koroma Esq for 5th 7th and 10th Accused A E Manly-Spain Esq (with him, G Thorlie Esq) for the 6th Accused M S Turay Esq for 8th, 9th 15th and 16th Accused E Ngakui Esq for 12th Accused M A Beloku Sesay Esq for 18th Accused


1. On Friday the 13th instant, the prosecution closed its case. Immediately thereafter, Defence Counsel indicated that they wished to make No-Case Submissions on behalf of their respective clients. Submissions were made by RSV WRIGHT Esq, on behalf of the 4th Accused; S K KOROMA Esq on


behalf of the 5th Accused; A E MANLY-SPAIN Esq on behalf of the 6th Accused; E NGAKUI Esq on behalf of the 12th Accused; C F EDWARDS Esq on behalf of the 13th and 14th accused persons; and M A BELOW SESAY Esq on behalf of the 18th Accused. MR WRIGHT confined his arguments to Count 1 in the Indictment.

2. The principal argument in respect of Count 1 in the Indictment, which charges the 4th, 5th, 6th ,7th and 18th accused persons, with being Accessories Before the Fact to the Offence of Importing Cocaine, a prohibited drug, without lawful authority, is that the prosecution has failed to lead any evidence probative of the guilt of these Accused persons. The same argument is advanced in respect of Count 2 of the Indictment which charges the 8th, 9th, 10th, 11th, 12th, 13th, 14th, 15th, and 16th Accused Persons with the offence of being Accessories After the Fact to the Importation of Cocaine, a prohibited drug. Submissions were not made on behalf of tHe 8th, 9th, 10th, 11th, 15th and 16th accused persons but they are entitled to any benefit which may accrue to the others charged jointly in this Count, in this Judgment.

3. The Defence argument, as I understand it, is that there is no evidence in Count 1, that any of the accused persons charged thereunder, Counselled, Procured or Commanded the commission of the offence of Importation of the prohibited rug, Cocaine. Additionally, in respect of the 4th accused, it is argued, that since according to some part of the prosecution evidence, it appears that the prosecution is averring that the 4th accused was present at the Total Depot at Lungi Airport on the night of 12th July,2008, at which time, it is also alleged, the offence of Importation was committed, this same accused cannot be properly convicted of the offence charged, because of the legal requirement, that the accused counselling or procuring or commanding the offence charged, must be absent when the offence is committed. The Ag DPP's response to this last argument, is that importation is a continuing offence, and in this particular case, began when the aircraft on which the cocaine was loaded, entered Sierra Leone's airspace, until it landed on the tarmac at the airport. In view of this response, I pointed out to the Ag DPP that the offence could be committed in four different ways: counselling, procuring, commanding and abetting; and that the prosecution had omitted the 4th way of committing the offence: abetting; I also enquired whether, in his view, the omission could be remedied. He suggested that an amendment could remedy the defect. In the light of this suggestion I granted leave, at the end of MR ROBBIN-MASON's s submissions, to


Defence Counsel present in Court, to address the Court on the propriety and fairness of an amendment at this stage of the trial. MESSRS EDWARDS, KOROMA and BELOKU SESAY who were present, addressed the Court on this all important issue.

4. I shall next deal with the Law relating to Accessories Before, and After the Fact. At Common Law, an Accessory Before the Fact, is one who, though absent at the time of the felony is committed, procures, counsels, commands, or abets another to commit a felony. ARCHBOLD says, the term 'accessory' is used only with reference to felonies. The accessory should also be absent when the offence is committed. Section 1 of the Accessories and Abettors Act,1861 which applies in Sierra Leone, provides that"whosoever shall become an accessory before the fact to any felony, whether the same be a felony at Common Law or by virtue of any Act passed or to be passed, may be indicted, tried, convicted and punished in all respects as if he were a principal felon." Section 2 of that Act provides that: "whosoever shall counsel, procure or command any other person to commit any felony, whether the same be a felony at Common Law or by virtue of any Act passed or to be passed, shall be guilty of felony, and may be indicted and convicted either as an accessory before the fact to the principal felony, together with the principal felon, or after the conviction of the principal felon... and may thereupon be punished in the same manner as any accessory before the fact to the same felony, if convicted as an accessory, may be punished." Both Sections of the 1861 Act apply to felonies only. Section 2 sets out the ways an accused could be said to be an accessory: counselling, procuring or commanding. Section 8 of the same Act, however deals with misdemeanours. It provides that" whosoever shall aid, abet, counsel or procure the commission of any misdemeanour, whether the same be a misdemeanour at Common Law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted and punished as a principal of fender!' It is clear, on a perusal of the wording of this provision, that 'aiding' and 'abetting' are two of the ways in which an accessory to a misdemeanour, could commit an offence; these are not however, ways in which one could be said to be an accessory to a felony. Lastly, Section 15 of the National Drugs Control Act,2008 as amended provides that: " An attempt or a conspiracy to commit an offence or aiding, abetting, counselling or procuring the commission of an offence under this Part, (i.e. Part III which covers the substantive offence, Section 8, which these accused persons named above are accused of being Accessories to) shall be punishable as if the offence had been committed."


It does not say whether they could be indicted or tried as such, which leaves open the possibility, that where an accused person is charged with a substantive offence, but the evidence points to that accused being an accessory before the fact, that accused could be punished as though he had committed the substantive offence. 5. No distinction is drawn in the NDC Act,2008 between felonies and misdemeanours. The ancient distinction between the two types of offences lay in the fact that \n the case of felonies, conviction could lead to forfeiture of property until this was abolished in 1870. Forfeiture was not applicable in cases of misdemeanours. Professor Kenny has in his Outlines of the Criminal Law, 19™ Edition, set out in Chapter VI thereof, the history of, and distinctions between the two types of offences. Felonies were generally, the most serious offences like Murder and Manslaughter; misdemeanours were lesser offences created by Statute, though Conspiracy to commit any offence is, still at Common Law, an indictable misdemeanour, and not a felony. The distinction between Felonies and misdemeanours, has been abolished in the UK, but remains in our substantive law as is recognised by, and in the Criminal Procedure Act,1965. In Section 11 of the Act, a private person could arrest a person who commits a felony in his presence; or whom he suspects of having committed a felony. But it seems he cannot do the same in the case of a person who commits a misdemeanour. In Section 52(1) it is provided that charges for both felonies and misdemeanours may, if those charges are founded on the same facts... be joined in the same Indictment. In Section 52(2)(b) it is provided that "persons accused of an offence and persons accused of aiding and abetting or being an accessory to ....such offence." shall be charged and tried together. 6. The reason for this excursus into the law relating to felonies and misdemeanours, is to assist this Court in determining whether, the charge of being an accessory, is one which falls with being dealt with in terms of Sections 1 and 2 of the 1861 Act; or Section 8 of the same Act. As regards Sections 1 and 2, if this Court holds that the offence created in Section 8 of the NDC Act,2008 is a felony, because of its seriousness, then the categories of complicity are counselling, procuring and commanding, but not aiding and abetting; whereas being an accessory to a misdemeanour contemplates aiding and abetting, as well as counselling and procuring. MR . WRIGHT has argued that, on one view of the prosecution's evidence, it may be said that the prosecution claims 4™ accused was in the vicinity of the landing of the aircraft, and as such constructively present at the airport;


and as such, he could not be guilty as an accessory. There is much force in his argument, and since if is not clear whether the substantive offence is a felony or misdemeanour, I would prefer to err on the side of caution, and treat it as a felony; I would therefore hold that the categories of complicity stated in Section 2, and not Section 8 of the 1861 apply to the facts of this case. There is no necessity therefore, on reflection, for the Indictment to be amended.

7. The next question I have to ask myself is whether there is any evidence that any of the accused persons charged with being accessories in Count I of the Indictment, could in any way be said to have commanded, counselled and procured the commission of the substantive offence by the 1st, 2nd and 3rd accused persons. In order to answer this question, I must first advert to the Law relating to submissions of this nature. I can do no better than cite that part of my decision in the case of THE STATE v ALHAJI ALIE BADARA SESAY dealing with this issue. There, I said: "When a No-Case submission is made at the conclusion of the prosecution's case, the burden imposed on the prosecution is less than that imposed on it at the end of the trial. At this stage, the true test to my mind, is that set out by LORD LANE, L C J 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..." 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 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....."


8. GALBRAITH has been further explained by the Privy Council in DALEY v ft [1994] 4 All ER, 86 per LORD MUSTILL at page 94 g&h: "a reading of the judgment in R v Salbraith as a whole shows that the practice which the court was primarily concerned to proscribe was one whereby a judge who considered the prosecution evidence unworthy of credit would make sure that the jury did not have an opportunity to give effect to a different opinion. By foiiowing this practice the judge was doing something which, as Lord Widgery CJ had put it, was not his job. " 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.

9.   Is there any evidence that the 4th 5th, 6th 7th and 18th Counselled, Procured or Commanded the 1st, 2nd and 3rd accused to commit the offence charged? In ATT-GENL v ABLE [1983] 3 WLR 845 these words (and also aiding and abetting) were regarded as synonyms for 'helping.' In CALHAEM[1985] 2 WLR 826 the Court of Appeal held, per PARKER,LJ that ".. we should give to the word Counsel its ordinary meaning, which is, as the Judge said, 'advise, solicit or something of that sort. There is no implication in the word itself that there should be any causal connection between the counselling and the offence. It is true that.......the actual offence must have been committed, and by the person counselled. To this extent, there must clearly be, first, contact between the parties, and secondly, a connection between the counselling and the murder.....we see however no need to import anything further into the meaning of the word."

10. Counselling, it has been said refers to help given before the commission of the crime. It may take a wide variety of forms, but includes advice, encouragement or the supply of information or equipment. In ATTORNEY-GENERAL'S REF (No.1 of 1975) [1975] 3 WLR 11, LORD WIDGERY, LCJ delivering the Judgment of the Court of Appeal, Criminal Division said, inter alia,".. a person who counsels the commission of a crime by another, almost inevitably comes to a moment when he is in contact with the other, when he discussing the offence with that other, and when, ...he counsels that other to commit the offence." But for Procuring on the other hand, he had this to say:",.it may well be difficult to think of a case of counselling when the parties have not met, and have not discussed in some respects the terms of the offence which they have in mind. But we do not see why such a similar principle should apply to procuring. We approach Section 8 of the Act of


1861 (referred to above by me) on the basis that the words should be given their ordinary meaning, if possible. We approach the section on the basis a/so that if four words are employed here, aid, abet, counsel or procure the probability is that there is a difference between each of those four words where two or three would do......to procure means to produce by endeavour.

You procure a thing by setting out to see that it happens and taking the appropriate steps to produce that happening. We think that there are plenty of instances in which a person may be said to procure the commission of a crime by another even though there is no sort of conspiracy between the two, even though there is no attempt at agreement or discussion as to the form which the offence should take. In our judgment the offence described in this reference is such a case."

11.  The Learned Editors of ARCHBOLD 35th Edition also add, at para 4142 that " the procurement may be personal or through the intervention of a third person. It may also be direct, by hire, counsel, command, or conspiracy: or indirect, by evincing an express liking, approbation or assent to another's felonious design or committing a felony. " At para 4153 the Editors state that".. there must be some active proceeding on the part of the prisoner; he must procure, incite or in some other way encourage the act done by the principal. "Commanding needs no explanation: it means to order someone else to do something. This, as in the case of procuring, need not be done directly. It could be done through a third party.

12. In view of the authorities cited, and in view of the evidence led by the prosecution it is clear that the 5™, 6™ and 18th accused persons could not have counselled nor procured nor commanded the commission of the principal offence charged in Count 1 of the Indictment. It is clear also, on the basis of the evidence of PW5,7 and 13 respectively, that the 4th accused could be said to have counselled or procured the commission of the substantive offence in Count I. PW5 places the 4th accused at the house in Port Loko, where some of the accused persons were eventually arrested; PW7 and 13 respectively place him and the 7th accused at the Total Depot, where, it is said, they went to procure fuel for the expected aircraft which turned out to be the aircraft loaded with cocaine. In Exh 32 the recorded interview of the 1st accused, the 1st accused says at page 14 thereof that he was assured by CAMILO that the people who were going to receive him at Lungi and who were going to refill the aircraft were CAMILO's people. In Exh 33, the 2nd accused when asked who else is involved in the cocaine business, said 'the minister's brother; meaning the 4th accused, who was pointed out to him by


'EL VIELDO' whilst they were at the Police Station. What one accused person Says in his out of Court statement or interview, is not of course, without more, evidence against his co-accused, I have referred to Exh 31 solely to show that, in going to the Total Depot with the intention of purchasing fuel, it could be said that there was evidence which could go to a jury, to show that 4th accused procured the commission of the substantive offence, since the fuel he and 7th accused wished to purchase could be said to be that which the 1ST accused expected. Evidence that someone, such as the 2nd accused who has never been to Sierra Leone before, knows 4th accused as 'the minister's brother' is to my mind, evidence that there is a causal link and connection between the departure of the aircraft from Venezuela via Colombia, to Sierra Leone. It is a link, which though not probative by itself of the guilt of 4Th accused person, could be left to the jury, on the basis of the GALBRAITH direction, to consider. The evidence also shows that, neither the 4th nor the 7th accused persons were present when the aircraft landed; nor is there any evidence before me that they ran to its aid, or to the aid of its occupants. Presence at the Total Depot, in my respectful view, does not amount to presence at the scene of the crime of importation. It follows therefore that 4th accused, and the 7th accused on whose behalf no submission was made, have a case to answer in respect of Count 1 of the Indictment. The 5th, 6th and 18th accused persons are therefore acquitted and discharged in respect of Count I. 13. Count II of the Indictment charges 8th, 9th, 10th, 11th, 12th, 13th, 14th, 15th and 16th accused persons respectively, with being Accessories After the Fact to the offence of Importation of Cocaine. It is alleged that they received, comforted, harboured, assisted and maintained the 1st, 2nd and 3rd accused persons respectively, well knowing that they had without lawful authority, imported cocaine into Sierra Leone. As MR ROBBIN-MASON rightly concedes, there is no evidence that the 12th 13th and 14th accused did any such thing. In the case of the 12th accused, I should have thought that the facts presented in evidence, may have suggested being an Accessory Before the Fact, than after the fact. The 12th accused in Exhibits 6 and 7 respectively, gives an account of what he did on the morning of 13 July,2008 and on subsequent days. His account has not been challenged. Neither 13th nor 14th accused were interrogated as to what they did after the discovery of the landed aircraft. This goes to show that the Police did not contemplate that there was evidence of such an offence being committed which would warrant a charge in Court. Submissions have not been made on behalf of the


8th, 9th, 10th, 11th, 15th and 16th and I hold that they have a case to answer in Count II, as the charge fulfills all the requirements of the Law, both in form and in substance.

14.I now turn to Count V of the Indictment in which all the accused persons are charged with the offence of Conspiracy to import a prohibited drug, Cocaine, without lawful authority. The definition of Conspiracy is well-known and has been cited by Counsel in their respective submissions. As I have pointed out above, Section 15 of the NDC Act,2008 provides that Conspiracy is punishable as if the substantive offence had been committed. It does not say, unlike the 1861 Act with reference to Accessories, that the accused should be indicted and tried as such. It means that on an Indictment charging the substantive offence, the Court is entitled to return a verdict of Guilty against a person charged with that substantive offence. At this stage, as I have pointed out, I am not called upon to pronounce upon the guilt or innocence of the accused persons. Proof beyond a reasonable doubt is not required at this stage.

15. The Law is quite clear, that accused persons could be indicted for conspiracy even though they have never met. I had cause in delivering Judgment in the case of THE STATE v WINSTON WILLIAMS MOTHERS to dilate on this offence at length. There, I said, inter alia: "The Learned Editors of BLACKSTONE'S CRIMINAL PRACTICE 2002 Edition (hereafter BLACKSTONE'S) opine at para. A6.14 page 89 under the rubric "Agreement that "Agreement is the essence of conspiracy. There is no conspiracy if negotiations fa/7 to result in firm agreement between the parties......nor is there a conspiracy between A and B merely  because each has conspired separately with C. It is possible however, to have conspiracies in which some parties never meet others. These include chain and wheel conspiracies......in either case, however, the alleged conspirators must each be shown to be a party to a common design, and they must be aware that there is a larger scheme to which they are attaching themselves....If B and C each believe they have their own individual agreements with A, there are two separate conspiracies, and a single count will not be valid, even if B and C are aware that A is making similar agreements with others." 16. This has been the Law since at least R v GRIFFITHS [1965] 2 Ail ER 448 per PAULL, J in the Court of Criminal Appeal at page 453 para I: "... for in law all must Join in the one agreement, each with the others, in order to constitute one conspiracy. They may join in at various times, each attaching himself to that agreement; any one of them may not know all the other


parties but only that there are other parties; any one of them may not know the full extent of the scheme to which he attaches himself. What each must know, however, is that there is coming into existence, or is in existence, a scheme which goes beyond the illegal act which he agrees to do." Later, at page 455 para A he says: "It is right and proper to say that the Learned Judge correctly pointed out the principle, saying that the Crown had to prove that the conspirators put their heads together to defraud the ministry..........As is indicated in WRIGHT ON CONSPIRACIES p.69 it must be shown that the alleged conspirators were acting in pursuance of a criminal purpose held in common between them."

17 .In R v GREENFIELD & OTHERS [1973] 3 All ER 1050, CA Crim Div per LAWTON,LJ at page 1053 para j: nA conspiracy count is bad in law if it charges the accused with having been members of two or more conspiracies. This is elementary law." Though adverse comments were made by the respective Courts in both cases, and later on in GRAY [1995], about the efficacy and propriety of joining a conspiracy count with counts for substantive offence in one Indictment, the practicability of such a course taken by the prosecution was acknowledged; that there might be cases of fraud where it would be well nigh impossible to charge a suspect with a substantive offence, even though there might be abundant evidence of that suspects participation in the fraud which has been perpetrated. In Such a case, it is perfectly proper for the prosecution to charge conspiracy in addition to charges for substantive offences". It is my view, arrived at after examining the authorities, that on the facts of this case, it was proper to charge conspiracy as well as substantive offences. I seek strong support from the Judgment of LORD BRIDGE in the House of Lords in R v COOKE [1986] 2 All ER 985 at page 989 paras b-e: after dilating on the distinction between cases where a conspiracy charge would be appropriate in an Indictment including substantive offences, and where it would not, he said-' ".........The difficulty arises in the many cases, to which I regret I did not apply my mind in R v Ayres, where a course of conduct is agreed to be pursued which involves the commission of one or more specific criminal offences, but over and above such specific criminal conduct the agreement, if carried out, will involve a substantial element of fraudulent conduct of a kind which, on the part of an individual, would not be criminal at all In this situation......the sensible conclusion (is that) it is perfectly proper for the prosecution to charge one or other or both of two conspiracies: (a) statutory conspiracy.......(b) a common law conspiracy in respect of that part of the


course of conduct agreed on which is fraudulent but would not be criminal on the part of the criminal working alone........if, in addition to any specific offences which conspirators have agreed to commit, they have agreed to pursue a further course of conduct which defrauds a victim in a manner which does not amount to or involve the commission of any specific offence, I can see no reason why that should not also be charged and proved as a separate conspiracy. " The Crown in this case won an appeal on these points from the decision of the Court of Appeal that the Crown could not charge Conspiracy to Defraud where the facts alleged, proved a conspiracy to commit a substantive offence under the Criminal Law Act,1977. Our own Second Schedule to the Courts Act,1965 in paragraph 7 thereof (as amended in 1981) recognises the existence of statutory conspiracies as well: that is, conspiracies to commit summary offences).

18. It follows, and I so Hold, that it was proper for the prosecution to charge both Conspiracy, and the substantive offences in this Indictment. Of course, in the instant case, the accused persons on whose behalf submissions have been made, have not been charged with substantive offences. But I think it apposite that I should at once make my views known to Counsel on this most important issue.

19 On the basis of the Law as set out above, I Hold that the 4th, 5th,6th, 7th, 12th and 18th accused persons, together with the other accused persons, save the 13th and 14th accused persons, have a case to answer in respect of Count 5 of the Indictment.

20.I now turn to the submissions made by MR EDWARDS on behalf of the 13th and 14th accused persons. MR ROBBIN-MASON has treated the Court with commendable candour, though belatedly. Once he had tendered Exh 48 the recorded interview of the 13th accused person made on 31 July,2008 he must have known that he had only one of two two alternatives: either charge to Court the former Minister of Transport and Aviation KEMOH SESAY: or call him as a witness to disprove what the 13th accused said in Exih 48. In that Exhibit, the 13th accused explained quite clearly that it was KEMOH SESAY who gave him the go-ahead to issue the permit for the landing of the supposed ANTONOV 12 aircraft. The 4th accused had gone to his house that night and told him he was expecting a flight. He had called his brother, the Minister to ask whether to grant a permit for the flight to land. The Minister had given him the go-ahead. That aircraft of course never landed that night. Obtaining the permit, in my mind, and based on the evidence so far, was merely a smokescreen to mask the landing of the Cessna aircraft


bearing the cocaine cargo. In that same exhibit, the 13th accused explained why he had said something quite different in Exhibits 20,21,22 and 29 respectively. He was being suborned to commit PERJURY in order to protect the Minister. Deceiving the Police, even if done to protect yourself, or others whom you think may protect you, is itself a crime. It is also a waste of Police time, and it is conduct which ought not to be encouraged. I could not, last Saturday, when MR ROBBIN-MASONJ conceded the argument, acquit and discharge the 13th and 14th accused persons, because he did not offer no further evidence against them. He merely conceded that what MR EDWARDS had said about the facts of the case was true: that there was no evidence implicating the 13th and 14th accused persons in the offences charged in Counts II and V of the Indictment. He had already closed his case. It was, and is my duty to decide whether on the evidence led by him and his colleagues on the prosecution Bench, the 13th and 14th accused persons had a case to answer. The 14th accused merely carried out the instructions given to him by the 13th accused. If therefore, the person who gave the ultimate permission; and who had insisted, according to the evidence of PW2 and according to the 13th accused in Exhibits 20,21,22,29 and 48 that no permission should be given without his imprimatur, was exonerated by the prosecution, it makes no sense to continue to punish the 13th and 14th accused persons. I therefore acquit and discharge the 13th and 14th accused of the offences charged in Counts II and V of the Indictment. They are free to leave the dock. All the other accused persons have a case to answer in respect of Count 5 of the Indictment. In Count I, the 1st, 2nd 3rd, 4th and 7th accused persons have a case to answer. In Count II, the 8th 9th, 10th, 11th, , 15th, and 16th accused persons have a case to answer. In Count IV, the 1st, 2nd and 3rd accused persons have a case to answer. In Count VI, the 1st, 2nd and 3rd accused persons have a case to answer. I shall now proceed to put the accused persons to their election in accordance with the provisions of Section 194 of the Criminal Procedure Act,1965.

N.C. BROWNE-MARKE Justice of Appeal 16March,2009.