IN THE HIGH COURT OF SIERRA LEONE

HOLDEN AT FREETOWN

Criminal Division

STATE

V CHUKUMA OBEELODOCHINA

Coram

Shuster J                                         

Mr. A. S Sesay                                               for the Accused

Mr O V Robing- Mason A/DPP                       for the State

Judgment Delivered 13th March 2007

JUDGMEN AND RULINGS

1. The accused CHUKUMA OBEELODOCHINA is charged with an offence alleging, on or about the 14th November 2003 in Freetown in the Western Area of Sierra Leone, he unlawfully and carnally knew, and abused ESTHER KOROMA a girl under the age of 13, to wit 10 years. The indictment against the accused is dated 28th January 2007. The back of the indictment was endorsed for service on the accused on the 29th January 2007

2 Unlawful Carnal Knowledge is an extremely serious offence. It is contrary to section 6 of the Prevention of Cruelty to Children's Act Cap 31 of the Laws of Sierra Leone 1960 upon conviction it carries a maximum sentence of 15 years imprisonment.

3 The accused appeared before the High Court on Monday the 12th February 2007. He was not represented at his first appearance and there was no sign of State Counsel so the court sent for a representative from the State Law Office. In the meantime the charge was read to the accused, he was asked if he understood the charge he did. I asked if he was represented by a lawyer, he told me he was represented by Mr. Thompson J. asked when he had last spoken to his lawyer and asked if the lawyer knew of today's court date and I sent my Tipstaff to locate Mr. Thompson. In the meantime while I awaited the arrival of Counsel, the accused was held in custody [in the cells] in view of the nature and the seriousness of the charge the likely penalty if he were to be convicted, and in order to secure his attendance in court later the same day.

4 The case was called at 12.00 both counsel were present. The charge was put and the accused pleaded not guilty as is his right. The A/DPP Mr. O V Robin-Mason requested an adjournment to trace [3] witnesses. I asked the Learned A DPP if the problem he had in locating his witnesses was perhaps due to the fact the charge related to an allegation in November 2003 which is THREE/AND A QUARTER YEARS AGO. The learned A/DPP answered in the affirmative. The case was adjourned for two weeks for prosecution enquiries to trace the witness, this being in the interest of justice. The accused was bailed under the same terms and conditions as before, and warned about

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being late in court.

5. This case was next called on Monday 26th February 2007 at 09.30 when Mr. Sesay appeared for the A/DPP a similar request was made to adjourn to trace the witness. The prosecution request was not opposed by Mr. Thompson.

6. The case was next called on Monday the 5th March 2007 Miss C. C. Jarrett represented the A/DPP and again requested an adjournment to trace the witnesses. I made enquiries of State Counsel regarding the service of subpoenas, and was informed by Miss Jarrett that subpoenas had been sent out for the witnesses. Miss Jarrett was not in a position to provide an update to the court on the service of the subpoenas. Mr Thompson agreed to an adjournment to today, Tuesday the 13th March 2007

7. The Constitution of the Republic of Sierra Leone Act Number 6 of 1991

Section 23 [1] says Whenever any person is charged with a criminal offence he shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law

8. What is a reasonable time is a question of fact in each case. The central question I must ask is who has caused delay in this particular case, and for what reason? If it is the fault of the defendant [e.g.] he has had been on the run, that itself might provide some justification in allowing an adjournment[s] to trace missing witnesses. This is not the case here, because the defendant has attended court as required. A court must look at the nature and the seriousness of the charge[s] the stage the case is at, and all relevant reasons why the case has not come up, or as in this case why the case has not been listed before. To do this the court must carry out a proper examination of the court record and look at the case chronology and not merely rubber stamp applications for adjournment, after adjournment in order to trace witnesses or firm up a case. In essence cases brought to court must always be trial ready.

9. Court records indicate the accused first appeared in the High Court on the 12th February 2007. The accused has been on bail for over three years, with a particularly serious charge hanging over his head. A court must also consider public policy, and ask itself what is the effect on public perception for this type of crime. Ultimately a court will need to ask itself what will be the effect if this particular case does not proceed to trial and conclusion, within a reasonable time? {The effect on all the parties}

10 Effect of delay.

A court will be concerned over events which are said to have taken place, a long time ago. A court must appreciate because of inordinate delay there might be danger of real prejudice to a defendant.

This possibility must always be at the forefront of the courts mind. I have in mind the well know

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maxim, Justice delayed is Justice denied.

11. I am entitled to consider and to ask in open court why this matter did not come to light sooner and to ask myself; is this a reflection on the reliability of the complaint [or alleged victim] who at the time of this alleged offence was ten years of age? Does it arise from the conduct of the defendant or from the conduct of the prosecution or from the very system itself?

12. I was given an explanation for the delay in this particular case [in open court] that the, necessary deposition papers needed to be typed, and an indictment needed to be prepared.

The Constitution of the RSL is quite clear. Every accused person must be afforded a fair trial within a reasonable period.

In addressing a question of Abuse of Process and to justify delay the learned writers of Archbold and case law state: -

The shortage of Judges for Court Rooms] is no excuse to delay trial[s] because State Parties have a DUTY to provide adequate resources and personnel to carry out duties functions and matters of State; according to law. In my view the same analogy would apply to suggestions concerning shortage of State Counsel

13. In this particular case:- I find as a fact, taking three and a quarter years to bring a case to court, a case which involves the production of a single count indictment, indicating there are three witnesses named on the back of the Indictment, is unacceptable, in Sierra Leone, an emerging society, a Member of the Commonwealth of Nations and a State which was one of the first signatures to the UN Charter of Human Rights and Obligations, and is a member of those two Gentlemen's league.

14. I mow wish to address an issue, rather the perceived necessity [in Sierra Leone] for the typing of deposition papers; post committal. A Judge sitting alone is not entitled under any circumstances whatsoever to see copies of depositions either pre trial or during the trial; because to see [or read] the deposition papers would inevitably prejudice that particular Judge in a case put before him; AND it would at the very least give that impression to any right minded and thinking member of the public. A Judge is only entitled to have a copy of the Indictment on his file before him. Consequently I ask myself the question, why do Sierra Leone Magistrates Court depositions need to be typed at all? The answer I arrive at is they do not need to be typed. The relevant parties [not the judge] can be provided with copies of the deposition papers. I go on and ask myself is it possible these particular depositions have taken over three years to type, and is that a reasonable excuse to delay these court proceedings 3-1/4 years? Well the answer must surely be No. I do not accept that as any excuse, at all. Is the necessity for the typing of depositions a judicial decision a practice directive or is it a procedural decision? What is the answer? No one can really tell me, except it is a habit and it takes court staff a long time. Any argument to delay this or any other High Court case in order to type deposition papers fails. I rule there is no need for ANY Magistrates depositions to be typed, at all.

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15. The next question the court will need to ask itself is. What is a reasonable time for a qualified State Lawyer's to take, to prepare and draft an Indictment?

All an Indictment is;

An Indictment is a written or printed accusation setting out the crime for which a person has been charged. SL Rules say it must be prepared in the required form and that does appear to done here in SL

The problem in this case appears to be, and relates to timeliness in indictments preparation. THE TIMING RECORDING AND THE FILING of indictments in the High Court. Under the old [British] Indictment Rules of 1915 an indictment must be prepared and lodged with the High[er] Court within 28 days of a person's committal. In SL the State Law Office is the proper Authority charged with the duty of preparing Indictments for trial in the High Court. The Rules say every indictment must be signed by State Counsel, the DPP or the AG who is signing the indictment, on behalf of the State and by signing is certifying the case is in order.

16. To function properly efficiently and in order to avoid possible allegations concerning Abuse of Process, The State Law Officers must be ready willing and able, to prepare indictments correctly in accordance with the leading case of NEWLAND. The proper preparation and timeliness in lodging indictments in future cases will, afford each and every defendant a fair trial in the High Court, in accordance with the Constitution of the RSL. The Constitution says every trial must be within a reasonable period. I have to question is three and a quarter years a reasonable period to prepare what 1 see is such a very simple indictment? I think any right minded person would think NOT. Twenty Eight days from the date of committal IS AND HAS BEEN considered ever since the 1915 Indictment Rules to be a reasonable period. If people complied with those rules eighty-seven years [87] ago, working without typewriters, or computers why can we not do this in 2007 the 21st Century? A 28 day period is considered normal in most other common law jurisdictions. Canada adopts a procedure whereby the Judge or the Justice of the Peace merely writes TRIAL ON INDICTMENT on the front of the information or complaint and that document becomes the Indictment. In my judgment must adopt a 28 day time period here in SL as the norm A simple analysis of the court records indicate this case has taken twelve hundred and twenty seven days [1,227] to prepare the indictment and file it in the High Court. That time frame is totally unacceptable.

16. If SL adopts a proper and an efficient system for the preparation and the filing of Indictments, and in an emergency a State Law Offices wants more time to prepare a much more complicated indictment; he/she can always apply for an extension of time to a High Court Judge [there are provisions under the IR 1915 to do just that}. Equally for the State Law Offices to be able to carry out their legal functions properly efficiently and within any proper time parameters, then the State Law Office must be given proper and sufficient resources; and more importantly sufficient numbers of personnel to carry out their duties, by Central Government. I think we all accept the State Law Office is chronically short staffed and drastically under funded perhaps even stretched to breaking

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point; BUT that is still no excuse for the inordinate 1,227 day delay in this particular case. The SL Government must move immediately to take the necessary steps to alleviate this type of recurring problem that is the duty of Government and that is only just and equitable. State Lawyers are Ministers of Justice and servants of the State and servants of the people. As such they must be fully supported in their most difficult but important task.

16. Under International and most Domestic Law, Allegations of Child Sexual Abuse Cases, and cases involving allegations of violence against children, require special treatment help support and guidance. These types of case are entitled to be prioritized before national courts because most right minded people think they should be. One only needs to look at the provisions and developments arising from the inception of the Children and Young Persons Act of 1933, moving on with the Universal Declaration of Human Right's, and the UN Charter on the Rights of the Child. All these treaties and laws require proper considerations and prioritization in such cases. I find as a fact there has been no such prioritization of this particular case involving an allegation of sexual abuse of a child

17. The inordinate delay and the passage of time in this case will also have deprived this defendant of any opportunity to put forward any genuine alibi and / or evidence in support of one should he have one? The delay in this case is certainly not understandable, and certainly is not acceptable. The defendant has in my view, by the passage of time been placed at a real disadvantage in putting forward any defence to his case. For the prosecution to continue to prosecute him, in the absence of their witnesses, in a timely fashion, would in my view be a continuation of an abuse of process, Justice to all the parties in this case, that is to say to the defendant and to the alleged victim, has been denied by the inordinate delay in [1] preparing an indictment [2] locating the witnesses [3] Typing up depositions. None of these reasons are acceptable or justifiable to [1] society and [2] to this court.

18. To try to avoid this scenario from happening again, and, because the High Court has a Supervisory Function and Jurisdiction over the running of the Magistrates Courts and; because this Court feels delay may have been in part the FAULT of the VERY SYSTEM ITSELF, the court wishes to adopt and to implement the following as being in the interest of justice until proper systems are in place.

I ORDER AS FOLLOWS.

1. At all [future] committal proceedings in the Magistrates Court's carried out in Sierra Leone, the Presiding Magistrate SHALL Order the DPP's Office to prepare an Indictment within 28 days of committal, and the Magistrate shall notify the DPP of his order and do that in writing, and on the day of Committal.

2. If; an Indictment is not prepared within 28 calendar days by the Office of the DPP, then the DPP MUST apply in writing, to a Judge of the High Court for an extension of time. I further rule an extension to the initial 28 day period to lodge an indictment, can only be made once, and then, an extension of time may

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only be granted once for a maximum further period of 28 days. In doing this; I am applying the 1915 Indictment Rules, in the absence of any local legislation or practice to ensure fairness and justice.

3. At Committal proceedings, all SL Magistrates Courts ARE required to issue Conditional Witness Order to each and every witness [both for the prosecution and the defence] AT the time of committal. This procedure will go some way to ensure witnesses keep in contact with the authorities and are traceable when the case comes up for trial in the High Court.

4. Each and every witness subpoenas issued by the SL Magistrates Court must be for a fixed return date. The subpoena must instruct the witness to contact the DPP's Office on a fixed date. {NB. Consideration should be given for the provision of a witness liaison officer at the Office of the DPP to assist officers in this important function.}

5. Further I ORDER every defendant who is remanded in custody by a Magistrate's Court, MUST appear before a Judge of the High Court, and a trial date fixed within a 28 day time period, from the date of committal. Bail must be considered at each appearance, in accordance with Human Rights Law. BEZITHORS CASE

6. I ORDER the practice of delaying any accused person from appearing in the High Court while waiting for the typing of committal papers is to cease, forthwith. A Judge never needs deposition papers to be typed.

19. Only by implementing drastic charge in the procedure[s] and the workings of both the Magistrates Courts and the High Court in SL; coupled with a very real and a genuine indication of a willingness to change [by all concerned parties] will Justice ever be seen to be done in SL. If change ensues then problems such as this involving inordinate delay in bringing and concluding criminal proceedings [without just cause] before the High Court, and in a large number of other cases will be avoided; then and only then, will justice not only be done, but it will also be seen to be done.

In view of everything I have said about this case, the accused is acquitted and discharged. This case falls clearly into the category of: - AN ABUSE OF PROCESS CASE. Bail conditions no longer apply. I wish to thank counsel for their attendance. The accused is free to go.

Shuster J

Judge of the High Court Freetown 13th March 2007

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