IN THE HIGH COURT OF SIERRA LEONE Holden at Freetown

Criminal Division

STATE V

ALBERT ALPHONSO CONISON

GILBERT JOSHUA COLE

PC SANDY FOWAI aka AUGUSTINE CLAUDE MOMOH MOHAMED BOCSOW KOROMA

Coram

Shuster J

Mr. Mason for the Prosecution

Mr. E Turey for the first accused

Mr. Jenkins Johnson for the 2nd Defendant

Mr. Tejah Cole for the 3rd Defendant

Mr. O Williams for the 4th Defendant

Judgment delivered 15th June 2006

JUDGMENT

1. The defendants are charged on an indictment, dated 12th November 2004. The accused made their first appearance before the High Court on Monday 6th December 2004. The trial commenced proper on Wednesday 9th February 2005.

2.The amended count alleges:-

The accused, conspired together on divers dates between the 1st day of August 1999 and the 31st day of March 2003 at Freetown in the Western Area of Sierra Leone, they conspired together with other persons unknown with intent to defraud the Government of Sierra Leone by unlawfully reprocessing and re encashing; meaning thereby authorising and making payment thereon, one hundred find one Government of Sierra Leone salary cheques of the total value of one billion eight hundred and fifty six million eight hundred and eighty seven thousand one hundred and thirty seven Leone's, which said one hundred and one salary cheques had already been previously encashed.

3. On 10th December 2004 the prosecution applied for trial by Judge alone, in accordance with section 144[2] of the Criminal Procedure Act Number 32 of

1965 this was agreed. On 2nd February 2005 the Indictment was put, the accused pleaded NOT GUILTY to the charge as is their right. The original indictment was amended with the consent of this court on the 16th February 2005 by the addition of the words," Meaning thereby authorizing and making payment thereby" The indictment was re-put, the four accused maintained their not guilty pleas. During the course of their closing speech, defence counsel put forward an argument/objection that the indictment was defective by alleging fraud against the GOSL The defence say the fraud is alleged against the BSL. I was told by the same defence counsel the Statute creating the BSL came into effect in 2002, which is halfway through the period shown in the indictment. I remind all counsel challenges as to the form, or the content of an indictment must be made prior to arraignment or, soon after, and not at the end of a case in closing. I would not allow the prosecution to amend an indictment at such a late date, as it would create an injustice to this case. Equally defence counsel must take up these points prior to arraignment. That is the law.

4. THE PROSECUTION CASE.

The Prosecution alleges the accused conspired together [and with other persons] to defraud the Government of Sierra Leone of a large sum of money. At all material times the accused were employed by the Bank of Sierra Leone [the Central Bank] as cashiers; and bank supervisors. Evidence to be given during the course of the trial would reveal the accused received for payment a total of 101 GSL cheques drawn on the Central Bank. These 101 cheques were for the payment of salaries to Different Ministries and Departments of the Sierra Leone Government. The Prosecution would seek to prove between 1st August 1999 and 1st March 2003 whilst the accused were all employed at the bank, 101 Government of Sierra Leone cheques were fraudulently encashed. The prosecution would lead evidence to show a number of cheques were defaced and encashed a second time; which the prosecution says is unlawful. The Offences came to light in May 2003 when the Bank of SL's Management received an anonymously tip concerning an unlawful practice said to be operating at the bank. As a result of the anonymous tip an investigation was ordered into the BSL banking procedures by management. As a result of the banks internal audit police were asked to investigate a suspected crime. The four accused were subsequently arrested, interviewed and charged with the offence of conspiracy for which they appear before the High Court.

5. THE FINDING OF. NINETEEN CHEQUES.

During the Bank's internal investigation, nineteen recycled cheques were recovered from the Bank's vault. The samples were identified as some of the 101 cheques which had previously been processed, and recorded in separate cash books, then they were unlawfully re-encashed, a second time. On 30th May 2003 police executed a search warrant at the home address of the second accused. Two paid Government of SL salary cheques were discovered at his home address they were seized by the police. The prosecution says the fraud was committed and involved the following fraudulent acts and/or procedures.

[1] Altering the verification stamps on the face of cheques.

[2] Removing the cashiers stamp from the face of the cheque.

[3] Superimposing a second paid stamp onto a first initial stamp; in order

to deface the first stamp.

[4] Removing cheques from the bank's safe custody. These were facts which the prosecution said would prove the guilt of the accused.

6. NOT IN DISPUTE

There is no dispute that at all material time the accused were Bank Employees employed at the BSL and as such were employed in a position of trust. On hearing the evidence I find as a fact that each of the four accused were at all material times employees of the Bank of Sierra Leone. I find as a fact as bank employees they each owe a High Duty of care to their employer to carry out their duties honestly; and with integrity. I find as a fact that each of the 4 accused were experienced long term employees of the Bank of Sierra Leone based in Freetown.

7. IN DISPUTE

What is in dispute is whether the 4 named accused conspired together [and with others] to re-encash 101 Government Cheques, and thereby fraudulently obtained over 1.8 billion Leone in Government funds as stated in the indictment. This is the triable issue upon which I have to decide either, the guilt or innocence of the four accused.

8.LEADING CASES AND POLICY.

In considering my judgment I consider and apply the following leading cases widely known throughout the Commonwealth. These cases are routinely applied in common law jurisdictions for offences; or allegations involving the misappropriation of public funds, theft, larceny or cases involving dishonesty. They are to be applied here in Sierra Leone.

[a] R v BARRICK 1986 7 Cr AR [s]. For allegations which concern Breech of Trust. It is trite law that a servant or an agent owes a high duty of care to his employer to carry out his duties properly; and more important honestly. The higher up the scale one goes in a company, or organization, like a bank, the higher the degree of responsibility is imputed in him by law; because without that trust; the business world and all organs of a government would be in chaos. [b] R V GHOSH 1982 2 ALLER 689. Is the well known test for Dishonesty, which states; "it is dishonest for a defendant to act in a way which he knows ordinary people consider to be dishonest; even if he himself asserts, or genuinely believes he is morally justified in acting as he did."

[c] R v GOMEZ 1993 I ALLER 1. Authority for the well established test of; appropriation and or, misappropriation of property. This is a Leading House of Lords case which all legal practitioners in Sierra Leone should read, understand and apply in cases such as this. [d] MACHENT v QUINN 1970 2ALLER 255 DC. It is not necessary to prove

all the articles or values mentioned in the indictment to have been stolen, if it is proved that the defendant stole any one of them.

[e] , R v PARKER 53 Cr App R 289 CA per Donaldson at page 229 It is submitted that the jury must be agreed on which particular item, or value was stolen.

[f] A DEFENDANTS GOOD CHARACTER DIRECTIVE.

Modern Law says I must consider and apply to any case before me, a defendants good character directive" that is to say, good character cannot of itself provide a defence to a criminal charge, but it is evidence which I should take into account when I come to consider my verdict.

See: R v Vve, Wise and Stephenson 97 Cr App R 134: R v Aziz and others [1995 2 Cr App R 478. In this particular case I chose to consider and to apply the defendant's good character directive.

9. CERTIFICATION. ON THE BURDEN AND STANDARD OF PROOF.

As this is a trial before Judge alone; I certify I have directed myself in accordance with the Law on the Burden and Standard of Proof in a Criminal Case. I direct myself on the need to consider the evidence in respect of this charge and for each defendant; separately. Where appropriate I have given the accused the benefit of doubt. The prosecution brings this case; they must prove this case beyond any reasonable doubt so that I am sure each of the accused committed the offence. A defendant does not have to prove anything; as he is innocent until he is proven guilty. I Certify I have examined in detail all exhibits in this case.

10 BANKING COURSE

It is right and proper for me to identify to all parties that during my career; I attended an RCMP bank management course run by the Canadian Imperial Bank of Commerce Fraud Division, in Calgary Alberta Canada. I say this because a number of defence counsels during this trial indicated, from the bar table they had worked in the banking industry. My six-month RCMP banking course covered in depth aspects of banking procedures, alongside methods concerning the detection and prevention of fraud. I was seconded to the CIBC for a period of 6 months in late 1974. I am also familiar with the banking procedures of Lloyds TSB, Barclays Bank, and the Royal Bank of Scotland, gained through attending various UK Banking and fraud prevention courses in the 1990's, My wife has over 25 years banking experience working in major bank's in the UK and Canada. I make this observation in open court as I sit as Judge alone without a jury.

11. VOLUNTARY CAUTION STATEMENTS

Modern law requires me to review a Defendants Voluntary Caution Statements] to ascertain whether [or not] they are voluntary in the true sense of the word. In my view there is also a need to apply modern Human Rights Law to my consideration in this country and I chose to do so. I find as a fact having heard all of the evidence in this case; the VCS's of the 4 accused were voluntary in the true sense of the word. There was never any dispute from defence lawyer's as to

the admissibility of any VCS's. As such I rule they are admissible in evidence before this court. The statements are EXHIBITED as follows: - EXHIBIT C1-7 is the statement of the 1st accused. EXHIBIT D 1-15 the caution statement of the 1st accused. EXHIBIT E is the charge statement of the 1st accused. EXHIBIT F 1-10 is the statement of the 2nd accused EXHIBIT G 1-10 is the caution statement of the 2nd accused. EXHIBIT H 1-11 is the caution statement of the 3rd accused. EXHIBIT J 1-5 is the statement of the 4th accused. EXHIBIT L 1-13 is an additional statement of the 3rd accused. EXHIBIT M is the charge statement of the 4th accused. EXHIBIT N is the charge statement of the 2nd accused. EXHIBIT P is the charge statement of the 4th accused

12. THE LAW OF 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 four 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 defendant whose case I am trying was a party to that agreement in the sense that

[i] He agreed with one 6r 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. It is only in very rare cases that a judge/jury would ever receive direct evidence of a criminal conspiracy. When people make arrangements to commit crimes you would expect them do so in private. You would not expect them to agree to commit crimes in front of others or to put their agreement into writing. People may act together to bring about a particular result in such a way as to leave no doubt that they are carrying out an earlier agreement. In deciding if there was a criminal conspiracy and if so whether the defendants whose case I am considering were parties to it. I need to look at all of the evidence as to what occurred during the relevant period, that is usually the period framed in the indictment.by looking at the behaviour of each of the defendants/alleged conspirators. If having done that I am sure that there was a conspiracy and that he/she was a party to it then I must convict, if I am not sure I must acquit.

When criminal conspiracies are formed it may well happen that one or more of the conspirators is more deeply involved in and has a greater knowledge of the overall plan that the others. Also, a person may agree to join in the conspiracy after it has been formed, or he may drop out, before the crime has been fully carried out. Providing I am sure in the case of any defendant that he did at some stage agree with a named co-conspirator that the crime in question should be committed, and at that time he intended that it should be carried out, it does not matter precisely where his involvement appears on the scale of seriousness, or

precisely when he became involved, he is guilty as charged.

13. CIRCUMSTANTIAL EVIDENCE

Sometimes it is the case that direct evidence of a crime is not available and the prosecution relies upon circumstantial evidence to prove guilt. That simply means that the prosecution is relying upon evidence of various circumstances relating to the crime, and the defendants, which they say when taken together; will lead to the sure conclusion that it was the defendants who committed the crime.

14. THE ADMISSIBILITY OF EVIDENCE UNDER THE BANKERS BOOKS EVIDENCE ACT of 1879

During the course of this trial; Counsel for the third accused, made a submission Objecting to prosecution witness Mr. Claude SEIWOH producing into evidence two Cash Books purportedly the property of the Bank of Sierra Leone. Mr. Tejan Cole made a submission: that the witness Mr. Claude SEIWOH was not competent to produce the books because [1] It is contrary to the Bankers Act. [2] It is a private document as opposed to a public document. Mr. Tejan Cole stated he was referring to documents which were clearly private documents as opposed to public documents. He argued the production of a private document is based upon its custody. He emphasized the witness stated the cash books were in his custody as of now, and the witness had admitted in open court, he was not the maker of the documents. Mr. Tejan Cole in his submission referred the court to the case of Myers v DPP 2ALLER 881 and the well established principle that it is only the maker of the document who should produce the document and not just its controller. Mr. Tejan Coles second point was the Bankers Books Evidence Act of 1979 which says amongst other things; that before a Bankers Book can be produced, evidence must be led, and the Bank Officer must inform the court [a] That the book or books to be produced are being used by the Bank, and [b] That he the witness has examined them. Mr. Tejan Cole submitted that upon these two grounds the witness Mr. SEIWOH was not competent to tender the cash books. In addition Mr. Tejan Cole stated the witness was not in a position to answer any questions as to the contents, and there was no overwhelming evidence before this court that the cash books were compiled by cashiers. Mr. Tejan Cole submitted a number of further cases for consideration by the court.

PATEL v COMPTROLLER OF CUSTOMS ,3ALLER 1965 593 ABDULHAMID

IBRAHIM PATEL 1981 CA JANUARY 16 & 26 which considered Myers v DPP and R v KEARLEY1992 2ALLER 345 Mr. Tejan Cole stated. As a result of the Myers case, if there was any departure from the Myers case, it can only be done by Legislation. In a nutshell, Mr. Tejan Cole asked the court not to admit the two Cash books in evidence applying his submission and relying on the well established principles in the case of Myers v DPP. Mr. Tejan Cole was enjoined, and supported in his application by the three other counsels for the accused. Mr. Mason for the State agreed with Mr. Tejan Cole if there was to be a departure from the principles enunciated in the Myers case: that should be done by Legislation. State Counsel fully agreed the two documents the State were tendering were Bank of Sierra Leone cash books, and were hearsay evidence

and private documents. Mr. Mason stated however; there were certain exceptions to the General Hearsay Rule; and the production of Bankers Books and in particular the two cash books of the bank of Sierra Leone were covered by current Legislation in force in the Republic of Sierra Leone at this time. State Counsel went on to read in to open court the jist of sections, 3, s4, and s 5 of the 1879 Act. He submitted the production of the original cash books is allowed by the Bankers Book Evidence Act of 1879, and the witness Mr. SEIWOH was a competent person to admit the cash books in to evidence by his very employment as an officer of the Bank of Sierra Leone. State Counsel asked me to admit the documents into evidence.

16. RULING

In my ruling I set out the following objectives of The Bankers Books Evidence Act 1879 in detail.

[s1] The Act was passed in order to obviate inconvenience caused by the removal of ledgers and other account books from banks for the purpose of production in legal proceedings and in order to facilitate proof of transactions recorded in such ledgers and books.

[s3] Subject to the provisions of the Act a copy of any entry in a banker's book shall in all legal proceedings be received as prima facie evidence of such entry, and of the matters transactions and accounts therein recorded.

[s10] of the Act defines legal proceedings as including any civil or criminal proceedings or inquiry in which evidence is, or may be given [s4] A copy of an entry in a banker's book shall not be received in evidence under this act unless it be first proved that the book was at the time of the making of the entry, one of the ordinary books of the bank, and that the entry was made in the usual and ordinary course of business, and that the book is in the custody or control of the bank. Such proof may be given by a partner or and officer of the bank, and may be given orally or by an affidavit sworn before any commissioner or person authorized to take affidavits.

[s5] A copy of ah entry in a banker's book shall not be received in evidence under this Act unless it is further proved, that the copy has been examined with the original entry and is correct. Such proof shall be given by some person, who has examined the copy with the original entry and may be given orally, or by an affidavit sworn before any commissioner or person authorized to take affidavits.

The expression some person in section 5 is not limited to an officer of the bank see Rv Albutt and Screen 6 CrApp R 55 CCA

I was referred to various cases and considered them all, and had sight of Archbold, in my Ruling. Considering the case of Myers v DPP 1964 2 ALL ER 88 Lord Morris said at page 890 /The Bankers Books Evidence Act did more than merely avoid the need to have actual books in court." Para C. Lord Peace said at page 899. In Nelson v First National Bank of Killinpley 1895 69 FED 798. In which a_comparable problem arose.

In that case camp-scalers measured logs and entered the amounts on cards which were copied each day into the scale book. The book was periodically tested by inspectors by sample measurements and the inspectors gave evidence of the books correctness. THAYLOR J said [65] it is said that the camp sealers should have been hunted up and their testimony introduced. When the scalers made their count and measurement; two records thereof were made; one for the memory of the sealer, the other in the scale book. Which is now the best eviderice? Years have elapsed. The entries in the scale book remain unchanged; they are now just what they were when they were originally made. If the sealers had been produced and had testified that......as they now remembered it, the number and quality were so and so, but on the production of the scale books they showed a different quantity and measurement which should prevail? The court concluded, it cannot be maintained that there is more reliable evidence than the production of the scale book. The court entertained no doubt that the scale books in question were properly admitted into evidence. They appeared to have been kept under conditions that were calculated to prevent mistakes therein, and to ensure a high degree of accuracy, and they were identified by witnesses who had control and were familiar with their contents and whose special duty it was to see that they were properly and accurately kept..

16. CONCLUSION ON THE ADMISSIBILITY OF THE BANKERS BOOKS INTO EVIDENCE IN THIS TRIAL

Legislation passed in the 1879 Banker's Books Evidence Act, supports the production of Bank Records or Books Ledgers and the like, into evidence in either a Criminal or Civil Trial; subject to conditions well defined in the Act. There was an application before me to do just that, to admit two cash books into evidence via the prosecution witness Mr. SEIWOH. In my respectful view all necessary conditions precedent to the admission of such documents had been complied with by the prosecution and the law. The witness was a senior official of the Bank of Sierra Leone. He had custody and control of the books. The Cash Books were true records of the Bank of Sierra Leone and they had at all times been kept under the control of the Bank of Sierra Leone. In my view the cash books are more likely than not to have been audited frequently inspected, and accurately compiled, as enunciated in the case of Nelson v First National Bank of Killingley 1895 . The Bankers Book Evidence Act of 1879 is widely used throughout the Commonwealth of Nations. The Act has remained unchanged since 1879; it is recorded in editions of Halsburys, Archbold and elsewhere. I had no hesitation whatsoever in allowing this well defined, well documented statutory exception to the Hearsay Rule into evidence and I allowed the production of the two cash books by Mr. SEIWOH, particularly so because they will relate to accurate, long standing and preserved bank records. Subsequently a number of other BSL cash books were adduced into evidence by the court. They each form the basis of the prosecutions case. Accordingly, I found as a fact the 13 BSL cash books were admissible in evidence because they were an accurate record 6f the daily transactions of the BSL and were each completed on a daily basis in accordance with the bank's rules.

17. THIRTEEN BSL CASH BOOKS WERE EXHIBITED DURING THE TRIAL as follows

EXHIBIT B 1 is cash book Number 7; EXHIBIT B 2 is cash book number 11 EXHIBIT B 3 is cash book Number 1; EXHIBIT B 4 is cash book number 2 EXHIBIT B 5 is cash book Number 3; EXHIBIT B 6 is cash book number 4 EXHIBIT B 7 is cash book Number 5; EXHIBIT B 8 is cash book number 6 EXHIBIT B 9 is cash book Number 8; EXHIBIT B 10 is cash book number 9 EXHIBIT B 11 is cash book Number 10; EXHIBIT B 12 is cash book number 12 EXHIBIT B 13 is cash book Number 13. I have examined each of the cash books in this case.

1.8. ELECTIONS OF THE ACCUSED

On Wednesday 22nd February 2006 after the prosecution concluded its case the defendants were put to their election. I had found there was a case to answer against each of the four accused persons, based upon the documentary evidence adduced in court so far by the prosecution, applying DPP v Moran TLR 06-02-02; immediately at the close of the prosecution case. The 1st 2nd, 3rd and 4th accused each relied upon their VCS's as is their right. The defence did not call any witnesses during the trial.

19. AN ANALYSIS OF THE EVIDENCE

This has been a long drawn out case continuing over a long period of time. I wish to emphasize any delay has never been the fault of any of the defendants. I will say something about delay in due course. The case itself is based mainly upon documentary evidence. I do not intend to go through every piece of evidence per se, I start with the premise each of the documents entered in evidence both by the prosecution and the defence stands on its own. I accept the oral evidence given by witnesses for the State. I found each of them to be truthful witnesses.

20. THE THIRD AND FOURTH ACCUSED

At this stage in this my Judgment, I acquit and discharge the third and fourth accused of the charge in this indictment. I do this because I am not satisfied beyond reasonable doubt, so that I am sure that the 3rd and 4th accused committed an act of conspiracy to defraud the BSL as stated in the indictment. The evidence against the two accused is much weaker than the evidence against the 1st and 2nd accused. The 3rd and 4th accused accept in their VCS's; they endorsed cashiers cheques brought to them in their capacities as Floor Supervisors or verifiers. This verification was for authorization for money to be paid out by the cashiers; if the monetary level of a cheque was over a specific sum, [i.e.over the floor limit] I accept their explanations in the VCS's. I am fully aware through my own personal experience of working in the banking system of the pressure put upon supervisory personnel to sign documents or cheques inside a busy banking hall; quickly and in haste. The law requires me to give an accused person the benefit of doubt in a case such as this. Accordingly; because the evidence is weak against the 3rd and 4th accused, I acquit and discharge them both. The third and fourth accused may now leave the dock. Bail conditions no longer apply. I thank their respective counsel patricularly for their closing speeches. I wish to thank Mr. Tejan Cole for always being present in court on time.

21. THE EVIDENCE AGAINST THE FIRST AND SECOND ACCUSED.

In his closing speech Mr. Mason for the State addressed me on factual issues which arose during the course of this trial. He indicated he would address the court on principles which he considered applicable in so far as his view of the facts were concerned. The case against the 1st and 2nd accused was a serious allegation of fraud committed over a long period of time. Mr. Mason was of the view the prosecution had brought sufficient evidence to support the allegation of conspiracy to defraud which the prosecution says was carried out by the accused as a joint conspiracy [but also with others]. As a result of the accused's dishonest acts the Bank of Sierra Leone was defrauded of a large sum of money. Mr. Mason said the prosecution had demonstrated the means by which the fraud was committed between 01-08-1999 and the 3-3-2003 when the accused conspired to defraud the BSL, by reprocessing 101 GSL salary Cheques. Two prosecution witnesses employed by the bank each identified Exhibits A1-19 as GSL cheques in the possession of the bank. Each cheque was a salary cheque drawn on GSL account no. 1100515. The prosecution suggests the fraud was committed by staff recycling 101 cheques; of which Exhibits A1-19 were just part of the number of cheques which had been cashed twice. The process was and is; the prosecution says unlawful. During the course of the trial an issue arose over the meaning of the word "recycled cheques." The prosecution's view the maenig was properly addressed by both prosecution and defence counsel. State Counsel was also of the opinion the meaning of recycled cheques was also dealth with in the VCS of both the 1st & 2nd accused. He went on to say evidence adduced in the trial showed 101 re-cycled cheques were logged into 13 BSL Cash books which are Exhibit's B1-13. A total of 89 GSL salary cheques have subsequently found to be missing from the Bank's premises despite searches by bank staff. The prosecution says of significant interest is the fact two paid re-cycled GSL salary cheques were found at the home address of the second accused on 30th May 2003 during a search by police officers acting on a Magistrates Search Warrant in contravention of all banking rules and procedures. State Counsel refered to the evidence of PW1 Mr. Alex Mason. PW1 identified each of the accused as officers of the Bank of Sierra Leone. He detailed the respective officer's positions, duties and responsibilities in the bank. PW1 testified the accused were long term bank officers working as cashiers during the period alleged in the indictment. PW1 identified prosecution Exhibits A1-19 as 19 salary cheques drawn on SL government salary account no. 1100515. PW1 was also part of an investigative team which investigated the anonymous tip received by the bank in May 2003 alleging widespread fraud at the BSL. In the witnesses own words he said the fraud was committed"using recycled cheques." The prosecutor urged me to accept the witness's evidence, and I do.

A second prosecution witness, PW2 also identified Exhibit's A1-19 as GSL salary cheques drawn on account 1100515. PW2 testified the 19 cheques were recycled cheques, more importantly the witness went on to explain to the court his reasons why he thought the cheques were recycled.[i.e.] they had been dashed once lawfully were represented; and as a result they were paid twice] In his testimony he went through each cheque in detail. State Counsel asks me to accept his evidence. According to PW2's observation of the 19 cheques A1-19. identification stamps were altered; the dates on four of the exhibits had two cash analyses' written thereon. Specifically during cross examination on behalf of the second accused; counsel representing the second accused asked the witness to show how Exhibits A18 and A19 had been paid twice. State Counsel emphasized this was his reply.' The face is altered. The verification is altered. PW2 was pressed further by defence counsel but he gave the same answer which is before me which State Counsel urges me to accept and I do.

22. THE AUDITORS EVIDENCE

During the course of his investigation the auditor at the Central Bank examined 13, bank of SL cash books now in evidence before this court as EXHIBITS B1-13. From his examination of the 13 cash books in court, the auditor linked the first and second accused as the cashier's responsible for the encashment of recycled cheques. From his analysis of the 13 cash books, he indicated 101 cheques had been paid twice. Exhibits A1-19; being but a small sample. During his closing speech the prosecution summarized five sample cheques each cashed by the first and second accused; he emphasized many others were identified by the auditor having been paid twice by the accused cashiers The prosecutor submitted it could be inferred, because of the proximity of the dates of first payment of the cheque, and the dates of the second payment, being so close;then that the prosecution says; would suggest knowledge on the part of the cashiers that the cheques were paid twice. That procedure was unlawful. | accept that proposition in its entirety.

State Counsel went on to give me examples of recycled cheques cashed by the 1st and 2nd accused which Mr. Ansumani identified to the court, and which Mr. Mason re-emphasized to me in his closing speech.

23. SAMPLE OF RE-CYCLED CHEQUE CASHED BY THE FIRST

ACCUSED.

[a] Cheque number 175631 was first encashed on 19-08-99 by the first accused, then again on the 24-08-99 [5 days later]

[b] Cheque number 175632 was first encashed on 19-08-99 by the first accused then again on 24-08-99 clarified he meant paid out again [in answer to Mr. Tejan Cole] by the first accused. [5 days later]

[c] Cheque number 185736 was first encashed on 27-01-00 then again on the 31-01-00 by the first accused as cashier [4 days later]

[d] Cheque number 158233 was first encashed on the 01-05-01, then again on the 03-05-01 by the first accused. [2 days later]

[f] Cheque number 288667 was first encashed on the 04-08-02 then again on the 06-08-02 by the first accused.[2 days later]

As the prosecution alleges this fraud was committed between 01-08-99 and the 3i-03-d3. The prosecution submits the five cheques identified above and which the witness says were paid by the first accused clearly fall within the period alleged in the indictment; the time frame for the cheque re-presentation for encashment a second time was very short, i.e. 2-5 days, the cashier should have knowledge; well again I accept that proposition in its entirety.

24. FINDING OF FACT.

[a] I find as a fact the five sample cheques listed above were unlawfully cashed by the first accused, on two separate occasions, along with other cheques which have been detailed in the audit of the 13 BSL cash books.

[b] I find as a fact the five sample cheques listed above were each cashed within a very short period of time, i.e. twice. That in my respectful view goes to prove knowledge on the part of the first accused.

[c] I find as a fact ledger entries covering recycled cheques were made in the bank's cash books Exhibit's B1-13 by the first accused, in his own handwriting just days apart.

[d] I find as a fact any reasonable competent, honest bank employee of the status, standing and experience of the first accused would have recognized detected and identified the five cheques detailed above which had each been paid before and which are clearly recycled cheques.

[e]I find as a fact the five cheques detailed above should never have been cashed by the first accused, irrespective of any authority he might have received from any higher authority, because they were recycled cheques.

[f]I find as a fact a bank employee as a servant of the bank owes a high duty of care to his employer to carry out his duties honesty, and with integrity.

25. RE-CYCLED CHEQUES ALLEGEDLY ENCASHED BY THE SECOND ACCUSED.

From his analysis of the 13 cash books EXHIBITS B1-13 in respect of the Second Accused, Mr. Ansumani gave evidence to the effect that:

[a] Cheque 259480 was first encashed on the 23-05-01 and again on the 28-05-01 by the second accused. [5 days later]

[b] Cheque number 266106 was first encashed on 24-09-01 then again on the 30-10-01 by the second accused. [6 days later]

[c] Cheque number 266207 was first encashed on 26-09-01 then again on the 30-10-01, by the second accused.[35 days later]

[d] Cheque number 286360 was first encashed on the 28-06-02 then again on the 04-08-02 [37 days later]

[e] Cheque number 286509 was first encashed on the 28-06-02 then again on the 11-08-02 [44 days later]

From an analysis of the bank cash book records the witness was able to say the cheques were paid out by the second accused as cashier. The prosecution in their closing speech summarized five specimen cheques in respect of each of the

accused which they said had been recycled The prosecution emphasized many more had been identified by the auditor in his testimony as having been paid by both the first and second accused during the course of their duties. The prosecutor stated it could be properly inferred because of the proximity of the date of the first payment and the date of the second payment being so close, it would suggest knowledge under the part of the second accused that the cheques were being paid twice. Again I fully agree with that proposition

26. FINDING OF FACT.

[a] I find as a fact the five sample cheques listed above were unlawfully cashed by the second accused, on two separate occasions, along with others which have been detailed in the audit of the BSL cash books.

[b] I find as a fact the five sample cheques listed above were each cashed within a very short period of time twice that in my respectful view goes to prove knowledge on the part of the accused.

[c] I find as a fact ledger entries covering recycled cheques were made in the bank's cash books Exhibit's B1-13 by the accused, in his own handwriting written just days apart.

[d] I find as a fact any reasonable competent and honest bank employee of the status, standing and experience of the second accused would have easily recognized detected and identified the five cheques detailed above which had each been paid before and were clearly recycled cheques.

[e] I find as a fact the five cheques detailed above should not have been cashed by the second accused, irrespective of any authority he may have received from any higher authority, because they were recycled cheques.

[f] I find as a fact any bank employee as a servant of the bank owes a high duty of care to his employer to carry out his duties honesty, and with integrity.

27 EXAMINATION OF CHEQUES NUMBERED

Cheques numbered 177985, 182269, 182289, and 184650. An examination of each of the four cheques numbered above by the auditor shows on the back of the cheque, an analysis of the listing for payment of monetory denomination notes, or the amount in Leone's which had been paid out; NOT ONCE as would be expected on a cheque, but- TWICE. The four listing endorsements indicate quite clearly the 4 cheques were recycled cheques. That fact would have been apparent to any competent and well trained bank cashier, as the two accused were. But perhaps not if they were dishonest.

28. ANALYSIS OF THE VOLUNTARY CAUTION STATEMENTS.

The prosecution referred to the VCS of the first and second accused starting with the statement of the first accused Albert Conison. In his additional statement of the 25-06-03, Exhibit D1-15 the first accused accepted having paid out and entering in the cash books ten cheque number's, 183757, 183752, 182289, 184650, 183170, 183201, 183816, 176755, 176746, and 182268. The prosecution says this is an acceptance on the part of the first accused of his responsibility for handling and paying out on the cheques. The first accused in

his statement denied realizing .when the second payment was made, that the cheques were being presented a for a second time. He accepts in his VCS to the police dated 25-06-03 paying out THIRTY FIVE [35] re-cycled cheques. He also accepts to the police in his VCS that all Govt cheques over one million Leone must be authorized by Mr. W. O Newman- Samuels. He accepts in his VCS when he examined them, only one of the 35 cheques he was shown bore Newman Samuels signature. [See page 14 Iine17-21 of D1-15] I do hot accept his explanation given to the police that he did not know they were paid twice. 35 cheques found to have been paid twice are far too many for the notional and reasonable man to believe are mistakes appliying the test for dishonesty GHOSH. The date of the second payment of each of the 35 cheques are too close barely 2-5 days apart. This is after all a very experienced cashier. The re-processing and encashment of 35 GSL salary cheques over a period of time indicates to me, a continuing criminal course of conduct committed by the first accused. It is in my view very clear evidence of a criminal conspiracy committed against the bank which started in 1999 and continued until his arrest.

29. THE SECOND ACCUSED'S AND HIS VCS.

The auditor also linked the second accused to the payment of recycled cheques. In his VCS Exhibit L1-13 the 2nd accused accepted cheques were paid twice whilst he was employed as a cashier at the Bank of Sierra Leone. The prosecution urged me not to accept the accused's denial in his VCS, again given the circumstances in which the second payments were made; because the prosecution suggests a close proximity of dates of payment between the first and second cash payments. They ask me to bear in mind the considerable practical experience of the cashier and the period which he worked for the Bank. They also remind me of the fact the cashier each keep written records in their own handwriting and each have a clear duty to account for their cash books on a day to day basis

30 SEARCH WARRANT EXHIBIT K.

Evidence reveals on 30th May 2003 police officers executed a search warrant at the home address of the 2nd accused, Mr. Cole in Waterloo. During the search two [2] GSL paid recycled cheques and other banking items were found by police officers in his presence. Ifi his VCS, the 2nd accused gives an explanation which the prosecution asks me to reject. The accused says he took the two GSL paid cheques home by mistake from the bank. He said he always had the intention of returning the two cheques to the Bank, but he had not done so. He accepted in his VCS they were old cheques and were PAID cheques. The second accused admitted it was against bank policy for material to be taken from the Bank's premises [or safekeeping]. The prosecution invites me to find as a fact this is evidence of part of the scheme employed by the accused, in the fraud which they allege and I do. The prosecution was unable to produce, identify or tender the two cheques which have been lost by the police. They submit the inability to produce the cheques should not reduce the weight of evidence attached to this find; because the second accused gave police the numbers of the cheques found

at his home. Details of the cheques were also recorded on the rear of the search warrant. I am entitled to take into account oral evidence of a witness, whose evidence is strengthened by the production of the Magistrate's search warrant dated 30th May 2003, EXHIBIT K endorsed with the following:-

"During the course of the search at the home address of the second accused the following were found and seized. Government of Sierra Leone Cheque GSL 276977 in the sum of six million six hundred and twenty eight thousand three hundred and sixty seven Leone [Le 6,628,367.00] in the name of Permanent Secretary Department 401 Agriculture Forestry and Environment together with BSL Cheque No GSL 265208 in the sum of sixteen million eight hundred and twelve thousand two hundred and eighty two Leone in the name of Education Secretary 4 UMC BO both bearing cashier and verification stamp.

31 CONCLUSION

I accept the oral evidence given by prosecution witnesses. I accept the truth of the evidence contained on the back of the search warrant that two PAID GSL salary cheques and other bankin items were found at the home address of the second accused on 30th May 2003. I find as a fact no reasonable, competent, honest bank official would remove from a bank and have in his possession at his home address [in other words out of the possession and safekeeping of the bank] one, let alone two paid GSL salary cheques. This is clear evidence of theft because, it is well know in the banking industry that paid or cancelled cheques are always to be kept in the safekeeping and custody of the bank and kept under lock and key, in either a vault or, filed away in a filing room not in a cashiers home Applying the test of Rv GHOSH to the facts of this case, the finding of paid 2 GSL cheques at the second accused's home is evidence which I take into account to infer dishonesty on the part of the second accused, and I do. I further find as a fact the possession of 2 PAID GSL cheques at the second accused's home premises is evidence which I accept goes to prove the second accused was involved in an act of conspiracy and fraud against his employer, together with others, committed during a continuing course of conduct from 1999 to the time of his arrest four years later. The finding of 2 PAID GSL cheques at the home address of the second accused is also evidence which is capable of inferring other staff members employed by the bank, including the first accused were involved in; the concealing destroying or defacing up to 89 GSL cheques, which were not found during an internal audit and search of the BSL premises in May 2003. In particular I totally reject any assertion the accused were only doing their job cashing GSL payroll cheques acting under instructions [or] authorization from higher up; and which has been put forward as a defence to this charge, in order to avoid conviction. That is hogwash. No single employee of any organization in this day and age can rely on that assertion as a defence to a criminal charge such as this; in today's modern world. Every single employee of whatever status; or rank wherever he works has a primary duty to do his or her part, to prevent detect and report crimes such as this. The cases of R v BARRICK and R v GHOSH says so. Looking at all the evidence presented

to me in this case both oral and documentary, i reiterate I find as a fact there was a conspiracy to defraud the BSL of a large sum of money. I find this crime was committed by the first arid second accused who are prime movers along with other persons unknow for all the reasons I have outlined. There is a clear link to a conspiracy in this case committed by these two cashiers. The link to each other, are cash books written in their own hands with the same entries, written days apart containing details of the same cheques being cashed twice. I cannot overlook the evidence of the loss/ and or destruction of 89 GSL cheques, when that evidence is coupled with the damming evidence of the finding of TWO PAID GSL cheques and other banking items, found during the search of the home address of the second accused on 30-05-03. In my respectful view the prosecution has proved its case against the 2 accused beyond any reasonable doubt so I am sure they committed this crime with which they are charged.

SET OUT BELOW IS A LIST OF CHEQUES I FIND AS A FACT WERE RECYCLED CHEQUES. EXHIBITS A1-19

[I] GSL175631 dated 11-08-99 in sum of 16,976,943.00 [2] GSL175632 dated 11-08-99 in sum of 3,754,470.00 [3] GSL176746 dated 06-10-99 in sum of 8,589,908.00 [4] GSL176755 dated 06-10-99 in sum of 10,290,432.00 [5] GSL177394 dated 26-10-99 in sum of 18,717,684.00 [6] GSL177457 dated 28-10-99 in sum of 20,682,059.00 [7] GSL177985 dated 12-11-99 in sum of 11,809,887.00 [8] GSL182268 dated 22-11-99 in sum of 25,912,307.00 [9] GSL182269 dated 22-11-99 in sum of 25,912,307.00 [10] GSL182289 dated 25-11 -99 in sum of 15,363,664.00

[II] GSL183170 dated 20-12-99 in sum of 28,869,958.00 [12] GSL183201 dated 21-12-99 in sum of 30,289,755.00 [13] GSL183752 dated 19-01-00 in sum of 20,076,805.00 [14] GSL183757 dated 19-01-00 in sum of 9,893,955.00 [15] GSL183816 dated 21-01-00 in sum of 16,967,024.00 [16] GSL184650 dated 07-03-00 in sum of 5, 252, 256. 00 [17] GSL189794 dated 08-12-00 in sum of 22,573,627.00 [18] GSL284388 dated 25-05-02 in sum of 13,219,975.00 [19] GSL303509 dated 24-03-03 in sum of 13,749,661.00

The total amount drawn on cheques EXHIBITS A1-19 amounts to Leone 318,902,677.00. I find the 1st and 2nd accused guilty of the crime of conspiracy to defraud the GSL and their employer BSL of the proceeds of the 19 recycled Cheques, together with 89 lost recycled cheques documented in Exhibits B1-13; Applying the case of MACHENT v QUINN 1970 2 ALLER 255 DC to the facts of this case I reiterate is not necessary to prove all the articles or values mentioned in the indictment to have been stolen or defrauded if; it is proved that the defendants] stole any one of them. I find as a fact the two accused with other person's unknown stole the proceeds of cheques A1-19 and as such they are guilty as charged. I find there is evidence to prove the second

accused stole the two cheques found at his home premises, because he had no right or authority to remove the cheques from the bank. This was a conspiracy to defraud and the accused are both guilty as charged.

Shuster J Judge of the High Court

Freetown 15th June 2006