O
SPECIAL COURT FOR SIERRA LEONE
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IN THE APPEALS CHAMBER

SEPARATE AND CONCURRING OPINION OF
HON. JUSTICE EMMANUEL AYOOLA
ON THE DECISION ON APPEAL AGAINST THE 10 MARCH 2005 ORAL RULING ON THE ALLEGATIONS OF CONTEMPT

Introduction

1. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu (“the appellants”) are, respectively, standing trial before Trial Chamber II ("the Trial Chamber") of the Special Court for Sierra Leone ("the Special Court").
2. During trial proceedings on 10 March, 2005, a protected witness, TFI – 023, informed the Trial Chamber that on 9 March, 2005, when she was on her way home in a vehicle, two women whom she saw but had not known before made remarks that they had seen her, called her name and threatened her that they (she and them) had come together at "daggers drawn".[1]
3. Counsel for the Prosecutor, Ms. Taylor, informed the Trial Chamber that the Office of the Prosecutor had that morning received two written reports relating to two separate incidents, of which the incident mentioned by the protected witness was one, and that those reports indicated that there was a prima facie case of contempt against five persons, namely: Brima Samura (the investigator of the Defence team for the Accused Brima), pursuant to rule 77 (A) (ii) and Margaret Fomba, Nene Binta Bah, Anita Kamara and Ester Kamara, pursuant to Rule 77 (A)(iv). She submitted that, in the circumstances, it was appropriate for the Trial Chamber to make certain interim orders.[2]
4. In the event, the Trial Chamber, after some preliminary statements, ruled and made orders in the following terms:[3]

“I consider that the report before the Court constitutes prima facie grounds for bringing persons named before the Court to show cause why they are not in breach of Rule 77(i)(iv).

Notwithstanding Mr. Metzger’s submissions, I am of the view that there are issues which go to the hearing that he raised and they cannot be ruled upon or determined at this time today. The duty of the Court is to ensure its orders for protected witnesses are upheld and to ensure that allegations against the persons associated with the defence with the accused are properly heard and ruled upon. We are also concerned that in the light of Mr. Metzger’s submission, there is possibility that some counsel may have to give evidence in this Court and, accordingly, this Court may not be the appropriate forum.

I refer counsel to Rule 77 and the powers of the Court. I consider that there is prima facie grounds that the following persons should be brought before the Court to show cause why they are not in breach of Rule 77(1)(a)(iv) and (ii). Accordingly, this Court directs an order that the Registrar appoint an independent counsel to investigate and to prosecute the following persons: Margaret Fomba, Neneh Binta Bah, Anifa Kamara, Ester Kamara, Brima Samura pursuant to Rule 77(C)(iii) of the Rules of Procedure. The Court directs that the investigation and appropriate appointment be done expeditiously.

The Court further directs that they be brought before this Court or an alternate Court that may have to be appointed if counsel are involved to be dealt with in accordance with Rules 77(C)(i). The Court further orders that Brima Samura be suspended from this Court and return all Court documents and information pending investigation and hearing.

I accept prima facie it is an interim measure. Further, the Court orders and directs that Margaret Fomba, Neneh Binta Bah, Anifa Kamara and Ester Kamara may not enter the public gallery pending the investigation and hearing of this matter.

We direct that the independent counsel prosecute this matter pursuant to Rule 77(C)(iii). That is the ruling of the Court.”

5. It is to be noted that before the ruling and orders were made Mr. Metzger who was counsel for Brima Bazzy Kamara (the 2nd accused) had intervened to say that "it appears that an allegation has been made concerning a member of my team and member of other or certainly relatives of other teams, (sic) and the defence have not been called upon to either meet the allegation that has been made or deal with anything".[4]
6. The Presiding Judge of the Trial Chamber had responded that:[5]

". . . . we are going to direct a full investigation and then a hearing, in which all the Defence will, of course be fully heard and as in any hearing, the defence is entitled to be heard, but until there is an investigation, I think it is premature to invite the defence to lay out their case."

7. On Mr. Metzger’s persistence that he be heard on the interim measures the Trial Chamber proposed to make, the Presiding Judge agreed to hear him, but “only on the question of Brima Samura and that alone".[6] Thereupon Mr. Metzger addressed the Trial Chamber, as it was put, "only on the question of Brima Samura"[7] who was the investigator of the Brima defence team. The Trial Chamber thus had before it Mr. Metzger’s submission on which it was obliged to render a ruling as well as the report of an alleged contempt of the Court in respect of which it had to take steps in terms of Rule 77(C).

The Appeal

8. The appellants have now appealed from what has been described as the ‘Oral ruling of the Trial Chamber delivered by the Presiding Judge 10 March 2005’ which contained the Trial Chamber’s ruling on the submission made by counsel on behalf of the investigator of the Brima defence team and the exercise of power pursuant to Rule 77(C)(iii) by the Trial Chamber on the allegation that certain persons may have been in contempt of the Special Court.
9. The appellants’ appeal as contained in their "Joint Defence Notice of Appeal" is from "both the interim measures as well as the decision of the Trial Chamber by which it imposed an investigation under Rules 77 (C)(iii)". They appealed on three grounds as follows:

(a) First Ground of Appeal

Error in law and/or fact due to violation of the right to have a fair hearing (principle of audi alterem partem) in the context of Rule 77(C)(iii) in conjunction with Rule 54 and Rule 77(E) of the Rules, given the fact that both the decision on the interim measures, as well as the imposition of the inquiry pursuant to Rule 77(C)(iii), were taken on merely information and documents provided by the Prosecution, namely the letter of the Witness and Victims Unit and the attached reports of security services and support staff.

(b) Second Ground of Appeal

Error in law and/or fact due to a (sic.) erroneously acceptance of a prima facie case for contempt of court. Rule 77(C) provides for the criterion that the Trial Chamber must have “reason to believe that a person may be in contempt of the Special Court”. The Defence holds the view that this threshold can only be met when both a procedural standard is met (see appeal ground 1 above), as well as a substantive standard in that a certain amount of verifiable facts lie before the Trial Chamber. It is this latter standard that forms part of this appeal ground.

(c) Third Ground of Appeal

Error in law and/or fact due to violation of the principle of proportionality: although Rule 77(C) grants the Trial Chamber consideration discretionary power as to the three options specified under (i) – (iii), those options should nonetheless be assessed based on the principle of proportionality and subsidiarity.

Relief Sought

10. On these grounds the Appellants sought relief that the Appeals Chamber should:

(i) Find the appeal admissible

(ii) Grant the appeal and reverse the impugned decision, both as to the interim measures and the order pursuant to Rule 77(C)(iii), and/or

(iii) Any other decision the Appeals Chamber deems appropriate.

11. The grounds of appeal are vague and in some parts difficult to understand. For instance, ground 1 complained of violation of the right to fair hearing without stating whose right was violated; and, ground 2 is hardly comprehensible. Doing the best one can, it would appear that the complaint of the appellants is that the decision on the interim measures imposed by the Trial Chamber as well as the imposition of enquiry pursuant to Rule 77(C)(iii) should be set aside because (i) they were in violation of the right to fair hearing in that the Trial Chamber had acted on information and documents provided by the Prosecution; (ii) the Trial Chamber proceeded on a wrong criterion in terms of Rule 77(C) and (iii) it did not advert to the principle of proportionality in the steps it took.
12. As the threshold questions raised in the appeal by the parties may be decisive it is unnecessary to rehearse, at this stage, and consider for the purpose of determination of the appeal, the profuse submissions made on the merits. If the appeal is incompetent, no useful purpose is served by considering and pronouncing on the merits of what is merely a purported appeal. A final appellate tribunal should only pronounce on the merits of an appeal of which it is properly seized. It suffices to re-iterate that the accused in the criminal trial are the appellants, and that their challenge is (i) to the powers exercised by the Trial Chamber pursuant to Rule 77(C) on the report made to it of certain incidents that may have amounted to a contempt of the Special Court, and (ii) to the interim measures imposed by the Trial Chamber.
13. In regard to the power exercised by the Trial Chamber pursuant to Rule 77(c)(iii) the threshold questions are: (i) whether the means of challenging the exercise of those powers is by appellate process; (ii) if it is, whether the appellants are the persons competent to bring the appeal; (iii) if the appellants are competent to bring the appeal, whether they can do so without first obtaining leave of the Trial Chamber. In regard to the interim measures imposed by the Trial Chamber, the threshold questions are whether the appellants are competent to bring the appeal and, if so, whether it is proper for them to do so without, first, obtaining leave of the Trial Chamber.
14. In regard to these issues the appellants put their case thus: (i) the provisions of Rule 77(J) of the Rules of Procedure and Evidence ("the Rules") that "any decision rendered by a single Judge or Trial Chamber under this Rule shall be subject to appeal" specifically embraces the term "any decision" which, it is submitted, includes a decision pursuant to Rule 77(C)(iii); (ii) although Rule 77 does not specifically refer to interim measures in the context of a contempt of Court investigation and the Trial Chamber had founded its interim order on Rule 54, the interim measures were closely connected to the decision under Rule 77(C)(iii) and were appealable in accordance with Rule 77(J) ; (iii) Rule 77(J) having specifically provided that any decision under Rule 77 “shall be subject to appeal” no leave to appeal was necessary.
15. For its part, the Prosecution submitted that the "purported" defence appeal should be rejected on the grounds, first, that there was no legal basis in the Rules for bringing such an appeal and, secondly, that it is lacking in merits.
16. The Prosecution submitted that: Although Rule 77(J) of the Rules provides that "Any decision rendered by a Single Judge or Trial Chamber under this Rule (i.e. Rule 77) shall be subject to appeal”, Rule 77(J) referred to a decision under Rule 77(A), (B) or (G) finding a person to be, or not to be, in contempt of the Special Court and imposing a penalty on a person held to be in contempt. An interlocutory or interim decision of a Trial Chamber in contempt proceedings is not a decision made under Rule 77 even if it is a decision made in Rule 77 proceedings. Interlocutory decisions and orders made in contempt proceedings are made under Rule 54 or Rule 73 and not under Rule 77 itself. An interlocutory appeal against a decision of a Trial Chamber in contempt proceedings, as in any other kind of proceeding before a Trial Chamber, requires the leave of the Trial Chamber pursuant to Rule 73 (B). In the absence of leave to appeal pursuant to Rule 73(B) the appeal should be rejected to the extent that it relates to the interim measures ordered by the Trial Chamber.
17. The Prosecution conceded that the decision of the Trial Chamber to order the appointment of an independent counsel pursuant to Rule 77(C)(iii) was a decision under Rule 77. However, it went on to submit that there being no procedure by which a person who is being investigated by the Prosecutor of the Special Court for serious violation of international humanitarian law can challenge the decision to investigate him, there was no basis for suggesting that the accused in this case, who were not being investigated for contempt, could challenge a decision to investigate other person for contempt.
18. On the issue of standing it was submitted that, in regard to challenge of the Trial Chamber's decision on the basis of alleged violation of the rights of the suspected contemnors, the Appellants lacked standing. It was argued that "the Accused in this case and their counsel only have standing to challenge the Trial Chamber's decision to the extent that they allege that the rights of the three Accused in this case have been specifically affected"

Joint Defence Reply

19. In the Joint Defence Reply, the Appellants discussed the Brdanin[8] case which was referred to in one of the footnotes[9] of the Prosecution response and argued that the decision in that case was inapplicable. The appellants claimed standing to appeal because, as they argued, the “mere fact that all of the Accused are not allegedly involved in potential contempt of court as such, cannot take away the fact that they have a reasonable interest to a participation in these proceedings as the outcome thereof affects the fairness of their case"[10], even if, indirectly. It was clear from the Appellant’s reply (para. 9) that they had proceeded on the footing that they were appealing from a decision made in the case against the Accused.

Discussion

20. Central to a determination of the threshold issues is a proper appreciation of the nature of contempt proceedings under Rule 77 of the Rules generally and, in particular, the true nature and ambit of Rules 77(C) and 77(J).
21. Rule 77 (A) restates the inherent power which inheres in any superior court to punish for contempt any person who knowingly and wilfully interferes with administration of justice. Rule 77(C) sets out the several powers that a Judge or Trial Chamber who has reason to believe that a person may be in contempt of the Special Court may exercise. It is apt to note that whether the Judge or Trial Chamber exercises any of those powers is at the discretion of the Judge or Trial Chamber.
22. The powers that a Judge or a Trial Chamber may exercise pursuant to Rule 77(C) are to:

(1) Deal with the matter summarily himself or itself;

(2) Refer the matter to the appropriate authorities of Sierra Leone;

(3) Direct the Registrar to appoint an experienced independent counsel to investigate the matter and report back to the Chamber as to whether there are sufficient grounds for instigating contempt proceedings. If the Chamber considers that there are sufficient grounds to proceed against a person for contempt, the Chamber may issue an order in lieu of an indictment and direct the independent counsel to prosecute the matter.

23. When the summary option is chosen, the Judge or Trial Chamber acts, as it is usually put, "ex mero motu". The Judge or Trial Chamber does not need, and is not expected, to give to the alleged contemnor any formal notice of his intention to initiate summary contempt proceedings at that stage and to ask him to address whether or not such should be initiated. Since the summary procedure is reserved for cases of contempt in the face of the court, the Judge or Trial Chamber deals, there and then, with the alleged contempt himself or itself and satisfies the demands of natural justice by stating clearly to the alleged contemnor the specific charge against him, calling upon him and giving him an opportunity to "show cause" why he should not be committed for contempt. Evidently, it will be absurd to ask the alleged contemnor to show cause why he should not be called upon to show cause.
24. Where the Judge or Trial Chamber decides to exercise the power of referral to Sierra Leone authorities, the Judge or Trial Chamber does not at all take any decision as to the innocence or guilt of the alleged contemnor nor does he take any decision that would tie the hands of the appropriate Sierra Leone authorities. The Judge or Trial Chamber merely reports to such authorities that he or it has reason to believe that the alleged contemnor may be in contempt of the Special Court. It would then be for Sierra Leone authorities to investigate the matter and exercise a prosecutorial discretion, whether or not to prosecute the alleged contemnor. The Judge or Trial Chamber in such circumstances assumes a role similar to that of a complainant. The prosecutorial decision lies with Sierra Leone authorities.
25. The third option speaks for itself. It is clear from the provisions of Rule 77(C) (iii) that the Trial Chamber or Judge directs the Registrar to appoint an independent counsel who would investigate the matter and report back to the Chamber as to whether there are sufficient grounds for instigating contempt proceedings. At that stage, beyond having reason to believe that a person may be in contempt of the Special Court, the Judge or Trial Chamber has not formed, and is not expected to have formed, any view as to the guilt or innocence of the person suspected to be in contempt, or even whether there would be sufficient evidence to justify a prosecution of such person. The subsequent decision of the Judge or Trial Chamber pursuant to the report of the independent counsel, if it is reported that there are sufficient grounds for instigating contempt proceedings, is a prosecutorial decision which is also at the discretion of the Judge or Trial Chamber.
26. The decision of the Judge or Trial Chamber to exercise any of the powers under Rule 77(c) (ii) or (iii) may or may not, eventually, lead to initiation of contempt proceedings. If contempt proceedings are initiated, the parties to such proceedings would be the prosecutor, which is the independent counsel, and the alleged contemnor. The parties to the criminal proceedings in the course of which the alleged contempt occurred do not by virtue of their being such parties become parties to the contempt proceedings.
27. It is expedient to observe at this point that the prerequisite to the exercise of the powers set out in Rule 77(C) is that the Judge or Trial Chamber must have reason to believe that a person may be in contempt of the Special Court. A Judge who or a Trial Chamber that has reason to believe that a person may be in contempt of the Special Court does not by that fact hold himself or itself out as having concluded that there is even prima facie evidence that the person is in contempt. There is a distinction between reasonable suspicion and prima facie case.[11] ‘Reason to believe’ that contempt has been committed is another way of putting the prerequisite of ‘reasonable suspicion’. Reasonable suspicion that a person may be in contempt are words that could have expressed the same prerequisite as ‘reason to believe’. It is difficult to fathom what useful purpose would have served at that stage by hearing the suspected contemnor, or the accused in the pending criminal trial, when, at that stage, all that the Judge or Trial Chamber is expected to act on are facts, which may not even be admissible in evidence, but sufficient to give him reason to believe that a person may be in contempt.
28. In view of Rule 77(J) which provides that: "Any decision rendered by a single Judge or Trial Chamber under this Rule shall be subject to appeal", it is expedient to consider the nature of the power exercised by a Judge or Trial Chamber under Rule77(C). In so far as the powers exercised by a Judge or trial Chamber can be said to be a result of a decision to exercise such powers, it can be said that the exercise of such powers implies a ‘decision’. However, it cannot be said that such decisions are judicial decisions. They are decisions of an executive nature and are not decisions, at that stage, that depend on any dispute or on the resolution of any conflicting facts or issues. The choice between options available under 77(c) (ii) or (iii) is determined not by law but by administrative convenience and expediency. Rule 77(J) deals with judicial decisions. Hence the use of the words ‘decision rendered’. At the stage, when a Judge acts under Rule 77(C) (ii) there are, as yet, no investigation, no contempt proceedings and no parties. All there would have been were mere possibilities of cause to initiate contempt proceedings. Also, at the time when the Registrar is directed by a Judge or Trial Chamber to appoint an independent counsel to investigate under Rule 77(C) (iii) there are as yet no contempt proceedings and no parties. But mere possibilities.
29. Before I part with this aspect of the matter a passage in the opinion of Lord Radcliffe in the Privy Council case of Nakkuda Ali v. Jayaratne[12] is apt in support of the view here expressed that the decision of a judge or Trial Chamber to act pursuant to Rule 77(C) is not a judicial decision subject to appellate review by the Appeals Chamber. In that case it was provided in the relevant statute that “where the Controller has reasonable grounds to believe that any dealer is unfit to be allowed to continue as a dealer” the Controller could exercise power to cancel the dealer’s licence given to him by the relevant Regulations in force in Ceylon. It was held that the words must be construed to mean that there must in fact exist reasonable grounds, known to the Controller, before he could validly exercise the power. Lord Radcliffe in that case observed:[13]

It is not difficult to think of circumstances in which the Controller might in the ordinary sense of the words, have reasonable grounds of belief without having ever confronted the licence holder with the information which is the source of his belief. It is a long step in the argument to say that because a man is enjoined that he must not take action unless he has reasonable ground for believing something he can only arrive at that belief by a course of conduct analogous to the judicial process. [Emphasis mine]

Also, in that case, Lord Radcliffe went on to say:[14]

In truth when he cancels a licence he is not determining a question; he is taking executive action to withdraw a privilege because he believes, and has reasonable grounds to believe that the holder is unfit to retain it.

30. Although the Prosecution may be right in the submission that “an interlocutory appeal against a decision of a Trial Chamber in contempt proceedings, as in any other kind of proceedings before the Special Court, requires the leave of the Trial Chamber pursuant to Rule 73(B)”[15] the exercise of power by the Judge or Trial Chamber pursuant to Rule 77(C) (iii) cannot logically be said to be in ‘contempt proceedings’, because, at that stage, there would have been no contempt proceedings but a decision to launch an inquiry whether there would be sufficient evidence to initiate such proceedings.
31. By way of recapitulation, the following propositions applicable to this case are made:

(i) Contempt proceedings pursuant to Rule 77 are proceedings separate from the proceedings in the course of which the alleged contempt was occasioned or to which the conduct of the contemnor was directed.

(ii) The parties to the proceedings in the course of which the alleged contempt may have arisen do not by virtue of that fact become parties to the contempt proceedings, when initiated, unless they are the alleged contemnors.

(iii) In regard to the description of the powers exercised by a Judge or Trial Chamber under Rule 77 (C) as a "decision", such decision is not a judicial decision but decision in the nature of executive decision, whereas words ‘decisions rendered’ in Rule 77(J) imply judicial decisions. An appeal, as contemplated in our Rules of Procedure and Evidence, is the mechanism by which an Appeals Chamber reviews the decision of a Trial Chamber rendered in initiated proceedings of which the Trial Chamber is or has been seized.

(iv) Choice of power that a Judge or Trial Chamber decides to exercise pursuant to Rule 77(C) does not amount to a prosecutorial decision, but may lead, eventually, to that. Even in regard to prosecutorial decisions, there may be several ways of challenging such decisions, but an appellate process is not one of them. The Appeals Chamber is not set up to exercise a general and roving supervisory jurisdiction over the Trial Chamber so as to review such exercise of power conferred upon it by Rule 77(C.).

(v) When, in terms of Rule 77 (C), a Judge or Trial Chamber has reason to believe that a person may be in contempt of the Special Court, such person does not thereby become party to the pending proceedings or, at that stage, even to any proceedings.

(vi) When Rule 77(C) provides that "Any decision rendered by a single Judge or Trial Chamber under this Rule shall as subject to appeal", "decision rendered" must sensibly be interpreted as "decision rendered” in contempt proceedings that had already been initiated and not to steps taken by a Judge or Trial Chamber pursuant to Rule 77(C) which may or may not result in initiation of contempt proceedings and are merely steps in contemplation of a mere possibility of initiation of contempt proceedings. A decision cannot be "rendered" in proceedings that have not been initiated.

These propositions applied to the powers exercised under Rule 77(C) in the present case.

32. Applying these propositions to the present proceedings the conclusion is inescapable that the appeal is incompetent because the provisions of Rule 77(J) do not apply to decision to exercise power under Rule 77(C). Even if there could be an appeal from the exercise of such powers the appellants who are not the suspected contemnors likely to be affected by the order made pursuant to Rule 77(C)(iii) are not the proper parties to bring such appeal. It is far-fetched, misconceived and purely speculative to argue that the order directing the Registrar to appoint a special counsel to investigate whether there are sufficient grounds to initiate contempt proceedings would impair a fair hearing of the pending criminal proceedings or that contempt proceedings which have not been initiated would have such effect. Such argument could only be a try on designed to fashion a platform for an appeal by the appellants who will be strangers to contempt proceedings, if any, that may eventually emerge from the exercise of powers pursuant to Rule 77(C)(iii).

Concerning the Interim Measures.

33. However, in regard to the interim measures imposed by the Trial Chamber a different consideration applies. Those measures can only, and do, derive their existence from the pending criminal proceedings in which the appellants were the parties as accused. The interim measures were imposed in a case in which the Appellants were parties.
34. The Rules confer appellate jurisdiction on the Appeals Chamber in clearly defined terms. Rule 73(B) empowers the Appeals Chamber to entertain interlocutory appeal from decisions rendered on motions, where the Trial Chamber has given leave to appeal. Rule 77(J) gives a right of appeal from a decision rendered by a Single Judge or Trial Chamber under Rule 77. Rule 106(A) confers jurisdiction on the Appeals Chamber to hear appeals from persons convicted by the Trial Chamber or from the prosecutor.
35. Where a Judge or a Trial Chamber acts pursuant to Rule 54 or Rule 75, an appeal by leave of the Trial Chamber is admissible.
36. The interim measures imposed by the Trial Chamber are not made pursuant to Rule 77 but pursuant to Rule 75. Any appeal from the decision imposing such measures without leave of the Trial Chamber is incompetent. It is unnecessary to consider whether the appellants have standing to appeal from such decision which does not directly affect them. This is one of the considerations that the Trial Chamber would have had to advert to were leave sought from it. It is of interest that the persons directly affected by the interim orders have not appealed from the orders. Be that as it may, for the purpose of this appeal it suffices to find that the appeal having been brought without the leave of the Trial Chamber, is incompetent.

Disposition

37. For the reasons which have been given, it is my opinion that the appeal is incompetent and should, therefore, be struck out.

[1] Transcript, 10 March 2005, p. 4.
[2] Transcript, 10 March 2005, pp. 7-8.
[3] Transcript, 10 March, 2005, pp. 15-16.
[4] Transcript, 10 March 2005, p. 8
[5] Transcript, 10 March 2005, p. 8
[6] Transcript, 10 March 2005, p. 8
[7] Transcript, 10 March 2005, p. 9
[8] Prosecutor v. Brdanin, ICTY Case No. IT-99-36-T [1 September, 2004]
[9] Prosecution Response, p. 4, footnote 9
[10] Joint Defence Reply, para.10
[11] See, Dunmbell v. Roberts [1944] 1 All ER 326 where Scott L.J. emphasising that reasonable suspicion is not to be equated with prima facie proof said (at p. 329):

“The protection of the public is safeguarded by the requirement, alike, of the common law and, . . . of all statutes, that, the constable shall before arresting satisfy himself that there do in fact exist reasonable grounds for suspicion of guilt. That requirement is very limited. The police are not called upon before acting to have anything like a prima facie case for conviction.”

See, also, the Privy Council Case of Inspector Shaeban – bin Hussein v. Chong Fook Kan and another {Privy Council Appeal No. 29 of 1968: Judgment delivered on 7 October 1969}, where their Lordships of the Privy Council said:

“There is another distinction between reasonable suspicion and prima facie proof. Prima facie proof consists of admissible evidence. Suspicion can take into account matters that could not be put in evidence at all. Suspicion can take into account also matters which though admissible could not form part of prima facie case.”
[12] [1951] A.C. 66 at p. 76
[13] Ibid., p. 76
[14] Ibid., p. 78
[15] Prosecution Response, para. 7