IN THE SUPREME COURT OF SIERRA LEONE CORAM:-

HON. MR. JUSTICE S.BECCLES DAVTES AG.- C.J. - PRESIDING

BON. MR. JUSTICE S.C.E.WARNE                                      -J.E.C.

HON. MR. JUSTICE M.O. ADOPHY                                     -  J.A.

HON. MR JUSTICE G.GELAGA-KING                                 - J.A.

HON. MRS. JUSTICE Y.A. WRIGHT                                    - J.A.

CR. APP. 1/85

MELVIN THOMAS                                     - APPELLANT

VS.

THE STATE                                                    - RESPONDENT

APPELLANT-IN-PERSON FOR THE RESPONDENT

JUDGMENT DELIVERED ON 14 DAY OP July 1995

WARNE J.S.C.:- This is an Appeal against the judgment of the Court of Appeal delivered on the 20th day of December, 1984. There is only one ground of appeal which reads:-"That there was miscarriage of justice throughout the proceedings both in the High Court and the Appeal Court."

At the hearing of the appeal on Friday 26th May, 1995, the appellant argued his case in person. The State/Respondent was unrepresented.

The gravamen of the argument of the Appellant is that his was a case of mistaken identity. He pointed out the inconsistencies in the evidence of the two women who gave evidence against him. The appellant submitted that the identification parade at the C.I.D. was unfair because he was the tallest man among the men in the parade. The appellant concluded that he was never at the scene of the crime on the 31st of October, 1982.

On a cursory glance, the record of proceedings both in the Court of Appeal and the High Court was unsatisfactory.

The appellant was convicted in the High Court before a Judge and jury and sentenced to 25 years (twenty five years) imprisonment.

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Against that conviction, he appealed to the Court of Appeal. Among the grounds of appeal which were before the Court was "That the verdict was unreasonable or cannot be supported having regard to the evidence."

The argument of the appellant before the Court was submitted . in writing it states "Identification was wrong. Incident took place on the 31st October, 1982, was identified a week later. Would not have gone that way".

In answer to this submission, Counsel submitted that "issue is of identity. Identification parade was surplusage....... Submits verdict is reasonable and supported by evidence."

The judgment of the Court was reserved on that date, 8th November 1984 and delivered on 20th December, 1984. The appeal was dismissed reasons to be given later. There is no record that the reasons were ever given.

The course open to the Court of Appeal on an appeal before it contained in Section 58(1) Courts Act No. 31 of 1965. It provides:-

(1) Subject and without prejudice to subsection (2) the Court of Appeal on any such appeal against conviction shall allow the appeal if they think that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or the judgment of the Court before when the appellant was convicted should be set aside on the ground of a wrong decision of any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal."

It is pertinent to repeat subsection(2). Subsection (2) provides:-"0n the appeal against conviction the Court of Appeal notwitstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, may-(a) either dismiss the appeal or

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(b) order the appellant to be retried by a Court of competent jurisdiction, if they consider that no substantial miscarriage of justice has actually occured."3 As I have said, the Court of Appeal dismissed the appeal without giving any reasons as Section 58 (1) (2) heretofore mentioned, presupposes Be that as it may, this Court is empower to examine the record, consider the entire proceedings and make its own findings according to law-Section 122(3) of the Constitution of Sierra Leone Act No.6 of 1991 provides:-

"For the purposes of hearing and determining any matter within its jurisdiction and the amendment, execution or the enforcement of any judgment or order made on any such matter, and for the purpose of any other authority,, expressly or by necessary implication given to it, the Supreme Court shall have all the powers, authority and jurisdiction vested in any Court established by this Constitution or any other law".

Having said this, I shall now consider the appeal within the context of the proceedings in the High Court. In my view, the Summing Up of the learned Trial Judge is flawed. The Court of Appeal should have seen the error in the Summing Up before dismissing the appeal summarily. In the High Court, the jury did not have the necessary assistance from the Judge to enable them

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to return a verdict.

There were three witnesses for the prosecution and one for the defence. The appellant relied on his voluntary statement for his defence. That statement was an alibi.

The Learned Trial Judge failed to direct the jury on the Statement and on the defence of an alibi. The law is quite clear on the point, It is essential that the defence of the prisoner shall be adequately put to the jury- R v. Mills, 25 CR. APP. R. 138 R. v. Waters (1954) Cpv L.R. 147 C.C.A.;on this score alone the appeal must succeed; but more on this later.

There were also inconsistencies in the evidence of the two womer who gave evidence - P.W. 1 and P.W. 2. It is not enough for the Judge just to repeat the evidence of the witnesses to the jury.

P.W. 1 Sylvia Shirley Barnett said "He then threatened to return and kill us if we shouted. He then left the room. Right through the incident the accused was holding a revolver."

The other witness P.W. 2 recounting the incident, said "The accused had in his hands a gun, a knife and an iron".

In the Summing-Up the Learned Trial Judge said:-" According to her (P.W.1) three of the raiders entered their room including the accused in the dock. This witness assented. that it was the accused who was carrying a revolver which he pointed straight at her. I will not bother to go into the part of her evidence regarding the accused's threat to rape them. She stated that she was so terribly apprehensive of her life that she felt like giving up."

The witness did say she was apprehensive of her life but never said she felt like giving up. The witness said "As he insisted on raping us, I told him I was from the hospital and I had my tablets with me to take. I asked accused to pass me the tablets, he did so. As far as the evidence of the second witness was concerned, the Judge only dealt with it in passing in his Summing-Up. This was what

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the Judge said "The other Rhoda Kona Barnett came to the witness box. According to her testimony, she too was able to identify the accused because the three raiders were unmasked and as the electric lights were on she saw him clearly, I will not bother to go through her evidence as she too narrated the incident in substantially the same manner like the other lady."

In their evidence on the identity of the accused the witnesses said - P.W. 1 -"At the time when the thieves forced themselves into our room the flourescent electric light was on. I could not remember now how the thieves were dressed but I remember they were not masked but I could clearly see the 1st accused face......................... Some time after the raid I was walking along Kortright when I came across a group of men amongst whom I saw the accused and I immediatel I recognised him as one of the men who raided our flat."

In answer to cross-examination the witness said "The security, men then followed you and returned with you, I said before that I was able to recognise you by your face, your beard and the way you stood up. Yes during the identification parade you had a red piece of clot on your head."

On this issue of identification P.W. 2 said "About a week later P.W. 1 reported to us that she had seen the accused about. The Security Officers and P.W. 1 went after the accused, I later identified him at the College Security Post and also at the C.I.D. Headquarters. Our bedroom lights were on when the thieves entered our room unmasked In answer to cross examination the witness saidi:-"I did not pick you out at an identification parade.

I confirmed that you were one of our attackers." On the issue of identification the third witness for the prosecution, the police officer, said in answer to cross examination. "You were all given the same colour of material to tie on your head. I had received Certain information about your feet. Prior to the parade I asked you to lift up your trousers which you did but I did not notice any deep cut on your

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leg. I did not take any finger print impression at the scene of the crime. because there was none at the scene."

Earlier in his evidence the witness had this to say, "I recall the 31st October 1982 Whilst on duty at the C.T.D. Headquarters a report of Robbery with Aggravation was made by one Sylvia Barnett of Plat 128 Kortright Fourah. Bay College (P.W. 1 (identified)I took up the investigation and went up to Fourah Say College to the said Plat. There I" observed that its back door was damaged. I entered the flat and discovered that the parlour had been ransacked. P.W.1 took me to their room which I noticed had been ransacked also, Out-side the building I found a crow bar which P.'.7. 1 said did not below to them I took custody of it as an exhibit."

These are bits of evidence which should have been carefully put to the jury and juxtaposed with the statement of the appellant, which was, in fact, his defence.

In that case, if the Judge had done this, I do not think the jury would have returned the same verdict.

In the Suriming-Up the Judge had this to say about the evidence of the investigator .

"The third witness-was the investigator who took down the voluntary cautioned statement from the accused and charged him-this in brief is the prosecution's case."

The identity of the appellant and his alibi were material elements in the case. The Judge should have pointed them out to the The appellant had made a voluntary cautioned statement on which he relied as his defence. Did the Judge put it adequately to the jury as he ought to have done- I do not think so. In fact, he did not. All the Judge said in the Summing-up was "But if an accused person offers a defence jurors are bound to consider that defence alongside the prosecution's case. In this case the accused has offer a defence. Firstly, by saying he relies on his statement which he

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made to the police. Secondly by giving the names of two witnesses whom he wanted to come to this Court and testify on his behalf." In my view, this is a good preface before putting to the jury such defence for what it was worth. This the Learned Trial Judge failed to do. In my opinion, this is fatal. The appellant in his statement, denied ever being in the vicinity of the crime on the 31st October, 1982. The Judge only put to the jury the evidence of the defence witness. The evidence in my view, was not relevant to the issue. In the Summing-Up, the Judge had this to say, "Fortunately the other was traced and he was the last man to testify in the witness box, I will draw your attention to one fact, that man said that he and others were walking along Kortright Road and they walked passed some ladies and other people and that not long thereafter a Volkswagen car drove up and a lady came out and said that man(the accused) was one of these who raided their flat sometime ago. According to that witness he asked the lady whether she was sure and the lady said she was positive and she was able to identify the accused amongst the witness and others who were there. Well this is the witness of the accused. The defence witness was not ruffled in any way. you saw him in the witness box he gave a straight forward piece of evidence."(Emphasis Mine) The comment of the Judge, in my opinion, was more prejudicial than probative.

In view of what I have said supra, I allow the appeal, set aside the conviction, quash the sentence and acquit and discharge the accused.                                 

Sydney Warne Justice of the Supreme Court.