By Allieu Sahid Tunkara
Prosecution counsel at the on-going trial at the Court Martial presided over by Judge Advocate Otto During Wednesday made an application for the amendment of the charge of Conspiracy against all accused persons.
Wednesday`s session was meant for the submission of the prosecution`s closing address.
Relying on Rule 83(2) of the Court Martial Rules of 2003, Vincent Sowa said he made the application because under the first schedule of the Armed Forces Act of 1961 as amended, conspiracy was not listed as a military offence. As read out by the counsel, the aforementioned Rule states that at any stage of the trial the court could, if it thought it desirable to alter, amend or omit any charge in an indictment, do so if such alteration or omission was not unfair to the accused and if the Judge Advocate concurred.
Sowa told the court that count one, which used to read as conspiracy to commit mutiny contrary to law, should now read as committing a civil offence contrary to section 72 of the Armed Forces Act of 1961 as amended. He however informed the court that the particulars of the offence should remain the same.
“I have served a copy of the application to the court, as well as to the defence,” he said.
Thomas Beah, being the only defence counsel present in court, objected to the application by the prosecution counsel citing the same Rule 82 (2). He referred to the prosecution counsel’s application as a “calculated ploy” to further waste the precious time of the court. He argued that such application was unfair to the accused persons, noting that the prosecution and the defence had closed their cases within one year.
Beah told the court that it was unfair for the prosecution to tell it that they would like to amend count one which, he said, would lead to calls for fresh evidence.
“I most respectfully crave the indulgence of this court to discountenance counsel’s application and urge counsel to make his submission and the defence reply thereto,” Beah appealed.
The defence counsel then drew the attention of the court to the “last limb” of Rule 82 (2) which, he said, borders on the concurrence of the Judge Advocate before an indictment could be amended. He argued that the drafters of those rules had it in mind that the law was in the bosom of the Judge Advocate and that he relied on the inherent jurisdiction of the court.
Having heard the arguments of the prosecution and defence counsels, the Judge Advocate upheld the application of the prosecution stating that the amendment would not do unfairness and injustice to the accused persons.
“The first charge of conspiracy to commit mutiny was charged under the common law and the second charge is at statutory law,” Judge Advocate During explained. He however relied on section 148 of the Criminal Procedure Act of 1965 which, he said, states that at any stage of the trial court shall order the amendment of indictment if it`s defective.
Defence Counsel Thomas Beah bowed down to the ruling, but urged the Judge Advocate to endorse a ‘note of order’, which he said should be attached to the amended indictment. Counsel based his argument on Section 148 sub section 2 of the Criminal Procedure Act of 1965. He told the court that Rule 106 of the Court Martial Rules 2003 states clearly that for any case not provided by the Court Martial rules, such case shall be adopted as appeared best calculated to do justice.
“Unless a ‘note of order’ for the endorsement of the indictment is given, the prosecution should not proceed with his closing address,” Beah argued. The application of a ‘note of order’ called for by the prosecution was objected to by the defence.
The Judge Advocate further ruled in favour of the prosecution as he stated that the fundamental thing in the section quoted by the defence counsel was that justice must be done to the accused persons. The Judge Advocate explained that whenever there was a lacunae in the court martial rules, the court relied on the Criminal Procedure Act of 1965. He assured the court that no injustice would be done to the accused persons.
“I don’t think an injustice would be done whether there is ‘note of order’ or not,” the Judge Advocate said. Since the amendment of count one in the indictment stand, the Judge ruled that counsel proceed with his closing address.
After both rulings, prosecution counsel submitted a copy of a twenty-five- page written address to the court.
Arrested in August 2013, thirteen soldiers of the Republic Sierra Leone Armed Forces (RSLAF) are standing trial at the Court Martial at RSLAF headquarters on Wilkinson Road for conspiracy, mutiny and failure to suppress mutiny. They have been in remand at the Pa Demba Road Male Correctional Centre since their arrest, although they deny all charges.
One of the accused persons, Alex Jibao Koroma who swelled the number of the accused persons to fourteen, had since been acquitted and discharged following a no-case submission by the defence team.
The matter comes up on Friday 19th June.
© Politico 28/05/15
