By Francis H. Murray
Lawyers representing the convicted former defence Minister, Alfred Palo Conteh, have concluded their oral submissions of a ten-grounds of appeal before the Court of Appeal, against his conviction and sentence.
Addressing a three member panel of judges: justices Ansumana Ivan Sesay, Bintu Aladi and Tonia Barnette on Tuesday 15th December 2020 at the Law Courts building in Freetown, lead Appellant Lawyer Joseph Fitz Gerald Kamara, sought the leave of the court to argue the grounds of appeal on sentencing, which was granted.
He said that their client was tried by the High Court and convicted on two counts: counts 10 and 11 of the indictment, which was followed by the jury returning a guilty verdict on both counts. He noted that without any reasons offered by the trial judge, he landed a maximum sentence as provided for by law without an alternative of a fine and ordered the sentence to run consecutively.
Arguing the first grounds of appeal relating to misdirection on the standard and burden of proof, Lawyer Kamara noted that the trial judge in page 10 of his summing-up to the jurors, concluded on facts and not law, arguing that it was the duty of the jury and not the judge to reach decisions on facts while he gives an opinion on the law.
He further argued that the burden of proof in any criminal trial rests on the prosecution, noting that the trial judge misdirected himself and the jury in the determination of facts and in turn reached a conclusion that is reserved for the jury.
He maintained that the trial judge usurped the functions of the jury which he said was fatal in any criminal proceedings, affirming that the judge ‘‘signally failed to instruct the jury on the burden and standard of proof,’’ for which he urged the court to crush the conviction on count 10 and also count 11 which he said touches on the entirety of both the conviction and sentence, and therefore urged the court to set aside the conviction and allow the appeal to proceed.
Lawyer Kamara also argued on the grounds of duplicity and submitted that the trial judge failed to withdraw count 10 from the jury after a no case submission was made on behalf of the Appellant for the count to be crushed on the grounds of duplicity. He said that the ruling on the Appellant’s no case submission by the trial judge denied that count 10 was duplicitous and gave no reasons whatsoever for the ruling nor did he analyze the issue as raised by the defence.
He explained that the statement of offence in count 10 alleges keeping a greater number of small arms than specified in his licenses, whereas the particulars of offence alleges that the Appellant owned a greater number of small arms. He therefore submitted that count 10 charges two types of offences contrary to law: the confliction between the statement of offence and the particulars of offence.
He argued that count 10 failed the sufficiency test in law provided for under Section 23 (5) A of the Constitution of Sierra Leone, adding that where two offences are charged in the alternative, it pleads duplicity an uncertainty and therefore urged the court to crush the conviction on count 10.
Lawyer Kamara further submitted that the trial judge also misdirected the jury on the no case submission when he noted that ‘‘the other side must be heard,’’ noting that the statement in itself was a mischaracterization of purpose of a no case submission.
He lamented that the purpose of a no case submission is to give the defence an opportunity to challenge the evidence led by the prosecution at the close of its case which he said had no bearing to the statement ‘‘the other side must be heard,’’ reaffirming that the reference to the statement was shifting the burden of proof on the defence which they considered highly improper and prejudicial to the defense’s case.
Citing what he said the trial judge referred to as the Appellant’s confessional evidence, Kamara also argued that the judge also misdirected himself as to the issue of confession, adding that it was not even close to what constituted a judicial confession.
He submitted that at no stage of the proceedings did the Appellant confess to the commission of count 10 in the indictment.
Continuing the grounds of appeal, Lawyer Serry Kamal also argued that the trial judge misdirected the jury in respect of the count of a loaded weapon in a public place. She stressed that the judge failed to appropriately direct the jury on the inadequacies of the evidence that their client was in possession of a loaded weapon in a public place.
Citing Section 32 (1) of the Arms and Ammunition Regulation of 2014 upon which the conviction was premised, she argued that at the time their client was arrested, he was not found in actual possession of a loaded weapon. She maintained that in the instance, the issue of constructive possession was never raised by the prosecution who had the burden of proof.
She further argued that the prosecution did not only fail to adduce any evidence before the court that the accused was in possession of a loaded weapon in a public place, but also failed to clearly spell out what a public place was except for the judge’s summing-up address.
She also challenged that the trial judge also did not only fail to put the defence of the Appellant to the jury as trials of facts, but also failed to explain what the case of the defence was.
She concluded that in respect of conviction and even after the plea mitigation of the Appellant who was a first time offender, the judge did not consider nor did he write it down, but instead handed down a maximum sentence on the Appellant in respect of both counts and ordered that they be served consecutively.
The matter was adjourned to the 19th of January, 2021 for the reply of the State.
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