S v ARCHULA ([node:field-casenumber])  SLHC 21 (16 March 2009);
THE STATE AND
1. GEROGE ARITSTIZABEL ARCHULA
2. VICTOR MANUEL ARAUJO LASTRETO (JNR)
3. JULIO CESAR MORALES-CRUZ
4. MOHAMED BASHIL SESAY (A.K.A. AHMED SESAY)
5. HASSAN KARIM MANSARAY
6. PATRICK MORIBA JOHNSON
7. CHERNOR MOMODU BAH
8. HARVEY STEVEN PEREZ
9. GERARDO QUISTANA PEREZ
10. YEIMY FERNADEZ LEANDRO
11. ALEX ROMEO
12. IBRAHIM MOHAMED MANLEY
13. BADARA ALLIEU TARAWALLEY
14. EBENEZER ADETUNJI MACAULEY 15.ALIMAMY KABIA 16.SADJO SARR
17. MARTHA PINIERES
18. MOHAMED MUSA KAMARA
O.V. Robbin-Mason Esq. Aq DPP, & J Soyei Esq and Ms B Alhadi for the State C F Edwards Esq for 1st, 13th and 14th Accused James Forna Sesay Esq for 2nd ar\d 11th Accused S Jamiru Esq for 3rd Accused RSV Wright Esq for 4th Accused S K Koroma Esq for 5th, (and later,7th), 10th and 17th Accused A E Maniy-Spain Esq (with him, G Thorlie Esq) for the 6th Accused M S Turay Esq for 8th, 9th 15th and 16th Accused D B Quee Esq for 7th Accused E Ngakui Esq for 12th Accused M A Beloku Sesay Esq for 18th Accused
1. This Judgment comprises these 100 pages, a List of Witnesses, a List of exhibits, the evidence in chart form of the Police and expert witnesses,
and a list of the authorities cited by Counsel, and those relied on by the Court. All of these documents comprise, and constitute the whole of the Judgment.
2. The accused persons are charged in a 6 Count Indictment as follows: Count 1 Statement of Offence: GEORGE ARITSTIZABEL ARCHILLA, VICTOR ARAUJO MANUEL LASTRETO (JNR), and JULIO CESAR MORALES-CRUZ Importation of Cocaine, a prohibited drug without lawful authority Contrary to Section 7(b) of the National Drugs Control Act No 10 of 2003 (as amended). MOHAMED BASHIL SESAY (aka) AHMED SESAY, HASSAN KARIM MANSARAY, PATRICK MORIBA JOHNSON and CHERNOR MOMODU BAH and MOHAMED MUSA KAMARA, Accessory Before the Fact to the same offence.
Particulars of Offence: GEORGE ARITSTIZABEL ARCHILLA, VICTOR ARAUJO MANUEL LASTRETO (JNR), and JULIO CESAR MORALES-CRUZ on the 13th day of July,2008 at Port Loko in the Northern Province of Sierra Leone Imported into Sierra Leone without Lawful Authority Cocaine, a prohibited drug. MOHAMED BASHIL SESAY (aka AHMED SESAY), HASSAN KARIM MANSARAY, PATRICK MORIBA JOHNSON and CHERNOR MOMODU BAH and MOHAMED MUSA KAMARA in Port Loko in the Northern Province of Sierra Leone did Counsel, Procure and Command the said GEORGE ARITSTIZABEL ARCHILLA, VICTOR ARAUJO MANUEL LASTRETO (JNR), and JULIO CESAR MORALES-CRUZ to commit the said offence.
3. Count II
Statement of Offence: Accessory after the fact to the importation of Cocaine, a prohibited drug, without lawful authority Particulars of offence: HARVEY STEVEN PEREZ, YEIMY FERNADEZ LEANDRO, GERARDO QUISTANTA PEREZ, ALEX ROMEO, IBRAHIM MOHAMED MANLEY, BADARA ALLIEU TARAWALLEY, EBENEZER ADETUNJI MACAULEY, ALIMAMY KABIA and SADJO SARR well-knowing that GEORGE ARITSTIZABEL ARCHILLA, VICTOR ARAUJO MANUEL LASTRETO (JNR), and JULIO CESAk MORALES-CRUZ had, without lawful authority imported Cocaine, a prohibited drug, did on a date unknown between the 1st July.2008 and 31st July,2008 in Port Loko, in the Northern Province of Sierra Leone Receive, Comfort, Harbour, Assist and Maintain
the said GEORGE ARITSTIZABEL ARCHILLA, VICTOR ARAUJO MANUEL LASTRETO (JNR), and JULIO CESAR MORALES-CRUZ .
4. Count III;
Statement of Offence: Misprision of Felony Particulars of Offence: GEORGE ARITSTIZABEL ARCHILLA, VICTOR ARAUJO MANUEL LASTRETO (JNR), and JULIO CESAR MORALES-CRUZ well knowing that a felony had been committed by GEORGE ARITSTIZABEL ARCHILLA, VICTOR ARAUJO MANUEL LASTRETO (JNR), and JULIO CESAR MORALES-CRUZ, in that they the said GEORGE ARITSTIZABEL ARCHILLA, VICTOR ARAUJO MANUEL LASTRETO (JNR), and JULIO CESAR MORALES-CRUZ had imported without lawful authority, Cocaine, a prohibited drug, unlawfully concealed the commission of the said felony.
5. Count IV
Statement of Offence: Possession of Cocaine, a prohibited drug without Lawful Authority, contrary to Section 8(a) of the National Drugs Control Act, No 10 of 2008 (as amended).
Particulars of Offence: GEORGE ARITSTIZABEL ARCHILLA, VICTOR ARAUJO MANUEL LASTRETO (JNR), and JULIO CESAR MORALES-CRUZ on the 13th day of July,2008 in Port Loko in the Northern Province of Sierra Leone, were found in possession of Cocaine, a prohibited drug without lawful authority.
6. Count V
Statement of Offence: Conspiracy to Import Prohibited Drug without Lawful Authority, Contrary to Law.
Particulars of Offence: GEORGE ARITSTIZABEL ARCHILLA, VICTOR ARAUJO MANUEL LASTRETO (JNR), and JULIO CESAR MORALES-CRUZ MOHAMED BASHIL SESAY (aka AHMED SESAY), HASSAN KARIM MANSARAY, PATRICK MORIBA JOHNSON, CHERNOR MOMODU BAH, HARVEY STEVEN PEREZ, GERARDO QUISTANA PEREZ, ALEX ROMEO, IBRAHIM MOHAMED MANLEY, BADARA ALLIEU TARAWALLEY EBENEZER ADETUNJI MACAULEY, ALIMAMY KABIA, SADJO SARR, MARTHA PINIERES, MOHAMED MUSA KAMARA and YEIMY FERNADEZ LEANDRO on the 15th day of June,2008 and on divers days between that day and the 14th day of July,2008 at Freetown in the Western Area of the Republic of Sierra Leone, Conspired together, and with other persons
unknown, to unlawfully import a prohibited drug, to wit, Cocaine, in to Sierra Leone, by means of an aircraft known as Cessna 441 Conquest.
7. Count VI
Statement of Offence: Knowingly and Wilfully Displaying A False Mark on an Aircraft Contrary to Section 57(l)(b) of the Civil Aviation Act, No 2 of 2008.
Particulars of Offence: GEORGE ARITSTIZABEL ARCHILLA, VICTOR ARAUJO MANUEL LASTRETO (JNR), and JULIO CESAR MORALES-CRUZ on the 13th day of July,2008 at the Freetown International Airport, Lungi in the Northern Province of Sierra Leone Knowingly and Wilfully displayed a false mark to wit the Red Cross Logo on a Cessna 441 Conquest Aircraft.
8. By Order dated 5 December,2008,I gave my Consent, pursuant to Section 136(1) of the Criminal Procedure Act,1965 (hereafter CPA.1965) and Upon Application made by G J SOYEI, Principal State Counsel, for the Preferment of this Indictment; at the same time, I Ordered that Warrants of Arrest be issued, and be directed to the Sheriff of the High Court for the apprehension of these accused persons in respect of the charges in the Indictment, the said Warrants to be returned to this Court on 10 December,2008.
9. On 10 December,2008 these accused persons were brought before me, and the procedure laid down in the Indictment and Ex-Officio Indictment (Procedure) Rules, 1969, PN 42 of 1969 was followed. The State Applicant was represented by MR SOYEI, and with him was MS BINTU ALHADI, Legal Consultant, Law Officers' Department, who appeared by the Fiat of the Acting DPP dated 10 December,2008, which Fiat was filed in the Application file. The accused persons were identified by the respective Police personnel who effected their arrest: thereafter Counsel on their behalf, announced their representation. Their date of trial was fixed for 22 Decembcr,2008. They were denied Bail. I also Ordered that the proofs of evidence, and copies of the Indictment be served on each accused person, at least 7 days before the date of trial.
10. On 3 December,2008 the Attorney-General and Minister of Justice gave his written Consent for the prosecution of the 1st, 2nd and 3rd accused persons respectively, in respect of the offence charged in Count VI of the Indictment. I am not sure his Consent was really necessary, because
Section 66 of the Civil Aviation Act, 2008 under which Act, the charge is brought, merely provides that "the Authority may request the Attorney-generalto prosecute all necessary proceedings for the enforcement of this Act....and for the punishment of any contravention defined in this Act Nor, do I think, the provisions of Sections 41, 42 or 53 of the CPA ,1965 apply here.
11. On 15 December,2008 the Notice of Trial required by Section 138 of the CPA,1965 was duly indorsed on the back of the Indictment filed, and on the copies for service, for and on behalf of the Master and Registrar, and delivered to the Under-Sheriff for service on the accused persons.
12. On 19 December,2008, in exercise of the powers conferred on him by Section 144(2) of the CPA,1965; and he holding the office only in an acting capacity, pursuant to Section 66(11) of the Constitution of Sierra Leone,1991; and Section 26 of the Interpretation Act,1971, O V ROBBIN-MASON Esq, Ag DPP, filed an Application in this Court, that the accused persons be tried by Judge alone, instead of by Judge and Jury and certified that the interests of Justice may be best be served thereby.
FIRST APPEARANCE, 22 DECEMBER,2008 - LEGAL CHALLENGES
13. On 22 December,2008, after MOSES HENRY KAMARA had been sworn on the Bible to interpret from Spanish to English, and from English to Spanish, for the benefit of those accused persons who were 5panish speakers, or who understood the Spanish language, but who were not English speakers, nor understood the English language, the charges were about to be read out to the accused persons, when MR WRIGHT for the 4th accused informed the Court that he wished to challenge the jurisdiction of the Court to try the accused persons , because of violations of Constitutional provisions. MR ROBBIN-MASON replied to these submissions the next day. I adjourned for Ruling to be delivered. This was done on 30 December,2008. A copy of my Decision is in the file, and forms part of this Judgment. I adopt all the reasons I gave in that Decision for rejecting MR WRIGHTS submissions. I hold that none of the charges in this Indictment violate the express or implied provisions of the Constitution; nor do their preferment, warrant or involve the intervention or attention of the Supreme Court. The charges in the Indictment relating to the Unlawful Importation and Possession of Cocaine were offences long before the passing of the National Drugs Control Act,2008 (hereafter NDC Act,2008). The Act was made retroactive in a lawful manner by virtue
of Statutory Instrument No. 12 of 2008 promulgated by the President pursuant to the power delegated to him by parliament in the National Drugs Control (Amendment) Act,2008 - Act No. 13 of 2008.I called in aid, in arriving at that Decision, Sections 73(1), 106(5) and 170(7) of the Constitution of Sierra Leone,1991; and Sections 3(1) & (2), 13(1) and 23 respectively of the Interpretation Act,1971.1 therefore adopt my reasoning in that Decision, for the purposes of this Judgment.
2nd LEGAL CHALLENGE - 30th December,2008
14. After I had delivered my Decision on 30 December,2008,I Ordered that Spanish-translated versions be made, and be served on the Spanish speaking accused persons. I then Ordered the Registrar, to read the charges to the accused persons, in order to take their respective pleas. Save for a few exceptions, recorded in my minutes of the proceedings that day, the accused persons refused to plead. I did not believe that those who refused to plead were of unsound mind, and consequently incapable of making their respective defences. In exercise of the discretion conferred on the Court by Section 134 of the CPA,1965, Not Guilty pleas were entered on their behalf.
15. After arraignment was completed, the Ag DPP made a formal and oral Application for the accused persons to be tried by Judge alone; and pursuant to Section 144(2) of the CPA,1965 I made the Order as of course. MR ROBBIN-MASON then sought an adjournment to the New Year in order to commence the prosecution. His application was granted and the matter was adjourned to 7 January,2009.
COMMENCEMENT OF PROSECUTION
16. On 7 January,2009 proceedings commenced in earnest. MR MOSES KAMARA was sworn on the Bible to do not only the Spanish/ English translation, but also, if he need arose, to do the Temne/English/Spanish interpretation.
17. Adjustments had to be made to the Indictment. The names of witnesses had been duplicated. The prosecution was allowed by the Court to make the necessary amendments. The names and the numbers attached to them, namely, 16,17,20 A 26 on the Back of the Indictment were deleted, and the names of the remaining witnesses renumbered, where necessary .DPC 7762's name was corrected: it was MARVIE and not MAROLE as appeared. Since the charges in the Indictment were not amended, there was no need
to read over the Indictment. MR ROBBIN-MASON was also reminded by the Court of the need to file and serve all statements and/or interviews made or granted by the accused persons; and that the proofs of evidence of all witnesses, including Police witnesses, had to be filed and served.
18. Next proceeding was the Discharge of the 17th accused, MARTHA PINIERES, the wife of the 10th accused. MR ROBBIN-MASON offered No Evidence against her. I had no alternative but to Discharge her. The numbering of the accused persons however, remained the same. MR ROBBIN-MASON proceeded to Open the Case for the prosecution. After he was through, another duplication on the back of the Indictment was discovered: witness No. 14 was the same as No.4: DPC 4804 Vanja. The entry in, and against 4, was therefore deleted.
19. Evidence was led through 5 witnesses that day - pages 20-38 of the minutes. PW1 was JOHN BRIMA, the Acting General Manager, Sierra Leone Airports Authority (SLAA). He gave his duties. At about 1.30am on 13 July,2008 (hereafter "the 13th"). he was woken up by a telephone call from the Air Traffic Controller, ABDUL THORLU BANGURA:who testified later as PW6. PW6 gave him certain information. He told PW6 to wait for further directions from the Minister of Transport and Aviation, KEMOH SESAY. There was an understanding between the Minister, and the Airport Authority, to keep the Minister abreast of any occurrences at the airport. He therefore passed on the information received from PW6. MR SESAY instructed that the plane should not be allowed to land. He passed on this instruction to PW6, and further instructed him to alert security personnel, AVSEC, the Police, ONS, OSD, Immigration, and NRA personnel. He also called Hazeley of the Ranger Police Division, Lungi, to mobilise his personnel to give support to the security personnel at the airport. He informed the Minister of what he had done; the Minister promised to get back to him. He travelled with the Minister, together with 13th accused to Lungi that morning. At the airport, they were conducted to the place where the aircraft was parked. Its doors were closed. It had a Red Cross emblem at the tail end. The ground-handling staff opened the aircraft. 13th accused inspected it. He looked through the doors. He saw cartons, and several empty rubber containers packed in it. The cartons were wrapped with adhesive tape. They were completely sealed. In addition, there were loose cartons which contained sachets wrapped in adhesive with numbering
on them. The cartons were off-loaded by several security personnel. He was cross-examined briefly, by C F EDWARDS Esq Counsel for the 1st, 13th and 14th accused persons.
20.PW 2 was GEORGE TAMBA GBONGBOR, the Acting Director of Civil Aviation. He gave his duties. He explained to the Court, the freedoms of the air which govern the overflying of, and landing of aircraft in Sierra Leone. One of these freedoms, is that which permits an aircraft to land without prior permission, where it develops engine problems, or requires refuelling. These freedoms, I have discovered, were established by the International Air Transport Agreement, a part of the Chicago Convention of 1944. He also explained the differences between scheduled flights, which fly in accordance with a published time-table; and non-scheduled flights, which do not do so. He explained how a request for landing or overflying was made, and how it was processed. Sometimes, requests for landing are sent to the Minister; when this happens, the Minister passes them to him for advice. He would study the technical details; if he is satisfied, he would give clearance.
21. On the 13th, he returned a telephone call to the Permanent Secretary, Ministry of Transport and Aviation, later PW 30. As a result of what he was told, he contacted Control Tower. What he was told by Control Tower made him fly over to Lungi where he saw the aircraft he had been told about. He met the others there, including his Deputy, 13th accused, who briefed him and showed him 34 empty jerry-cans, each with a capacity of 10 gallons; 13th accused also told him about the registration marks on the plane. He inspected the plane. He observed the plane had brand new tyres; there were blue horizontal stripes on the fuselage. It was painted white. He asked the 13th accused to verify the registration of the aircraft. On the port side of the fuselage was a mark "YV." On the starboard side was "SQ" he looked at the fireproof door. There was a mark, "C" on it, followed by other marks. He said an aircraft should not have on it more than one registration mark. He observed that the landing of the aircraft was not authorised as it had not sought clearance.
22.He left the site and went to the Control Tower and asked for the recording of the radio communication between Control Tower and the crew of the aircraft. The aircraft was a 12 seater, Cessna 441-0072. He obtained the voice recording from PW1. He was present when the President arrived, and was briefed by the Minister. He returned to the airport the next day to conduct a detailed examination of the plane. It had been moved
to the hanger; and it was guarded by military personnel. It was locked. He asked for a bench to stand on, so that he could look inside. He was cross-examined by Counsel for the Defence. In answer to MR JAMIRU for the 3rd accused, he said, "the request (for clearance) has to be made. All flights must request to overfly Sierra Leone, whether it lands here or not." He said also, that an Officer in his Department had been disciplined because he had not informed the proper authorities before issuing a permit. He was not the only person who issued permits. The 13th accused also issued permits. He distributed copies of the voice recording. It is a matter of regret, that the prosecution did not tender this recoding. He ended by saying that an application for an emergency landing did not require notice.
23.PW3 was ALIE NYELENKEH, an Aviation Security Officer at the airport. His duties were, to safeguard the Aviation area against any act of unlawful interference; and to protect life and property at the airport. He recognised the 5th, 7th,11th, 12th and 14th accused persons. He knew 5th, 7th,12th and 14th accused persons at the workplace. 11th accused he saw "that night" i.e. the night of 12th July,20038 (hereafter "the 12th"). He was sent a message by Control Tower, that an Antonov plane was expected to stop-over for re-fuelling that night; he relayed the message to the Senior Security Officer, ALFRED DAVIES, and requested him to pass the same on to the Office of National Security (ONS).
24.At about 2.30am, he was in his office on the ground floor, when the door on the land-side opened. The light was off in his office because of insects. 3 white men appeared. He intercepted them. He was about to ask them a question, when 12th accused appeared from behind them. 12th accused said to him: "these are the white guys who are expecting the Antonov flight." Because of the information he had received earlier from Control Tower, he allowed them to enter the airport through the air-side door on the other side of the room. 12th accused and the white guys were moving about on the air-side, and moving in and out of his off ice. On one such occasion, they re-entered with 3 black men. 2 were huge; the 3rd was short. Since they were with his Boss, 12th accused, he gave them access. One of the white men had on a yellow T shirt and faded jeans. He had a radio handset. At one stage he asked this white man:nat what time are you expecting your flight?" He replied in broken English:"5-10 minutes time" No sooner this white men said this, he heard the sound of aircraft overhead. He made a voice call to ALFRED DA VIES on his cell phone. He said: " Alfred, we should be on the
alert as the Antonov flight is here.....but there is no Traffic for this flight. "Traffic here meaning, the estimated time of arrival; the souls on board; the type of aircraft; registration number of the aircraft and the landing runway. There are two runways: runway 3.0 and runway 1.2. This information is usually transmitted by Control Tower to him at the Diary Desk. DAVIES advised him to call Control Tower on FM1000 which is the confidential frequency used for communications between Control Tower and the aircraft. He called the personnel at Control Tower on their call sign. He passed on the information he received from Control Tower, to DAVIES. The information was that Control Tower had no information about this flight, and that it had no landing permit.
25.After receipt of this message, one of the white men, and one of the black men re-entered his office through the airside. The white man took out 2 bundles of money - foreign currency. He passed on the bundles to the black man. They left by the landside door. A few minutes later, both of them re-entered by the airside door. All of this happened around 3am. 121h accused and the 3 white men and 3 black men were 'running up and down until 3.10am! The plane landed without the landing lights being put on. This was unusual. 12Th accused and the 6 men ran through his office from the airside to the landside. About 15 minutes later, 12th accused re-entered his office and asked him:" de pepper birdplane don land?" He answered yes, as he had seen the plane. It was small. 12th accused later left his office. He entered these goings-on in his Occurrence Book. He ended by saying one of the white men he saw that night looked like the 11th accused.
26.He was subjected to cross-examination by Messrs FORNA SESAY, Counsel for the 11th accused; and NGAKUI, Counsel for the 12th accused. He admitted that there was no light in his office, though he purported to identify 11th accused whom he had never seen before. He next saw him in Court that day. Rain was drizzling. He re-emphasised that the 11th accused was wearing a yellow T shirt and faded jeans, and he had a handset. This piece of evidence is of great importance to the prosecution's case, because it is the only sighting of 11th accused at the airport. In his own account in exhibit 44,11th accused says he only got as far as the Mahera Beach. He had piloted a boat there at the request of a man he calls "Old Man" When cross-examined by MR NGAKUI, he said he was not sleeping when 12th accused entered the office; nor did 12th accused wake him up. He reiterated that 12th accused entered as he was about to question the 3
white men. 12th accused entered his office at about 2.30am. He heard the sound of the aircraft at about 30 minutes later.
27.PW4 was ANSUMANA SAWANEH. He spoke in Temne. He is an Attendant at the Control Tower. He sweeps, collects water, and acts as a messenger. He recognised 7th, 12th and 14th accused persons respectively. He recalled the night of 12th July,2008. He was woken up from sleep by noise. He saw 12th accused with 2 white men. He heard 12th accused say to PW6, THORLU-BANGURA "let the plane land" PW6 said nNo" PW6 said he had not been given traffic by his Boss. One of the white men tried to take the microphone from him; PW6 refused. He could not identify the white men. When cross-examined by MR NGAKUI, he said 12th accused left his phone on charge in the Control Tower. He had done so before, even at night time. 12th accused telephoned PW6 after he had left the Control Tower that night. PW6 passed the phone to him. 12th accused told him to take the phone to him on his way home later that morning after work, as he had to go past 12th accused's house. He did not do so.
28.PW5 was ALIMAMY CONTEH, a watchman at a house in Port Loko. The house was built by his relative who left him there as a caretaker, but without pay. The relative is ALHAS5AN SESAY. He recognised 4th accused who was introduced to him by the person who built the house, as the person "taking the house." Whilst there, he used to see two white men going there. After he had opened the gate for them, they would drive him away. He said the last time he saw the white people was on a Thursday. They went there with a white woman, and 2 black men. They sent him to his house. He never went back. They took the keys from him. They went with a white Land Rover and a white "Benz 212". This vehicle was arrested at this house by PW10 and it was one of those he brought down to Freetown and handed over to PW36. Documents found in the house at 7 Bintumani Drive, Aberdeen, to which I shall turn later, show that it was registered in the name of 8th accused. The witness said also that, 4th accused went there to "take the house." The second time, he went there with 2 white people. On pages 6 and 7 of exhibit 39, the 10th accused says, that house was taken for them, meaning himself, 8th and 9th accused and his wife, 17th accused, by 4th accused MOHAMED SESAY. However, the 4th accused says, he merely introduced his business partners to the house owner. Also, according to the evidence of PW22, the driver, it was at this very house, he picked up 1st ,2nd and 3rd accused, among others; persons who had just arrived illegally in Sierra Leone, on a flight
29.He was cross-examined by MR WRIGHT. He said he was employed by ALEX LEBBIE. It was LEBBIE who told him 4th accused would be taking the house. This could have been in March,2008. 4th accused went there twice. After he took the house, he started seeing white men going there. They did not sleep in the house. They erected a fence and installed the gate.
30.On Friday 9 January,2009 3 witnesses, PW6-9 testified - see pages 39 to 56 of the minutes. Before the first witness was taken, MR TURAY, Counsel for the 8th,9th,15th and 16th accused persons respectively complained about the interpretation being done by MR KAMARA. He asked for him to be replaced. I queried MR KAMARA as to how he became an interpreter in these proceedings. He said he was asked to come to Court by the AG&MJ and by the Ag DPP. He was a Criminologist and Private Investigator. He had worked in Spain. On hearing him, i came to the conclusion that he was quite competent in his field, and I admonished him to be impartial in his duties. I decided therefore, that his services would be retained by the Court.
31.PW6 ABDUL THORLU-BANGURA took the witness stand. He is an Air Traffic Control Officer working for the Sierra Leone Airports' Authority (SLAA). He narrated his duties. He uses VHF Radio Frequencies to communicate with aircrafts. He recognised 7th, 12th, 13th and 14th accused. They all work at the airport. He recalled the night of 12th July,2008. He was at work. His Assistant, SHEKU KAMARA, later PW8, and PW4 were also there. The phone rang; he asked PW8 to pick it up. He instructed PW8 to scribble down on a piece of paper what he had been told on the phone. He read what PW8 had scribbled down, as a result of which he instructed PW8 to log the information in the Air Traffic Log Book. The information was that a flight from Kinshasa was expected to stop over for re-fuelling. Between midnight 30 and lam, he instructed PW8 to disseminate the clearance information he had received. PW8 did so. While they were waiting for the flight to arrive, 12th accused entered the room in the Control Tower with 2 white people. 12th accused said the white people had come to enquire about the aircraft whose clearance had been passed to him. The significance of this enquiry will be realised later when I come to deal with the recorded interviews given by 14th accused in one of which he says, 12th accused did phone him enquiring about the clearance given by him the 14th accused, that night. PW8 was by PW6. PW6 told 12th accused he had just received the clearance, and that it had been logged. He told him to wait; and he told PW8 to contact Roberts Area Control Centre which controls the airspace of the 3 Mano River Union States, Sierra Leone,
Liberia and Guinea. PW8 contacted the centre. The white men spoke in broken English; they first sat down; one of them stood up and said "the plane is coming" PW6 told him the Centre should have informed him first, and told him to sit down. The white men were pacing up and down the Tower. PW8 contacted the centre again. The reply he got made PW6 worried. He called 14th accused using the Tower cell phone. He told him: "12th accused is here with 2 white guys. They are here in respect of the clearance of the aircraft you have given me. They are worried over the delay of the aircraft"14th accused replied that as far as he knew the clearance was genuine.
32.It is perhaps useful at this stage to digress, and refer to 14th accused's version of the telephone conversations he had with PW6. In exhibit 25, 14th accused says he called Control Tower. He confirms that PW6 told him 2 white guys had entered the Control Tower. In exhibit 10, 14th accused says that after he had given clearance for the Antonov to land, he received calls from 7th and 12th accused persons respectively. He specifically received a call from mobile phone number 076 604 323, 12th accused's phone number at 00.36hrs on the 13th. 12th accused asked whether he had received any permit number for the Antonov 12. 12th accused also asked him about the arrival time of the aircraft. At page 6 of exhibit 10, 14th accused says that PW6 did indeed tell him on the phone that there were white men in the Control Tower who wanted to use the VHF radio by force, which he refused; and that they were in the company of 12th accused. This was in answer to a question put to him, why he had been calling 12th accused on the phone, uptil 03.16 hrs. At page 8, 14th accused says further, that he called 12th accused at 03.16hrs to enquire why a light aircraft had landed instead of the expected Antonov 12. He was not able to get a positive response from 12th accused. At page 9, he also called 7th accused at 03.17hrs to complain that the people he was with were expecting an Antonov 12, but a light aircraft had made a forceful landing. 7th accused replied that he did not know that there was another flight.
33.PW6 said that after this conversation with 14th accused, he heard voices on the 118.1 decimal radio frequency that is used to communicate with aircraft. The same white man who had stood up before, stood up again, went up to him and attempted to take the radio from him. He stopped him and told him that the radio was used for communicating with aircraft, and that he was not going to allow him to use it. The white man made a second attempt to do so. PW6 warned him not to do so again. He became
suspicious. He called 14th accused, and told him what was happening, as confirmed by 14th accused in exhibit 10. He also called JOHN SESAY, the Operations Manager. When he turned around, 12th accused and the white men were gone.
34.At this stage, he heard the sound of aircraft overflying the station (i.e. the airport). He informed 14th accused. He told PW8 to contact Roberts' centre. No response was received from the centre. He called PW1. Then he heard the plane land. He instructed PW8 to call the fire and rescue services. He later saw the aircraft on the northern apron. He was cross-examined extensively by Defence Counsel. Under cross-examination by MR EDWARDS, it became apparent that he was the person suspended for allowing a plane to land without the permission of the Minister, the incident referred to by PW2. The rest of MR EDWARDS' cross-examination has no further relevance as the 13th and 14th accused persons have been acquitted and discharged.
35.Under cross-examination by MR WRIGHT for the 4th accused, he said, in an emergency situation, there has to be an initial contact; otherwise the RCF element is not complete, he did not know whether there was an initial contact. They were not expecting a scheduled flight after midnight 12th July. He explained the difference between traffic, and clearance. The voices he had on the radio frequency were just interference. The 118.1 frequency is restricted to the aircraft and control Tower. The voices he heard were not on that frequency.
36.Under cross-examination by MR NGAKUI, the witness explained the relative positions of the Control Tower, and the office of PW3. Much of this has been confirmed by the Locus in Quo. He first could not recall the exact time 12th accused entered the Control Tower. Later, he said it was about 00.30hrs. He said it was normal for 12th accused to enquire about flights coming into the country.
37.PW7 was SAHR GEORGE TENGBEH, Aviation Technician at the Lungi Airport. He works for Total Petroleum Company. He fuels aircraft. He went to work on the night of the 12th. He got a phone call from Control Tower telling him that an Antonov plan was expected, and that it would require refuelling. They only worked for scheduled flights. No scheduled flight was expected that night. He and his boss, the late PETER SORIE therefore went home. Around 12 midnight to lam he received another call. He was told the Antonov would be coming and it would require fuel. He went back to the office. The gate was locked. He called MUSA TURAY, PW13 to open
it. Whilst waiting for it to be opened, MOHAMED KALLON, drove in, together with MR BAH and a stout man he did not know, in the car. Me identified BAH as 7th accused. He also recognised 12th and 14th accused as persons working at the airport. He recognised 4th accused as the person who came in the car with 7th accused that night. 4th and 7th accused said that a flight was coming which needed fuel. PW13 opened the gate, and they alt entered the office compound. 4th and 7th accused went to the security post. Both of them made entries in the Guard Post Book. 4th and 7th accused, PW13 and himself, entered the conference room to await the arrival of the flight. He heard the sound of aircraft in the air. He, 4th and 7th accused, went outside. 4th and 7th accused went to the main gate. He said further *we went to the vehicle servicer" I am not sure what nwe" here meant. The late SORIE and himself got into the car. They opened the gate by the airside to enter the apron. The runway was unlit. The late SORIE told them to return as there was no light. They went back to the airfield after dawn. He saw the plane,
38.He was cross-examined by MESSRS WRIGHT and QUEE, the latter for and on behalf of the 7th accused. In answer to MR WRIGHT, he insisted that in his statement to the Police of 11 July,2008 he had said he could identify the " stout man" he had referred to therein. He said he had said that the person who came with 7th accused was the Leone Stars Team Manager. He was wearing sandals and "material" trousers. "Material" here, I take to mean, textile other than jeans or African textile. As a result of this exchange between Counsel and witness, MR WRIGHT applied under Section 190 of the CPA.1965 for PW7's statement to be tendered, and it was so tendered as exhibit 1. Section 190(3) provides that such statement when tendered, "shall not become evidence of the facts stated therein, but the Judge...may take it into account in judging the credibility of the witness on his evidence as a whole and the prosecution and defence shall be entitled to refer to it in examining any witness and in addressing the Court "
39.In Exhibit 1 at page 6, PW7 said this: "I saw MR BAH of Control Tower and a certain gentleman who was identified by my colleague MUSA TURAYas Team Manager of Leone Stars. Since it was night time, I can only identify that particular man alleged to be Leone Stars by his built and height. He was tall and stoutly built" Whether such description suffices, and satisfies the TURNBULL guidelines, is an issue I shall return to later when assessing the whole of the evidence. Be that as it may, PW7 never said that he would
not be able to identify the person who accompanied21 th accused that night. The weight of his evidence in so far as it concerns 4th accused would depend on whether there is other evidence of whether 4th accused is indeed the Team Manager of Leone Stars. As to the evidence that that person wore sandals that night, I have observed that 4th accused does wear sandals; he has been wearing them whilst sitting in the dock; and he wore them at the locus in quo. In his application for Bail on 22 December,2008 MR WRIGHT relied in part on the medical condition of the accused: that he was diabetic. I am all too aware that the regular wearing of sandals among diabetics is quite common.
40.In answer to MR QUEE, PW7 said that the area where their office is located is not a prohibited area. He said there was "heavy security lights" on that night. Nobody would penetrate through without security. 7th accused was there that night.
41.PW8 was SHEW MUSA KAMARA, Air Traffic Control Assistant, Lungi Airport. PW6 is his boss. He recognised 7th,12th, 13th and 14th accused persons respectively. At about 8.57pm on the 12th 14th accused called him on the Tower Comium mobile phone, and told him to expect an Antonov 12 aircraft from Kinshasha to stop over for re-fuelling, at about midnight. He entered the information in the 'Overflying and Landing Clearance Permit Log Book.' The Book was tendered as exhibit 2. He referred specifically to page 2 thereof, and the entry numbered 2515 which contained the clearance authorised by 13th accused. He also tendered in evidence Exhibits 3A&B, the Air Traffic Control Diary. "A" is for even dates; and "B" is for odd dates. In exhibit 3B, in the entries made on 13th July,2008,there is an entry made by PW8 at 01.15hrs: "A.I.S.O. Mr I.M. Manley with two foreigners (white men) entered the tower requesting news about the flight" At 0203 hrs, he records*. nan interference on the 118.1mhz approach frequency in foreign language which we couldn't understand." At 0205hrs, "we requested news from Roberts ACC about the aircraft they replied no news" At 0225hrs," Second interference on the 118.1 mhz in a foreign language and DA TCO Bangura Abdul Tasked the aircraft to say its particulars (call sign, P.O.D. etc.) but no avail" At 0226hrs: *one of the foreigners attempted to take the radio but Mr Bangura refused him and asked him to stand by. At 0228hrs he records: "Mr I .M. Manley and the two foreigners left the Tower" At 0237, an aircraft is heard over the station. PW8 calls GOLF MIKE and informs him about the situation. At 0247hrs, OSCAR MIKE called and informed of the
situation. He advised Tower to deny the aircraft landing GFLL At 0249 PW8 records that: " Golf Mike called on the Tower phone and informed Mr Bangura that (he) has contacted the minister of Aviation and he should stand by for further instructions; and he concluded by requesting the Airport L.U.C telephone number." At 0249hrs also, the aircraft was heard over the station for a second time. At 0250hrs, PW6 is recorded as having alerted the security apparatus to position the fire vehicles on the runway. At 02.52hrs it is recorded that Golf Mike and Oscar Mike advised Tower due technical reasons (limited fuel) to allow the aircraft to land GFLL and be barricaded. At 03.00hrs, the plane overflew the station for a third time. At 0303hrs, SATCO, i.e. 14th accused advised to deny aircraft landing GFLL. At 0305hrs, it is recorded aircraft forcefully landed GFLL without clearance and runway lights facilities. At 0315hrs, Oscar Mike arrived at the airport, and went to the scene where the aircraft was barricaded by the security and fire vehicles. At 0357hrs Delta Golf called Mr Bangura, i.e. PW6, and enquired the circumstances surrounding the landed aircraft. At 0400hrs, security reinforcement arrived at the airport reported by Oscar Mike and Ordered AVSBC i.e. Aviation Security to give them access via the freight gate. At 0405hrs, CSO MOSES arrived and requested permission to go across the runway. At 0411hrs Aviation Minister Mr Kemoh Sesay called on the Tower phone and enquired about the said aircraft. He however concluded that the said aircraft "came from the blues*"quoting directly the entry made by PW8. Though 12th accused has disputed his going to the Control Tower with two white men, he has not disputed the authenticity of these entries. There has been no suggestion, as was the case in the case of PW3, that the entries may have been made afterwards.
42.Continuing his testimony, PW8 said that 12th accused entered the Control Tower with 2 white men. He said 12th accused was supposed to collect landing fees from aircraft. 12th accused, according to him, said that these were the people waiting for the aircraft in respect of which 14th accused had given permission. As I pointed out earlier, 14th accused is recorded in one of his interviews as saying that 12th accused had indeed called him up, enquiring as to whether he had granted a permit for a plane to land that night.
43.PW8 said further, that one of the white men grabbed the radio phone from PW6. This is confirmed by both PW6 himself, and PW4 who was also present at the time. Only 12th accused disputes this version of events. PW6
retook the radio phone, after which he said, 12th accused and the white men left. The plane landed in darkness as the runway lights were not switched on, Roberts' Flight Information Centre not having confirmed the plane's arrival.
44.As would be expected, PW8 was cross-examined vigorously by both MESSRS EDWARDS and NGAKUI; MR WRIGHT also cross-examined the witness. In answer to one of the questions put by Mr EDWARDS, he said saw the plane locked when the Minister arrived. In answer to MR WRIGHT, PW8 said that he made an entry at 2057hrs on the night of the 12th that an Antonov 12 was going to land. At the time, he had not yet seen the permit. He was acting in accordance with the instructions of 14th accused. He said further, that PW6 said the plane should be permitted to land after consulting with the Minister and other senior officials. Under cross-examination by MR NGAKUI, PW8 merely confirmed his evidence in chief that the 12th accused had gone to the Tower with two white men.
45.We then moved away from the incidents at the airport to another segment of the prosecution's case, the interception of some of the accused persons in Port Loko District. PW9 was INSPECTOR FODAY DUMBUYA, Inspector-in-Charge, OSD, Port Loko. He recognised the 1st ,2nd,3rd,8th,9th 10th11th and 16th accused persons, respectively. At about 7-7.30am on the 13th, he received a phone call from LUC MUSTAPHA KAMARA, PW.39 in charge of Port Loko Police Station. As a result of what PW39 told him, he summoned all armed Police Personnel under his Command, to report at the Port Loko Police Station. He mounted checkpoints from Lungi to Port Loko, and from Port Loko to Rgobere; and also from Port Loko to Kambia. A few hours later, he received a phone call from INSPECTOR FOFANA, PW.38 in charge of Rogbere Police Station, informing him that PW38 had arrested a black jeep with a Guinea Bissauian on board. He told FOFANA what he was doing. Someone drove up to him and told him he had seen white people looking out for a vehicle. He therefore drove to Port Loko Township. On his way, he saw a blue and white coloured Mazda Van driving in the direction of Freetown. He stopped the van. He saw 7 white people in it - including a white woman. He told the driver to drive to Port Loko Police Station. When they got there, he told the 7 white persons in the vehicle to disembark. He identified them as the 1st,2nd,8th,9th,10th and 11th accused; and also the 17th accused who was discharged as stated above. He put them in the Special Branch Office. He informed LUC, MUSTAPHA KAMARA, and MR LAPPIA both of whom
testified later as PW39 and PW37, respectively. Both of them came to the Station later, and took charge of these persons.
46.As a result of information received, he also went to Sheriff Street, Port Loko. In other testimony, the street has been called Conteh Street. The house was abandoned, but there was a white Mercedes Benz van registration number ADK 212 parked there. He secured the van, and informed the LUC KAMARA. Later, the Officer he had left at the house called him. As a result, he returned to the house. He saw a white Landrover covered with tarpaulin, registration number ADQ067 parked at the back of the house. The first vehicle had been parked at the front of the house. He deployed OSD personnel and returned to the Station. At 6am, LAPPIA instructed him to provide personnel to escort the white suspects to Freetown. He left with LAPPIA and team for Freetown. At Rogbere Police Station, the 16th accused, who had been driving a black jeep, was handed over to them. INSPECTOR FOFANA handed over to him pistols which he said he removed from the black jeep. Later, INSPECTOR FOFANA called him to say he had arrested another white man.
47.Under cross-examination by Defence Counsel, he said 3rd accused was onboard the vehicle arrested at Port Loko. At the beginning of his testimony, he had missed him out, and in my view, wrongly identified the 11th accused as one of those onboard the vehicle heading for Freetown. He said further, that before the manhunt, they had informed the villagers that they were looking for white people. The villagers had heard that white people had escaped from Lungi.
48.On 12 January,2009 PW10-14 testified. Also, PW3 was recalled to tender in evidence, exhibit 4/the SLAA Occurrence Diary - (pages 56-73). Also on that day, another Spanish Interpreter, TOM TAYLOR was invited by the Defence, principally, by MR TURAY, Counsel for 8th,9th,15th and 16th accused persons to provide Spanish translation services. He told the court that his clients did not find the services of MR MOSES KAMARA entirely to their satisfaction. I had therefore granted him leave, to secure the services of any other Interpreter. In the event, MR TAYLOR abandoned the trial soon after his engagement. The Defence did not request another Interpreter until the trial ended.
49.1n exhibit 4, PW3 recorded the activities occurring at the airport so far as it concerned security. He was referred specifically to entry no 57 for the 12th. In that entry, he recorded that at 21.03hrs "Control Tower relayed a message that a special flight Antonov from Kinshasha to Dakar will be
landing @Lungi International Airport for refuelling @midnight This is for the information of Ag CSO, Ag DCSO, Ag TO and ail and sundry" His entries for the 13th, however, commence at 0300hrs, with the recording of the arrival of the aircraft without the runway lights being put on. At 0439hrs, he recorded that a student, ALIMAMY KARGBO with student ID 03208241, was apprehended by bet 5gt 5803 H K MANSARAY and the shift leader, SLAA, J P JALLOH at the northern apron where the aircraft was parked, and he was taken to the Police Station for questioning. Det Sgt 5803 is of course, 5Th accused as the witness himself said when cross-examined by MR KOROMA for the 5th accused.
50.But controversially, at 0446 hrs, PW3 records that he omitted to record an incident which he said occurred at 0230hrs: that 12th accused and three white men passed through his office at that point in time. I do not believe that PW3's !ate recording is authentic, and it is not one on which this Court could rely as proof that the 12th accused and three white men entered PW3's office at the time stated in exhibit 4. It could have been an afterthought, entered when perhaps queried by his superiors why he had not recorded 12th accused's presence with white men in his office His viva voce evidence, is however more convincing, as he maintained his ground under cross-examination by MR NGAKUI, that 12th accused indeed entered his office with two white men.
51. We now move on to the forensic examination of the plane. DET SGT 200 ROBERT MADABE CONTEH was PW10. He is with the Scientific Support Unit, CID Headquarters. His duties are to examine crimes scenes, and to stock forensic kits. On 19 July,2008 he was instructed by MR LAPPIA to join the Serious Organized Crime Agency (hereafter "SOCA") team from the UK who were assisting the Sierra Leone Police in the investigation. They travelled to Lungi to examine the aircraft. At Lungi, they met the aircraft in the Hanger. It was a Cessna aircraft, identified to them by INSPECTOR FAHNBULLEH of CID, Lungi. PW10 did an internal and external examination of the aircraft. 3 of its tyres were deflated. There was a Red Cross emblem at the apex of its tail. It had two different sets of inscriptions on it, on both sides. One side read SQ2261; the other side read YV1647. PW2 has already told the Court that this was in itself on irregularity. One JEFF of the SOCA team, removed the Red Cross emblem. Underneath were yellow, blue and maroon coloured stripes bearing 6 stars. Another SOCA team member, DAVE removed the writing SQ2261. Underneath it was the inscription YV1647. This plastic like substance was
treated as an exhibit. It was later tendered, together with the Red Cross stripes by LINDA WHITEOAK also of SOCA. Footmarks were discovered on the front wings of the aircraft. The main door was opened by DAVE. They entered the aircraft. They saw 34 ten gallon white rubber containers. They were removed and examined in the Hanger. All of them had small quantities of fuel, and they bore paper stamps on them with inscriptions. They re-entered the aircraft. The Pilot and Co-Pilots seats were examined, but as no report has been submitted in respect of the cigarette butts, chewing gum and empty can-drinks containers, this part of his evidence now has little relevance to the facts in issue. A Global Positioning System, GPS was in the cockpit. Finger prints were lifted; DNA enhancement was carried out; the rubber containers and the aircraft were handed over to DET SGT NAT WILLIAMS, the Exhibits Clerk, CID Headquarters. This would be confirmed later by MR WILLIAMS himself. PW10 said significantly, that MR WILLIAMS marked the aircraft as an exhibit, in his presence. The absence of a report from the SOCA team on the rubber containers, does not in my respectful view, affect the prosecution's case adversely, as the 3 accused persons who were in the aircraft, 1st,2nd and 3rd, admit, without demur, that they were indeed on the flight. 52.PW10 also took photographs of the aircraft. He identified the negatives and the printed pictures. As he had not printed them himself, he could not tender them as exhibits. Later, the person who printed them, PW48, tendered them in evidence. Later, he took intimate samples and fingerprints from the white accused persons. Again, since no report on these samples and prints has been tendered in Court, the taking of them has no bearing on the final outcome of the case.
53.Under cross-examination by MR WRIGHT, he gave his qualifications, and explained how the finger prints were lifted. The latter issue no longer concerns us.
54.PW11 was MOHAMED OLANDO SESAY a driver, and a very important witness, and if I may say so, of someone who was obviously unlettered, a very intelligent and enterprising person. He is Driver of Renault vehicle registration number, RC7495. He plies the Lunsar Freetown route. He recognised the 11th accused. On the morning of 14th July,2008 he was bringing passengers to Freetown , when somebody, a black man, stopped him around Komrabai. There were two persons. The man who approached him told him he was going to get the other man, whom he could see lying covered up in a makeshift hut, commonly called "a baffa." That person was
a white man, whom he identified as 11th accused. A Chief who was onboard the vehicle told him not to allow 11th accused in the vehicle. He however allowed both 11th accused and the black man in, and drove to Rogbere Police Station where he handed them over to the Police.
55.Under cross-examination by MR FORNA SESAY for the 11th accused, when pushed as to whether he was sure the person he picked up was 11th accused, the witness rightly identified him again as the person laughing in the dock. Indeed, the 11th accused was laughing at the time, as all could see.
56.PW12 was AHMED KAMARA, a caretaker at a house at 36UN Drive, Off Wilkinson Road, Freetown for a MR CORPIER whom he identified in the dock as 10th accused. He recognised 8th,9th and 16th accused persons. 8th and 9th accused persons used to visit the house. 16th accused stayed in the house. There were three outboard engines at the house. At about 5.30am on the 13th, the 16th accused went to the house. It was raining. He asked for the witness's phone as his phones had got wet. He gave his phones to the witness. 16th accused went upstairs. He came back downstairs with some things which he packed in the vehicle he had come with. It was q black Vitara vehicle. He told the witness he was going to his boss at Aberdeen, and that he would not be coming back until the evening. He ended by saying the people in the house spoke a foreign language. As this witness evidently did not speak either Spanish or Portuguese or French, I can safely assume that 16th accused must have spoken to him in a language he understood, which means, based on the fact that questions were put to him, the witness in Court, in English which he answered in krio, 16th accused must have communicated with him in either of these languages.
57. It follows that, the claim made by 16th accused's Counsel that 16th accused, Guinea Bissauian, only understands, and speaks French may not be true. It is a point I shall return to later in my Judgment. For present purposes. Encyclopaedia Britannica, and the Guinea Bissau website respectively, tell us that the official language of Guinea Bissau is Portuguese, it being a former Portuguese Colony. They also tell us that French is also widely spoken as Guinea Bissau aspires to become part of the Francophone zone. Portuguese is also one of the Latin languages, and is quite similar in pronunciation, grammar and syntax to Spanish.
58. To return to PW12's evidence, he was cross-examined by MR KOROMA for the 5th and 10th accused persons. He said he had known the 10th accused for almost 2 years, during which period he has been in his employ. He was referred to, and shown the statement he made to the Police. He confirmed
that he had there, referred to 10th accused as MR COPIA, though he actually called him 'Boss'. PW1 said further that everybody addressed him as COPIA. There is evidence to support this. 11th accused in his recorded interview, refers to him also as COPIA. Further, amongst the litter of documents recovered from that house, and the house at Bintumani Drive, which documents were later tendered in evidence, there are several references to COPIA, as well as references to VIEJO and others. My reading of DDP v DOOT to which I shall have to return later, and other cases dealing with conspiracy to supply prohibited drugs, suggest to me that these scribbles on paper, usually with varying amounts of money next to them, may actually be recordings of drug deals. In the present instance, Counsel was suggesting that perhaps the witness may have been referring to another person, but in view of the evidence to be gleaned from his passports tendered in evidence, 10th accused does not evidently go by one name alone. The witness also said in cross-examination that 10th accused frequently travelled in and out of Sierra Leone. Counsel was here suggesting that the witness could not positively know whether 10th accused travelled out of Sierra Leone as he had not said he accompanied him on any occasion. Again, the 10th accused's various passports confirm that PW11 was quite correct. 10th accused did travel out of Sierra Leone, frequently,
59.Under cross-examination by MR TURAY for 8th,9th,15th and 16th accused persons, he said he was treated as a suspect by the Police, and agreed he had not mentioned the names of 8th and 9th accused persons respectively, in his statement to the Police. He confirmed, 16th accused was there for about 7 months, but he could not recall the date, he moved in. He said 16th accused was one of the 4 black men he referred to in his statement to the Police. He said the exchange of phones between himself and 16th accused took place between 5.30 to 6am of the 13th. 16th accused could speak broken English, and he spoke to him directly that morning, and not through one ALRED HILL whom he described as an Interpreter. He reiterated that 16th accused told him he was going to his Boss that morning at Aberdeen. He saw 16th accused with a Vitara Jeep bearing a Guinean number plate. He had left the house the night before in that same Jeep with two others. 4 of those in the house had left the house two weeks before the incident of the 13th.
60.The significance of MR KAMARA's evidence lies in its bringing the 8th and 9th accused together with the 10th and 16th accused persons respectively; the exchange of phones, probably because 16th accused wished to make
phone calls without these calls being traced to the number he had been using: the time at which the exchange took place: 5.30 -6am, sometime after the cocaine flight had landed; the packing of things in the house, indicating flight; and the hurried departure.
61.PW13 was MUSA TURAY an employee of Total Petroleum Company, stationed at the Fuel Depot at the airport. He was another identification witness, and worked with PW5 and PW7. His business is to supply fuel to aircraft landing at the airport. He recognised 4th, 5th, 7th and 12th accused persons respectively. He said 5th accused was his friend. 4th accused, he said was a very popular man. 4th accused went to him that night, i.e. the 12th/13th, saying he wanted fuel. This was about lam. He had the keys to the Depot, so his boss, the deceased Peter Sorie picked him up. He saw 4th and 7th accused persons inside the Depot. He said 'hello' to them. He also saw PW7, TENSBEH. He put the generator on. The 4th and 7th accused persons went into the conference room, together; they said they wanted fuel Jet A1 fuel. Both of them said they had a special flight. He checked whether there was fuel by opening the tank, and waited for the special flight to come. PW7 was also there. They waited for about two hours. When the flight arrived, both 4th and 7th accused persons left the depot. Before leaving, they had said the flight had arrived. The plane did not pack by the fuel pit. When the plane did not taxi over to the Depot, his boss said they should leave.
62.He was cross-examined by MR WRIGHT, not surprisingly, at great length, but he held his ground. He insisted they only left the depot because the plane did not taxi to that point. His attention was drawn by MR WRIGHT to what appeared to be a discrepancy between what he said in his statement to the Police, and what he had said in Court. His response was that what he had said in Court was not totally different from what he had said in his statement. He agreed that no stranger could enter the airside as it was a prohibited area. He said his boss picked him up that night, as he was asleep when he received the call to attend to the expected flight, and that his boss and PW7 were not waiting for him at the depot. This contradicts, in part, the evidence of PW7 where PW7 said he had got to the Depot first, and had to wait for PW13 to come and open it. I do not consider it a material discrepancy. In REX v ALBERT FUMEH  WACA 148 Judgment delivered 1st April,1944, the Court at page 150 approved of the Trial Judge's direction to the jury in that case when he said of inconsistencies'." you gentlemen will have to judge whether such
inconsistencies as there are in the statements of the witnesses for the prosecution are the inconsistencies which show that their story is a false one made up and concocted together, or whether they are inconsistencies of people not very well trained to observe and remember, and doing their best to give a true account of their recollection of what happened on a rather disturbed occasion..." . The view of those distinguished Judges holds true today, as it did all those years ago, and I heartily endorse them. To return to the cross-examination, the witness continued by saying that he did not take steps to find out whether 4th and 7th accused persons had entered their names in the Register, the area being a prohibited one. He ended by saying that if the 4th and 7th accused persons had not gone for fuel, they would not have gone to him that night.
63.Under cross-examination by MR KOROMA, PW13 said that an individual could buy fuel for an aircraft, and that 7th accused discussed with him the purchasing of the fuel. The sum total of the cross-examination of both Counsel, was that PW13 confirmed the evidence of PW7 that both 4th and 7th accused were present at the Total Depot that night.
64.PW14 was DPC 5044 CLAUDE BRIMA one of the lead Investigators. He first tendered in evidence, the recorded interview of 5th accused as exhibit 5; the recorded interviews of 12th accused of 6th August,2008 and 19th August,2008 respectively, as exhibits 6 & 7 respectively; that of the 6th accused recorded on 20th and 25th September,2008 respectively, as exhibits 8 & 9 respectively. Those of the 14th accused recorded on 29th July,2008 and 19th August,2008 respectively, were tendered as exhibits 10 & 11 respectively.
65. He was about to tender the recorded interview of the 15th accused, when 15th accused's Counsel, MR TURAY, objected to its admissibility on several grounds. MR TURAY submitted that the interview was not given voluntarily by the 15th accused; threats had been made, and promises held out to the 15th accused by the Deputy Inspector-General of Police MR OLIVER SOMASA and the Head of the CID, MR LAPPIA. Also, that the head of Criminal Intelligence and Security Unit, MR ABDULAI MUSTAPHA, had written out a brief for him which he was to adopt as his statement to the Police. He had been denied access to legal representation, which was quite a serious allegation, as every person is guaranteed that right under the Constitution.
66.As a result of this objection, and in accordance with the Law, I had to hold a Trial within Trial in order to decide on the admissibility of that interview.
At the Trial within Trial, PW14, DPC5927 IBRAHIM ALIMAMY KAMARA who conducted the interview, and MR LAPPIA testified for the prosecution; the 16th accused gave evidence on his own behalf. MR TURAY indicated that he wished to call MR ASDULAI MUSTAPHA to testify on behalf of the 16th accused, and that he wanted a Subpoena to be served on him. I refused his Application, on the ground that MR MUSTAPHA was the head of a secret security organization, and that his appearance in Court for this particular purpose, would prejudice or compromise State Security. Further, I had to ensure that the scales of Justice were evenly balanced, and that the accused should be protected from such evidence which might unnecessarily prejudice his case. MR TURAY's cross-examination of the witness during the Trial within Trial, had revealed that MR LAPPIA had gone to the CISU office to request MR MUSTAPHA to release the 15th accused for him to be interrogated by the CID; he denied that whilst in MR MUSTAPHA's office, MR MUSTAPHA had said to him that the accused was going to make a fabricated statement against highly placed people in society'. He denied also the specific allegation, (page 88) that while in the office of MR MUSTAPHA, MR MUSTAPHA had handed over to him a document which supposedly contained the 'briefing' 15th accused was given by MR MUSTAPHA, and which he, 15th accused was supposed to regurgitate in his expected interview with the police; nor did MR MUSTAPHA hand over to 15th accused, any such document in his, MR LAPPIA's presence. He could not also recall whether, during a search of the 15th accused's house any such document was found. At page 91, the 15th accused in his testimony on the Voir Dire, said he had taken the original 'briefing' home on 10th September,2008 and that MR MUSTAPHA had to give him another one on 12th September,2008. He did not say what he did with that one. In view of MR LAPPIA's evidence, I took the decision referred to above. My assessment of the 15th accused's testimony during the Voir Dire, confirmed my view that there was no such document, and that the 15th accused gave his interview voluntarily. My impression was that he was trying to gain sympathy with the Court, that the only reason why he is in the dock, is that he is being used as 'catspaw' by MR MUSTAPHA and others to denigrate and to bring into disrepute, highly place persons. I was not taken in by this piece of legerdemain. Thus, after his evidence had concluded, and both Counsel had addressed the Court, I found that the prosecution had proved beyond a reasonable doubt that the statement was voluntary. The Ruling is at pages 100-104.
67.Thereofter PW14 continued his testimony. The 15th accused's interview recorded on 25th September,2008 was tendered as exhibit 12. His second recorded interview, to which he did not object, was tendered as exhibit 13. That of the 18th accused recorded on 13thand 25th September,2008 respectively, were tendered as exhibits 14 & 15 respectively.
68.PW14 then went on to narrate what transpired when he went to Central Prison on 23 July,2008 to interview the 1st, 2nd and 3rd accused persons who were Spanish speakers. He had to secure the services of a Spanish Interpreter, MR MOSES HENRY KAMARA. MR SOYEI, who was leading PW14, applied for MR KAMARA to be interposed. Unfortunately, the other Interpreter, MR TOM TAYLOR was absent that day and so MR KAMARA could not testify. He could not very well, while in the witness box, translate what he was saying to the Spanish speaking accused persons.
69.DPC 2207 MOHAMED ALPHA KAMARA was therefore interposed as PW15, instead. He tendered the first interview of 4th accused, recorded on 23 July,2008 as exhibit 16. He was about to tender another interview recorded on 14 August,2008 when MR WRIGHT brought to the Court's attention that that interview had not been filed and served. He could not therefore tender that interview at that stage. He went on to tender another recorded interview of the 15th accused given on 20 September,2008 as exhibit 17.
70.The Court could not proceed on the adjourned date, 19th Janaury,2009 because the regular Criminal Sessions of the High Court had ended the previous Friday; and there was nothing in the file to show that the Special Sessions declared by the Chief Justice, pursuant to the powers conferred on her by Rule 5 of the High Court(Criminal Sessions) Rules,1965 - PN 74 of 1965, for the trial of this matter on 17 December,2008 before the trial commenced, had yet been published in the Gazette. In fact, as I found out, the Notice had been duly published in Gazette No. 3 of 15th January,2009 as Government Notice No.16. The trial could therefore proceed notwithstanding the closure of the regular November, Criminal Sessions, and did so proceed on 21 January,2009.
71. PW15 continued his testimony. He tendered the 4th accused's recorded interview of 14 August,2008, which had by then been filed and served, as exhibit 18. Another recorded interview of the 4th accused done on 23 July,2008 when he was charged, was also tendered as exhibit 19. PW15 was cross-examined by MR WRIGHT and by MR TURAY. In answer to MR
WRIGHT, he said he did not hand over 4th accused's statement to the SOCA personnel who was present during the interview. In answer to MR TURAY, PW15 said, inter alia, that errors in a statement should be initialled; and that 15th accused said that the money he had collected from "SK" he had handed over to his boss MR MUSTAPHA; but that he did not speak to MR MUSTAPHA about this.
72.The next witness interposed, was PW16 D, SGT 4804 JEREMIAH SAMUEL VANJA. On 20 July,2008 he interviewed 13th accused. That interview was tendered as exhibit 20. Exhibit 21 was another recorded interview of the 13th accused done on 21 July,2008. Exhibit 22 was that of the 13th accused again, done on 23 July, 2008 when he was charged. He also tendered another recorded interview given by the 5th accused, when he was charged on 23 July.2008 as exhibit 23. He tendered the first recorded interview of 6th accused done on 13 September,2008 as exhibit 24. PW15 was cross-examined by MESSRS EDWARDS, KOROMA, and MANLY-SPAIN. In answer to MR KOROMA, the witness said the 5th accused told him he went to the airport that night to work, but he did not mention to him, the name FAHNBULLEH. In answer to MR MANLY-SPAIN, he said the 6th accused said he was not told by "GK" about the cocaine aircraft; and that the things collected from the 6th accused's house during the Police search, were handed over to the SOCA team for analysis.
73. The next interposed witness was PW17. DPC JAMES KANU. He tendered in evidence the recorded interview of 14th accused made on 18 July,2008 as exhibit 25. Yet another witness had to be interposed as PW18, D.SGT 3081 FODAY KALLON. He tendered another recorded interview of the 14th accused as exhibit 26.
74.PW19 was W/DPC 9874 MEMUNATU CONTEH. She tendered in evidence the recorded interview of the 7th accused done on 23 July,2008 as exhibit 27. Later that same day, she recorded another interview given by the 7th accused, and tendered the same as exhibit 28.
75.PW20, another interposed witness, was DPC 2906 ALFRED MUNDA SENU. He tendered another recorded interview of 13th accused done on 18 July,2008 as exhibit 29.
76.0n 23 January,2009 MR TAYLOR, the Interpreter, reappeared. He said he had been ill. MR ROBBIN-MASON indicated that he wished to interpose 2 more witnesses, before taking the other Interpreter, MR MOSES HENRY KAMARA. The first was PW21 ALIMAMY ANTHONY SESAY, another worker, employed by G4 Security, stationed at the Total Petroleum
Company fuel Depot at the airport. He did not recognise any of the accused persons. On the night of the 12th, he was at work. PW13 and the deceased PETER TURAY went there with two men. The men said they had a special flight, and that they wanted fuel. The two other men were MOHAMED SESAY and MR BAH. He said the place was dark, and he had to use his torch light to make entries in his Occurrence Book which he tendered as exhibit 30. This conflicts with the evidence of PW13 who said he put the generator on. I have no difficulty in rejecting PW21's evidence, as his entry in exhibit 30 against the time '1.30am' is clearly an interlineation and afterthought. The date is entered in the OB NO column; the date at the top is clearly 12th July,2008; the last OB NO for 12 July,2008 was 170. The entry for 1.30am is unnumbered.
77.PW22 was the next interposed witness that day. He was MOMOH KAMARA a driver of a von owned by one GIBRILLA TURAY, and living at Kandeh Bali, Port Loko. He recognised the 1st, 2nd,3rd, 8th, 9th and 10th accused persons. On a Sunday whose date he could not remember, he was told by MR TURAY to go to Conteh Street, Port Loko, to pick up a consignment of fruits for transportation. When he got to the house, he saw 7 white people. 3rd and 9th accused first came out. 2 minutes later, 4 white men came out - 1st, 2nd, 10th and 11th and a lady who was not then in Court. I think here, he was a bit mistaken. 11th accused could not have been there, as he was arrested on the way to Port Loko. He may have meant 8th accused, because at the beginning he had identified him as one of those he recognised. He continued, that they got into the van. One Union Official IBRAHIM WATFA SESAY called him on his mobile and advised him to drive to the Union Office at Agip Filling Station. By outwitting men who were evidently more lettered than himself, he was able to do a great service to the Police, and to this country. He was able to convince the white men and woman that the vehicle required refuelling when it clearly did not. At the Agip Station, the white men and woman were arrested. He was asked to drive them to the Port Loko Police Station. Thus the 1st 2nd,3rd,8th,9th, and 10th accused persons, and the former 17th accused, were apprehended. He was cross-examined by Counsel for these accused persons, but his testimony remained unshaken. I believe his evidence in its entirety, and I commend him for the sensible decision he took to put country before personal gain.
78.MOSES HENRY KAMARA finally took the stand as PW23. He gave his credentials. He studied in both Cuba and in Spain. I must say I was
impressed with them, and I found him a credible and reliable witness. He explained the role he played at Central Prison, Pademba Road, on 23 July,2008. His duty was to interpret whatever was said by the Police Officers conducting the several interviews, into Spanish for the benefit of the 1st, 2nd, 3rd, 9th and 10th accused persons respectively. Likewise, he had to interpret into English for the benefit of the Police Officers present, whatever was said by these accused persons in Spanish. I must say he acquitted himself admirably. He was diligent in his duties. At the end of each, interview, he was asked to certify each of them, and this he did. He identified the recorded interviews which he interpreted, and at which he was present, as A1-A9. Under cross-examination by Counsel for the Defence, the witness maintained that he did not threaten nor frighten the accused persons with stories of what might become of them if they did not cooperate with the Police. Having studied in both continents, he was able to explain the nuances between Spanish spoken by South Americans, and that spoken by European Spanish nationals. In sum, he said Spanish spoken by persons in both continents is intelligible to all Spanish speakers. Interestingly, he said the Police introduced him to the 10th accused in English. At some stage, MR WRIGHT tried in vain, to induce the Court to expunge his evidence on the basis that he had been in Court whilst other witnesses had been testifying. I had no difficulty in overruling his objection, as it went to weight, and not to admissibility. I have already indicated that in the result, I attach considerable weight to his veracity. His answers under cross-examination have not by any iota, detracted from his credibility as an impartial witness. The fact that Counsel who are representing the Spanish speaking accused persons did not, in the absence of MR TOM TAYLOR, query his knowledge of the Spanish language whilst under oath, goes a long way to show that he rendered his interpretation services diligently.
79.PW23's evidence was required to be given first, before PVV14 could be recalled, and other Police Officers could be called to tender recorded interviews obtained from the Spanish speaking accused persons. The case of TURAY v R [1964-66] ALR SL C.A. makes it clear, that where an accused person has made a statement in a language other than that which the recorder of the statement is literate in, or understands, the prosecution must first call the Interpreter to prove the accuracy of what the accused person said, before what it was translated into, and what was recorded, could be tendered in evidence.
80.On his return to the witness box, PW14 tendered in evidence exhibits 31, 32, 33, 34, 35, 36, 37, 38, 39, and 40, all of them interviews recorded on 23 July,2008 and given by 1st, 2 nd,3 rd,9th and 10th accused persons respectively. He said 9Th accused did not sign exhibits 37 and 38 respectively. He also testified that on 12 September,2008 he again interviewed the 9th accused through MR TOM TAYLOR as Interpreter. MR TAYLOR was therefore interposed as PW24. He gave his credentials, and said that on 12 September,2008 he did interpret for and on behalf of the 9th accused person, whose lawyer was also present at the interview. 9th accused refused to answer any of the questions, but he signed the interview. It was identified as A10. MR TAYLOR was not cross-examined. PW14 returned to the witness box, and he tendered in evidence this recorded interview as exhibit 41. That was the end of PW14's examination-in-chief, at which stage the matter was adjourned at the rquest of MR EDWARDS, as it was rather late in the day.
81. On the trial's resumption on 28 January,2009 things took a somewhat dramatic turn. MR ROBBIN-MASON applied for 3 witnesses to be interposed, and for these witnesses respective identities to be concealed as they were engaged in intelligence work. Defence Counsel did not object to this Application, and it was therefore granted. The names of these witnesses were already on the back of the Indictment, but Counsel agreed that there would be no further disclosure of their identities outside the Court Room. They testified behind a screen erected to protect their identities. They were not "anonymous" witnesses in the sense described in ARCHBOLD 2002 EDITION, in that their identities were already known to the accused persons, and to Defence Counsel, since their proofs of evidence, entirely un-redacted, had been served on the Defence. Their anonymity only affected the public and the press who were excluded.
82.The first of the trio, was ABDULAI SQUIRE, PW25, Assistant Director, Organised Crime and Anti-Money Laundering Unit, Office of National Security (ONS), attached to CISU. He could identify the 1st 2nd,3rd,4th,8th,9th,10th,11th,13th,15th,16th and 18th accused persons respectively. He saw the 1st,2nd and 3rd accused persons at Port Loko; he saw 4th accused at State House in January,2008; he saw 8th 9th and 10th accused at 7 Bintumani Drive, Aberdeen. 10th accused frequently used a LandRover. On occasions, he would drive it; on others, he was a passenger; it is an off-white LandRover covered at the back with tarpaulin. This vehicle featured significantly in the events of the night of the 12th to the
early hours of the 13th. He saw the 11th accused when he was arrested at Rogbere Junction. He saw 11th accused in a green vehicle ADJ105. When he was approached by the Police, he drove the vehicle at high speed towards Port Loko. He later parked the vehicle near a bush, and ran into it, and there he was arrested. He knew the 15th accused as a desk officer at CISU. He knew 16th accused when he was arrested at Rogbere Junction by the Police.
83.He said, he and others in his team were instructed to surveillance the house at 7 Bintumani Drive. He was on duty together with 15fh accused and others including PW26 on the night of the 12th at Family Kingdom, where they were supposed to do video coverage of the Wedding Reception of a target of their surveillance, NARANDAS. He has not been apprehended, but it is clear from the evidence that he may be one of the "others unknown" with whom the accused persons are said to have conspired. A considerable amount of the correspondence found at the Bintumani Drive house, bear his name. In fact, in a 2006 diary which clearly belongs to him, he does a sketch of the Tagrin-airport road, with a house on a turning on the left, being particularly identified with an asterisk. The Tagrin waterfront is clearly marked out as well. Also, among these papers, is an unsigned application in the name of this same NARANDAS for landing facilities for a boat at LAGOONDA, Man-of-War Bay.
84.Continuing, he said whilst they were at Family Kingdom, 15th accused told him he had to go home as his wife was bleeding. He left them at about 8.45pm, and the witness did not see him again. The 15th accused has of course in exhibit 12 explained where he went, and what he did. He certainly did not go home. His account of what transpired after he had deserted his colleagues that night, leaves me in no doubt that his boss could not have told him what to say in the so called briefing. The account he gave in that exhibit, was not only voluntarily given, but was also true, as it dovetails into other evidence given about the other accused persons that night.
85.Under cross-examination by MR TURAY, he said that he got to know 8th accused in January,2008. He said he was not working as an undercover agent. He explained the difference between an undercover operation and a surveillance operation. He said the 15th accused himself was given a specific role to play that evening, a role which in my view, he has amply explained in his recorded interviews. He was present when MR MUSTAPHA gave instructions that day i.e. the 12th what they were supposed to do. These questions were intended to support Counsel's contention that 15th accused
was given specific instructions exclusively; that he was merely carrying out those instructions that night; and that he was supposed to report directly to the Director-General. PW25 said this was impossible; that instructions were given to the head of the team; and 15th accused was not the head of the team. But, at the end, he said he could not deny that this may have happened. As I have already indicated, this possibility is not supported by the evidence before me.
86.PW26 was SMART IBRAHIM BOCAKARIE KOKOFELEH, a Desk Officer at ONS. He recognised the 15th, 16th and 18th accused persons respectively. He was on duty together with PW25,15th accused and others on the 12th. They were to surveillance NARANDAS's wedding at St Anthony's Church, Brookfields, and the Reception at Family Kingdom. 15th accused left them at Family Kingdom on the pretext that he had to go home as his wife was bleeding.
87.In the early hours of the 13th he was detailed to cover the house at 7 Bintumani Drive. He got there around 8am. Two vehicles drove out of the compound. One, with a Guinean number plate was driven by 16 accused. The second one, a pick-up van, was driven by a white man. He trailed the vehicles into the centre of town. At the present CID building at Pademba Road, PW25 joined the shadowing of both vehicles, up to Rogbere Junction. 16th accused was intercepted at Rogbere Junction. He trailed the other vehicle driven by the white man onto where it had been run into a ditch. Nobody was in it. This was where his involvement with this matter ended.
88.He was exhaustively cross-examined by MR TURAY. Most of the cross-examination dealt with the manner in which instructions were given to himself and the others by their boss, and what transpired between 15th accused and the rest of the team at Family Kingdom, where 15Th accused took leave of the team. He was not aware of any specific instructions given to 15Th accused by their boss; nor that he was working as an undercover agent on the night of the 12th. PW25 was the head of the team. On the morning of the 13th, he called 15th accused to enquire about his wife's health. He was with PVV25 at 7 Bintumani Drive, and also at Rogbere Junction where 16th accused's vehicle was intercepted. He could not remember going to Spur Road with 15th accused; nor did he see 18th accused that night.
89.PW27 was another Intelligence Officer, MUSA FASALIE MARRAH. He was tendered for cross-examination by the Defence. He was cross-examined by MR TURAY as to his duties, and as to whether specific
instructions were given to 15th accused that night. He was not present when any such instructions were given.
90.That same day, 28 January,20G9 PW14 was finally cross-examined by Defence Counsel. In answer to MR EDWARDS he said the name of JUAN CONTRERAS was not given to him by the British Officers present at the interviewing of the 1st accused. He said it was revealed during investigations that 1st accused was indebted to this man. The name CAMILLO was also revealed to him during investigations. During cross-examination by MR FORNA SESAY for the 2nd and 11th accused persons, doubt was thrown on the possibility of a 16 page statement, i.e. exhibit 33 being recorded in 7 minutes, whilst exhibit 34 which only contained only 4 pages was recorded in 6 minutes. It appears to me that the starting time of exhibit 33 could not have been 23.43hrs. That was clearly an error. I do not think that that by itself alone detracts from the authenticity of the facts recorded. He denied suggesting the word Cocaine to the witness; and that the 2nd accused said he only knew of boxes, and that the destination of the flight was Sierra Leone, though he did not know the person to whom the Cocaine was consigned. The witness denied suggesting to, or intimidating the accused. He could not recall PW23 having a Standard Times Newspaper with him during the interview; nor was he introduced as part of the investigating team. He told 2nd accused he was entitled to legal representation. He did not put words into the mouth of 2nd accused. He recorded faithfully what the interviewer told him the accused had said, based on the translation done by PW23.
91. Under cross-examination by MR JAMIRU, the witness said that he reminded the 3rd accused of his right to silence. His attention was drawn to the words attributed to the accused at the top of page 8 of exhibit 35. He affirmed that the words recorded therein were those used by 3rd accused; also that he did not introduce the name Lungi International Airport to the accused. I must state that by 23 July,2008 the 3rd accused, as well as the 1st and 2nd, had been in Sierra Leone for 10 days. Further, with information on all spheres of human endeavour and activity freely available on the internet worldwide, mapping out one's destination anywhere in the world no longer requires the genius of an Einstein. I take judicial notice of modern technology and of electronics. I myself was able to confirm through the internet that the Guinea Bissau airport is known as AEROPORT DE OSVALDO VIEIRA. The importance of the name of this airport is something to which I shall refer later in this Judgment, as entries in the
passports of some of the accused persons, show that the, used that airport frequently. Further, as evidence will later show, some of the documents recovered from the house at Bintumani Drive, were architectural drawings of Lungi airport and its environs. There is evidence that the accused were, whilst in flight, communicating via satellite links, with those of their co-conspirators on the ground. At one stage, according to PW4 and PW6, one of the white men in the Control Tower, grabbed his phone link with incoming flights, from him. PW4 also said he heard those on board the flight jabbering away in a foreign language before the plane landed.
92.PW14 denied that 3rd accused was promised by the SOCA team that he would only be deported from Sierra Leone, if he confessed to the crime of which he was accused. He did not request the presence of a Solicitor.
93.Under cross-examination by MR KOROMA, PW14 agreed that 5th accused told him he went to the airport on the instruction of MR FAHNBULLEH, his boss. He said he did ask MR FAHNBULLEH whether this was true, but could not recollect MR FAHNBULLEH's answer. I think it is appropriate at this stage to refer to what 5th accused himself said in exhibit 5 about what transpired between FAHNBULLEH and himself, as the Court was informed later, during the presentation of the Defence case,, that FAHNBULLEH is away from Sierra Leone on a course. At page 3 of exhibit 5 5th accused says this; " Whilst at home on Sunday the 13.7.08 between 2.00am and 3am, I heard the sound of an aircraft. I was so surprised. Reason being we personnel deployed at the said airport were no longer expecting any aircraft at that time of the day. In view of which, I became curious to know what was going on. I then called my boss MR FAHNBULLEH (Inspector) using my cell phone whom I informed about the said sound of an aircraft within Lungi airport axis. I wish to note that by then my said boss was (a)way in Freetown. So in view of which my boss noted that since the ClD personnel who was supposed to be on night duty had reported sick since Saturday the 12th July,20081 should proceed to the airport in a bid to know what the matter was." What the 5th accused is here saying, is not that he was selected among others, to go to the airport that night, but that he called his boss, and told him of what he had heard, and his boss acquiesced into his going to the airport, as the other personnel who was supposed to be on duty, had reported sick on the 12th. The 5th accused does not say to whom he handed over his shift, before retiring home at 8pm on the 12th. He was on "A" shift. It does not appear he handed over the shift to anyone else. I shall return to his interview later in my Judgment.
94.In answer to MR KOROMA, further, PW14 said that 10th accused told him he was a caretaker for his boss, 9th accused; that he left Freetown for Port Loko on 11th July,2008; that he didn't tell him where he was on 12 July,2008; but that it was correct, 10th accused was at Port Loko on the night of 12th. I do not make the same deduction. 10th accused may have been in Port Loko on the 11th; but that doesn't necessarily mean he was continually there until the night of the 12th.
95.Under cross-examination by MR TURAY, the witness said he informed 9th accused of his right to a lawyer, but acknowledged that in exhibit 39, 9th accused did say he would not sign the interview until he had seen a lawyer. As regards the 15th accused, PVV14 said that that accused told him they had been working on this matter for nine months. Insertions in exhibit 12 which were not initialled by 15th accused were drawn to the attention of the witness. He said these were errors on his part. I have examined the insertions and deletions. In some circumstances, the absence of initials of the accused person, would render them suspicious, and would undermine the reliability of the whole statement. But having gone through the whole of the statement, it is clear to me that the insertions and deletions do not affect the tenor of the statement. There is no obvious deviation from a certain line of answers, to another set. The sequence and cadence remain the same. The 15th accused's answers are clear and concise, as befits a graduate of Fourah Bay College, and an Intelligence Officer. My assessment of PW14 is that he is a conscientious Officer doing the best with the talents given to him, and a truthful witness. I accept his excuse that the failure to get the accused to initial these insertions and deletions was pure human error.
96.In answer to MR MANLY-SPAIN, PW14 said, that he did not interview "GK" but that 6th accused told him that nGK" had asked him to assist with a plane that was expected. "GK" did not mention the flight's cargo. In answer to MR NGAKUI, he said the 12th accused requested a lawyer, and that he accorded him the opportunity to get one. The whole issue of whether PW6 was asleep was again rehashed. The witness agreed that 12th accused told him this, but as what PW6 said about 12th accused entering the Tower with 2 white men, was confirmed by PW4,I do not think this line of questioning really leads anywhere. The difference between the prosecution's version, and that of the 12th accused, is whether 12th accused went to the Tower with the white men; or whether they met him there as he claimed. PW3 and PW8 saw him with two white men; and they had to go through Aviation
Security before going up to the Control Tower, at that time of the night. Besides contrary to the impression given by him that he only got to know about the expected flight from PW8, the 14th accused has already in his recorded interviews, dealt with earlier, stated that he, 12th accused, had earlier telephoned him enquiring about the flight, and about the clearance. Lastly, the witness's attention was drawn to the caution administered to the 12th accused before he volunteered exhibits 6 & 7 respectively. No mention was made of cocaine. As this Indictment has been filed and prosecuted by the Law Officers, I do not think that it matters whether the Police thought he was involved with the contents of the plane or not. In answer to MR BELOKU SESAY, the witness said that 18th accused denied the allegation put to him. PW14's lengthy testimony ended on this note.
97.PW28 was DPC 5927 IBRAHIM ALJMAMY KAMARA. He tendered the recorded interview of 8th accused as exhibit 42. On the adjourned date, 30 January,2009 he tendered the second recorded interview of 8th accused as exhibit 43; the first interview of 11th accused as exhibit 44; and the second recorded interview of 11th accused as exhibit 45. Under cross-examination by MR FORNA SESAY for the 2nd and 11th accused persons, the witness said that 11th accused did tell him that he had come from the Republic of Togo to repair boats. He said the accused mentioned the name "Leo" and the name "NARANDAS". As regards a machine found at 7 Bintumani Drive, where 11th accused also resided, the witness said that 11th accused told him that it looked like one for roasting chicken. He was referred to exhibit 44 page 3. He agreed with Counsel that the 11th accused said he drove at high speed when he noticed a vehicle chasing him. He abandoned his vehicle and ran into the bush. Since the vehicle doing the chase was that driven by the 16th accused, together with whom he had left 7 Bintumani Drive that same morning, his behaviour appears rather peculiar, to say the least, for someone going about his normal business. In answer to MR TURAY, the witness said 8th accused did tell him he had set up a mining company, but that he did not investigate whether this was so or not. Later evidence, obtained from the Ministry of Mineral Resources will show that the company was not licensed by the Ministry to mine for precious minerals.
98. The next witness was PW29 DETECTIVE INSPECTOR MOHAMED YANSANEH, attached to Interpot, Lungi. He was called upon to interpret for the benefit of the 16th accused who said he spoke French. He interpreted from English to French, and from French to English during the
interrogation of 16th accused. He identified the two recorded interviews of the 16th accused, as B1 and B2 respectively, both given on 23 Jgly,2008. Again, I must note that this witness was amply qualified to interpret for the benefit of the 16th accused. What struck me at the time was that here was a Bissauian, the official language of whose country was originally, only Portuguese; it was only in 1979 that French, became an additional Official language though it is still not widely spoken, as pointed out at page 12 of the UN Office of Drugs and Crime, whose 2007 Report I shall be referring to below. As I have stated earlier, Portuguese and Spanish are very similar languages. Was this request for a French speaking Interpreter, meant to deflect attention from conclusions the Police, and subsequently, the Court might draw, about 16th accused's connection with the Spanish speaking accused persons? He did not request a Portuguese Interpreter. PW12 said he sometimes speaks broken English. I have myself heard him utter few sentences in English in Court; for instance, when I suggested he come out of the witness box to view what was being identified by the Police Officer who said he took certain articles from the vehicle driven by 16th accused at Rogbere Junction on the 13th. I heard him speak English. However, he is entitled to the benefit of the doubt, as I shall emphasise later. I must however at this stage make clear that he had not, during all the previous sittings, by himself, or by his Counsel indicate that he was not following the proceedings which were being contemporaneously translated into Spanish. I find that he could understand all that transpired; and that he was at all times defended by Counsel, even during the sometimes unexplained absence of MR TURAY, his substantive Counsel.
99.To buttress what I have said, in answer to MR TURAY during cross-examination, PW29 said the 16th accused told him that he was a Bissauian, and that his official language was Portuguese. He did not tell 16th accused he was a Policeman, but he said also he was not part of the investigating team. He was merely called upon to do the translation because of his knowledge of French. After his testimony, PW19 was recalled to tender in evidence 16th accused's recorded interviews. She tendered both of them as exhibits 46 and 47 respectively. She was not cross-examined again by Defence Counsel.
100.PW30 was ABDUL RAHMAN WURIE, retired Permanent Secretary, Ministry of Transport and Aviation, who retired in 2008. He was merely tendered for cross-examination, but none was conducted by Defence Counsel.
101. PW31 was SAMUEL KASHOPE BART-WILLIAMS, retired Civil Servant, and Manager, Sky Air Services Limited, a company which attends to aircrafts at the airport. They obtain landing and overflying permits for flights. Requests for assistance in obtaining clearance is usually made by email. When the required details are received from the client, they are passed on to the Director of Civil Aviation. The clearance number is given to the Pilot of the incoming aircraft, to communicate to the Control Tower so as to ensure that it is the right flight which seeks landing permission. His company acts as agent for Africa West Cargo Airlines based in Lome, Togo. On 13 July,2008 there was no cargo flight from Lome to Freetown. Flights for Africa West came in on 1st,9th, and 17th July,2008 -the last date, instead of 15th July,2008. All three flights were by Antonoy 12 aircrafts.
102. Under cross-examination by MR WRIGHT, the witness said his company's clients were airlines, not aircrafts. Any airline could own any aircraft. He was aware that companies could apply for landing permits, and that they might own Antonov aircrafts.
103. Next came one of the most important witnesses, PW32 MR FRANCIS ALIEU MUNU, Assistant Inspector General Of Police in charge of Crime Services, and therefore responsible for the CID among other Police Departments. He got information about the landing of the Cocaine plane at about 7am on the 13th. He passed on the information to MR LAPPIA and immediately left for Lungi. On arrival at Lungi, he met the former Minister of Transport and Aviation, MR KEMOH SESAY, and also PW30. He saw the aircraft, a small white plane. He also saw a number of empty white plastic containers; wrapped sealed packets he suspected to contain something which he was not allowed to say at this stage. He ordered the commencement of the investigation. He directed that the items, including the sealed white packets found, be taken to the UN Office at the airport. He said the sealed packets were taken there for the purpose of them being weighed. The total weight of the parcels was 703kg. After this was done, they were loaded in a helicopter bound for Freetown, and thence to IMATT base. The weight was recorded, and a Certificate prepared. He identified a copy of the certificate.
104. He was cross-examined by Defence Counsel. In answer to MR FORNA SESAY, he said he was in a position to say whether the consignment arrived at IMATT or not; and whether they were still there or not. He was present when the packets were weighed and counted. He was not aware that a packet had gone missing.
105. Under cross-examination by MR WRIGHT, the witness said, that the Minister was standing by the aircraft, when he the witness gave instructions for the packages to be taken to the UN Office. It was at the security meeting at the airport that it was decided that the consignment would be safer at IMATT. Present at the security meeting were SL Airports' Authority Management, Airport Security Management and a number of Police Officers. He said, though the consignment was handed over to IMATT, he did not abandon it. There was absolute security, though he did not assign a Police Officer to be with the consignment wherever it was. He agreed that the President gave him certain instructions, but in the exercise of my discretion, and in the interest of national security, and as the President is Executive Head of State, I thought it fit and proper that his verbal instructions to State Officials, should not, without absolute necessity, be disclosed in a public forum such as this Court. He said lastly, that there were sealed packages with adhesive such as cellotape, wrapped around them.
106. In answer to MR KOROMA, PW32 said, he said he spoke to FAHNBULLEH, and that he told FAHNBULLEH he had reasonable cause to arrest 5th accused. But he did not ask FAHNBULLEH whether he had given permission for 5th accused to be at the airport that night. He said the allegation that a packet from the consignment went missing was untrue. The items were weighed at the IMATT site.
107. In answer to MR MANLY-SPAIN PW32 said that he could not tell what percentage of the cocaine was taken for analysis; nor was he present, nor could he recall whether S.L Police Officers were present, when the analysis was done. PW32 was stood down after this, though he would be recalled twice, later on, to give further testimony.
108. PW33 was W/DPC 7964 ADAMA KANU attached to CID Headquarters Freetown. She tendered in evidence, a further interview given by 13th accused on 31 July,2008. The Court informed the 13th accused that it had to Order the Prosecution to produce and tender in evidence the recorded interview, because it was under a duty to do so. The reason for the prosecution's failure to produce this interview earlier when the other recorded interviews of the 13th accused were tendered, soon became apparent. In this last interview, the 13th accused let, as it were, the cat out of the bag. He said that it was the 4th accused who had gone to his house on the night of the 12th, asking him to issue the clearance for the Antonoy plane; that he had called the 4th accused's brother on the phone to seek his permission to issue the clearance, and that the brother, i.e. the Minister
KEMOH SESAY, had given his approval. Thus the clearance was issued that night, though the document itself, was, in fact, only prepared the following Monday, the 14th of July. He explained that as the last permit issued was 23379, he knew that the permit sought by the 4th accused should be 23380. He had failed to mention this fact in his earlier statements because the Minister, and another brother HAMZA SESAY, and two lawyers from 4th accused's lawyer's chambers, had asked him not to do so. As I stated in my Decision on the No-Case Submission, 13th accused was here being suborned to commit Perjury to his own detriment. This was not an instance of someone invoking the Defence of Superior Authority. It was simply a case of an accused person saying that I did not commit the offences with which I am charged. If, as I accept, the Minister had made it clear that no permit should be issued without his say-so, and that this was known to the prosecution before these proceedings were brought, I find it hard to believe that the prosecution seriously believed it had a case against both 13th and 14th accused persons respectively, but not against the Minister. That is why I had no hesitation in acquitting both of them without calling upon them to present a defence. I must also express my strong disapproval of the strategy employed by the prosecution. This statement was not in the bundle of proofs of evidence filed and served pursuant to the Order I made on 10 December,2008. It means the prosecution were deliberately holding back vital evidence supportive of their case, for a reason which was not hard to find. They were prepared to jeopardise their case in order to save perhaps one person from perdition.
109.I am aware of course, and I constantly bear in mind, the principle of law, that what one accused person says against another accused person, in the absence of that accused person, is not evidence against him. But I am also duty bound to take into account whatever an accused person also says in his defence. In his statement from the dock, the 4th accused says his visit that night to the 13th accused's residence was an innocent one, and was purely casual. The concatenation of events that night, throw a different light on the purpose of his visit. Interestingly, in his cross-examination of this witness, MR WRIGHT 4th accused's Counsel suggested to the witness that because in exhibit 2, the time stated there was 20.57, it was unlikely 13fh accused issued the permit as a result of 4th accused's visit. I am surprised that in his cross-examination, no reference was made by him to the blatant acts of Subornation of Perjury which would have led to an innocent man being convicted simply because vital evidence was withheld by the prosecution. The cross-examination by MR EDWARDS now has no further bearing on the case, as 13th accused has been acquitted.
110. PW34 was BAIMBA BOCKARIE MANSOH, a Ground Handler employed by the S.L. Airports Authority (SLAA). He repairs equipment used in the aircrofts; and helps Engineers working on aircrafts. He was on duty on the 13th at about 8.30am. He saw PW1 and 3 men arrive in a helicopter. They went towards where the aircraft was parked. He took one of the conveyors to the parked aircraft. He met Policemen, Soldiers and Firemen there. PW1 asked him to open the aircraft. He said he would not do so until his boss was informed. He eventually opened the aircraft by pulling the handle. He moved away from the open door, for photographs to be taken. This supports the evidence of PW10 about the photographs he took. PW1 said they should take out everything from the plane. Everything was taken out and put on the ground. He went into the plane, and passed the contents out to the Fire Force men on the ground. He took out boxes and containers - he described them as '6 gallon' containers. Photographs were taken again. They put the contents of the plane underneath it. After doing this, he went off duty. He said he would be able to identify the containers if he were to see them again. The boxes were sealed with cellotape. The packets had red paint on them. He ended by saying he would not know whether he would be able to identify the packets unless he were to see them. He was not cross-examined.
111. We moved on to the evidence of the local analyst, PW35, FATMATA KARGBO, a Senior Regulatory Analyst at the National Pharmaceutical Quality Control Laboratory. She analyses Pharmaceutical products, cosmetics, herbal products and narcotics. She holds a BSc Ed majoring in Chemistry, with a Biology minor; and an MSc in Chemistry, both from Njala University, She has had training in her field in Tanzania, South Africa, Ghana and here in Sierra Leone. She has been in her job for the past 3 years. I must say that she impressed the Court considerably. She was confident, articulate and precise, in her delivery. It was clear to the Court that she was in total command of her discipline, and never wavered in her answers. Though quite young, she was able to hold her own under vigorous, and sometimes intrusive cross-examination by Defence Counsel. On 25 August,2008 she went to IMATT, at Hill Station. She went together with MR KONEH, Head of Inspectorate; a Regulatory Analyst, MR OKIAKO and a Consultant from Ghana, MR ERIC BOATENG. They went to IMATT to collect samples. They had been requested by the Registrar of the Pharmacy Board, MR WILSHIRE JOHNSON to go there. They went along with their own calibrated balance. They took samples, and calibrated the balance to ensure that the readings we correct. Samples were collected randomly at three different locations. They were packed in high density black polythene containers. White crystallised powder was enclosed in a low density polythene bag. The samples
were weighed, using the calibrated balance. The sampling was done in the room where the samples where. They took the samples to their Laboratory for analysis, where they were analysed. The results of the analysis were incorporated into reports. She prepared and signed three reports which she forwarded to the Registrar. The reports were countersigned by her colleagues and the Consultant.
112. As she was about to tender the letter and the reports, MR WRIGHT raised an objection to her doing so. MR MANLY-SPAIN supported his objection. I overruled his objection for the reasons stated at pages 191 to 194 of my minutes. Even on reflection, two months later, my views remain the same. After the Court's Decision, PW35 tendered in evidence the letter and 3 Reports as exhibits 49 pages 1 -4. The witness explained her Report.
113. Under Cross-examination by MR FORNA SESAY, she said she did not take samples from all the boxes. As she had said before, random sampling was done. Nor did she weigh the boxes and packages. The only people in the Laboratory present when the analysis was done, were members of the Pharmacy Board. They were joined by 3 Britons. ANDREW LACEY, PHILPOT and CRAWES. She said also, that they i.e. officials of the Laboratory, collected the samples which they analysed, and not the Britons. In answer to MR JAMIRU, she said that she had been engaged in analysis for 3 years. Suspected Cocaine Hydrochloride was the substance they analysed. She said they followed the procedures laid down in the British and USA Pharmacopoeia, which comply with international standards. She collected samples from 3 cartons, and they were representative of the substances in the room. In answer to MR WRIGHT, she said she came across MR LACEY. She was asked by her boss to proceed to IMATT. She signed a document stating she had collected the samples. The Pharmacy Board was their client. She said no S.L. Police Officer was present. She said they took 3 random samples, and not controlled samples. There was no entry in the column headed "Pass/Fail" in exhibits 49 pages 2-4. She said the Laboratory is owned by the Pharmacy Board. It is a sub-office of the Board. She said the test for Cocaine was done within 24 hours. She collected the samples at about 10.30am on 25th August,2008. The test could only confirm whether the samples collected were cocaine, but she could not tell the source of the Cocaine. In answer to MR MANLY-SPAIN, she said that some of the packages were on the floor, and that the analysis was not done at IMATT, which was quite evident from what she had already said: and that none of the accused persons were present when the analysis was done.
114. Notwithstanding my Decision on PW35's Reports referred to above, I think I should at this stage say something about the legal implications of her testimony,
because she testified as an expert. She is firstly, an analyst; secondly, she works at a Laboratory which she described, when being cross-examined by MR WRIGHT, as a sub-office of the Pharmacy Board, and that the Laboratory is owned by the Pharmacy Board. That is so is to some extent confirmed by exhibits 49 pages 1-4. They are printed on headed notepaper of the Laboratory, but with the Crest of the Pharmacy Board at the top. The Pharmacy Board was established by Section 3 of the Pharmacy and Drugs Act,2001. By Section 6(1) of the Act, The Board shall have a Registrar who shall be a Pharmacist appointed by the Public Service Commission, and shall be the Chief Administrator and Secretory to the Board. The Power to make appointments to the Public Service, by the Commission, is enshrined in Section 152(1) of the Constitution. The present Registrar, in an acting capacity, is MR WILTSHIRE JOHNSON, according to PW35. According to Section 93 of the National Drugs Control Act, 2008 (hereafter "NDC Act,2008"), the Act shall be in addition to, and not in derogation of the Pharmacy and Drugs Act,2001, save where there is inconsistency or conflict between the two Acts, in which case, the NDC Act shall prevail.
115. Section 45 of the NDC Act, 2008 empowers the Minister responsible for Internal Affairs, to designate any appropriately qualified and experienced person or member of a class of persons in Sierra Leone or elsewhere, as an analyst for the purposes of the Act. Up to this point in time, the Minister has not done so, for he can only do by Statutory Instrument, or by Government Notice published in the Gazette, which are the only two ways, in my respectful opinion, in which he could do so. Section 60(1) of the NDC Act, 2008 renders the analyst's report admissible in evidence, so long as the report purports to be signed by that analyst; and by Section 60(2) of the same Act, such a report is proof of the statements contained in it. By 25 August,2008 when PW35 carried out the tests, the NDC Act,2008 had received the Presidential Assent, and the National Drugs Control Act,2008 (Date of Commencement) Order,2008 - S.I. No.12 of 2008 had been published in the Gazette, thus bringing the NDC Act,2008 into force. But since the Minister, as I have stated above, had not as of that date, i.e. by 21 August,2008, and had not, up to the date PW35 testified, designated an analyst, or analysts; and because of the provisions of Section 93 of the 2008 Act, it is appropriate to find out whether there is provision under the 2001 Act, for someone other than the analyst prescribed in the NDC Act,2008 to perform the duty of analysing narcotics in proceedings brought under that Act. If proceedings were brought under the 2001 Act, Section 61 (b) of that Act provides that "a document purporting to state the results of an analysis carried out on behalf of the Minister or the Board for the purposes of this Act.... shall be prima facie
evidence of the facts stated therein." PW35 has said That she was instructed by the Acting Registrar to take the samples and to analyse them. In my respectful view. Section 61(b) of the 2001 Act would render admissible exhibit 49 pages 1-4 in proceedings brought under the 2001 Act. In view of the absence of any analyst appointed by the Minister under the 2008 Act, and in view of the fact that PW35 was instructed by the Chief Administrator of the Pharmacy Board to carry out the analysis, I have no hesitation in holding that she was a fit and proper person to testify as to the analysis done to the seized substances which proved to be cocaine, and to tender the Reports, exhibits 49 pages 1-4.
116. The next legal issue as regards her Reports, are her conclusions. She concludes that the substances tested, were all cocaine hydrochloride with varying degrees of cocaine purity. The charges in the Indictment relate to cocaine, and not to its derivatives or constituent elements. It is classed as a prohibitive drug in the First Schedule to the Act. This is a matter which has exercised the English Court of Appeal in R v GREENSMITH  3 All ER444; and the Privy Council in THE ATTORNEY-GENERAL FOR THE CAYMAN ISLANDS v CARLYLE RUDYARD ROBERTS Privy Council Appeal No. 53 of 2001 reported in the Privy Council website. In GREENSMITH , LAWTON, LJ at page 447 paragraphs a-b had this to say: " We attach importance to the words 'any substance or product'. The word 'substance has a wider meaning than 'product'. Any kind of matter comes within 'substance whereas product envisages the result of some kind of process...Part I of Sch 2 to the Act is headed 'Class A Drugs' and para I identifies 'the following substances and products' as such drugs. Amongst a list comes 'Coca leaf and 'Cocaine'. Part IV of this Schedule, to which 5.2 specifically refers for 'the meanings of expressions' contains this definition: '"coca leaf means the leaf of any plant of the genus Erythroxylon from whose leaves cocaine can be extracted either directly or by chemical transformation. 'It follows that 'cocaine' can be a natural substance resulting from a chemical transformation; but both substances are cocaine. In our judgment the word 'cocaine' as used in para I is a generic word which includes within its ambit both the direct extracts of the coca leaf, the natural form, and whatever results from a chemical transformation..... this case is concerned with the substance cocaine which may have a number of forms but they are still cocaine." The Court of Appeal was here dealing with provisions of the Misuse of Drugs Act,1971, but its reasoning is applicable to PW35's reports. There, the analyst had said, as set out at para c page 446 of LAWTON,LJ's judgment:"this substance which I analysed contains 40% cocaine, was made up as to 40% of the volume of the substance of cocaine; I did not break down or carry out tests to determine, I do not consider it
necessary, whether it was a salt of cocaine...whether it is a particular stereoisomeric form of cocaine or whether it is a salt it is still cocaine in one or other of those forms." In exhibits 49 pages 1-4, PW35 describes the substance as suspected cocaine hydrochloride, with a cocaine base of 85.4% at page 2; 85.8% at page 3; and 85.9% at page 4. Following Lawton,LJ I would hold that that description suffices for the purposes of the NDC Act,2008.
117.The same argument arose again in the Privy Council, in ROBERTS's case. There, the Privy Council, with LORD HOPE of CRAIGHEAD delivering the judgment, commented, at para 36, that the Court of Appeal of the Cayman Islands may have erred in arriving at a contrary decision to theirs, because SUMMERFIELD, CJ who delivered the judgment of that Court,"did not have the advantage of being able to consider R v GREENSMITK.ms the judgment in that case was not delivered until later in the same year. Had he done so, he would have observed that the decision in that case that the word "cocaine" used in paragraph I of Part I of the schedule is a generic word......(and) was based not upon judicial knowledge, but upon a construction of the wording of the schedule. Their Lordships consider that it is now within judicial knowledge, even if it was not in 1983 when the point was being considered by SUMMERFIELD CJ, that cocaine hydrochloride is a form of cocaine." This I hope, disposes of in part, MR WRIGHTs argument in his closing address, to the contrary
118. On 4 February,2009 MR ROBBIN-MASON applied to recall PW32 MR MUNU in order to testify as to what became of the cocaine consignment after it had been handed over to IMATT. He said he MR MUNU could not have testified to these matters before, for reasons of State security. MR WRIGHT and other Defence Counsel objected to his recall, essentially on the ground that his recall was an afterthought, and that his recall would necessitate fresh evidence, notice of which had not been given to them. I overruled their objections for the reasons stated at pages 200-201 of my minutes.
119. On his recall, MR MUNU testified that since the date the cocaine consignment was taken to IMATT he had visited the location, and inspected the items, and found them to be securely locked. He said he had intimated the IMATT Commander, that the Court might wish to inspect the consignment. At this stage, MR ROBBIN-MASON applied for a Locus in Quo to be held at the IMATT Headquarters at Hill Station. We left the Court precincts at 11.30am and returned at 3.10pm. At the locus, all accused persons were present in the room where the cocaine consignment was located, and where all activities took place. Prosecuting Counsel were present, and so also were some of the Defence Counsel.
Alt Defence Counsel were, in Court, invited to attend, and transportation was provided for them. I did not think it appropriate at that stage, to ask them to take witnesses along if they were so instructed, because the prosecution had not yet closed; the presumption of innocence still applied; and the accused persons had not yet been called upon to present their defence individually. It appears some Defence Counsel chose not to attend. Because it was a Military Installation, the press were not allowed by IMATT personnel to enter the premises.
120. At the locus, I was able to make observations myself, as the Tribunal of Fact. Witnesses who had testified made indications, and identified objects. Packages which were said to contain cocaine, were identified, and some of them were marked in the presence of all of us, by PW32.I asked Counsel present whether they wished to ask questions, reminding them at the same time, that a Locus in Quo was a Court proceeding, and that all parties present were entitled and were permitted to participate in the proceedings. I also reminded Counsel on both sides, and the accused persons, that what was being said by witnesses at the locus would not be recorded as evidence; but that on resumption of the proceedings in Court, those witnesses would be invited, if necessary, by either or both sides to be further examined or cross-examined, as the case may be, in order to elicit evidence of what transpired at the locus.
121. In this respect, I followed the practice as explained firstly in BLACKSTONE'S CRIMINAL PRACTICE 2002 Ed. Paragraph F8.35 where the Learned Editors opine: "A view should be attended by the Judge, the Tribunal of Fact, the parties, their Counsel... the presence of the accused person is important because he may be able to point out some important matter of which his legal adviser may be ignorant... the Judge should take precautions to prevent any witnesses who are present from communicating, except by way of demonstration, with the jury...a witness who has already given evidence at the trial may take part in a view: but witnesses taking part in a view should be recalled to be cross-examined, if desired "Secondly, in KARAMAT v R  1 All ER415 P.C., LORD GODDARD, LCJ delivering the Judgment of the Council said, at page 416 paras H & I:" The first submission on behalf of the appellant is that a "view" ceases to be a view and is not authorised by the ordinance if witnesses attend and indicate places by pointing or by words. Their Lordships do not accept this submission. In their opinion, the learned judge was perfectly right in deciding that witnesses who had given evidence could attend at the view....if a view were ordered at some stage of a criminal trial in England....it would be no objection to a witness attending and taking part that he had already given evidence. It might
well be that it was for that very reason that a view would be valuable" The Board's decision was cited with approval in TAMESHWAR v R  2 All ER 683 PC LORD DENNING in delivering the Judgment of that particular Board.
122. In view of the fact that the packages viewed were said to contain cocaine, I took the view that it would be most unwise and unsafe, to remove them from their safe location, a Military Establishment, travel with them through the streets of Freetown, and bring them to the Law Courts' Building for safe custody, with all the inherent dangers this would involve. I take Judicial Notice of the fact that Cocaine exhibits have gone missing while in the custody of a clerk in Magistrate's Court No.1, who fled the jurisdiction soon thereafter. I also take Judicial Notice of the fact that cocaine exhibits have also not been satisfactorily been accounted for in another criminal case, which was pending before another Magistrate. In my experience as well, in the case of THE STATE v HAYMAN SMITH in which the accused pleaded guilty to unlawful possession of cocaine before me; and in which, in addition to the sentence passed on the accused, I Ordered that the cocaine be destroyed in the presence of named Public Officials, prosecuting Counsel admitted before me that he had not got the exhibits, and that he did not know where they were. This was over a year ago. To date, nothing has been heard of those exhibits; and they have not been destroyed in accordance with my Order. In the light of these facts, I decided in the exercise of my discretion as the Trial Judge, that the exhibits should remain in the safe custody of IMATT until such time as I shall make another Order, which I shall do at the end of this Judgment. In addition, during my researches for this case, I had cause to consult the United Nations Office of Drugs and Crime website, in order to update on their current World Report on Drugs. In its December,2007 Report intitled "Cocaine Trafficking in West Africa - The Threat to Stability and Development in West Africa (with special reference to Guinea-Bissau)" The Office reports that A kilogram of cocaine typically wholesales at around US$ 46,700 in many of the key European markets. A ton would therefore be worth just under US$ 50 million on reaching its destination, and double that amount at retail level. That Report also states that most of the Cocaine intercepted, originates from Colombia.
123. The reason for the specific reference to Guinea Bissau will become apparent later in this Judgment, when dealing with the travelling, and travelling destinations of the accused persons. If, according to PW32 the drugs discovered on the Cessna aircraft weighed in total 703Kg; the Report states, the street price for cocaine in December,2007 was approximately USD94,000 per Kilo; and if, according to the 1st accused in exhibit 31, the cocaine was loaded in Colombia, it is easy to see that we are here talking about preserving merchandise which could easily fetch in excess of USD32m, and as such constitutes a powerful inducement for a hijack. The Report further details, that in 2007 the cocaine
haul interdicted in Sierra Leone, was 63Kg; and in Guinea Bissau, 635 Kg; in 2008 Sierra Leone's haul has increased to over 700Kg.
124. The witnesses who made indications, and identified things were PW1, PW32, PW34 and PW35; after the lunch break, they were recalled to the witness stand. First to take the stand, was MR MUNU, PW32. He sought leave of the Court to refresh his memory from notes he had made at the locus. Leave was granted. He testified that at the locus he had identified 538 sealed packages, and 61 loose ones placed in white plastic evidence bags for the purposes of preservation. On the 538 packages were inscribed '2007' in white paint on RED background. He took measurements of the sealed packages. They were found to be approximately 8.6" in length; 5.5" in breadth; and 2" thick. He said he weighed 5 of the packages wrapped in black which were on the table. The 5 were randomly selected. He gave the different weights of these 5 packages. They were then marked. He went to say that the packages on the floor were also identified by him as being part of the items recovered from the site of the aircraft. He also weighed 5 of them randomly and marked them. As I was at the locus myself, and observed all of these activities, I could easily confirm and verify that this is indeed what transpired at the locus. He thereafter tendered in evidence, the 538 packages which he had identified at the locus, as exhibits 50 Nos. 1-538. He also tendered as exhibits 51 Nos 1-61, the partly loose packages which had been on the floor in the room where they were inspected at IMATT. These loose packages, were, as disclosed by other witnesses, such as PW35, PW 45 and PW46, remnants of those sealed packages which had been opened up, and from which samplings were taken for analysis. Thus, the original packages were not reseated, but the contents thereof were put in the white transparent evidence bags, in which they were identified.
125. MR MUNU was subjected to further cross-examination by Defence Counsel. During cross-examination by MR EDWARDS, he admitted that some of the packages he had tendered, were originally in cartons which were damaged in the process of loading and unloading, when being taken from the aircraft, to the UN Office, and subsequently to the helicopter which brought them to Freetown. He said he counted all the items found, those in the cartons, as well as the loose ones. He was not present when samples were taken from them. In answer to MR JAMIRU, he said, that he could not account for the damaged cartons. He said the bags in which the 61 loose exhibits were kept were evidence bags provided by SOCA. He said he recalled saying he had gone to IMATT on 31 January,2009 and had found the packages secure. In answer to MR WRIGHT, he said he did not seal
the packages for evidential purposes. He said his failure to do so, did not leave open the possibility that the packages would be interfered with. He could not recall the amount taken for sampling. In answer to MR KOROMA, he said that the manner in which exhibits 50 nos.1-538 were seen in Court that day, was the same manner in which they were when they left Lungi; whilst exhibits 51 nos 1-61 were not in the same manner. A certificate was prepared which he signed; he tendered it as exhibit 52. In exhibit 52, it is recorded that the items going by the UN helicopter were:- 150 sealed small packets of 20 x 11 x 3 cms in size, total weight 530Kg; 18 sealed packages of 46 x 29 x 27 cms in size, total weight 173.5 kg. Total weight of both sets of packages was given as 703.5Kg. It was signed by the witness himself, MARIATU BARRIE representing ONS; the UN Police Representative, P. P. SINGH and CAPTAIN SESAY of the Presidential Guard Force.
126. In answer to MR MANLY -SPAIN, he said that he had been to the Armoury Room, at IMATT. He had not seen what was in the black packages, but he believed they were the same substance as in exhibits 50 nos. 1-538. These packages were not opened in the Court's presence. He saw the Report of the examination carried out by the Laboratory in Freetown; a copy of the SOCA report on analysis of the packages taken away by them, was sent to him. Finally, he said that if he had no access to the packages as IMATT, he would not have taken the Court there. In answer to MR NGAKUI, he said that the 61 packets were originally in the same state as the 538 packets. They were in the same condition before being brought to Freetown. They were counted at Lungi according to their dimensions. They did not open the cartons to ascertain the quantities in them. In answer to MR BELOKU SESAY, he said that the 61 bags were those from which samples had been taken; the packages from which they had been taken were no longer intact, so the remnants had to be re-bagged. He said he did not accompany the helicopter.
127. Next to be re-called, was PW35, FATMATA KARGBO. When led by MR ROBBIN-MASON, she said at the locus, she saw some packs on the table, and that she identified these packs as those from which random samples were taken. She read the inscription, '2007 on the packs. She did not weigh or measure them at the locus. In answer to MR JAMIRU, she said that she identified the packs samples were taken from; and that there was a wooden box in which they were kept, but that she did not see it on that day. In answer to MR KOROMA, she said that she went to IMATT once before that date. The items had originally been in cartons, but she did not see them that day. She was familiar with the contents of
cocaine, and gave its compounds. In answer to MR NGAKUI, she said she took random samples from three packs from three different spots.
128. PW1 JOHN BRIMA was also re-called. He said positively that the wrapped parcels he had seen that day, resembled those he saw off-loaded from the aircraft on the 13th. In answer to MR EDWARDS, he said that on that day, some of the packages were scattered on the ground. He was present when they were counted at IMATT. Naturally, he had not seen the 61 packages in that form before. He was not present when they were loaded into the UN helicopter. In answer to MR KABBA, he said he had not seen the contents of the cartons on the 13th. The cartons were sealed when he saw them; but he also saw loose packets. Some of the cartons were damaged. The last to be re-called, was PW34, BAIMBA BOCKARIE MANGOH. He said, at IMATT that day, he saw the things he had off-loaded. He confirmed this, in answer to MR EDWARDS. Truthfully, since exhibits 51 nos. 1-61 were in transparent evidence bags, and not in black sealed packets, he said, in answer to MR MANLY-SPAIN that he did not see them at Lungi.
129. On Friday, 6 Februay,2009 we returned to the trial proper again, with the CID Exhibits Clerk, NATHANIEL CARLTON DESMOND WILLIAMS taking the witness stand as PW36. He tendered his Exhibits Register as exhibit 53. He read entries appearing under serial number 58/2008, with the promise that he would provide the Court with a photocopy of these entries. MR WRIGHT, quite properly, in my view, objected to this witness tendering any of the things or documents he had received from the investigators, as none of them had been called to say, how they came into possession of these things. The witness was therefore compelled to merely identify some of them at this stage. They were the exhibits he had received from LUC of Port Loko, MUSTAPHA KAMARA, PW 39. He identified them as "Y 1-55". At the next adjourned date, 9 February,2009, MR ROBBIN-MASON was therefore compelled to do the right thing, by first calling the Police witnesses who had carried out searches of the premises, and of the person of accused persons; get them to identify the items taken during these searches, before recalling MR WILLIAMS. The first to be so called, was PW37 Chief Superintendent of Police, MUSA BOCAKRIE LAPPIA, the Director of the CID.
130. On the 13th, he was instructed by PW32 to investigate this matter. On his way to Lungi via Port Loko, he came across the green Toyota Takoma van with registration number, ADJ105 about a mile after Rogbere Junction. There was no driver in the vehicle. Other evidence later shows it was driven by 11th accused. PW39 met him, i.e. PW32, there. They asked the villagers to help them search
for the missing driver, who was said to be white. He went on to Port Loko Police Station, where he met 6 white males and a white female, under arrest. They were handed over to him for further investigations. They were 1st,2nd,3rd,8th,9th and 10th accused respectively. He instructed some Police Officers to search the accused persons in his presence. He recorded all the items found on their respective persons. He prepared individual inventories of these things. He tendered in evidence exhibits 54(1-4), a list of Euro notes, totalling Euro 4,000, taken from 1st accused. 2nd accused's inventory is exhibit 55; 3rd accused's inventory is exhibit 56; 8th accused's inventory is exhibit 57; 9th accused's inventory is exhibit 58; 10th accused's inventory was exhibit 59.
131. PW37 left PW39's office with these accused persons at 6am on the 14th, bound for Freetown. He collected 16th accused on the way, at Rogbere Junction, where he was also shown the Zuzuki Jeep RC5948 M which the 16th accused was alleged to be driving. In Freetown, he handed over all the items he had collected from the accused persons, to PW36, DPC NAT WILLIAMS. He handed over the 8 accused persons to his Deputy, A. SESAY Esq. On his return to Police Headquarters, he met PW39 who brought in the Zuzuki Jeep, and another white man, the 11th accused. He was informed by the Deputy Inspector-General, that he would be working with the SOCA team. He identified a letter dated 17 July,2Q08 from the Secretary to the President to the British High Commission, requesting assistance, in the investigations. The SOCA team eventually joined his team of investigators. They were based at the Operations, Policy and Planning Division, Murray Town (OPPD). Items recovered from the accused persons were handed over to SOCA for examination and analysis. The witness wrote letters to various Departments and Ministries, seeking information about matters brought up by the accused persons. His letter to the Administrator and Registrar-General concerning PEREZ MINING AND GENERAL COMPANY LIMITED, was tendered as exhibit 60; her reply was exhibit 61; the documents she forwarded under cover of her letter were tendered as exhibits 62, and 63(1-6) respectively. Exhibit 61 shows that the shareholders of this Company were, JORQUE PEREZ with 20,000 shares; HARVEY PEREZ with 15,000 shares; and NARANDAS EMERIC EDWARD TULSIDAS, with 5,000 shares. The shareholding is confirmed by exhibit 62, the M&A of the company. In her letter, the Registrar-General confirms that the company was incorporated on 19 October,2007.The company Notices, Statements and Statutory Declaration, were tendered as exhibit 63 (1-6).
132. Exhibit 64 was another query by the witness directed to the Registrar-Genera! concerning MAX GLOBAL LIMITED. The Registrar-General in her response, forwarded several documents under cover of her letter dated 29 July,2008 all of them tendered together as exhibits 65 (1-35). Pages 344 of exhibit 65 are an Application for Registration of MAX GLOBAL LIMITED a$ a Business, dated 24 April.2008. It states that the Proprietors of the Business are SHERIF KABIA, ALHAJI ISHMAIL JANNEH, and HARVEY S PEREZ. MR PEREZ gives his address as 8a Babadorie, Lumley, and describes himself as an American. The business is said to be construction, import, export, property development. Page 5 is the Certificate of Registration dated 24 April,2008. The Certificate of Incorporation of the company dated 24 April,2008 is page 6. The company Notices, Statements and Statutory Declaration, are pages 7-12. Pages 13-35 are the M&A of the company. They show that the shareholders, are the same as the Proprietors of the business.
133. Exhibit 66 is the witness's letter to dated 4 August,2008 to the Permanent Secretary, Ministry of Mineral Resources. Enquiring about PEREZ MINING COMPANY. The Permanent Secretary's response is exhibit 67 pages 1-3. Page 2, is a Minute from the Acting Deputy Director of Mines, to the Permanent Secretary of 6 August,2008 telling him that the company "has never registered with this Ministry "and that they therefore "...have no documents or information about it!' Page 3, is a copy of exhibit 66. The significance of this response will be become apparent later, when I come to deal with some of the accused persons' explanation of what they have been doing in this country, and why it was they needed a house at Port Loko. Exhibit 68 is the witness' letter dated 4
August,2008 to the Permanent Secretary, Ministry of Works, asking for information about MAX GLOBAL LIMITED. The Ministry's response is exhibit 69 pages 1-2. The minutes on Page 2 confirm, that nothing is known about the company, by the Ministry. Exhibit 70 is a letter to the Permanent Secretary, Ministry of Finance dated 4th August,2008. In it, the witness enquires about the status of two NGOs: the Environmental Watch Agency of 3 Ecowas Street, Freetown; and the Single Leg Amputees Association of Sierra Leone. Again, the address 3 Ecowas Street has some significance. In exhibit 48 at page 4, the 13th accused did say that the address given to him by the 4th accused as that of the person to be contacted in connection with the expected Antonov flight on the 13th, was that of ALHAJI OSMAN BAH of 3 Ecowas Street, Freetown. Another of the foreign accused persons was,said to be a Patron of these two NGOs. The Acting Development Secretary's1 td that enquiry, is exhibit 71. In it, he says both supposed NGOs are not registered with his Ministry, and that they could
find no record of both NSOs. The same enquiry in respect of the Single Leg Amputees Association only, was directed to the Permanent Secretary, Ministry of Education in exhibit 72. The Permanent Secretary's response, exhibit 73, was that the Association is not registered with the Ministry.
134. PW37 went on to say that the two vehicles, Zuzuki Jeep RC 5984 M and AD-T 105 were handed over to the Exhibits Clerk, PW36, and that he could identify them if seen. He went on to identify in Court, the currency notes exhibited as 54(1-4); and the articles and things listed in exhibits 55, 56,57,58 and 59. There his testimony in chief ended for the time being. He was cross-examined by Defence Counsel. Of importance, in my view, were his answers to questions put to him, firstly, by MR FORNA SESAY, when he said that the recording of things taken from 2nd accused was done by two persons; that the 2nd accused did not sign against items 9-12 on exhibit 55; only items numbered 1-8 were found on 2nd accused when he was searched at Port Loko. In answer to MR JAMIRU, he said, he was not present when 3rd accused was arrested; but he was present when the articles listed in exhibit 56 were taken from him. He could not tell where the accused's passport was. In answer to MR EDWARDS, he said, he had not taken, nor seen 1st accused's passport. In answer to MR TURAY, he said the 8th accused did not sign page 3 of exhibit 57, and he could not tell whether the entries in that exhibit were made in the presence of 8th accused.
135. On 11 February,2009 PW38 D/SGT 4405 IBRAHIM MOHAMED FOFANAH testified. He is attached to CID, Port Loko. On the 13th he was instructed by PW39, his LUC to meet him at Rogbere Junction. On his way there, he met PW39 and PW37 and other Police personnel. He joined the search for the white man whom it had been said had run into the bush. He was instructed later to go to Rogbere Junction Police Station to take an inventory of all things found in a Zuzuki vehicle, registration number, RC5948 M, which he described as red in colour. This description later proved to be an error. He took the inventory in the presence of a Guinea Bissauian. He tendered the inventory as exhibit 74. At the top of the exhibit, item 2, it is clear the Bissauian is 16th accused. Curiously, he gives his profession as Herbalist. His passport, which was later tendered also, is proof of this. Of significance, is the quantity and variety of the articles found with 16th accused: several laptops, mobile phones, wearing apparel, shoe-wear; toiletries and medication; arms and ammunition; jewelry of all sorts. The evidence tends to show that he was moving house, not only for himself, but for others. It also shows that he was well armed. No licence for bearing arms and ammunition was found amongst the motley collection. The witness handed over the items
collected to INSPECTOR FOFANAH at Rogbere Police Station. He said on the morning of the 14th, he met one BAIMBA and 11th accused in custody at the Station. 11th accused had a smalt travelling bag with him. He took an inventory of all that was in the bag. The inventory was signed by 11th accused, and it was tendered as exhibit 75. Of interest, are the Togolese passport and the driving permit, found with 11th accused. The witness identified the articles listed in exhibit 74 as X1 to X45 (1-27); those in exhibit 75 were identified as W1- W25. He was cross-examined very briefly. Notice was given by the prosecution that he would be recalled.
136. PW39 was CHIEF SUPERINTENDENT OF POLICE, MUSTAPHA KAMARA, attached to Police Headquarters, but previously attached to Port Loko Police Station as LUC. He recognised 8th,9th,10th and 11th accused persons. He said 8th, 9th and 10th accused were arrested at Port Loko; and 11th accused at Rogbere. On the morning of the 13th, he was instructed by DIG, SOMASA to mount strategic checkpoints along the Port Loko/ Lungi/ Karnbia axis, as some people had escaped from a plane. He put Officers in charge of the check points, and gave them precise instructions. He later met up with PW37 at the scene where a vehicle had run into a ditch. He confirmed his exchanges with PW38. He returned to Port Loko Police Station later, where 7 white suspects, one of them a white lady were taken into his office. He handed the investigation over to PVV37. He gave instructions for exhibit 74 to be compiled by PW38. He also identified exhibit 75. He did a reconciliation of the exhibits themselves with the inventory, and found the inventory to be correct. He gave instructions for all of the exhibits to be loaded on board the Zuzuki vehicle, and for them to be brought down to the CID to be handed over to PW36. He identified those of the articles which were in Court, and which were listed in exhibits 74 and 75 respectively.
137. That same night, the 13th, he went to a house in Port Loko Town where he saw two vehicles: one a Landrover 130 model, registration number, ADQ 067; the other a Sprinter Bus registration number ADK 212. He said both vehicles were with the Police at the OPPD. Cross-examination of this witness was very brief.
138. On 13 February,2009 PW40, D/INSPECTOR AUGUSTINE ALIE MANSARAY, took the witness stand. He recognised the 1st,2nd,3rd,6th,8th,9th,11th and 18th accused persons. He had cause to ask 18th accused to accompany him to search 18th accused's premises at Jalloh Terrace, Kissy. He first executed a Search Warrant at 7 Bintumani Drive, Aberdeen. He tendered the Search Warrant as exhibit 76. During the search, a long list of items identified by him as V1 to V32 were found. These items were seized, and the Warrant was
indorsed by all present during the search. Amongst the items found, were bundles of correspondence; mobile phones, sim cards, photocopies of documents relating to PEREZ MINING AND GENERAL COMPANY LTD; money counting machines; a kitchen scale; 6 vehicle number plates (V26 1-6); documents relating to a Zuzuki vehicle with registration number RC 7254 K; and a GPS.
139. On 13 August,2008 he executed a 5earch Warrant, exhibit 77, at the residence of the 5th accused, at 53 Lumley Road, Wilberforce. The items found and seized were identified by him as U1 - U7. On 18 September,2008 he executed yet another Search Warrant, exhibit 78, at 55 Jalloh Terrace, the residence of the 18th accused. Nothing much was found there. On the same day, he executed another Search Warrant, exhibit 79, at the residence of 15th accused, at 28E Kamanda Farm, Kissy. The items found and seized were identified by him as T1 to T6. All articles taken and seized, were subsequently handed over to PW36.
140. The witness was cross-examined by Defence Counsel. In answer to MR FORNA SESAY, he explained why he could not take the accused persons along on his search of the Bintumani Drive property; there was a security issue. But at the same time, the witness said they asked neighbours to witness the search. He denied the suggestion that he had taken any incriminatory material with him when going on the search. I must point out that Section 30 of the CPA,1965 envisages, and makes provision for, the execution of a search warrant in the absence of the owner: Sub-Section 30(2) provides that "...whenever any such building......is closed, any person residing in or being in charge of the
building...shallon demand of the constable or other person executing the search warrant, allow him free entry thereto, and afford all reasonable facilities for a search therein" If entry cannot be so obtained, Sub Section 30(3) empowers the Police to enter the premises forcibly, if there is no means of gaining entry into the premises, the object of the search. In answer to MR KOROMA, the witness said that he did not know whether forensic analysis was done on the items seized. They entered the premises with a key given to them by PW37, but they had to break into one of the rooms. In his recorded interview, 11th accused did say at page 3 of 44 that he broke down one of the doors in the house, with the help of 16th accused, in order to collect 10th accused, 'LEO's', personal belongings. The witness said he did not take the items recovered back to the Magistrate who signed the Warrants. The rest of the cross-examination by other Counsel requires no special comment, but it appears from their line of questioning
that they hold the view that there was non-compliance with Section 34 of the CPA,1965 which deals with the Return of the Warrant.
141.That Section does state that the Warrant shall be returned to the Court, Judge, Magistrate or Justice of the Peace who issued it. I suspect Counsel have read this provision literally, without searching for its intent. If the offence in connection with which the search was conducted is a summary offence, then clearly the seized items have to be returned to the Magistrate or Justice of the Peace who issued it, and who would normally have jurisdiction to try the case, summarily. If the offence is Indictable, and thus a PI has to be held, the items again would ordinarily be returned to the Magistrate who issued the warrant, and who would presumably conduct the PI, provided of course, that the prosecution think it fit at that stage to tender the warrant. That the Section strictly speaking may be referring exclusively to Summary Trials, may be surmised from a reading of the last two lines: "...and, may at any time thereafter, may make such an order as to their disposal as may seem proper!' That a Magistrate conducting a PI cannot" dispose" of things taken during a search is made plain by the express words of Section 124 of the CPA,1965: they have to be transmitted to the High Court. In the case of a matter which is brought to this Court by Consent of a Judge, the matter is not heard or heard in full by a Magistrate. If what Counsel are suggesting is true, Search Warrants will never be admissible in such proceedings, unless fortuitously, they were issued by the Judge who would finally be assigned to try the matter. Rule 17 of the Indictment and Ex Officio Information (Procedure) Rules, 1969 obliges the prosecution to serve "proofs of all the evidence which it is proposed to call at the trial in support of the charge or charges.." Such proofs, must, in my respectful view, include things such as search warrants, and all things seized as a result of such search. If that were not the case, we would find ourselves in the absurd situation where, a search warrant is returned to a Magistrate who signed the Warrant, but before whom there is no case. A Warrant can only be tendered during the course of a hearing. Even if I am wrong in the view I have held, it is my respectful opinion that Section 245 of the same Act cures whatever defect there may be in these Warrants, and I so hold.
142. PW41 was another Police Officer, D/INSPECTOR SAMUEL EBENEZER MODUPEH WILLIAMS, attached to CID, Congo Cross. On 20 July,2008 he led a team which executed a Search Warrant at 36 UN Drive, off Wilkinson Road, Freetown, former residence of the 10th accused and the 16th accused, according to PW12, who was himself present during the search, and who duly indorsed the
search warrant. All items taken during the search, were recorded in the Warrant which was tendered as exhibit 80. He identified the items seized as S1 to S14. All of them were later handed over to PW36. Found in these premises were, inter alia, Guinea Bissauian and Guinean (Conakry) Identity cards: mobile phones; walkie talkies; arms and ammunition (but no licence was found in respect of the arms); a Sierra Leonean passport; outboard machines; life jackets and many more.
143. Under cross-examination by MR FORNA SESAY, the witness said that some of the occupants of the house were in Court; and that some of the seized articles were handed over to SOCA for analysis. In answer to MR KOROMA, the witness said, that PVV12 did not tell him who his boss was, nor did he mention the name COPIA, He said Police Officers were guarding the premises when they got there, and that they are still there.
144. After this witness, the prosecution applied to recall PW16, VANJA to testify about the search at 17 Cemetery Road, Congo Town. As I pointed out to MR SOYEI who made the Application, the prosecution was proceeding in a very untidy way, which showed that they had not worked out a definite strategy for presenting their case: thus the necessity to recall witnesses ad infinitum. In the exercise of my discretion however, I allowed the witness to be recalled. He tendered exhibit 81 which was the Search Warrant in respect of the office of the 13th accused. He identified the documents seized as R1 to R4(1&2). He also tendered the Search Warrant, exhibit 82, in respect of 17A Cemetery Road, Congo Town, the residence of 6th accused. The items seized were identified by him as Q1 to Q13. Amongst these items seized, were pieces of paper with numbers written on them. He was cross-examined by just MR KOROMA who on that day deputised MR MANLY-SPAIN for the 6th accused.
145. PW42 was D/INSPECTOR SYLVESTER MOMOH FOFANAH. On 2 August,2008 he led a team of detectives to 8B Pipe Line, Wilberf orce, the premises of the 4th accused, to conduct a search. At the scene, one UMAR SIDIQUE SESAY, one SAMURA and one KOROMA were present. The Search Warrant was tendered as exhibit 83. He identified the things taken during the search as P1 to P9. Of interest, were P6 a T Mobile sim card: P8, documents relating to a Mercedes Benz Jeep; and P9 a Comium Telephone Bill. Under cross-examination by MR WRIGHT, the witness explained the manner in which the Warrant was obtained. He said he found it necessary to be accompanied by foreign officers, and that the Government of Sierra Leone had requested their participation in the investigations. They did not inform 4th accused they were going to search his house. He handed over the seized items to PW36. He said the
picture of the vehicle, which picture he had identified, determined the value of the vehicle, and how the money was obtained to buy it. I allowed this piece of evidence to go in, though I realised that it had no evidential worth, in order to allow as much lee-way to Defence Counsel.
146. On 16 February,2009 another witness, PVV10, again had to be recalled by the prosecution because they had carelessly forgotten to ask this witness to testify about certain important matters. On 30 July,2008 PW10 said he led a team of detectives to the residence of 12th accused at Kamara Street, Lungi, to conduct a search. 12th accused's wife and two of his brothers were present during the search. He tendered the Search Warrant as exhibit 84. Some of the items seized were handed over to the SOCA Team, members of which accompanied them on the search; others were handed over to D/SGT 3081 KALLON. He was not cross-examined further, by Defence Counsel.
147. PW43 was D/SGT 882 JOSEPH KAMANDA CONTEH, attached to CID Headquarters, Freetown. On 12 September,2008 he and a team of detectives executed a Search Warrant, exhibit 85 at the office of the 18Th accused. The items seized were identified as 01 to 09. He said he handed them to PVV36. He was cross-examined briefly by the 18th accused's Counsel, MR BELOKU SESAY.
148. The prosecution again had to recall PW32, MR MUNU. This time, it was for him to tender a letter, exhibit 86, written to him by RAY ANDERSON of SOCA. Attached to the letter, was a report written by an analyst in the UK, MR DAVID WALKER. On 12 February,2009 he received another letter from MR WALKER. The prosecution was unable to tender the letter in evidence because of certain irregularities in the provenance of the letter, and the Report forwarded under it. The prosecution therefore abandoned the quest for the time being, and interposed another witness, PW44 ABU BAKARR TARAWALLIE, a Communications Co-Ordinator, at the Sierra Leone Red Cross Society. He described the Red Cross Logo, and emblem, and its permutations amongst the various Red Cross organizations: the International Federation of the Red Cross, the International Committee of the Red Cross, and National Societies of the Red Cross. He said the Red Cross in Sierra Leone was in no way associated with the cocaine plane. He said that before a plane bearing the Red Cross emblem comes to Sierra Leone, the Sierra Leone Society would have been informed, for them to make the necessary arrangements to receive the passengers and cargo on board the flight. No such information was received about this particular plane. On 14 August,2008 the S.L. Red Cross therefore issued a statement dissociating itself from the aircraft.
149. PW44 was cross-examined briefly by Defence Counsel. It seems to me that Counsel were indirectly suggesting that the use of the Red Cross was not exclusive to the Red Cross Societies or committees, national or international; that it could be used for purposes of which the witness was not aware. The witness referred to the Geneva Conventions. Article 44 of the 1st Geneva Convention of 1949 makes it quite clear that the use of the Red Cross emblem is exclusive to the Red Cross National Societies, and the international committees; and that it cannot be used for any purpose not falling within their ambit and operations. Article 53 provides that "the use by individuals, societies firms or companies either public or private, other than those entitled thereto under the present Convention, of the emblem or the designation "Red Cross" or "Geneva Cross" or any sign or designation constituting an imitation thereof, whatever the object of such use, and irrespective of the date of its adoption, shall be prohibited at all times. The prohibition laid down in the first paragraph of the present Article shall also apply, without effect on any rights acquired through prior use, to the emblems and marks mentioned in the second paragraph of Art 38. "The Contention was extended to Sierra Leone by the Geneva Conventions Act (Colonial Territories) Order in Council, 1959 and Sierra Leone is therefore a party to it. Section 5(1) of the Sierra Leone Red Cross Act, 1963 confers on the S\erra Leone Red Cross Society the right to use the Red Cross emblem. In my Judgment therefore, no other person or authority or entity which is not carrying out any of the functions or duties of the Red Cross in accordance with the 1st Geneva Convention, could legitimately make use of the Red Cross emblem in any way whatsoever.
150. The next witness was PW45,ANDREW LACEY, a Detective working for, and with SOCA in the UK. He came to Sierra Leone on 17 July,2008 at the request of the Sierra Leonean authorities to assist in the investigation of this matter. The others in his team were : CHRISTOPHER SANDS, TOBY GALLER, JEFFERY MASTERS and LOUISE WHITEOAK. They worked together with members of the S.L. Police: PW10, PW36 and others.
151. His first assignment was to go to IMATT, to look at the things which were taken off the plane. He was led to the armoury where the drugs were kept by LT COL BARRINGTON. There he met another Officer, SMART. His job was to analyze how to deal with the drugs. There was a cage at the back of the room, locked. They opened it with a key; inside, there was a box, inside of which were other boxes. Because of the confined space, they moved the boxes to the Conference room nearby. They laid the drugs out in front of them. He saw
packages and/or blocks of white substances. Looking at them, he could say they were drugs. They then had to decide how the drugs were to be analysed because of the substantial quantity. They took out 149 packages 'blocked'. Each of them was identical; they were marked; there was a red label and handwritten number on each of them. He could see a total of 18 white boxes; each box had 25 similar packages. In total the white packages amounted to 599. With the help of MS WHITEOAK, PW46 and the S.L. Police Officers present, they had to decide how samples were to be taken. In the UK, they normally would take 10% of the substance. With the help of PW46, they took random samplings from different blocks. The boxes had been numbered by the Military people. The procedure adopted, was to open a block, take a small sample, put it in an exhibit bag, and that bag would be sealed so that it could not be tampered with. On that bag, they would explain what they had done. They would put in the date, time and place and an exhibit number to show what it is, and then sign the bag. The block it came from was sealed, put in a bag and removed. They would then select another package for sampling. This was done by GALLER and MASTERS. They also decided to take some of the wrappings, as the blocks were wrapped in plastic. The plastics were to be analysed in the UK. They would be put in a separate bag, and then sealed in the same way as before.
152. On 22 July,2008 he took these samples to the UK. On his arrival in the UK, he secured the samples at the Crawley Branch Office which is the Police Station where he works. They were locked in a secure cabinet overnight. The next day, he took these exhibits to the Forensic Science Laboratory at Lambeth in South East London, where exhibits are usually taken for analysts. In his experience, the Laboratory analyzes substances to determine whether they are drugs. The results of the analysis were incorporated into a Report by DAVID WALKER. He identified the Report.
153. At the end of the exercise in Freetown, they had returned the drugs to the armoury at IMATT. Mc ALPINE, a Military Officer took custody of them. He brought the samples back to Freetown with him. He tendered them, in their individual evidence bags, as exhibits 87 (1-60). He said he would be able to identify the blocks if he were to see them again. He was shown some bags in Court which he identified as the remainder of the packages from the Samples were taken, though the markings had come off. He was able to identify positively, 3 of them, by comparing the numbers on them, with the numbering of them in his statement which he was allowed to use to refresh his memory, and which was later tendered as exhibit 88 pages 1-4. Ml was listed as item 9,
substance taken from block No. 76 in exhibit 88. M2 was listed as item 53, substance taken from block 4A in the same exhibit. M3 was listed as item 45, substance taken from block 8A in the same exhibit. The blocks he identified as those he took samples from, were L1 with no.4 written on a paper attached to it; L2 with no. 5 written on it; L3 with no.1 written on it; no.2 as L4; and np.3 as L5. These numbers had been written on pieces of paper by PW32, MR MUNU at the locus, in order to assist the easy identification of these packages. They had been marked in the presence of the accused persons, and of Counsel. He reiterated that he had seen 599 packages, and that those identified as L1 to L5 were identical to the bulk. He tendered his Report as I have said above, as exhibit 88 pages 1-4. Extreme care was taken by the prosecution to ensure that the evidence given by this witness reflected the professionalism with which the collection of samples had been done, and the care taken of these samples in order to preserve their authenticity and integrity, free from contamination. A report, however strong its progeny, could easily be discredited by evidence that it was based on samplings taken and/or treated carelessly. If the prosecution could not, at the end of the day prove that the substances taken from the plane were indeed cocaine; that extreme care had been taken of the samplings taken to prove whether this was so or not, by expert evidence, no amount of other evidence would support a guilty verdict against each and any one of the accused persons. I found this witness to be serious, truthful and reliable, and to be of sound expertise in his discipline.
154. As was expected, he was subjected to in-depth cross-examination by Defence Counsel. In answer to MR EDWARDS, the witness reaffirmed that he took samples from 60 packages, but that he did not weigh the samples. He said the tamper proof evidence bags were those in which the samplings were put, one of these bags, being that identified by him as M3. He agreed that though there was provision in exhibit 88 for a counter-signature, there was none there, because a countersignature is usually required only when there is a victim, and that that was not the case here. He agreed that the seal on the exhibit bag had to be broken in order for the exhibit to be examined. He agreed also that there was no S.L. Police with him when he went back to the UK. In answer to MR FORNA SESAY, he said that he had 27 years of experience as a Police Officer. He said at IMATT, LT COL BARRIN&TON had said to him: "27I'll take you where the jewels are." He was not of course present when the substances were analysed in the UK.
155. In answer to MR JAMIRU, the witness said he was not aware whether the Lab in Lambeth is Government-Owned or not, but that he had had previous
dealings with it. He did not know how long the Lab would take to carry out analysis of substances. He said because of his experience, he could say whether a substance was cocaine or not. He said he had been with SOCA for three years. MR WRIGHT started off by getting him to tender as exhibit 89 pages 1-6, the form he had submitted to the Lab. The reference number of this form is 300777912. The witness's contact details, and those of PW46 are stated on page 1. In box no. 8 on page 2 there is the entry, against an asterisk:"please note that evidence of this identification may be required to assist a prosecution in Sierra Leone." At the bottom of page 5, in a box, is the stamp "RECEIVED JON PUTT FSS LONDON" FSS here, in my view, based on the evidence, particularly, exhibit 197 pages 1-11, being the Forensic Science Service, London. Partly inside, and partly outside the box, is the stamp : "JUL 23' 08 17.18" which in view confirms PW45's evidence that he handed in the samples the very next day after his return to the UK.
156. Continuing further, in answer to MR WRIGHT, the witness agreed that there was no reference to Sierra Leone on page 1 of the exhibit; but as I have pointed out above, there is such a reference on page 2. He said he did not think the S.L. Police had access to the armoury; nor do I think so, or that it affects the safe custody of the substances. He said the boxes were not sealed, and that they opened all of them to examine their contents. He went on describe in graphic detail, as appears in my minutes of his evidence, the process of sealing the evidence bags. He said the orange strip would show whether a bag had been tampered with. He pointed out that tamper proof, did not mean, and X agree with him, that the bag could not be tampered with; my view is that tamper proof means, one would be able to tell whether the bag has been tampered with, and nothing more. Finally, he said he signed the evidence bags he took with him; DAVID WALKER also signed them; and paradoxically for MR WRIGHT, he confirmed the S.L. Police's involvement in the whole exercise by saying that PW36 signed them as well. In answer to MR KOROMA, he said that analysis is not done in the presence of an accused person, or a Police Officer. I did not think so either.
157. My assessment of PW45's evidence is that it establishes a connection between that which was discovered at Lungi, and then taken to IMATT for safekeeping. It also establishes that part of that which was taken to IMATT, was taken to the UK by PW45 on 22 July,2008 and by him, to the UK forensic Science Service on 23 July,2008. He returned with these same samples again to Freetown to give evidence in this Court. DAVID WALKER'S Report establishes, as did
FATMATA KARSBO's Report, that that which was discovered at Lungi was indeed cocaine. I shall of course, later return to MR WALKER'S Report.
158. PW46 was MS LOUISE WHITEOAK, a Forensic Operations Manager at SOCA. She gave her credentials, and I am satisfied that they show that she was quite competent for the assignment given to her. She explained what happened at IMATT on 17 JuIy,2008 in the presence of PW45, PW10 and PW36: i.e. how the samplings were collected. She emphasised that they worked as a team. 5he identified MR WALKER'S Report. She identified one of the packages in Court as one of those they were asked to look at, at IMATT. At IMATT, after opening it, she looked inside it, and came to the preliminary conclusion that it contained cocaine. She weighed out 800 grams and took a sample weighing about 10 grams. She identified two of the samples in their respective bags, brought back by LACEY, and which had been tendered by him, as K1 and K2 respectively. She also carried out searches of premises and vehicles together with S.L. Police Officers. She examined a Landrover Defender, and a Mercedes Splinter Van at the OPPD at Murray Town. She said she would be able to identify them if seen. She also carried out an examination of the Cessna aircraft of Lungi, together with PW10. It bore identification marks, and a Red Cross sticker. Some items were taken back to the UK, like papers, plastic bottles, documents for finger print tests and further forensic examination. Other items taken were laptops, GPS's Satellite phones, drinking containers. These were handed over to experts for examination, but she did not have a Report on them.
159. Whilst testifying, she was able to identify, 4 RED stripes which I consider to be a rude replica of a Red Cross, and which she said was on the tail of the aircraft. PW1 had already told the Court that indeed, there was a Red Cross on the tail end of the plane. She also identified a white cross, a sticker which bore a
number which later proved to be false; and several other stickers found on the plane. These were later tendered by PW36 on his recall to the witness stand. She had to stop at this stage, so that the Court could move to the OPPD for a locus in quo.
160. On 18 February,2009 the Court visited the locus at the OPPD ,and at the Naval Base, both of them in Murray Town. The same procedure followed in the case of the viewing at IMATT was adopted by the Court. All accused persons were present. Prosecuting Counsel were all present, though not all Defence Counsel where, though they were invited. At all stages of the viewing, the accused persons were able to see, and to hear, through interpretation, for the non-English speaking ones, all that was going on. The Court invited Counsel on both
sides, and the accused persons, if they so desired, to put questions to the witnesses who were in attendance. On our return to Court, PW46 continued her testimony; and three other witnesses who had earlier testified, were recalled for further examination-in-chief, and cross-examination on events at the locus.
161. PW46 continued by saying that at the locus, she had identified two of the vehicles she had spoken about; the Landrover, and the Mercedes Benz Van, She also mentioned that she had pointed out to the Court that she had examined the inside of both vehicles for evidence collection. She also recalled that she identified the damage done to the Van. Again, as was expected she was subjected to intense cross-examination, but at the end, and in the main, her testimony was unshaken. I found her a very credible, reliable and efficient witness. In answer to MR EDWARDS, she said she weighed the samples taken. She said the Red Strips taken off the plane where in the form of the Red Cross when on the plane. She gave an account of the things taken from inside the plane.
162. Under cross-examination by MR FORNA SESAY, she said they did not take 10% of the bulk of the cocaine, because that would have amounted to 60 Kilos in all. She said she knew before she got to IMATT that she was going to examine cocaine; but she did not herself analyse the substance, nor was she present when the substance was analysed. She said a Report was not done on the items found in the Landrover. None of the accused persons was present during the investigation she carried out. The aircraft was not examined in the presence of the accused persons. Items collected from the vehicles and other crime scenes were not analysed here, because specialised equipment were required to analyse them. This was why they were taken to the UK. She lifted finger prints, but there was no Report on them. She again confirmed that she saw a Red Cross on the plane. In answer to MR KOROMA, she said the doors to the aircraft were taped when she got to Lungi: there was a cordon around the aircraft, and there was Military presence. The cordon was there when the Court viewed the scene later. She could not, naturally, say whether the evidence had been tampered with, before she got there.
163. PW10 was recalled to testify that he had, at the locus, identified the two vehicles he had described in his evidence earlier as those which he had, brought to Freetown: the Landrover Registration Number ADQ067; and the Mercedes Benz Sprinter, ADK 212. PW37 MR LAPPIA was also recalled. He recalled identifying at the locus, the two vehicles he had spoken about before: the Zuzuki Jeep, registration number RC 5948 M; and the Toyota Takoma van. Registration Number ADJ105. Under cross-examination by MR FORNA SESAY, he denied
previously describing the Jeep as being Red in Colour. PW39 was also recalled, He recalled identifying at the locus, the Zuzuki Jeep, the Landrover, the Toyota Takoma van and the Mercedes Benz Sprinter Bus. Under cross-examination by MR TURAY, he denied saying earlier in his evidence that the Jeep was Red in colour. My assessment of the evidence of both PW37 and PW39, is that in the main, their evidence is credible, reliable and supported by other evidence. They are good Police Officers who acquitted themselves with skill and initiative in this investigation. I do not think errors about the colour of the Jeep detract from their overall credibility. The fact is that the 16th accused was arrested in the Jeep, which was black in colour, as we found out when we inspected it at the OPPD, and several items taken from it.
164. PW47 was DPC 5964 LAHAI MANSARAY he recognised the 15th accused. He got to know him, when he identified a boat on 20 July,2008 at the Naval Base. He was there with PW37,15th accused, and other Police personnel. In his presence, PW37 asked 15th accused to identify "the boat". 15Th accused identified the boat. He asked 15th accused to identify the positions of those sitting in the boat, and I5th accused did so. He recalled visiting the locus that day i.e. 18 February,2009 and identifying the boat. Paradoxically, or perhaps because he did not understand the question, which was :"is there any relationship between the boat identified by 15th accused to you, and the boat you saw today?", put to him, his answer was that there was no relationship between the two; but seconds later he went on to say, thus saving the situation, and his own credibility, that the boat he had seen previously, was the boat, he saw that day. Much of the blame for this witness's evident ineptitude lies on MR SOYEI who was leading him. Using the word “ relationship" may have utterly confused the witness. The witness was most unimpressive, and if this case had depended on his evidence alone, I would not have held out much prospect for its success. In view of his faux pas, Defence Counsel clearly had no reason to cross-examine him.
165. Thereafter, MR ROBBIN-MASON applied to the Court for the witness MARIATU BARRIE, whose name appears at the back of the Indictment, to be dispensed with, as she was out of the Court's jurisdiction, and was unlikely to return soon. He said that since the commencement of the case, efforts at tracing her had proved futile. Defence Counsel had no objection to her not being called by the prosecution; nor did they wish to cross-examine her. I therefore granted the Application, and she was thereupon dispensed with.
165. On Friday, 25 February, 2009 MR ROBBIN-MASON again applied for some more witnesses to be dispensed with, as their testimonies were no longer
necessary in view of the testimonies of witnesses who had already testified. Again, I invited reaction from the Defence. There were no objections; nor was there any insistence that they be called for cross-examination. I therefore Ordered, in the exercise of my discretion, that the evidence which would have been given by these witnesses whose names appeared on the back of the Indictment, viz: DPC 7762 FRANK MARVTE; DPC 5636 WILLIAMS; DPC 1196 A K KAMARA, D/SGT 2970 A M KAMARA and DPC 7799 U M KAMARA, be dispensed with.
166. The next witness was a photographer SHEKU TEJAN TURAY, PW48. He works for Universal photo Studio at Rawdon Street, Freetown. He has been a photographer for 5 years. He knew PW 10, SGT CONTEH. He saw him in
July,2008. PW10 asked him to develop some pictures he had taken. He developed 17 negatives and printed 17 pictures, all of which he gave to PVV10 who had earlier identified them. He tendered the negatives as exhibits 90 (1-17) and the pictures as exhibits 91 (1-17). He was not cross-examined.
167. As these pictures were said by PW 10 to have been taken soon after 13th July,2008,I shall dwell on them a bit. In what I shall call the first one, the right flank of the plane is shown with the inscription SQ2261 and the Red Cross logo on the tail end, clearly visible. In the next one, which I shall call the second one, the left flank with the Red Cross symbol is shown. In the third one, there is a man peeling off a covering revealing underneath in part, the letters and figure YV16. In the fourth one, the letters and figures YV1647 are clearly visible on the flank shown. The difference in the inscriptions on both flanks, had been mentioned in the evidence of PW2 and PW10. PW2, as Director of Civil Aviation, had said this was irregular. In the fifth one, the door of the plane is shown open, with the staircase hanging out. Inside plastic containers could easily be seen. In the sixth one, a rectangular flag-like symbol in horizontal stripes of yellow, blue (with stars on it) and red is seen. In the 7th, what appears a plane 'hold' is shown open. In the 8th one, the cockpit, with the GPS clearly visible, is shown. The 9th, is another picture of the cockpit. The 10th shows a canister and a carton with the inscription MRW. The 11th appears to be a picture of the inside of the plane; a rubber hose, (locally called "snake rubber in this country, and usually used for siphoning fuel), a green funnel, a carton with the inscription MRW several bottles of orange coloured liquid, a torch light, theararm of a chair, could all be seen. The 12th picture shows a number of plastic containers, 34 in all. It is not clear whether the photograph was taken inside, or outside the aircraft. The surrounding area appears to be dark. PW1, PW2, PW10 and PW 34 had described these containers
whilst giving evidence, respectively. 13th accused also spoke of them in his interviews with the Police. PW2 had in fact said there were 34 of them. PW10 said all 34 of them were handed over to PVV36 as exhibits. For some inexplicable reason, the prosecution did not tender them in evidence. The 13th picture is one of the inside of the aircraft. It shows a length or several lengths of a cable or nylon rope. It shows also, the back of the two seats in the cockpit. Clearly, the seats in the body of the plane have been removed, or were never "there in the first place. These pictures confirm, in my view and estimation, the evidence of PW1,10, 32, 34, 36,and 46 as to their respective observations of the aircraft at Lungi. Undoubtedly, in my view also, there was a Red Cross symbol affixed to the tail end of the plane. I am satisfied on the evidence led, that it was not put there after the plane landed on the northern apron. In my Judgment, the plane arrived with the symbol affixed to it. There are two pictures of a house, the location of which is not stated, but I shall return to them later.
168. At the close of MR TURAY's testimony, PW36 was recalled to the witness stand to tender in evidence various exhibits. He started off with the sum of 4,000 Euros seized from 1st accused. He tendered them as exhibits 92 (1-80). The articles taken from 2nd accused and listed in exhibit 55, were tendered as exhibits 93 (1-18) - exhibit 55 numbers the items as 12, but there were 6 necklaces. Amongst the exhibits was a Sony Ericsson mobile phone. This phone, and others taken from other accused persons, and from their residences, were handed over to SOCA for Forensic examination, but according to PW46, no Report has been submitted in respect of any and all of them. No reason, has been advanced by the prosecution for this absence. The significance of these phones will be realised when I come to deal with the case for the Defence. Those taken off 3rd accused and listed in exhibit 56 were tendered as follows: the Venezuelan currency notes were tendered as exhibits 94 (1-33); and the other items as exhibits 95 (1-8). 3rd accused had three mobile phones on him. Exhibits 96 (1-to 102) were items seized from 8th accused. Exhibits 96 (1-67) was the total sum of Le415,000 in Le10,000 and Le5,000 notes seized from him. Exhibit 97 was 1 Euro note; 98,1 x 5,000 Guinean Franc note; 99, 1 x Peso note; 100 (1-43), USD4,300 in USD100 notes; 101, a Columbian Passport No. CC98666186 in the 8th accused's name; and 102 (1-12) other items listed in exhibit 57.
169. Exhibit 101 the Columbian Passport was issued to 8th accused in Medillin, Colombia on 6 June,2008. The indorsement on page 4 states, loosely translated from Spanish, shows that it was issued "expedida" to replace that which was reported lost "PERDIDA" on 30 January,2008. During the search of the premises
at 7 Bintmani Drive, that passport, partly torn into bits, was found and recovered, and tendered as part of a bundle of correspondence. The 8th accused's name, date of birth, and the numberAK898440, appear in the torn bits. The passport number is the same, as that in the fresh one issued on 6 June,2008. What was not found, was the portion where his fingerprint should appear. Hs finger print appears in the proper column in exhibit 101. His air tickets on American Airlines, from Chicago to London Heathrow; and from London Heathrow to Brussels were also torn up, but the torn bits were recovered in the search. I have enclosed them in a plastic bag, and they form part of this Judgment. He arrived in Freetown on 13 June,2008 as appears in his USA passport, which was also seized during the search.
170. Exhibits 103 and 104 are those seized from 9th accused. They include Euros 3,000 and a Nokia mobile phone. Exhibits 105 to 108 are those seized from 10th accused. 105 (1-81) is the total sum of Le810,000. Exhibit 107 is an Ecowas Passport in the name of FERNANDEZ LEANDRO. 10th accused's picture appears in it. It was issued in Conakry on 5 December,2007 and was due to expire on 4 December,2009. This passport shows 10th accused's frequent trips to Guinea via Kambia. On page 7, it shows he re-entered Kambia from Guinea on 21 June,2008 having gone to Guinea that same day. It shows, to some extent, and so also will the other passports to which I shall be referring, that he indeed travelled frequently out of Sierra Leone, and that PW12 had been speaking the truth when he said this. The other exhibits included a Nokia mobile phone, 3 knives and a laptop. Exhibit 109 was the black Zuzuki Jeep which had been identified by PW36 and other witnesses at the locus at OPPD. The evidence is that it was seized from 16th accused. In the vehicle were found the items listed in exhibit 74. Those tendered were marked exhibits 110 to 120. They included as I had mentioned earlier, wearing apparel and other personal items, clearly not belonging to him, which gave the impression that 16th accused was carrying out a house-clearing exercise. Those articles were all tendered in bulk as exhibits 112 (l-204).The passport, exhibit 110 which was issued on 24 April,2007 shows that he was born in Bissau on 4 May,1979. It also shows his frequent travelling between Guinea Bissau, Senegal, Gambia and Sierra Leone, entering Sierra Leone, on all occasions by road via Pamelap. The passport shows he last entered Kambia, from Guinea on 8 June,2008. The discovery of these articles of clothing and such-like, gives credence to the prosecution' case that the 16th accused was fleeing Justice, after the discovery of the plane at Lungi, and none to his story that he was merely going to Kambia on his boss's instruction.
171. Exhibits 121 to 124 were those seized from 11th accused. They included his Togolese passport S9502146 issued in Lome, Togo on 19 Jul 2007, exhibit 121. There, he says he was born in Malabo, GNQ, which I believe are the initials in French, of Equatorial Guinea. He used it extensively in his travels through West Africa, and to Venezuela in South America. It shows that he last entered Sierra Leone on 8 May,2008 but there is no indication where he entered. Exhibit 123 is a Togolese Vehicle Permit issued on 5 November,2002. In it, he claims he was born in Equatorial Guinea on 27 October,1963. The other items in exhibit 75 were tendered as exhibits 124 (1-33). They included monies in different currencies.
177. the next set of exhibits were those found at 7 Bintumani Drive, the residence of 8th,10th and 11th accused persons, NARANDAS TULSIDAS, who describes himself in documents which were found as a Sierra Leonean, but may well be of another West African nationality, and apparently, the 9th accused as well. I say apparently, because in the 3 recorded interviews he gave the Police, exhibits 37, 38 and 41 he refused, as was his right, to say anything. But since several documents were found during the search which concern him, I find that he has some connection with that property. The items found during a search of that house, were tendered as exhibits 125 to 131. According to exhibit 76, the duly indorsed Search Warrant, several quantities of correspondence were found in the various rooms in the house. They were tendered collectively as exhibits 132 (1-40). They were all are, as they presently are, in evidence bags which were duly indorsed. The several pieces of correspondence throw considerable light on this case. Exhibit 127 is the USA Driving Licence of the 8th accused. It was issued on 30 January,2007.
178. Regarding exhibits 132 (1-40) I have above referred to the torn passport of 8th accused. There were other interesting discoveries. There are several documents which show that the house was rented by NARANDAS, and not by 8th and 9th accused persons, as 8th accused stated in exhibit 42. There is evidence that NARANDAS' mobile phone number is 076 221414, a number which was called during the wait for the plane to land. There are documents from the Immigration Department showing that NARANDAS put himself out as host for a Mexican CAESAR ENRIQUE ROJAS MARTINEL, and a Mexican MAURICIO GARCIA MORAN to visit Sierra Leone in Febraury,2008. One of them might have been one of the persons, 5th accused played escort to. There is a letter dated 7Th May,2008 from the Secretary to the Vice President, inviting the Managing Directors of Banks, and well established companies, to a meeting at State House on 16 May,2008 to discuss matters relating to Leone Stars participation in the
2010 World Cup tournament. 8th accused is the only person addressed by name, and as representing Max Global, Freetown. This shows that the Ministries contacted by PW37 evidently did not know what they were talking about when they denied knowledge of the existence of MAX GLOBAL LIMITED. There are several Laisser Passers for vehicles plying the Freetown/Conakry route. Of significant interest is a copy of a letter dated 7 May,2008 from the 8th accused, though unsigned, as Director of Resources/Planning, MAX GLOBAL addressed to the Minister of Transport and Aviation, requesting a Lease of the Hanger at Hastings airfield for a term of 5 years, with an option to renew for a further 5 years. In the letter he puffs the expertise of the company. There is a Certificate of Suitability registration number 1734 issued by the Sierra Leone Maritime Administration to GIBRIL KAMARA and dated 29 October,2007 certifying that his boat "Peak II" has been examined. Attached to it is a receipt bearing the same date, issued by HENRY JUSU acknowledging the receipt of the sum of Lel00,000 from GIBRIL A L KAMARA of PEAK EXPRESS SERVICE as payment for a speed boat. There are several documents in the name of one MARIAMA KOMA who gives here address as 48 Upper Brook Street, Freetown, the same address utilised by NARANDAS. These documents relate to the vehicles which are being brought into the country from Guinea. Found also was a Non-Citizens Certificate of Registration B No.14108 issued by the Immigration Department on 22 May,2008 to ORLANDO DE JESUS GIRALDO RESTRETO of Belgian Nationality. The address given is 8 Howe Street, Freetown, the same address of PEAK EXPRESS, MAX GLOBAL LIMITED, and PEREZ MINING AND GENERAL COMPANY LIMITED. But the picture in the Certificate is clearly that of 8th accused. When he was asked about this certificate in exhibit 42, he denied all knowledge of it. There is a Laisser Passer dated 27 June,2008 issued by the Guinean Embassy in Freetown permitting 8th accused to drive out of Sierra Leone, Toyoto Land Cruiser registration number ADN 108. There is correspondence from a British National MICHAEL JOHN STEPHEN FOREMAN of 85 Woodcote Grove Road, Couldson, CR5 2AL, UK to NARANDAS. In a letter collected at the scene, dated 14 June,2008 this gentleman wrote to the British Consulate in Freetown, notifying the Consulate that he was inviting NARANDAS to holiday with , together with the wife he was due to marry. Found also, is a Tenancy Agreement in respect of property next door to this gentleman's property, 87 Woodcote Grove, one MR A D SYDAMAH being the Landlord. Notes relating to preparation for NARANDAS's wedding on 12th July,2008, and one wedding invitation were also found there.
179. More fascinating however, are copies of the aeronautical maps intended for Pilots flying aircraft into Gbessia Airport, Conakry. The charts provide guidance for both Instrument approach and Visual approach. A fax number, beginning 582, appears at the top. The destination of the fax is of course, Caracas, Venezuela where the plane in this case took off from. There is correspondence between NARANDAS and the owner of the property at 7 Bintumani Drive. The latest in time is that dated 20 March,2008 in which the Landlord ALPHA A DUMBUYA acknowledges the receipt of the sum of USD4,000 from NARANDAS as rent for the month 21 March,2008 to 20th April,2008 though the Landlord agrees the tenancy would be extended to 21st June.2008 provided NARANDAS pays the rent for the remaining two months in the total sum of USD8,000 before 15th April,2008. There is also an agreement dated 23 February,2Q08 for three months only in respect of property at Hill Station owned by a DR KAMARA. The tenant is 10Th accused. Several pictures of NARANDAS were also collected. There is a ticket in the name of 11th accused for him to fly out to Accra on Kenya Airways on 15 July,2008. PW12 did say in his evidence that 10th accused was known to him as COPIA. In a handwritten piece of paper bearing local mobile phone numbers, the name COPIA appears against mobile numbers 076 221 416, 076 259 160. PROFESSOR AHMED appears against mobile number 033 822 244. Flight itinerary in the name of GERARDO QUINTANA, whom I believe is 10th accused, for 4th, 5th and 29th February, and for 1st March,2008 between Caracas in Venezuela, Madrid in Spain and Marrakech in Morocco was also found.
180. Of utmost importance however to the prosecution's case, are the aeronautical maps for Lungi Airport. The airfield data , a drawn-to-scale lay-out of the airport prepared by S A K TEJAN , and another plan intitled Airport location showing the airport in relation to the rest of the Western Area and its environs were all found in this residence. In the airfield data, the contact phone numbers of officials in charge of landing charges and a'\r navigation, ground handling charges and landing and overflying charges, are all provided. Also stated in this document, are the VOR frequency, the ILS frequency, the type of instrument approach which is given as "VOR App Rwy 30/12, ILS App, 10 DME arc ILS App", and also among other things, the runway length. It is no wonder, the 1st, 2nd and 3rd accused persons knew their way so well across the airfield. Also found were extracts from an aircraft magazine detailing with pictures, Antonov type crafts, including the Antonov 12. The plans for the Lungi Airport, more than anything else, in my view , put paid to any idea that the arrest of the 1st, 2nd and 3rd accused persons, together with the 8th, 9th and 10th accused persons, was a
coincidence. In my view, and based on the evidence, there were well laid plans for the reception of the 1st, 2 nd and 3rd accused prepared by the others.
181. Exhibits found at the residence of 5th accused were tendered as exhibits 133 (1-9). That found at the residence of 18th accused, was tendered as exhibit 134. Exhibits 135 to 137 were those found at the residence of 15th accused. Exhibits 138 to 141 were those found in the office of 13th accused, and they require no further comment. Exhibits 142 to 144 were those found at the residence of 6th accused. Exhibits 145 to 147 were those found in the residence of 4th accused. One of them, exhibit 146, was the Comium post bill in respect of the telephone 4th owned. Exhibit 145 were together, documents relating to a Benz Jeep, whose ownership was to be passed to State House, in view of the letter from the then Secretary to the President. Exhibits 148 to 151 were things found in the premises of 12th accused at Lungi. Exhibit 150 is his passport. There are entries in it for 2007, but none for 2008. The absence in it of any Immigration stamps for 2008 throws considerable doubt on 12th accused's story that he went to Guinea on 13th July,2008. Exhibits 152 (1-9) were things found in the office of the 18th accused. Exhibit 153 was the mobile phone taken from 5th accused's house at Lumley Road, Wilberforce.
182. Exhibits 154 to 157 were articles and documents found at 36 UN Drive, Off Wilkinson Road. A gun, and several rounds of ammunition were found in the house. Also found were life jackets, and two outboard engines. The witness did say he found also an Identity Card dated 23 March,2006 in the name RAFAEL ZAMUDIO PEREZ with a picture in it of the 9th accused.
183. Exhibits 158 to 165 were the stickers and crosses identified by PW46 as those found on the plane. The bag of cocaine identified by PW46 as K1 was tendered in evidence as exhibit 166. Several passports were handed over to the witness by the Deputy Director of the CID, MR AMARA SESAY. Also, guns and ammunition were handed over to him by PW31 and by D/INEPCTOR KOROMA. He treated all of them as exhibits. Exhibit 167 is a Bissauian passport in the name of one MAMADU BIAI. Exhibit 168 is a Uberian Passport in the name of 9th accused. In it, the 9th accused gives his name as GERARDO PETTERSON GUINTAWA. It was issued on 11 May,2005. He describes himself as an Electrical Engineer. The only entries in it, show that he left Liberia on 7 October,2006 and arrived in Conakry on the same day. Exhibit 169 is the Colombian passport of 10th accused. The name given there is YIMY YOVANY GARZON SALINAS, but is clearly the face of 10th accused. It was issued on 27 May,2005. His frequent visits to Guinea Bissau in 2007 are well documented in the passport. By 2007, it is
common knowledge, Bissau had made a name for itself in International circles, and in the books of the UN Drugs and Crime Office, as the main conduit point for drug trafficking in West Africa. On 26 October,2007 he was given a multiple visa by the Immigration Department, the same to expire on 25 October,2008. There is another stamp on page 18 which shows that he was permitted by our Immigration Department to remain in this Country until 29 January,2009 while engaged in business. This passport does not show where and when he entered the country. Exhibit 170 is the Mexican passport of 9th accused. It is in the name of GERARDO QUINTANA PEREZ. It was issued on 3 April.2007. His shuttling between Sierra Leone, Guinea and Guinea Bissau, are well documented. It shows that he last re-entered the country at Pamelap, Kambia on 22 June,2008. Exhibit 171 is the Colombian passport of 3rd accused. The last entry in it was made on 17 June,2008 in Bogota, Colombia. Exhibit 172 is the Colombian passport of 1st accused issued on 20 October,2003 in Colombia. Like that of the 3rd accused, it documents a lot of travelling between Venezuela and Colombia. Exhibit 173 is the Venezuelan passport of 2nd accused. It was issued on 15 September,2007 but it has no entries in it. Exhibit 174 is the USA passport of 8th accused. The passport shows that the 8th accused travelled frequently in and out of Sierra Leone through to Guinea, and on occasions, onto Guinea Bissau. Exhibit 175 is the Mexican passport of 10th accused. It bears the name with which the 10th accused has been charged. It was issued on 15 February,2006. It bears witness to frequent travelling between Sierra Leone, Guinea and Guinea Bissau, via Pamelap. Exhibit 176 is a Driving Licence in the name of 16th accused. It was issued to him in Conakry on 10 November,2006. It shows that he was born in Conakry on 4 May,1978. The arms and ammunition, the GPS's, mobile phone accessories and other personal items of some of the accused persons were tendered as exhibits 177 to 196.
184. At the end of his marathon examination-in-chief, PVV36 was cross-examined by Defence Counsel. He assured MR FORNA SESAY that the outboard engines and generators found at UN Drive, were Still at the same location.
185. On 25 February,2009 PW 32 had to be recalled again, this time to tender in evidence the Report of DAVID WALKER whon was unable to come to Sierra Leone to give evidence. The Report was admitted and marked exhibit 197. Thereafter, MR WRIGHT who was not in Court when this was done, objected to its being admitted on the ground that MR WALKER did not fall within the categories of persons whose reports were admissible pursuant to Section 70 of the CPA,1965. Though I had admitted the Report, I was duty bound to listen to
MR WRIGHTs objection as it went to admissibility. The wrongful admission of evidence could otherwise overturn a verdict of guilt, even where there is ample evidence to justify a conviction. After listening to his arguments, and the response of MR ROBBIN-MASON , I had no difficulty in overruling his objection for the reasons stated in pages 307- 310 of my minutes. I still stand by that Ruling.
185. After the Ruling, the Court was stood down in order to conduct a locus in quo at Lungi Airport. The same procedure followed at the previous two viewings was again adopted. The plane was inspected in the hanger. We then moved to the Aviation Security, in particular to PW3's office. We next went up to the Control Tower. On leaving there, we stopped by in the office of 12th accused, at the request of his Counsel, MR NGAKUI. There, I observed, in the presence of NIGAKUI and of all the accused persons, that there were at least three electrical points in the office for charging phones. All accused persons were present at each and every stage of the viewing, even in the Control Tower, where I had to stand cheek by jowl with them. Prosecuting Counsel, and some Defence Counsel were present. The witnesses who had given relevant evidence were also present. Indications were made by these witnesses; questions were put by Counsel on both sides to these witnesses, with the clear understanding as before, that these witnesses would have to be recalled, or called as in the case of MR LITHO LAMIN, to give evidence on oath in Court. Court resumed at 5pm on our return from the locus, and as it was late in the day, I adjourned the matter to 27 February,2009.
186. On that day, PW8 was first to be recalled. He testified that he made indications at the viewing as to where he was seated on the night of the 12th. He said also that he pointed out where PW3 and PW6 where on that night. He pointed out the electrical points for charging phones, and the door the 12th accused and the 2 white men came through that same night. Next was PW3. He testified as to the indications he had made at the view as to the door through which 12th accused entered his office; the chair where he was sitting when 12th accused entered; and the position of the security light that night. In answer to MR FORNA SESAY, he agreed that the light on the land side was provided by a fluorescent bulb; and that the fluorescent bulb on the airside was at a distance from his office. In answer to MR NGAKUI, he agreed he had been incorrect to say his office was beneath the Control Tower. It was obviously on the ground level, but not immediately below the Tower. One had to walk a short distance down a corridor, to get to the steps leading to the Tower. PW 34 recalled
identifying the aircraft during the viewing. PW1 on his recall said that the Red Cross symbol was missing from the tail end of the plane he saw at the viewing; but in all other respects it was the same one he saw which landed on the 13th. When cross-examined by MR FORNA SESAY and challenged that the plane he saw that day was not the same one he saw on the 13th, his answer was that "it is the same plane" thus putting to rest any ambiguity that may have arisen as a result of the comments he had made at the Locus.
187. The last witness was SUPERINTENDENT OF POLICE LITHO LAMIN, PW 49, though PW32 and PW36 were later recalled once again respectively. MR LAMIN is the LUC, Airport Police Division. 5th and 6th accused persons were his personnel. He also recognised the 12th, 14th and 18th accused persons. He was away on a course of study on the 13th. On 29 July,2008 he was in his office when a team of detectives led by ASP SHEKU KAMARA, and members of SOCA went to his office. MR KAMARA told him, he was there with his team to inspect an aircraft, and to conduct searches in the premises of certain suspects who were at large at the time. He led them to the hanger where the plane was. It was opened by a MR SAM who works for the Airports' Authority. The aircraft and three vehicles were handed over to him for safekeeping, and they had been with him up to that date. He also recalled identifying the plane during the viewing. In answer to MR WRIGHT for the 4th accused, he said the team leader MR SHEKU KAMARA handed the aircraft to him. Prior to that, it was in the custody of a combined team of Military and Police personnel, but they did not hand it over to him. This is not surprising, as they were themselves caretakers on behalf of the CID who were conducting the investigation. MR KOROMA, in his cross-examination, tried to get the witness to support his client, the 5th accused's story, that he had been instructed by FAHNBULLEH to go to the airport that night. The witness's response was that he was not briefed by FAHNBULLEH.
188. On his return to the witness box, PVV36 tendered in evidence the aircraft he had identified at Lungi during the viewing, and which he had given an exhibit number, 64/2008 in the Register of Court exhibits, as exhibit 198. I overruled MR FORNA SESAY's objection to the admission of it in evidence for the reasons stated in pages 318 to 319 of my minutes. Under cross-examination, he said that after handing the plane over to D/ASP SHEKU KAMARA, who in turn handed it over to PW49, the next time he saw the plane was when he went with the Court for the viewing.
189. Before the adjournment that day, MR WRIGHT applied under Section 59(1) of the CPA,1965 for vehicle Registration Number ABQ 001 belonging to 4th
accused, to be returned to him as it had not been tendered in Court though it was in Police custody. I declined to do on the ground that such an Order could only be made at the end of the day.
190. On Wednesday, 4 March,2009 PW32 was recalled once again, to read out exhibit 197 which he was unable to read out on the last occasion he was in Court, because of the locus in quo held at Lungi. He was the last witness to testify. After PW32 was through with his testimony, MR ROBBIN-MASON offered no further evidence against 1st,2nd and 3rd accused persons in respect of Count 3 of the Indictment. I thought his gesture was appropriate, as it was quite clear the charge had been wrongly drafted, and that it would fail at the end of the day. I proceeded to acquit and discharge all three accused persons on that charge. Thereafter, MR ROBBIN-MASON asked for an adjournment in order to look over his case before closing.
191. On 13 March,2009 the prosecution closed its case. Counsel for the 4th , 5th, 6th, 12th, 13th, 14th and 18th accused persons, respectively made No-Case Submissions to the Court. MR ROBBIN-MASON replied the next day, Saturday the 14th ultimo. On Monday 16th ultimo, I overruled the submissions made on behalf of 4th accused. I upheld in their entirety, the submissions made on behalf of 13th and 14th accused persons respectively. I upheld in part, the submissions made on behalf of 5th, 6th, 12th and 18th accused persons respectively, and I accordingly acquitted and discharged the 5th, 6th and 18th accused in respect of Count 1, and the 12th accused in respect of Count II of the Indictment.
192. On Tuesday 17th March,2009 I put the accused persons to their election. I explained in precise terms the provisions of Section 194 of the CPA,1965 applicable to each of them. 1st, 2nd and 3rd accused persons, elected to make unsworn statements from the dock, and they did so. They did not call witnesses. 4th accused made a statement from the dock, and called three witnesses. 5th accused's Counsel, MR KOROMA indicated that he would have wished to call two witnesses: MS BARRIE, whose name appeared on the back of the Indictment, and INSPECTOR FAHNBULLEH, but he had learnt that INSPECTOR FAHNBULLEH was away on a course in Egypt; and I pointed out that even if MS BARRIE had been within the jurisdiction, he would have been unable to call her as I had Ordered that her evidence be dispensed with. In the premises, 5th accused elected to rely on his recorded interviews; he called no witnesses; nor did 6th, 7th, 8th, 9th, 10th, 11th, 12th accused persons. Each of them relied on their respective statements to the Police, and called no witnesses. 12th accused did indicate that he would have wished to call a witness, ALIMAMY SESAY of the Meteorological
Office, Lungi, but he had learnt that he was away on a course of study in Nigeria. 15th accused made an unsworn statement from the dock, but called no witnesses. 18th accused relied on his statements to the Police, but added to them with an unsworn statement from the dock. He did not have witnesses. Thereafter, I adjourned for addresses. All Counsel addressed the Court on Monday 23rd March,2009. The Court sat till 9.30pm. in order to hear all Counsel. Judgment was reserved for four weeks.
193.I now turn to the case for the Defence. I must first point out that the Defence case includes the case put across by each of them in the cross-examination of the prosecution witnesses. The Defence case is not confined to just what an accused person says to the Police, and what he Says in an unsworn statement from the dock, or in testimony given in the witness box. In cross-examining witnesses for the prosecution, an accused person is entitled himself, or through his Counsel, to put to these witnesses, his own case, and his own version of events, in order to contradict the case for the prosecution. However, before proceeding to do so, I shall first make clear that the Defence does not bear any legal burden in a criminal case. The Defence may in certain circumstances bear the evidential burden of raising an issue, for instance, the defence of alibi. But the legal burden of disproving the defence lies squarely on the prosecution. It is true that the NDC Act, 2008 imposes a burden on an accused to prove, in certain circumstances specified, that he has permission to do certain things. The Law is quite clear that in those circumstances, he could do so on a balance of probabilities. I shall therefore proceed to explain the duties of the prosecution in a criminal case generally, and in this case in particular. In this respect, I can go no further than adopt and rely on the direction I set out in the case of THE STATE v WINSTON WILLIAMS & OTHERS and in THE STATE vs MANNEH & ANOR.
BURDEN AND STANDARD OF PROOF
194.This Court is sitting both as a Tribunal of Fact, and as the Tribunal of Law. I must thus, keep in mind and in my view at all times, the legal requirement that in all criminal cases, it is the duty of the Prosecution to prove its case beyond all reasonable doubt. It bears the burden of proving beyond a reasonable doubt every element of the offence or the offences, with which the Accused persons are charged. If there is any doubt in my mind, as to the guilt or otherwise of the Accused persons, in respect of any, or all of the charges in the Indictment,
I have a duty to acquit and discharge the Accused persons of that charge or charges. I must be satisfied in my mind, so that I am sure that the Accused persons have not only committed the unlawful acts charged in the Indictment, but that each of them did so with the requisite Mens Rea: i.e. the acts were done wilfully as explained earlier in this Judgment. I am also mindful of the principle that even if I do not believe the version of events put forward by the Defence, I must give it the benefit of the doubt if the prosecution has not proved its case beyond all reasonable doubt. No particular form of words are "sacrosanct or absolutely necessary" as was pointed out by SIR SAMUEL BANKOLE JONES,P in the Court of Appeal in KOROMA v R [1964-66] ALR SL 542 at 548 LL4-5. What is required is that it is made clear by or to the tribunal of fact, as the case may be, that it is for the prosecution to establish the guilt of the accused beyond a reasonable doubt. A wrong direction on this most important issue will result in a conviction being quashed: see also GARBER v R [1964-66] ALR SL 233 at 239 L27 -240 L14 per AMES, P: SAHR M'BAMBAY v THE STATE Cr. App 31/74 CA unreported - the cyclostyled Judgement of LIVESEY LUKE,JSC at pages 11-13. At page 12 LUKE,JSC citing WOOLMINGTON v R says, inter alia, that "if at the end of the whole case, there is a reasonable doubt created by the evidence given either by the prosecution or the prisoner........the prosecution has not made out the case and the prisoner is entitled to an acquittal!" KARGBO v R[1968-69] ALR SL 354 CA. per TAMBIAH, JA at 358 LL3-5: " The onus is never on, the accused to establish this defence any more than it is upon him to establish provocation or any other defence apart from that of insanity!' There, the accused pleaded self-defence. See further: BOB-JONES v R [1967-68] ALR SL 267 per SIR SAMUEL BANKOLE JONES, P at 272 LL21-39; SEISAY and SIAFA v R [1967-68] ALR SL 323 at 328 LL20-23 and at 329 LL12-18; and SAMUEL BENSON THORPE v COMMISSIONER OF POLICE  1 SLLR 19 at 20-21 per BANKOLE JONES, J as he then was. The point was again hammered home by AWOONOR-RENNERJSC in FRANKLIN KENNY v THE STATE Supreme Court Cr App 2/82 (unreported) at pages 6-7 of her cyclostyled judgment.
195.I must keep in view at all times the fact that though the Accused persons are tried jointly, the case against each of them has to be treated separately. At no time must I treat evidence which is only applicable to, or which inculpates only one Accused person, against the other Accused person. Each Accused person is entitled to an acquittal, if there is no evidence, direct or circumstantial, establishing his guilt, independent of the evidence against his co-
Accused. And that even though the doctrine of acts and declarations apply to Count 5 of the Indictment, it being a conspiracy charge, I must decide firstly whether there was an agreement between the accused persons; secondly whether each ar\d every accused person was a party to that agreement whether in the "wheel" type of conspiracy or "chain" type; and thirdly, whether there was a common purpose agreed between and by the parties to the agreement, before the doctrine could apply. I must also bear in mind that the doctrine does not in the least way or manner affect the well-known principle of law, that the out of Court assertions or statements made by an accused person to the police or any other person in authority, after the discovery of the crime, is not evidence against a co-accused. I have reminded myself of this particular principle of law notwithstanding the dicta of LIVESEY LUKE, CJ that it is an unnecessary exercise: See A S DIAN TURAY v THE STATE SC App 2/81 pages 35-61 unreported - the Judgment of LIVESEY LUKE,CJ. At page 38:" ..none of the cases lays down any rule that a judge sitting alone should impress that rule upon himself......a judge sitting alone gives reasons for his decisions. And it could be ascertained by a perusal of his judgment whether he relied on the statement of one accused person in convicting a co-accused. "I shall with the case of each accused person, seriatim.
196. 1st accused's defence, apart from his Counsel's cross-examination of the prosecution witnesses, is to be found in exhibits 31 and 32. In exhibit 31, he admits that he was the Pilot of the Cessna 441 Conquest aircraft which landed at Lungi; and that he landed because he was running out of fuel. He said the aircraft took off from an airfield about 200 miles from Caracas in Venezuela. On page 2, he says categorically that the plane contained cocaine, and 34 plastic containers of fuel that was meant for the use of the aircraft from their point of take-off, to their destination. He said he was told the cocaine haul weighed 600 Kgs. He said his instructions were to deliver the said consignment at the Freetown International Airport, Lungi. He was told to deliver the consignment to EL VIEJO the "old man." As I have said earlier, the description "EL VIEJO" appears on several piece of paper found at the Bintumani Drive house. He said further, that this EL VIEJO was "... the tall man with the grey hair that I and my colleagues met in the apartment at Port Loko." The only tall grey haired man found at that house, presently in Court, seems to me, to be the 9th accused.
197. 1st accused was to be paid USD300,000 on his return. He said he had done the same exercise in Guinea Bissau in 2007. He agreed that he contacted
Control Tower before he landed; the contact was made by his co-pilot through a satellite phone. This confirms the evidence of PW6 and PW8 that there was communication from the in-coming plane, and that the person spoke in a foreign language. 1st accused also said that someone spoke to him from Control Tower in Spanish, telling him that there was a problem, and that the runway lights would not be put on. He spoke to this person twice. There is evidence from both PW6 and PW8 that there were two white men in the Control Tower at that time, and that they spoke in a foreign language. He said he was able to land with the plane's landing lights. He said on landing, they went out running along the perimeter fence, and went out through an opening in the fence. He then called "EL VIEJO" who told him that people were within the area searching for them, they slept in an unfinished building. At about 6am he made a call again; somebody with a French accent answered the call. He knew it was not EL VIEJO: it was one HARVEY who told him that people were there to pick them up. Two black men picked them up in a taxi. They travelled for about 20 minutes before they met HARVEY on the road in a vehicle. It was a white Landrover with a tarpaulin cover. This was the same Landrover found in the compound of the house at Port Loko. They joined the Landrover, and were driven to this house where they met EL VIE JO together with one lady and her husband. The only lady found in that house in Port Loko, was the 17th accused. Her husband is the 10th accused on his own admission. He said he asked EL VIEJO what had happened. EL VIEJO told him the many satellite communications had been picked up the American platform communication. He said EL VIEJO said he would try to see whether it was possible for them to cross the border into Guinea. He said they were loaded into a white Mercedes Benz van, when they landed in the hands of the Police. This confirms in part, the evidence of PW22.
198. He said that whilst in flight, it was his co-pilot who was communicating with EL VIEJO. He during his stay in the house in Port Loko, he met a black man, but he would not be able to identify him. At page 14, he was asked what guaranty he had that he would not be arrested when he landed in Freetown. His response was "that the people that were going to receive me in Freetown (Lungi) and that I was going to deliver this consignment to and that were going to refill the aircraft were CAMILO's people and that I need not fear.
199. This statement, helps in establishing the conspiracy alleged by the prosecution. For an importation of illegal drugs to be successful, there must be people ready to receive it. The plane would require fuel for its return journey. We have the evidence of PW7 and 13, that 4rh accused and 7th accused went to
the Total Depot, requesting fuel. The consignment would have to be kept in a safe place before distribution or before transportation to another destination. This led to the necessity of the house at Port Loko - a way station on the way to Guinea, and thence probably to Guinea Bissau, and not to the diamond fields, or to the Lungi airport, as slyly suggested by 8th accused and by 10th accused The route taken by the 1st accused and the others with him, highlights the significance of the airport drawings found at the Bintumani Drive house: the full layout of the airport was available to the accused persons living there. In exhibit 32, the 1st accused merely says he relies on exhibit 32.
200. In his unsworn statement from the dock made on 17 March,2009, 1st accused claims he landed at Lungi on an emergency. He says he was running out of fuel. He had to change his course because of bad weather. The nearest airport was Lungi. Because of communications problems with the Control Tower, he decided to land without permission. This is why he overflew the Tower three times; as he had only 5 -6 minutes of fuel time left, he was forced to land. He said he was told by PW23 that if he confessed, his consignment would be seized, and he would be deported back to Colombia. He never knew PW23 was part of the investigating team. He said he never used the words drugs or cocaine. He only used the words consignment or cargo.
201. In my view, 1st accused's explanation in the dock would have held true, had he, after leaving the plane, submitted himself to the Sierra Leone authorities. PW2, and 13th accused in his various statements, confirm that emergency and unauthorised landings are permitted in cases of bad weather, and fuel shortage. They constitute one of the freedoms of the air.The frequent communications with the white men in the Control Tower; the running away after the plane landed; his eventual arrival in Port Loko, to meet EL VIEJO shows that this was no emergency landing. This landing was alt part of a well-organised and well-oiled plan, to import prohibited drugs into Sierra Leone. I do not believe his explanation in the dock. I believe what he said to the Police on 23 July,2008.I believe also, that to his knowledge, the plane he flew, bore a Red Cross logo, when it had no business bearing such a logo. It was not a Red Cross registered plane. In the result, I find that 1s1 accused not only unlawfully imported prohibited drugs into Sierra Leone by flying in a plane loaded with cocaine, but was also constructively in possession of it, though not found with it, at Lungi. I also find as a fact that he wilfully displayed a false mark on the plane, to wit, the Red Cross symbol and logo, knowing full well that the plane had nothing to do with the Red Cross. I also find as a fact that he was part of the conspiracy to
import cocaine into this country by flying in that plane. How it is that he is part of the same conspiracy with which the other accused persons are charged, I shall shortly explain.
202. The Law says that a statement in which an accused person admits his culpability for an offence with which he is charged, is a confession. The Law provides also, that once I have admitted that confession as having been freely and voluntarily made, into evidence, my next duty is to find evidence supporting the truth of what is stated therein. Exhibit 198 the aircraft is proof that the aircraft landed in Sierra Leone. Exhibits 49 pages 1-4 and exhibits 197 pages 1-11 constitute proof that what was brought into Sierra Leone, in that plane was cocaine. Exhibits 50 Nos 1-538 and 51 Nos 1-61 and 87 (1-60) provide proof beyond a reasonable doubt that what the 1st accused brought into S'\erra Leone in those exhibits, was indeed cocaine which was analysed by PW35 and MR DAVID WALKER as such. PW44's evidence shows that the Red Cross had nothing to do with that plane. These pieces of evidence together, provide proof that 1st accused's confession, exhibit 31 is indeed true. The Law says further that I can convict him on his confession alone. His confession does not require corroboration. I have already said that there is evidence that his confession is true. In KULANGBANDA v ft [1957-60] ALR SL 306 C.A. BAIRAMIAN, CJ said at page 307 citing the headnote of R v SYKES  8 Cr App R ,233 that: ua confession properly proved in law needs no corroboration to found a conviction, although in practice there is invariably some corroboration,...the headnote of KANU v R 14 WACA at page 30 reads... the confession..... was free and voluntary and in itself fully consistent and probable, and the inculpating statements were corroborated by several facts testified to by witnesses for the Crown - which showed that the confessions were true."It follows that 1st accused is guilty as charged in Counts 1, IV and VI of the Indictment.
203. 2nd accused statements to the Police have been exhibited as 33 and 34 respectively. In exhibit 33, like the 1st accused, he makes a clean breast of everything. Firstly, he admits he was onboard the Cessna aircraft which landed at Lungi airport on the 13th. He says he was with GEORGE and JULIO, i.e. the 1st and 3rd accused persons, he said the plane made two stops before landing in Sierra Leone; one in Venezuela, and the other in Colombia. He said they loaded the cocaine at the Colombian frontier with Venezuela. He said the cocaine was loaded at the back of the plane, and in the "nose." Acconding to the GPS they had, their final destination was Freetown. He did not to whom the cocaine was
to be delivered. He said instructions were given to the Pilot, i.e. 1st accused. To him specifically, the instructions were, "to take the consignment at the first stop, the fuel at Guarico,..." My understanding of the consignment here, is that he meant cocaine. He said (pages 5-6 of exhibit 33) whilst in the air, before getting to Freetown, he "spoke to CAMILO, and EL VIEJO (the old) whom we know as HERARDO PEREZ. I was talking to SOMBRAS VERAJATARIO all of
Caracas in Venezuela, and STEVENS and EL VIEJO (the old man)......these were the people whose telephone numbers were given to me in Caracas." At page 7, he said he never knew the consignment was cocaine. But further down page 7, he was asked, "how many times have you transported cocaine?" his answer was "3 times inside Venezuela." To my mind, a man who has transported cocaine at least 3 times, would certainly be aware of what was in the "boxes." Further down the same page, he says he would have been paid USD70,000 for transporting these "boxes." He confirmed 1st accused's story that whilst in the air, hovering over Lungi, he spoke to somebody in the Control Tower, in Spanish. He also tried to contact "the people in S'\erra Leone on the satellite phone." Whilst the people in Sierra Leone were telling him to wait, the communications from Venezuela were that they should find a place to land, and abandon the plane, which is exactly what he and the 1st and 3rd accused persons did. On landing, he did exactly as explained by the 1st accused in his statement. In Port Loko, he met EL VIEJO, whom he said should have received the boxes from-them.he said EL VIEJO told him IMATT had given instructions for the runway lights not to be put on. At page 12, he says, apart from EL VIEJO and STEVENS, he knows the Minister's brother. He said he does not know the Ministry, but he imagines it would be the Ministry of Aviation. He said he had seen the brother, at the Police Station. He said EL VIEJO pointed him out to him; he described his as MOHAMED ESSAY. He said he had done a delivery in KAWAS in Guinea, before. There, his contact was the son of the President of Guinea, then LANSANA CONTEH, now deceased. At page 15, he said MAOHAMED ESSAY "....is the one that co-ordinates control tower and the runway lights. He is the one who gives logistical support to the aircraft. And I know that EL VIEJO is communicating constantly with MOHAMED ESSAY. I have no doubt in my mind that the person here referred to as the Minister's brother, and as MOHAMED ESSAY, is the 4th accused. In exhibit 34, the accused relies on exhibit 33.
204. In his unsworn statement from the dock, he said he does not speak English, and did not know what he was saying. He said he was told, he would only be deported if he signed the statement. He said they were forced to land in Freetown because of lack of communication "and the runway lights were not on."
I believe, in saying this, 2nd accused has contradicted himself. We does not mention fuel shortage in the aircraft. He says they were forced to land because of lack of communication. The runway lights were not on, but yet still, both himself as co-pilot, and the 1st accused as pilot, were able to land the plane. My view is that the 2nd accused spoke the truth in exhibit 33. He did not only speak of boxes. He spoke of what was in those boxes. I have looked at his passport, exhibit 173. There is nothing there which shows where he took off from, and what his final destination was. He has no visa for Sierra Leone, or for any other West African country for that matter. It is my view, and I so hold, that the only reason he landed in Sierra Leone, was to off load cocaine here. I also find as a fact, that he flew the plane knowingly with a false mark, to wit, the Red Cross symbol. I consider exhibit 33 to be a confession of guilt of the offence of importation and of possession of cocaine. I hold that it was made voluntarily, without any threats or any hope of advantage or any form of inducement held out to him. I also find that it is true, as in the case of the confession of the 15T accused, and that what he has said in it, is supported by other evidence. As I have stated in paragraph 202 above, his confession is sufficient to ground a conviction. I therefore find him guilty as charged in Counts I, IV and VI of the Indictment.
205. 3rd accused' statements are exhibits 35 and 36. In pages 2 and 3 of exhibit 35 he gives a bit of his family background. He says he is a painter of aeroplanes. He said he got to know the about the Cessna aircraft YV1647 in 2007 (about a year ago in page 4). He gives a more detailed account of the flight across the Atlantic. He said they took off from the airport at Caracas at 6am on 12 July,2008. They first landed in an open space which he believed was close to the Venezuelan border with Colombia. There, some men loaded boxes packets into the aircraft. They took off again, and next landed in an open field surrounded by forest. The boxes and packets were removed, a white plastic sheet was spread on the floor of the plane, on which gallons of fuel were put. A suitcase was handed to him containing hoses. He was told by one of the men who came on board, that he was to connect the hose to the containers in order to re-fuel the aircraft. The pictures taken by PW10 of the interior of the plane, confirms this part of his story. Then "more and more packets and boxes were loaded on board the aircraft. More of these substances were loaded on the nose of the aircraft, which I believe was drugs." He was told their final destination was Africa. By his wristwatch, he said they flew for 13 hours before landing at
Lungi airport. The instructions given to him were to open the door upon arrival and do all the necessary preparations to refill the containers before take off to whatever location. The significance of the quest for fuel by the 4th and the 7th accused persons, could now be see clearly. He said he did not know their contacts in Freetown, but that prior to their landing, he was told by the 1st accused, that as soon as they landed, he should open the door, and that they should run away; and that that was exactly what he did. His account of how they got out of the airport, is the same given by both 1st and 2nd accused persons respectively. He confirmed that they were picked up by a white landrover covered in part by tarpaulin. He said HARVEY picked them up. He told them he was America, but he deduced from his accent that HARVEY was a Columbian, and rightly tob. At the place where they were eventually taken, where they had food and a bath, they met two white men, and a white lady. No doubt this is the house at Conteh Street. He was to be paid USD20,00 by CAMILO, for this exercise. At page 14, he says the Red Cross symbol was, he believed, pasted on by "some of the people who came to us when we landed in two of the airspaces.. I mentioned after we flew from Caracas in Venezuela." There is clear evidence here , which I believe, that the Red Cross symbol had nothing to do with, and was not authorised by any of the Red Cross bodies world-wide and/or in Sierra Leone. In exhibit 36, he relies on exhibit 35.
206. In his statement from the dock, the 3rd accused said he undertook the flight because of duress. He was threatened by an unnamed man, who was in charge of paying the men who pained aircrafts. He was told that if he did not accompany the flight, something bad would happen to his family. Duress could be a Defence in certain circumstances. The parameters of this defence were set out lucidly in the judgment of LORD SIMON in LYNCH v DPP FOR NORTHERN IRELAND  A.C. 653 HL particularly at page 686. His explanation of what this defence was, has been reviewed and revised in R v HOWE & OTHERS  A.C. 417 HL. The test distilled from the cases is this as explained in ARCHBOLD 2003 EDITION para 17-121:" was a threat of physical harm to the person including possibly of imprisonment made, which was of such gravity that it might well have cause sober person of reasonable firmness sharing the Defendant's characteristics and placed in the same situation to act in the same way as the Defendant acted?"In more recent times, English jurisprudence has developed the concept of 'duress of circumstances.' What this means has been explained by LORD HAILSHAM in HOWE'S case. Following HOWE, the English Court of Appeal held in R v CONWAY 88 Cr App R,159 that a defence of duress of circumstances is available only if from an objective standpoint the
defendant can be said to be acting in order to avoid death or serious injury, per SIMON BROWN, LJ in R v MARTIN 88 Cr App ft 343 CA. at pages 345-346.
207.I have considered the Law applicable to this type of defence, and I have come to the conclusion that it does not absolve the 3rd accused from blame. If it. were to avail him, it would avail every drug courier in the world, and this can in no circumstances be the intention of the Law. In ABBOTT v THE QUEEN  A.C. 755 P.C. expressed his reservations about the availability of this defence in these poignant words: "it seems to incredible to their Lordships that in any civilised society, acts such as the appellant's whatever threats may have been made to him, could be regarded as excusable within the Law. We are not living in a dream world in which the mounting wave of violence and terrorism can be contained by strict logic and intellectual niceties alone!' If this Court were to accord the 3rd accused the privilege of hiding behind this defence, this country might very well outstrip Guinea Bissau as the Drug Capital of West Africa. In the premises, I hold that exhibit 35 amounts to a confession of guilt of the offences charged in Counts I, IV and VI of the Indictment. There is evidence that the facts confessed to are true. And as I have stated above, his confession could ground a conviction in Law, without more.
208. 4th accused's defence is contained, not only in the in depth cross-examination of prosecution witnesses by his able Counsel, MR WRIGHT, but also in his three statements mode to the Police, exhibits 16, 18 and 19 respectively, his unsworn statement from the dock, and the evidence led through his three witnesses. The statements to the Police, are. a complete denial of the offences with which he is charged. He says he was never an accessory before the fact to the importation of cocaine; nor did he conspire with others to import cocaine. He says on the night of the 12th, he was not at Lungi at any point in time; the witnesses who said so are mistaken; he was with DWI, and later at Lagoonda entertainment complex, where DW 2 and DW3 respectively saw him. He said he never sought a clearance from 13th accused, as 13th accused had said in exhibit 48. He had known 13th for about a year or two in connection with helicopters he and his partners wished to bring into Sierra Leone. As regards the house at Port Loko, his involvement in the renting of the house was purely innocent. He had assisted a Belgian friend of his, MR REIZO to rent the house. This man was interested in bio-fuels. The mention of bio-fuels takes my mind back to the case I earlier mentioned SMITH in which I was the trial Judge, and in which, when apprehended, the accused, on Accountant, said he had come to Sierro Leone to
study bio-fuels. I suppose one could say there should be diversification in expertise.
209. The prosecution's case against the 4th accused is this: that he is part of the group of people who agreed to bring cocaine into Sierra Leone, on the Cessna plane; that his own part in the scheme of things, was firstly, to arrange decoy movements at the airport; to obtain a clearance on the pretext that a genuine flight would be arriving; because, if things had gone according to plan, the plane would have landed with the runway lights on; it would have off-loaded its cocaine cargo; those not in the know, such as PW4, PW6 and PW8 would not have thought anything was amiss; the plane would have been re-fuelled and would have gone its way But for the brave actions of PW6, this would have been the scenario. Secondly his business was to obtain fuel for the outward journey, which the plane would obviously need, as confirmed by 3rd accused. Thirdly, in anticipation of the arrival of the cocaine, he had rented the house at Port Loko, as a transit point for the drugs. Here the drugs could be kept or repackaged for onward transmission to other destinations, which according, to the evidence led, appears to be north-bound PW5 said 4th accused was introduced to him as the person who had taken the house and on the second occasion he saw him there, he saw him with two white men. 4th accused's response to all of this is that the prosecution is mistaken he really had nothing more to do with the house at Port Loko, other than to introduce the tenant to the Landlord; and he was not at the airport on the fateful night. Let me first give my assessment of his witnesses. % accept and believe the evidence of DW1 that 4rh accused went to see her that night. But I believe that he went there for the same reason the 3rd accused in the case of the THE STATE v MOHAMED SORIE FORNAH & OTHERS went to the Yellow Submarine nightclub on the night of 29th July,1974 the night of the attempted coup. The 3rd accused went there merely to establish an alibi, knowing full well, that the persons he called as witnesses would say they saw him there; the material issue there as in this case, was whether he was there all the time the witnesses said he was.
210. Even if I accept DW1's testimony, that after leaving him in her chalet, she later saw him at the night-club, I do not believe that she is speaking the truth when she says she saw him there between lam and 2am. My opinion is that she may have saw him there later than that. My opinion further, is that he went there after returning from Lungi, to establish his presence. I accept and do believe her when she says she met him again at her chalet, not necessarily at 4.15am, but maybe later. By then the plane had landed, and the importation had
been aborted and he must have suspected questions might be asked about his presence at the airport. He could not have been sure how many people had seen him. This explains why, in his statement, he said, he left DW1's chalet, but did not go home. Instead, he left Cape Sierra which was itself a hotel, and went to the Bintumani hotel to spend the rest of the early morning hours. He did not go back to his house, which was at Spur Road, until about 2.30pm. I also have no doubt that his other two witnesses may have seen him that night; I cannot put it higher than that. The nightclub at Lagoonda, according to their evidence is a very busy place, and goes on until the early morning hours. They work there. They were not there for leisure purposes. To keep in your head the goings and comings of someone with whom you are not closely acquainted when it is not your business to do, seems to me incredulous. DW3's evidence was even weaker than DW2. To look at your watch whenever you saw 4th accused stretches the bounds of belief to breaking point. What should a Trial Judge do when faced with alibi evidence from an accused person in the light of visual identification by persons with whom he is not acquainted? The answer to some extent, is provided by LORD WIDGERY's guidelines in R v TURNBULL 3 All ER 549, CA. as explained and applied in MILLS AND OTHERS v R  3 All ER 865 P.C. In MILLS, LORD STEYN cited with approval the following passage from LORD WIDGERY's judgment in TURNBULL at page 553: "care should be taken by the Judge when directing the jury about the support for an identification which may be derived from the fact that they have rejected an alibi. False alibis may be put forward for many reasons: an accused, for example, who has only his own truthful evidence to rely on may stupidly fabricate an alibi and get lying witnesses to support it out of fear that his own evidence will not be enough. Further, alibi witnesses can make genuine mistakes about dates and occasions like any other witnesses can. It is only when the jury are satisfied that the sole reason for the fabrication was to deceive them and there is no other explanation for its being put forward, that fabrication can provide support for identification evidence. The jury should be reminded that proving the accused has told lies about where he was at the material time does not by itself prove that he was where the identifying witness says he was. "As I am sitting as Judge and Jury in this case, I have borne this direction in mind; and also the caution that, again citing LORD WIDGERY in TURNBULL at pages 551-552 that:
"......a mistaken witness can be a convincing one, and that a number of such witnesses can all be mistaken." I do not think the prosecution witnesses were mistaken in the case of the 4th accused. I believe their evidence that 4th accused was indeed at the Total Depot that night for the express purpose of
purchasing fuel for the cocaine plane. I also believe the evidence of PW5 when he said he was told that 4th accused had taken the house, and that he had seen the 4th accused at the house, twice, the second time, in the company of two white men. Whether this makes him guilty of the charge of Conspiracy, is something I shall deal with when dealing with the law relating to Conspiracy. As regards the offence of being an Accessory before the Fact to the Importation of Cocaine, though I decided he had a case to answer at the close of the prosecution's case, I cannot say at the end of the day, the evidence off ered by the prosecution is proof beyond a reasonable doubt. In addition, the case I cited in my Ruling on the No-Case Submission ATTORNEY-SENERAL'5 REF (No.1 of 1975)  3 WLR 11, LORD WIDGERY, LCJ has been subjected to considerable criticism in legal journals because of the artificial distinctions LORD WIDSERY sought to draw between the various ways of being an Accessory Before the Fact. Also, since then, I have had the opportunity of reading LORD PARKER'S (LORD WTDGERY'S predecessor-in-off ice) Judgment in R v ANTHONY  1 All ER 440 CA. and I have come to the conclusion, that on the evidence at the end of the day, the evidence led, may be sufficient to ground a charge of Conspiracy, but not one of being an Accessory before the fact.
211, The 5rh accused's defence is contained in his statements, exhibits 5 and 23 respectively. He denies involvement in the unlawful importation of cocaine. As I explained above, 5th accused has attempted in exhibit 5 to explain his presence at the airport that night as being entirely innocent; that he had been instructed by INSPECTOR FAHNBULLEH to be there. In fact it was not quite like that. He phoned FAHNBULLEH, and FAHNBULLEH told him that he could there, as the person who should have been on duty, had reported sick. In exhibit 23 he is asked about his involvement with NARANDAS whom he describes as his friend. The questions there deal with incidents outside the scope of the Indictment, but they cast a shadow over his activities that night. As I have to tried to show above, drug runners require assistance from Law Enforcement authorities to carry out their illegal activities. It seems to me, and this is my estimation of the role played by 5th accused that night, that merely being there would give the whole transaction a regular and normal appearance. There is nothing more regular than a Police Officer turning up, as it where, in case there is trouble. I have studied his record of his exchanges with MS MARIATU BARRIE. It seems to me that all he was trying to do was to get as much information from her as
possible which he would in turn pass on to his co-conspirators. Having carefully gone through both statements, it is patently clear, that he did not actually do anything that night, he merely stood by, while others did various things. I do not believe that he is innocent. I believe he was part of the conspiracy. His business was to be there to render assistance, to the drug importers.
212. 6fh accused's defence is contained in his two statements, exhibits 8,9 and 24. In exhibit 24, the first statement, he explains his relations with 5th accused 15th accused, and with 18th accused. It is quite clear from his explanations, that instead of doing the work for which he was paid, he was actively engaged in furthering the interests of GK. On his own admission, he went to the airport that night to assist GK since GK had told him he was expecting a Special Flight. Since, he the 6th accused was warned off the airport precincts by HASSAN, the 5th accused, it is clear to me that he had knowledge of the illegal nature of the flight GK was expecting that night. Exhibit 8, is further confirmation of his deep involvement in all the illegal activities of GK. In neither exhibit has he said explicitly that he knew the flight was going to bring in illegal drugs. But as I shall explain later, he does not need to know the specifics of the conspiracy, for him to be held liable. It is enough if his acts and declarations are done in furtherance of the conspiracy, irrespective of when he became a member of the conspiracy. He relied on these statements, and has not disputed their truthfulness. In fact, he has explained why it is that drug barons always seek the active connivance of Police Officers.
213. 7th Accused's defence is contained in exhibits 27 and 28, both of which he relied on when put to his election. Exhibit 27 is a complete denial of the prosecution's case. It behoves me therefore to consider his defence along the lines adumbrated by LORD WIDGERY in TURNBULL cited above. If I do not believe his denials, I then have to consider whether the prosecution has proved that by going to the Total fuel Depot that night, he was part of the conspiracy to import cocaine. If I believe his denials, the matter ends there. In his case, as \n that of the 4th accused, identification is the sole issue.
214. Bth accused's defence is to be found in exhibits 42 and 43, In exhibit 43, he relies on exhibit 42. In exhibit 42, he explains how he came to Sierra Leone,
and the seaght of business he has been engaged in. He has a company, which on the evidence, is a mere sham. He has never done any diamond business. As I stated when reviewing the prosecution, he significantly, applied to the Minister of Transport and Aviation for permission to take over the Hastings Airfield. When asked what he was doing in Port Loko, when arrested on the 13th, he said he had spent the previous night there, and he was on his way to Kono. I. do not believe a word of what he has said in that statement. The statement is as much of a sham, as his two companies, both of them located in the same office building as GK's company PEAK.
215. The 9th accused made three statements, and in all three of them, he refused to say anything. He has not made any statement from the dock, nor has he given evidence on oath. He is in effect relying on the presumption of innocence, and his inalienable right to remain silent. Several accusations were put to him by the Police, but he refused to make any comment, even after he had been provided with legal representation. At Common Law, he has a right to remain silent in the face of Police questioning, and the Court ought not to draw on adverse inference from this. At the end of the day, it would be for me to decide whether the case against him, has been made out by the prosecution.
216. 10th accused made two statements, exhibits 39 and 40. In exhibit 39, denies involvement in the conspiracy, and in the unlawful importation of cocaine. He says he knows nothing about it. He admits that he lives in the same house as 8th accused, 9th accused, 17th accused, his wife 11th accused, and NARANDAS. He said he went to Port Loko for a meeting with 8th and 9th accused persons respectively in respect of diamonds in Kono. He said he went to Port Loko on the Friday the 11th. He said, he hired a taxi. He said MOHAMED SESAV took him and 8th accused to see the house in Port Loko. He said 9th accused was also with them on that trip. He said also MOHAMED SESAY rented the house for them. The reason for this was that if they came down from Kono, they need not come to Freetown. They could use the Lungi road to get to the airport to fly out. As I have said whilst reviewing the prosecution evidence, this was quit untrue. He travelled by road through Kambia, to get to Guinea. Lastly, he said he used to see GK going to the house at Bintumani Drive.
217. 11th accused's defence is contained in his statements to the Police, exhibits 44 and 45. In exhibit 44 he explains how on the night of the 12th he was asked by 'Old Man' to meet him at Aqua Sports Club with the boat. That Old A\an arrived with three or four black men. Old Man asked him to take them across to Ferry Terminal. When they got to the terminal, Old Man and the other men boarded a Jeep and they were driven away, while he waited on land, and a fat Guinea Bissauian waited in the boat. Later, he said about 4am, he noticed the boat was no longer there. He therefore hired a boat which brought him across to Freetown. He went to the Bissauian's residence, but he was not there. He went to his residence at 7 Bintumani Drive, where the Bissauian met him. He telephoned the 'Mexican' guy LEO, who told him to break his door, take his things out, and meet him at Port Loko. With the help of the Bissauian, he did this. The rest of his story corresponds with that of the prosecution as to how he was apprehended. When asked how and why he came to Sierra Leone, he said he came to 5ierra Leone in April,2008 at the invitation of LEO, to repair boats. He said he was not paid a salary, but LEO used to 'dash' him. He admitted seeing a compression machine in the house, but though it was one used for roasting chickens. He said the jeep which conveyed 'Old Man' and the other men that night at Lungi was a white jeep. He advised the Police to look for NARANDAS because he has been with the 'Old Man' longest. In short, 11th accused is saying he knows nothing about the charges he is facing. Again, I do not believe a word he is saying. Exhibit 44 confirms to some extent the story told by 15th accused in exhibit 12, about the group travelled to Lungi on the night of the 12Th.
218. The 12th accused, made two statements, exhibits 6 and 7. In exhibit 6, he narrates in great detail, the events of the night of the 12th He says he newer went to the Control Tower with the two white men. They walked whilst he was there. He newer went into PW3's office with them as well. He said the following morning he went to Guinea, to attend a course approved by his employers. He narrate his experiences in Guinea. His money and possessions were stolen. He had to seek refuge in a relative's house. The striking feature of 12th accused's story, is that not once in all the 74 pages of exhibit 6 does he mention that he went to the place where the course was being held; or that he contacted the organizers of the course to tell them what had happened to him. Nor did he say that at any point in time, he tried to contact the colleague with whom he was supposed to attend the course. I do not believe he went to Guinea. His passport bears no stamp that he crossed the border. This leaves me with the impression
that he may not have in fact have left Sierra Leone at alt, but may have gone into hiding, when the crime at Lungi was discovered. His Counsel tried valiantly to give an innocent explanation for his presence in the Control Tower that night: to charge his phone. That may have been his pretext for going there, but it does not convince me.
219. 15th accused's statements are exhibits 12,13 and 17. He objected to exhibit 12 being admitted into evidence, but after holding a trial within trial, I held that it had been made voluntarily, and therefore admitted it into evidence. Exhibit 12 is a full and frank confession of his role in the whole episode, and like the Intelligence Officer he is, he tells the story with conviction. He is able to explain those details, and the things of importance in a criminal case which people who are not habitants of the secret world would probably think are irrelevant. From the moment when he claims he was ensnared by 19th accused, to the moment when he was handed over to PW37, he tells the story with the air of a man who wants to make a clean breast of everything. In the book, "PHILBY The Spy Who Betrayed a generation" written by Bruce Page, David Leitch and Philip Knightley, the introduction is written by the well-known author of spy novels, JOHN LE CARRE. On page 22 of his introduction, he says, "a penetrated secret service is not just a bad one: it is an appalling liability. In place of an all-seeing eye, it becomes a credulous ear and a misleading voice, innocently deceiving its own customers in every sphere of the national security; diplomatic, strategic and economic," By his own account, CISU and the Special Branch had become penetrated institutions, accepting shop-worn wares as good intelligence; intelligence operations were compromised from the word 'go'. CISU and Special Branch may have to review their recruiting policies and control systems of their agents if there is to be any change. I consider exhibits to be a full confession of guilt. In exhibit 17, he tries to give the impression, that he in all of what he did, he was acting as a counter-espionage agent in order to fool GK , MOHAMED SESAY and the Colombians and Mexicans and Guinea Bissauians. By this time he had been found out, and his bosses were, trying to salvage something out of their misplaced trust in him. Evidently it did not work. He was never able to deliver GK into their hands.
220. 16th accused made two statements exhibits 46 and 47. In exhibit 46 he denies knowledge of the cocaine importation. He says, unbelievably, that he
came to Sierra Leone to repair a boat owned by LEO. We says the things belonging to LEO found in his Jeep at Rogbere Junction were put there by 11th accused. As I pointed out earlier, it was only when his statement was about to be tendered, that his Counsel informed the Court that his client was only literate in French. And as I have said also, I do not believe this is true. I have been watching him whilst evidence was being led, and being translated into 5panish. I am sure that he has been following the proceedings in every detail, and that he understands perfectly well all that has been going on. As far as his activities on the night of the 12th go, I believe the evidence of PW12 that 16th accused left the house in a hurry on the morning of the 13th. The irresistible conclusion I have drawn is that was fleeing Justice.
221. The 18th accused's defence is contained in exhibits 14 and 15. Firstly, he denies any involvement in the cocaine importation. Secondly, he gives his own version of how he came into contact with GK and with 15th accused, and what transpired between himself and 6th accused. In exhibit 14, he details conversations he said he with personnel of CISU. But I cannot recollect that when these people testified, questions were put to them to clarify these issues. My deduction is that the 18th accused's explanations are merely intended to provide a gloss to disguise the true nature of his encounters with 6th accused, 15th accused, and with GK . In this, I believe 15th accused when he says 18Th accused gave him the sum of USD1.500. 6th accused that this amount of money was indeed given to 15th accused by 18th accused, in his presence. I am aware of course that what one accused person says in the absence of another is not evidence against that accused person, but I do not believe that that rule prevents me from coming to the conclusion that when one accused person says he received money from another, that is not evidence that money changed hands.
222. Having reviewed the whole of the evidence led, I now turn to the Law. Section 7b of the NDC Act,2008 provides that"A person who, without, lawful authority.. ...(b) imports any prohibited drug.....commits an offence and is liable on conviction to imprisonment for life" Section 17 thereof provides that nin any proceedings under this Part, the burden of proving that an act was done with lawful authority shall be on the accused person" The accused person , in my view bears the evidential burden of raising the issue of lawful authority; he need not prove it beyond all reasonable doubt. It is sufficient if he discharges that burden on a balance of probabilities. I say this notwithstanding the
Judgments of the House of Lords in R v HUNT  1 All ER, I where it appears the Lords hold the view that the burden cast on the accused is the legal burden. A prohibited drug is described in Section 1 of the Act as '"a substance listed in the First Schedule" In the Schedule, cocaine is one of the prohibited drugs. I have ruled that on the evidence before me, particularly the evidence of PW32, PW45, and PW46; and of exhibits 49 pages 1-4; 50 nos 1-538; 51 nos 1-61; 52, 87,(1-60); 88 pages 1-4; 89 pages 1-6; and 197 pages 1-11, that the substances found on the plane were indeed cocaine. I am satisfied therefore beyond a reasonable doubt that the offences charged in Counts 1 and 4 againsi the 1st, 2nd and 3rd accused persons, have been proven by the prosecution. 1st, 2nd and 3rd accused persons are guilty as charged in Counts I and IV respectively. Equally so, for the reasons I have stated above, I do not find the case proven beyond a reasonable against the 4th accused and the 7th accused respectively. In the absence of the loggings of their phone calls, I find it hard to say, there is evidence beyond a reasonable doubt that they counselled procured and commanded the 1st, 2nd and 3rd accused persons respectively, to import cocaine. Questions were put to these accused persons about the calls they made on their phones. The phones were taken away for analysis, but no report or reports on them was or were submitted by the prosecution as evidence. They are therefore acquitted and discharged in respect of the charge in Count I.
223. In Count II the 8th, 9th, 10th, 11th, 15th and 16th accused persons are. charged as Accessories after the Fact. It is alleged that they received, comforted, harboured, assisted and maintained the 1st, 2nd and 3rd accused persons knowing that these three accused persons had committed the offence of importing cocaine without lawful authority. The 1st and 2nd accused persons spoke about how they received instructions whilst in the air, that they run out of the airfield, and that someone would pick them up. They and the 3rd accused, were picked up by a taxi, and then driven a distance, after which the 8 accused picked them up. They describe him as HARVEY. They were taken to the house at Port Loko, where they met 9th and 10th accused persons, according to 15th accused in his statement exhibit 12, he returned to Freetown after the shenanigans at the airport. The 16th accused was on his way to meet the others at Port Loko, when he was intercepted by the Police at Rogbere Junction. He could not therefore have been in a position to comfort and assist 1st, 2nd and 3rd accused persons. The only person 15th accused perhaps, comforted and assisted, was GK; and he is not in the dock. It follows therefore, that the 15th and 16Th
accused persons are not guilty of the offence charged in Count II of the Indictment, and are accordingly acquitted and Discharged on that Count.
224. As regards Count VI of the Indictment, the prosecution have clearly proved the case against the 1st, 2nd and 3rd accused persons beyond a reasonable doubt. They are therefore Guilty as charged.
225.I now turn to the Conspiracy charge in Count V. I firstly, adopt what I said in my Ruling on the No-Case submissions made by Counsel. "The Law is quite clear, that accused persons could be indicted for conspiracy even though they have never met. I had cause in delivering Judgment in the case of THE STATE v WINSTON WILLIAMS MOTHERS to dilate on this offence at length. There, I said, inter alia: "The Learned Editors of BLACKSTONE'S CRIMINAL PRACTICE 2002 Edition (hereafter BLACKSTONE'S) opine at para. A6.14 page 89 under the rubric "Agreement that "Agreement is the essence of conspiracy. There is no conspiracy if negotiations fait to result in firm agreement between the parties......nor is there a conspiracy between A and B merely because each has conspired separately with C It is possible however, to have conspiracies in which some parties never meet others. These include chain and wheel conspiracies......in either case, however, the alleged conspirators must each be shown to be a party to a common design, and they must be aware that there is a larger scheme to which they are attaching themselves....If B and C each believe they have their own individual agreements with At there are two separate conspiracies, and a single count will not be valid, even if B and C are aware that A is making similar agreements with others." This has been the Law since at least R v GRIFFITHS  2 All ER 448 per PAULL, J in the Court of Criminal Appeal at page 453 para I: "... for in law all must join in the one agreement, each with the others, in order to constitute one conspiracy. They may join in at various times, each attaching himself to that agreement; any one of them may not know all the other parties but only that there are other parties; any one of them may not know the full extent of the scheme to which he attaches himself What each must know, however, is that there is coming into existence, or is in existence, a scheme which goes beyond the illegal act which he agrees to do" Later, at page 455 para A he says'.n It is right and proper to say that the Learned Judge correctly pointed out the principle, saying that the Crown had to prove that the conspirators put their heads together to defraud the ministry..........As is indicated in WRIGHT ON CONSPIRACIESp.69 it must be shown that the alleged conspirators were acting in pursuance of a criminal purpose held in common between them!' In R v GREENFIELD & OTHERS  3 All ER 1050, CA Crim Div per LAWTON,LJ
at page 1053 para j: " A conspiracy count is bad if law it charges the accused with having been members of two or more conspiracies. This is elementary law. “ Though adverse comments were made by the respective Courts in both cases, and later on in GRAY , about the efficacy and propriety of joining a conspiracy count with counts for substantive offence in one Indictment the practicability of such a course taken by the prosecution was acknowledged; that there might be cases of fraud where it would be well nigh impossible to charge a suspect with a substantive offence, even though there might be abundant evidence of that suspect's participation in the fraud which has been perpetrated. In such a case, it is perfectly proper for the prosecution to charge conspiracy in addition to charges for substantive offences". It is my view, arrived at after examining the authorities, that on the facts of this case, it was proper to charge conspiracy as well as substantive offences. I seek strong support from the Judgment of LORD BRIDGE in the House of Lords in ft v COOKE  2 All ER 985 at page 989 paras b-e: after dilating on the distinction between cases where a conspiracy charge would be appropriate in an Indictment including substantive offences, and where it would not, he said.' ".........The difficulty arises in the many cases, to which I regret I did not apply my mind in 8 v Ay res, where a course of conduct is agreed to be pursued which involves the commission of one or more specific criminal of fences, but over and above such specific criminal conduct the agreement, if carried out, will involve a substantial element of fraudulent conduct of a kind which, on the part of an individual, would not be criminal at all. In this situation......the sensible conclusion (is that) it is perfectly proper for the prosecution to charge one or other or both of two conspiracies: (a) statutory conspiracy.......(b) a common law conspiracy in respect of that part of the course of conduct agreed on which is fraudulent but would not be criminal on the part of the criminal working alone........//, in addition to any Specific offences which conspirators have agreed to commit, they have agreed to pursue a further course of conduct which defrauds a victim in a manner which does not amount to or involve the commission of any specific offence, I can see no reason why that should not also be charged and proved as a separate conspiracy." The Crown in this case won an appeal on these points from the decision of the Court of Appeal that the Crown could not charge Conspiracy to Defraud where the facts alleged, proved a conspiracy to commit a substantive offence under the Criminal Law Act,1977. Our own Second Schedule to the Courts Act,1965 in paragraph 7 thereof (as amended in 1981) recognises the existence of statutory conspiracies as wetl: that is, conspiracies to commit summary offences).
226.I move to the case of DPP v DOOT  1 All ER 940 H.L. At page 943, LORD WILBERFORCE said this: *But there are many crimes... the elements of which cannot be so simply located They may originate in one country, be continued in another, produce effects in a third.......in my opinion, the key to a decision for or against the offence charged, can be found in an answer to the question why the common law treats certain actions as crimes. And one answer must certainty be because the actions in question are a threat to the Queens peace, or as we would now perhaps say, to society. Judged by this test, there is every reason for, and none against the prosecution. Conspiracies are intended to be carried into effect; and one reason why, in addition to individual prosecution of each participant, conspiracy charges are brought, is because criminal action organised and executed, in concert, is more dangerous than an individual breach of the law. Why then refrain from prosecution where the relevant concert was initially formed outside the United Kingdom? Often in conspiracy cases the implementing action is itself the only evidence of the conspiracy -this is the doctrine of overt acts. Could it be said with any plausibility that if the conclusion or a possible conclusion to be drawn from overt acts in England was that there was a conspiracy, entered into abroad, a charge of conspiracy would not lie? Rely not....the truth is that, in the normal case of a conspiracy carried out, or partly carried out in this country, the location of the formation of the agreement is irrelevant; the attack on the laws of this country is identical wherever the conspirators happened to meet; the conspiracy is a complex, formed indeed, but not severally completed, at the first meeting of the plotters." At page 947 VISCOUNT DILHORNE said: "when there is agreement between two more to commit an unlawful act all the ingredients of the offence are there and in that sense the offence is complete. But the conspiracy does not end with the making of the agreement It will continue so long as there two or more parties to it intending to carry out the design." The facts of that case are similar to the facts in the instant case; there was a conspiracy across two continents: Europe and North America. The accused persons were indicted in the UK. Some of the accused persons had never met each other, but the Lords held that this did not matter was pointed out by COLERIDGE,J so many years ago in MURPHY'S CASE (1837) 8 CAP 297 at 311.
227. It seems to me that the Lords' decision is sufficient authority for the proposition that the fact that 1st, 2nd and 3rd accused persons had never met the other accused persons before, and only met some of them when they flew in, makes no difference where the charge is conspiracy. The acts and declarations of all of the accused persons now before me were specifically overt acts of this
conspiracy. 5th, 6th and 18th accused persons were to handle the Police side of things. To perhaps hobble the investigation, and to divert it into fruitless channels. All moves by the Police to catch the smugglers would be compromised from the word go.The 15th accused was there to provide intelligence of what the Intelligence agencies were up to. 4th accused was to obtain the clearance for the supposed landing of a genuine flight, as a decoy movement to render the sudden appearance of a flight in the dead of night unsuspicious; together with the 7th accused, he was to purchase fuel for the flight back. The 12th accused there to provide additional camouflage, and to guide the two white men who have not been identified in this Court, to the Control Tower; pretending that he was only interested in collecting landing permit charges. In my mind, the white men referred to were most probably 9th and 10th accused persons; but there is no direct proof of this. And behind all of them, according to the documents found at the Bintumani Drive residence, were the organisers of the smuggling racket: 8th accused with the sham companies; 9th accused who from all accounts was the person referred to as the "EL VIE JO" "THE OLD MAN"; 10th accused, the master organizer, with Several names, several addresses: UN Drive, Hill 5tation , Bintumani Drive; 11th accused the boat fixer; and 16th accused providing Courier service to Guinea Bissau. The 15th accused has set out the scene very clearly in exhibit 12. What he says is obviously not evidence against his co-accused. But the documentation found at the residence of 8th, 9th, 10th and 11th accused, amply support his narrative. All of what happened on the night of the 12th had been planned; but for the vigilance of PW6 and others, they would have got away with it. They did not.
228. It is my considered Judgment that the prosecution has proved the case of conspiracy charged in Count V against 1st, 2nd, 3rd, 4rd 5th, 6rh, 7th, 8th, 9th, 10th, 11th, 12th, 15th, 16th and 18th accused persons respectively. I find each of them guilty as charged in Count V.
N. C. BROWNE-MARKE, Justice of Appeal 20th April,2009.
1. Yesterday, I delivered Judgment in respect of the Indictment filed. Looking through the Judgment this morning, I realised that though I had acquitted 15th and 16th accused persons in respect of Count II I did not expressly state the verdict in respect of 8th, 9th, 10th and 11th accused respectively. My finding in paragraph 223 is that 15th and 16th accused persons could not have assisted and comforted the 1st, 2nd and 3rd accused persons respectively. This also applies to 11th accused, who, with 16th accused, was also caught on the way to Port Loko. It follows that he is not guilty of the offence charged in Count II . I also found that it was 8th accused who transported the 1st, 2nd and 3rd accused respectively from somewhere not very far from the airport, to the house at Port Loko. The verdict is therefore guilty in respect of Count III. 9th and 10th accused persons also received them at the house at Port Loko. The verdict is therefore guilty against 8th, 9th and 10th accused in respect of Count II
2. I have listened to the allocutus of each of the accused persons, and to pleas in mitigation from their various Counsel. I have borne in mind all that the accused persons and their respective Counsel, have said in their favour. But where there has been a finding of guilt, a sentence must of necessity be imposed. It is true, that if the situation so warrants, justice should be tempered with mercy, and I intend to exercise that quality in passing sentence on each accused.
3. The Counts in respect of which sentence should now be passed are as follows:
1st accused USD 1m and 5 years imprisonment
2nd accused USD 1.5m and 5 years imprisonment
3rd accused USD 1m and 5 years imprisonment
8th accused USD 2.5m and 3 years imprisonment
9th accused USD 1m and 5 years imprisonment
10th accused USD 1.5m and 5 years imprisonment
1st accused USD 1m and 5 years imprisonment
2nd accused USD 1m and 5 years imprisonment
3rd accused USD 1m and 5 years imprisonment
1st accused USD 1m and 5 years imprisonment
2st accused USD 1m and 5 years imprisonment
3rd accused USD 1m and 5 years imprisonment
4th accused Le 300,000,00 and 5 years imprisonment
5th accused Le 100,000,00 and 5 years imprisonment
6th accused Le 25,000,00 and 5 years imprisonment
7th accused Le 150,000,00 and 5 years imprisonment
8rt accused USD 2.5m and 5 years imprisonment
9th accused USD 1m and 5 years imprisonment
10th accused USD 1.5m and 5 years imprisonment
11th accused USD 1.5m and 5 years imprisonment
12th accused Le 150,000,00 and 5 years imprisonment
15th accused Le 150,000,00 and 5 years imprisonment
16th accused USD 1.5m and 5 years imprisonment
18th accused Le 50,000,00 and 5 years imprisonment
1st accused USD 1m and 5 years imprisonment
2nd accused USD 1m and 5 years imprisonment
3rd accused USD 1m and 5 years imprisonment
CONSEQUENTIAL ORDERS: RESTITUTION, CONFISCATION, FORFEITURE
4. The provisions relating to these matters, under the general Law, are to be found in Sections 54 to 60 of the Criminal Procedure Act,1965, The most apposite provisions are Sections 55, which deals with a convicted person paying the expenses of his conviction; and Section 59 which deals with the situation where property was taken from a person charged; it permits the Court to restore the property "who appears to the Court to be entitled thereto", which might not necessarily be, the person from whom it was taken.
5. It follows therefore, that I am not compelled to make the Order prayed for by MR WRIGHT in favour of the 4th accused. The correspondence which was tendered, the undated letter addressed to the 4th accused by the State Chief of Protocol, shows that the 4th accused should have transferred ownership to State House. There is also a letter dated 10th March,2008 from the Secretary to the President to the Commissioner General, National Revenue Authority, requesting DUTY FREE WAIVER. I presume the request was granted since it originated from State House. MR DARAMY's letter aforementioned, is attached to that letter, which shows that it predates the latter. I therefore ORDER that Mercedes Benz Jeep G55 AMG photographs of which are attached hereto, be RESTORED to THE OFFICE OF THE PRESIDENT, STATE HOUSE, FREETOWN.
6. All accused persons have a right of appeal, such appeal to be lodged within 21 days of today's date. Since I am not presently in a position to say whether any or all of the accused persons might wish to, appeal, I propose, in anticipation of any such appeal or appeals, pursuant to Section 59(2) of the Criminal Procedure Act,1965 TO RETAIN in Court pending such appeal or appeals, the following exhibits: all Laptop computers; all mobile phones; all GPSs': all walkie talkies or other means of verbal communication; all correspondence seized either at the residence or residences of any or all of the accused persons, or from their respective persons. ALSO, all passports of convicted foreigners shall be RETAINED in like manner. In the case of the passports of convicted foreigners, they shall be retained in the custody of this Court, until and unless the time within which an Appeal should be brought has expired; or each and all of them have given a written undertaking in Solemn Form that he or they DO
NOT WISH TO EXERCISE THE RIGHT OF APPEAL conferred on o convicted person by Section 57 of the Courts' Act,a 965; OR UNTIL FURTHER OR OTHER ORDER. In the case of Sierra Leone Nationals, any passports in the custody of the Court, shall be handed over to the Chief Immigration Officer, from whom the same may be retrieved by the convicted accused person concerned, on payment of the fine and on completion of the term of imprisonment imposed upon him.
7. Since there is no evidence before me that any Licence or Licences was or were issued by the appropriate Authority in respect of any or all of the arms and ammunition found in the residences of the accused persons, and in their vehicles and/or on their respective persons, and bearing in mind that the Indictment herein has not charged any offence relating to the unlawful possession of arms and/or ammunition, it behoves this Court to exercise its discretion as to the ventual disposal of these arms and ammunition. IN THE EXERCISE THIS COURTS DICRETION I ORDER that all arms and ammunition tendered as exhibits in the Court BE HANDED OVER TO THE CHIEF OF DEFENCE STAFF OF THE REPUBLIC OF SIERRA LEONE ARMED FORCES, for DISPOSAL.
8.All monies seized from any and all of the accused persons, and tendered as exhibits in this Court, shall be appropriated towards the payment of fines imposed on the affected accused persons. Foreign currencies shall be converted into Leones at the current rates applicable, at the Sierra Leone Commercial Bank Limited, Siaka Stevens Street, Freetown, by the Accountant, Judicial Sub-Treasury. On collection of the Leone equivalent of these foreign currencies, they shall be paid into the Sub-treasury's Non-tax Revenue account in favour of the accused person from whom, or in respect of whom, such monies were seized. A proper Account of these dealings shall be submitted to this Court by the Accountant Judicial Sub-Treasury, within 14 days of the date of this Order, for the Court's approval, and for further Directions.
9. In view of the quantity and volume of exhibits tendered, all items of a personal nature, i.e. other than those already listed above, tendered in this Court, and which are not related to the commission of any of the crimes charged in the Indictment herein, shall be returned to their respective owners. In this respect, Counsel are asked to draw up lists of such items, such lists to be submitted to this Court for Approval, after which, the Court MAY Order their release to the particular accused person or persons, concerned.
10. The eventual disposal of the Cessna aircraft tendered as exhibit 198 is dealt with by Section 12(5), (6) and (7) of the National Drugs Control Act,2008. Sub-section (5) provides that: "where a person is convicted of an offence under this Part, the Court may in addition to the penalty prescribed for that offence, CONFISCATE OR FORFEIT any equipment or property which is the subject matter of the offence or which has been used for the commission of the offence. Sub-section (6) provides that "no conveyance used for the commission of the offence shall be forfeited if the offence was committed by a person other than the owner or PERSON IN CHARGE of the conveyance, and if it is proved to the Court that the use of such conveyance for the commission of the offence was without the knowledge or consent of the owner or person in charge of the conveyance and was not due to any neglect; default or lack of reasonable care by the owner or person in charge of the conveyance. Sub-section (7) provides that: "in making Directions for the purpose of determining any dispute as to the ownership of or other interests in the property or any part thereof; (b) Directions as to the disposal of the property; and (c) such other directions as it may think fit.
11. I HOLD firstly, that Exhibit 198, the Cessna aircraft falls within the meaning of "equipment or property" in Sub-section (5). A Conveyance has not been defined or described in the Act; I should therefore give it, its ordinary meaning. In the Oxford Concise English Dictionary, it is described as "the act or process of carrying...a means of transport; a vehicle." I hold therefore that, the aircraft falls within the description of the term 'conveyance' in the said sub-section (6). It follows therefore, that an Order could be made for its disposal in accordance with the provisions of Sub-section (5). On the basis of the evidence led, I HOLD that Exhibit 198, the Cessna aircraft is the subject matter of Counts 1 and IV of the Indictment, and that it was used for the Commission of those offences. I ALSO HOLD that on the evidence led, 1st accused was the PERSON IN CHARGE of the aircraft when the offence was committed.
12. PURSUANT to Section 12(7)(b) and (c) of the Act, I GIVE the following DIRECTTONS:
(a) The Cessna aircraft, presently kept in a hanger at the Freetown International Airport, Lungi shall be RELEASED to the custody of the DIRECTOR OF CIVIL AVIATION with immediate effect, and he shall also immediately take steps to protect it.
(b) The DIRECTOR OF CIVIL AVIATON shall within 72 hours of receiving this ORDER APPRAISE OR CAUSE AN APPRAISAL of the value of the Aircraft. The APPRAISAL shall be submitted to, and filed by him through the Acting Director of Public Prosecutions in this Court immediately thereafter.
(c) This Court shall examine and assess the APPRAISAL, and if satisfied with it in all respects, shall accept the same. Upon accepting the said APPRAISAL, this Court shall DIRECT the DIRECTOR OF CIVIL AVIATION to INVITE BIDS for the purchase of the said Aircraft, such Bids to be submitted to him not later that 4th May,2009.
(d) On 5th May,2009 the DIRECTOR OF CIVIL through the Acting Director of Public Prosecutions, shall file any and all such bids in this Court.
(e) On Tuesday 5th May,2009 this Court shall ORDER the sale of the aircraft to the highest Bidder and who shall be prepared to pay for the same, within 24 hours of the Order of this Court.
(f) Upon the sale being Ordered, the Master and Registrar shall prepare and Execute a Bill of Sale in favour of the winning bidder, such Bill of Sale to be Registered the same day.
(g) Upon Registration of the Bill of Sale, the Purchaser shall immediately make arrangements for the removal of the aircraft, from its present location.
(h) In view of Section 12(8) of the Act, there shall be Liberty to Apply.
13. As stated above, Section 12(5) provides that this Court may ".....CONFISCATE OR FORFEIT any...property which is the subject matter of the offence....." The subject matter of the offencel is COCAINE. PURSUANT therefore, to the Powers Conferred on this Court by the said Section 12(5) of the National Drugs Control Act,2008 I ORDER that all Cocaine seized in connection with this Indictment, in particular, Exhibits 50 Nos 1-538; 51 Nos. 1-61; 87 (1-60); 166 BE CONFISCATED to the State.
14. PURSUANT to the ORDER made in paragraph 12 above, I ORDER that the said Cocaine Exhibits be BURNT publicly within 48 hours of this Order, at such place or site as shall be determined by this Court. For this purpose, not later than 4.30pm today 21st April,2009 the Acting -Director of Public Prosecutions shall file in this Court, proposals for the burning of the said Cocaine exhibits. He is at liberty to consult with the ONS, CISU, the Pharmacy Board, the Military, and the Police in order to assist him in preparing these proposals.
15. PURSUANT to the provisions of Section 21(1) of the NON-CITIZENS (REGISTRATION, IMMIGRATION AND EXPULSION) ACT, 1965 as amended I HEREBY CERTIFY that GEORGE ARITSTIZABEL ARCHILLA, VICTOR MANUEL ARAUO LASTRETO (JNR), JULIO CEASAR MORALES-CRUZ, HARVEY STEVEN PEREZ, GERARDO QUISTANA PEREZ, YEIMY FERNADEZ LEANDRO, ALEX ROMEO and SADJO SARR are all Non-Citizens of Sierra Leone, and were on Monday 20th March,2009 convicted of the Offence of Conspiracy to Import a Prohibited Drug; and in the case ARCHILLA, LASTRETO and MORALES-CRUZ, additionally. Importing and Possession of a Prohibited Drug, to wit: Cocaine; and in the case of HARVEY PEREZ, GERARDO PEREZ and YEIMY LEANDRO, additionally, being Accessories After the Fact to the Importation of a Prohibited Drug; that these are offences in respect of which the Court can impose imprisonment without the option of a fine; I, NICHOLAS COLIN BROWNE-MARKE, Justice of Appeal and Presiding Judge DO HEREBY RECOMMEND that an EXPULSION ORDER be made in respect of the above-named IN ADDITION TO THEIR RESPECTIVE SENTENCES.
ORIGINAL VERY FAINT