By Janet A Sesay
A ruling is expected by the defence after discrediting the forensic evidence of the country’s only pathologist, Dr Owizz Koroma by counsels representing the two accused persons, Mariama Sarjor Barrie and Ibrahim Bah, first and second accused persons respectively.
The argument from the two sides, the defence and the prosecution spent several hours on the autopsy done on the remains of the deceased; Khadija Madinatu Saccoh.
The defence says the forensic report is “defective” and “unreliable” as it failed to show who killed the deceased, how it was done and the time of the incident.
The alleged deficiencies that overshadow the report compelled counsels to opt for an immediate acquittal and discharge of their clients.
The defence argues that an autopsy is central to a murder trial and where it lacks merit, a doubt has been created, and the doubt must be resolved for the benefit of the accused.
That benefit is the restoration of liberty of the accused persons whose case has not been proven beyond a reasonable doubt.
The fatality of a case for the mere failure of the prosecution to prove a case beyond all reasonable doubt has always been echoed and re-echoed in civilised jurisdictions that it infringes on the legal burden of proof.
In the no-case submission, Lawyer Alhaji M. Kamara counsel for the first accused reminded the court that his client was charged with conspiracy and murder.
In proving a charge of murder, the defence argued, the prosecution must show the elements that constitute the crime.
“For the elements of murder, the prosecution must show the killing of a reasonable creature with malice aforethought and the killing must occur within a year and a day,” the defence submitted.
Since conspiracy to commit murder was also included in the charge, Counsel Kamara also made effort to fit the conspiracy charge into the threshold established by the criminal law.
Counsel first started off by telling the court what constituted conspiracy.
Conspiracy he, says is an agreement between two or among more persons to do an unlawful act or lawful act by unlawful means.
He argued that the prosecution had failed to establish a murder charge.
“Where there is more than one accused person in a murder trial, a charge of conspiracy can be substantiated if the prosecution shows that the accused persons acted in consent to do the alleged act,” counsel Kamara submitted.
The defence further argued that none of the prosecution witnesses directly testified that they saw the first accused kill victim noting that there was no circumstantial evidence that the court could make reference.
The findings of the pathologist, he said, were erroneous, as they indicated that the deceased died owing to “haemorrhagic shock” and “manual strangulation.”
Arguing further, Counsel Kamara also touched on the documentary evidence extracted from the scene of crime and tendered in court.
“An album marked exhibit C-1 to 18 indicated that he never saw any finger scratches on the remains of the deceased,” he submitted.
In light of the arguments advanced by the defence, Counsel Kamara urged the bench not to trust the medical cause of death done by Dr Koroma.
Emphasising his arguments, Counsel Kamara referred the court to the evidence of PW 3, 4, 5&8 who he said were all treated as suspects but later turned out to be prosecution witness.
He maintained that there was nowhere stated in the report as to what time the child was strangulated.
“The prosecution evidence alone creates doubt, and when there is a doubt in the testimony of witnesses, it must be exercised in favour of the accused persons,” he stressed.
“None of these witnesses stated in court that the accused persons strangled the deceased, the voluntary caution statements of the accused talks about sexual penetration, but nothing was said about manual strangulation,” he further submitted.
“It is interesting to note that the investigator, PW-7, Brima Amara Manu never took the medical report of Dr Owizz,” the defence counsel informed the court.
“I submitted that it is fatal to the prosecution’s case of PW-7 who stated that they are well-equipped to undertake any investigation and considering the nature of the offence; they took the finger prints of first accused and compared it to the one that was on the neck of the deceased. But, said they never came out with any report,” Counsel Kamara submitted.
The defence however told the court that the report on the finger prints was never released by the police because it favoured his client.
“The report on the finger prints examination is negative,” the defence stressed.
Defence Counsel also referred the court to the evidence of the cyber officer who said he went into the first accused’s mobile phone and was able to retrieve victim and other people’s video footages.
Counsel Kamara further appealed to the bench to discredit the piece of evidence arguing that no video was tendered in court.
“According to the laws, there must be a prima facie evidence to warrant the committal of the accused persons to the high court,” he further submitted.
No iota of evidence, he said, was brought by the Prosecution against the first accused.
He added that for persons to conspire to commit murder there must be an agreement between or among them.
In this case, he went on, there was no evidence indicating that there was a common desire by first and second accused persons to kill the deceased.
He informed the court that it was the first accused that was taking care of the deceased since she was a kid.
The element of malice is also quite central to a murder charge and counsel Kamara also delved into it.
In criminal law, he submitted, malice implies the intention of the accused to kill the deceased.
“The element of malice aforethought, that is, to kill the deceased was never established. It was a mere trick by the prosecution to scandal the accused persons,” he stressed.
After Counsel Kamara’s submissions, the podium in the courtroom was taken over by counsel for the second accused, Emmanuel Teddy Koroma.
Counsel Koroma argued that the second accused was brought before the court on two counts of conspiracy to commit murder and murder contrary to law.
He submitted, in this direction, that the Prosecution had “woefully” failed to establish a case against the second accused with respect to the two counts adding that the elements of the offences charged were not proved.
“I submit in view of the fact that this is a preliminary investigation, it is the onus of the prosecution to prove a case against the accused so that he can secure a committal. But, that burden has not been discharged by the prosecution,” he argued.
“No reasonable court will commit a case like this one to the high court,” he further submitted.
Counsel Koroma buttressed his co-defender’s argument on the laws of conspiracy.
“Conspiracy involves an agreement between two or among more persons to do an unlawful act by unlawful means,” he said.
“In a case of conspiracy, a mens rea [guilty mind] must be established that there was an agreement between or among persons to kill and that they have the requisite malice aforethought to commit the unlawful act,” he emphasised.
Lawyer Koroma also reminded the court that in their attempt at establishing a case of conspiracy, the prosecution called nine witnesses who wasted the court’s time.
The witnesses, he said, failed to show that there was an agreement between the two accused persons to kill the deceased.
Dilating on the deceased’s autopsy, Counsel Koroma told the court that the pathologist’s report was confusing and that it failed to help the court.
“Instead of helping the court, Dr Owizz’s evidence turned out confusing as the report did not state when the act was done, how it was done and who did the act. These are the three lacunae in the evidence of Dr. Owizz,” Counsel submitted
He also emphasised that the claim made by Dr Owizz that the deceased die owing to “haemorrhagic shock” and “manual strangulation,” is unreliable as no expert witness was brought before the court to show whether the second accused strangled the deceased.
“The question I will ask is that: why was the report not brought before the court,” he wonders.
“I submitted that the pathological report stated that the deceased’s spinal cord was broken and that the instruments he used were very hard. It is probable that it was during the process of autopsy that the damage was caused on the deceased,” he said.
Defence counsel further submitted that the absence of information in respect of when and how the strangulation was done made the report “defective” and “unreliable.”
He also emphasised that the prosecution brought no witness before the court to show that there was some form of communication and agreement between the first and second accused to kill the deceased.
In his submission, he referred the court to the case of RV Krause 66 JP 121 page 953 of Archbald’s 36th edition.
Coming to the murder charge, Counsel Koroma laid solid foundation of his argument by telling the court what act amounts to murder.
In doing so, the defence counsel outlined the elements of murder, through legal definition, to present a clear case as to why the second accused must be acquitted and discharged.
“There is no evidence whether direct or circumstantial that the second accused killed the deceased,” he submitted.
The defence referred the court to the evidence of PW6,7,8&9 who he quoted to have said the second accused is a cousin to the deceased and both have been together prior to her demise.
The second accused, he said, used to take the deceased to and from school.
“The second accused never had the intention to kill the deceased, so why now. There is nothing before the court to show that there was any form of acrimony,” he submitted.
Counsel Koroma further strengthened his defence by referring the court to Lord Parker’s Direction which states that where the prosecution’s case has been discredited, the accused persons must be discharged.
He urged the bench to look into the matter judiciously so that Justice is served.
The defence drew the attention of the court that the accused persons had been in prison since the inception of the matter, and there is no form of compensation if they are proven innocent.
“Justice must not only be done, but it must be seen to be done,” he concludes.
The no-case submission by the defence was responded to by state counsel, Joseph Sesay. Counsel Sesay submitted that the defence had not said anything to convince the court that the accused persons were innocent.
“The case of RV Galbret 124 and Lord Parker’s direction page-227 would have been of importance,” he reminded the court.
He further that the accused persons were arraigned by way of preliminary investigation pursuant to section 108 of the Criminal Procedure Act of 1965.
In line with the afore-mentioned provision, the defence submitted, the bench is required to determine whether the prosecution has adduced sufficient evidence as to whether the accused persons are connected to the charges, that is, conspiracy and murder.
For the purpose of conspiracy, lawyer Sesay adopted the submission of Counsel Koroma on behalf of the second accused, but deviated from the elements required to prove the crime.
“The bench can discharge if the prosecution fails to establish any evidence.
But, it is not the case, he said, since the prosecution has established sufficient evidence on the elements of count one.
State Counsel referred the court to the evidence of PW-4, 5 and 6 noting that they were “very instructive.”
He said PW-5 received a call from first accused informing her that the deceased had collapsed before first accused asked second accused and PW9 to leave.
“Why first accused did ask the PW-9 and second accused to leave,” he asked.
Counsel Sesay also answered the question he posed by saying that the reason they asked them to leave was to “cover traps.”
He reminded the court that it was PW-9 that volunteered to rush with the deceased to the hospital while the first accused was arguing with the bike rider.
“By their conduct, they had an intention to carry out an unlawful act,” he submitted.
Touching on the count of murder, Counsel Sesay referred the court to the pathologist’s testimony which states that the deceased sustained physical injuries.
He submitted that no-case submission is the defence counsels’ ways of doing their duties owed to their clients.
“The circumstantial incident of Khadija points to one direction: she was always in the custody of first and second accused persons until when first accused raised an alarm that the deceased had collapsed, and she never spoke until she was pronounced dead,” he said.
Counsel Sesay told the court that there was evidence of PW-9 that the deceased was injured while in custody of the accused persons.
But, the only logical conclusion, he said, the court arrived at was that the injuries contained in exhibits A-5 were inflicted on the deceased by the two accused persons.
He said the pathological examination confirmed in the two exhibits that A1&b that the date of death was on 17th June, this year.
It was against this backdrop that the prosecution said they had proven all the elements required for a charge of murder.
“All the Prosecution needs is to adduce sufficient evidence against the accused persons which they have done,” he stressed.
Counsel Sesay cited section 20(1) of the CPA 1965 for the bench to consider that sufficient evidence has been led against the two accused persons to stand trial at the high court.
The two sides, the prosecution and the defence now await a ruling on the legally charged issue.
The presiding Magistrate, Mark Ngegba adjourned the matter to 16th October.
The two accused persons, Mariama Sarjor Barrie and Ibrahim Bah were arraigned before Magistrate Mark Ngegba on two counts of conspiracy to murder and murder contrary to law.
The state alleged that the accused persons on 17th June 2020 at No 25 Spur road in Freetown murdered Khadija Madinatu Saccoh.