By Janet A Sesay
Justice Samuel Taylor’s ruling last Tuesday that the leader of Alliance Democratic Party (ADP), Mohamed Kamarainba Mansaray should be tried by Judge and jury has been reversed.
The ADP leader, by virtue of the cancellation of the ruling will now face a lone judge.
The judge offered no reason for the nullification of a ruling he handed down after careful consideration of submissions from the two sides.
The first accused, Kamarainba Mansaray is answering to an eight-count indictment of sexual penetration at the Sexual Offences Court and Marion Arouni is standing trial is an aider and abettor of the offence of sexual penetration at the same court.
The ADP leader showed up at the Family Support Unit located at the Criminal Investigation Department with his lawyers following the issuance of warrant of Arrest by the Sierra Leone Police.
He was held in police custody for over three weeks contrary to the constitutionally mandated maximum detention period of 10 days for felonious crimes.
Counsels Emmanuel Saffa Abdulai and Koroma represent the accused persons, and Counsel Umu Sumaray prosecutes for the state.
Justice Taylor handed down the ruling for a trial by judge and jury of the first accused after protracted arguments by the defence and the prosecution.
Now, a second ruling for trial by judge alone is in force.
Before handing down the second ruling, Justice Taylor reminded the court that the state prosecutor, Umu Sumaray made an application pursuant to section 144(2) of the Criminal Procedure Act of 1965 for the accused persons to be tried by judge alone.
He said the defence objected to the application by preferring a trial by judge and jury for the accused persons.
The Judge also told the court that the defence lawyers cited section 146(3) of the criminal procedure Act which provides that an accused is at liberty to choose the mode of trial.
After the brief summary, the Judge insisted that the accused person must now be tried by a judge alone.
After the ruling, Justice Samuel Taylor heard arguments from the prosecution and the defence in respect of the bail application,
State prosecutor informed the court that she had filed an affidavit in opposition to bail for the accused persons.
Counsel Sumaray said she relied on the entire affidavit in opposition, but most specifically wanted the judge to pay attention to paragraphs 3, 4, 5, 6&7 of the affidavit.
Paragraph-3, she said, was about the seriousness of the offences for which the accused was standing trial and that paragraph-4 of the affidavit presupposed that considering seriousness of the offences, the accused would be apprehensive that if convicted, will remain behind bars for a lengthy jail term or life imprisonment as the maximum.
She drew judge’s attention to paragraph-5 which pointed out that the accused posed a flight risk if granted bail noting that the accused had a high stake in the country’s political dispensation.
She submitted that paragraph-6 highlighted the possibility of interference with witnesses particularly when the investigation is in progress.
Paragraph-7, she went on, was about the general public recognition associated with the offence of sexual penetration.
“It is prudent for the accused persons to be kept in prison for their own safety,” she emphasised.
She made reference to section 120 of the Criminal Procedure Act of 1965 which says every accused person is presumed innocent until proven guilty and that the presumption is irrebuttable.
Responding to the prosecution’s claims, Counsel Abdulai attacked the affidavit in opposition to bail.
He told the court that the affidavit had nothing or sourced information as the prosecutor merely spoke about supposition.
The defence counsel also spoke about paragraph-6 of the affidavit which indicated the possibility of interfering with witness if the accused persons are granted bail.
“There is nothing in the affidavit which shows that the accused has attempted to interfere with witnesses even during investigation,” Counsel Abdulai submitted.
Responding to the argument of general public recognition, Counsel Abdulai submitted that the accused was not asking for state protection as he can protect himself.
“The wheel of justice does not dance to the public outcry and the fact that investigation is ongoing has nothing to do with the liberty of my client,” Counsel Abdulai submitted.
The defence counsel therefore urged the court to strike off the affidavit filed by the prosecution.
He made reference to Order 31 Rule 6 of the High Court which states that an affidavit which is scandalous and irrelevant should be struck off.
Counsel for the second accused, Abdul Karim Koroma found it disturbing that an experienced prosecutor will depart from an order for proper filing of an affidavit.
Counsel Koroma argued that the affidavit was not properly filed noting that there was no date on the foot of the affidavit which he said was an offence.
He submitted that Order 31 Rule 9(2) of the High Court provided that an affidavit which was not properly filed in the court should be struck off.
The defence counsel also requested the court not to use the prosecution’s affidavit as it was irrelevant, oppressive and vexatious
He also referred to Rule 6 of the High Court Rules of 2007 that the High Court can strike off an affidavit that was irrelevant or oppressive.
“The second accused, Marion Arouni is a married woman with three kids and rely on the bail application that she made in the previous trial of this matter,” he stressed.
After the arguments from the two sides, Justice Taylor refused bail for the accused persons.
He told the court that he was yet to hear evidence from witnesses.
“I would like to listen to the veracity of the evidence under cross-examination,” he said.
The accused persons are standing trial on eight counts ranging from conspiracy, sexual penetration of a child, meeting a child for sexual purpose and aiding and abetting to commit an act of sexual penetration of a child.
The charge sheet States that the accused between 1st and 31st March, 2020 in Freetown, conspired with other person unknown to commit sexual penetration.
The charge sheet also indicates that Marion Arouni between 1st and 31st March, 2020 aided and abetted Mohammed Kamarainba Mansaray to sexually penetrate a child.
The matter comes up on 26th August.