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MORE EXTRACTS FROM CLOSING ARGUMENTS ON BEHALF OF HAJA AFSATU O. E. KABBA
Aug 30, 2010, 17:34
MORE EXTRACTS FROM CLOSING ARGUMENTS ON BEHALF OF HAJA AFSATU O. E. KABBA
THE PURPORTED HANDING OVER OF THE SUM OF LE. 240,000,000.00 TO THE ACCUSED IN THE PREMISES OF PARLIAMENT ON THE 27TH OCTOBER 2009
It is the prosecution’s theory that the sum of Le.230,000,000.00 was handed to the Accused in Parliament. The Defence for the Accused submits that this is a crucial piece of evidence in the Prosecution’s case. The Prosecution at page 22 of the address submitted that:
“The money was transferred to the Accused person’s vehicle from the witness’ vehicle by the Accused person’s driver and security.
PW2, Pw3 and PW6 were all present at the time each of them testifies to this fact and they corroborate one and other in every material particular relating to these facts”.
The crucial nature of this piece of evidence was thus clearly brought out by the Prosecution. The question that I intend to pose is this: Is it true that the Prosecution witnesses corroborated each other in every material particular relating to the facts of the handing over at Parliament Building of the sum of Le.230,000,000.00 to the accused? If they failed to corroborate each other as alleged by the Prosecution what consequences should follow? The answer to the first question is that the said witnesses failed to corroborate each other as suggested by the Prosecuting Counsel. Counsel for the Accused will refer the Court to the evidence of PW2, PW3 and PW6 to debunk the contention of the Prosecution.
When PW2 testified in-chief he had this to say:
“They came to a total of Le240 million.Â The cash for the cheque A2 and A3 which amounted to Le80 millions I took it to contractor - Yeane Enterprise at Lamina Sankoh Street Freetown.Â We took the sum Le230 million to the Minister at Parliament building and she instructed that the money should be given to her driver and her security and thisÂ was in my presence, my boss. the contractor, the driver and the security. I was present when the money was handed over to the driver and the security”. Page 23 lines 11 – 18 of the Court records.
PW3 had this to say about the said transaction:
“After the cashing of these cheques I had a call from the Hon. Minister Haja Afsatu Kabba (the Accused) that after the cashment of these cheques we should take it straight to Parliament.Â After that she made three calls indicating that State House was urgently waiting for the amount.Â Straight away I left my office. I ran down to Lamina Sankoh Street luckily for me I met both my subordinate and Yeane Enterprise in the contractor’s vehicle where I informed them that the Minister had been ringing for the encashment for the cheque since it was urgent for State House.Â I then board the vehicle with them and we headed for Parliament.Â It was three of us, myself, my subordinate and Yeane enterprise who left for Parliament.Â On reaching Parliament the van which we boarded was owned by Yeane Enterprise drove straight to the far end of Parliament where the Hon. Minister’s (accused) vehicle was parked.Â I then left my subordinate and Yeane Enterprise waiting whilst I entered Parliament.Â I informed the Hon. Minister (the accused) that we had come with the money. Immediately she came out from Parliament from where she was seated and walked straight to the vehicle where they were parked where she saw the money in bags for it to be transferred to her official vehicle.Â No sooner that was done she jumped into her vehicle and drove off to state house.Â We were at the back of them”. Page 26 line 23 – 33 and page 27 lines 1 – 18 of the Court records.
It is clear from the evidence of PW 2 and PW 3 that when they, in the company of PW 6 arrived in parliament, PW 3 left them (PW 2 and PW 6) in the vehicle of PW 6 and went into the Parliament building. The Accused and PW 3 emerged from the Parliament building and walked straight to the car of PW6. The money was shown to the accused who then got her security and driver to take possession of the money and transfer same into her vehicle. PW 2 went further to say that the instruction of the accused for her security and driver to take possession of the money was done in the presence of PW 3 and PW 6.
PW6 also testified that they travelled to Parliament in one vehicle. He said:
“After collecting the money PW3 came, myself and PW2 and PW3 travelled in my own vehicle to parliament building. On arrival there, PW3 alighted from the vehicle. He said he was going to inform the accused that we have arrived.Â He returned with two gentlemen, one driver of the accused and her security.Â Pw3 removed the money from my vehicle it was done by the driver and the security.Â The money was taken into a black jeep owned by the accused person.Â It was the accused’s driver and security who collected the money”. Â Page 49 lines 26 – 33 and page 50 lines 1 – 3 of the Court records.
Under cross-examination PW6 emphatically denied the version of PW2 and PW 3. He said repeatedly:
“I did not see the accused in Parliament”. Page 52 lines 28 & 29 of the Court records.
“I still maintain that I did not see the accused in Parliament”. page 52 lines 32 & 33 of the Court records.
“I was able to see the vehicle of the accused from where I was”.Â Page 53 lines 19 & 20 of the Court records.
The Prosecution stealthily avoided the evidence of PW 6 when making conclusions in their closing arguments. On page 22 the Prosecution said:
“After encashing of the three cheques (A1 – A3) the total sum of Le. 230,000,000.00 was delivered to the Accused person at Parliament Building. She was there to receive the money in person.
PW2 and PW3, (See pgs 23 L11 onwards ad 27) were present at the time and both of them testify to these facts and they corroborate one another in every material particular relating to these facts”.
In a deliberate attempt to mislead this Court the Prosecution submitted in paragraph (j) on page 23 as follows:
“After receiving the money the Accused proceeded to State House in keeping with the pretext that the money had been requested by State House.
PW 2, PW 3 and PW 6 all saw her go there and each testified to this effect and they each corroborate one and other”.
This we submit is a desperate attempt by the Prosecution to manufacture evidence that does not exist and thus mislead the Court. There is no evidence that PW 6 saw the Accused, not even for a moment, either at the House of Parliament or at State House. This goes to buttress our contention that the Prosecution’s case is inconsistent, tenuous and fabricated and we urge this Hon. Court to so hold.
PW 6 couldn’t see the accused even though his vehicle was parked in such a position that he was able to see what he perceived to be the vehicle of the Accused and even though PW2 and PW3 purport that the Accused came out of the Parliament Building to receive the huge loot.
We therefore submit that the entire Prosecution theory of the handing over of the sum of Le. 230,000,000.00 in the precincts of Parliament was a figment of the imagination of PW 2, PW3 and PW 6. Who should this Court believe? The version of PW2 and PW3 or that of PW 6? We submit that this inconsistency is so significant that no reasonable tribunal could convict on such tenuous and unreliable evidence. We therefore urge this Hon. Court to hold that the said delivery of the sum of Le. 230,000,000.00 to the Accused was not proven.
THE PURPORTED HANDING OVER OF THE SUM OF LE.70,000,000.00 TO THE ACCUSED ON THE 28TH OCTOBER 2009.
The Prosecution has presented very conflicting accounts of the manner in which the sum of Le. 70,000,000.00 was paid to the Accused on the 28th October 2009. The inconsistencies in the evidence of the prosecution witnesses are so significant that no tribunal of fact can convict on such pieces of evidence.
PW 3 in answer to question 37 of his statement of the 19th March 2010 made to the Anti-Corruption Commission said:
“On the 28th October 2009, the total sum of Le. 70,000,000 was withdrawn from the Fines Account no. 1100684 on cheques no. 466288 and 466289…………. The face values on them (Le. 30,000,000.00 and Le. 40,000,000) were encashed by Gina F. Missah who brought the said money from the bank and handed over it over to me. I took the said money and handed it over to the then Minister Haja Afsatu Kabba at her office in the presence of the then Deputy Minister Oya Sankoh, the Permanent Secretary Mr. Sandi and the Director Dr. M. B. Sesay. During the process of handing over the said money, the Minister even confirm receipt of the Le. 240,000,000 on the previous day to Honourable Oya Sankoh and to the hearing of the Director and Sermanent Secretary”.
This version of the account of PW3 dramatically changed when he testified in Court on the 20th May 2010 exactly two months after his statement to the Anti-Corruption Commission. The witness said on oath:
“I went and informed my subordinate to see to the preparation of the balance two cheques for the amount of Le 70 million.Â That he did and the two signatories to the cashing include myself signed the cheques. My subordinate immediately took one of the senior officer’s vehicle and went to the bank for encashment.Â Upon his returned from the bank he met and informed me that he had came with the money.Â I in turn went straight to the Hon. Minister’s office (the accused) informed her that the money was there.Â This was in the presence of two senior officers. There and then she told us that she was going to State House and that in an hour’s time let us meet her in the basement of Electricity House.Â There and then myself and the driver of one of the senior officer’s vehicle used to collect the money drove off to the basement of Electricity House.Â We got there on time to drive into the basement where the accused’ vehicle was parked. She was there and she was informed that the money was there.Â The money was in bags.Â She saw the money and instructed that it should be given to her driver and the security for safety.Â From there I left for my office and informed the two senior officers that the money had been delivered”.Â Page 28 line 33 and page 28 lines 1 – 24 of the Court records.
The extent of the depravity of PW 3 is adequately brought out quite clearly. On the 19th March 2010 when he spoke to investigators of the ACC his version of events was that on the 28th October 2009 he gave the Accused Le. 70,000,000.00 in her office and in the presence of Rosaline Oya Sankoh, the Permanent Secretary and the Director of Fisheries. The witness went further to say that the Accused even confirmed receipt of the sum of Le. 240,000,000.00 that he purport was given to her the previous day in the House of Parliament. This version was totally abandoned by the witness when he testified viva voce in Court. Not only was Rosaline Oya Sankoh now not present on the scene, the transaction also no longer took place at the office of the Ministry of Marine Resources but at the basement of the Electricity building, two locations that are almost three miles apart; furthermore, the purported acknowledgement of the Accused of receipt of the sum of Le. 240,000,000.00 the previous day in Parliament had also disappeared.
The evidence of PW 4 under cross-examination debunked the version of PW3 and exposed him, PW 3, as a pathological liar who was hell bent on seeing the Accused go to jail. PW 4 had this to say under cross-examination:
“It is not correct that when the sum of Le 70 million was withdrawn in October 2009 that it was handed over to the accused in the presence of her deputy.Â It is totally false to say that the sum of Le 70 million was handed over to the Minister in my presence; it will be totally false that the Minister acknowledged receipt of the sum of Le 240 million in my presence.Â It is totally false that the Minister told me that the sum of Le 310 million was needed for APC convention”.Â Page 39 lines 24 – 32 of the Court records.
Under cross-examination PW 5 also refuted the lies of PW 3 when he said:
“I was not present when any money was handed over to the accused”. Page 48 lines 31 – 32 of the Court records.Â Â Â Â Â Â Â Â
The evidence of the transaction regarding the payment of the sum of Le. 70,000,000.00 we submit is so marred in controversy, lies and brazen deceit that this tribunal should completely ignore the said pieces of evidence. The lies of PW3 were exposed by both PW 4 and PW 5. Counsel therefore submits that it would be grossly unsafe for this Court to find any conviction on those facts. The evidence of the receipt of the sums of Le. 240,000,000.00 and Le. 70,000,000.00 by the Accused respectively on the 27th and 28th October 2009 are so inconsistent, controversial and conflicting that it would be unsafe for any reasonable tribunal of fact to find anybody guilty on such evidence.
It is submitted that the evidence led by the Prosecution in support of counts 1 – 5 to use the words of the Prosecutor “is so inconsistent, self-contradictory, and out of reason and all common sense so much that it is tenuous and suffers from inherent weakness” that no reasonable tribunal would convict the accused person on. It is incorrect for Counsel for the Prosecution to submit as he did at page 3 of his closing address that “…….. all that the Defence can properly advert to are inconsequential and immaterial inconsistencies that were prompted through cross-examination, but which are largely of an irrelevant nature and do not impact on the substance and material of the witnesses’ evidence.” What the inconsistencies and the self-contradictory testimonies of the star prosecution witnesses i.e. PW2, PW3, PW4, PW5 and PW6 show is that there are sufficient cracks in a seemingly well rehearsed case to establish sufficient doubts that no reasonable Judge could use to deprive the accused person of her liberty.
Nothing in the documents before the court point to the Accused, the testimonies of the prosecutions are self contradictory, what the Court is left with at the close of the case for the prosecutions is a highly speculative and tenuous case. Your Lordship is invited to acquit and discharge the accused on counts 1 - 5 of the indictment accordingly. The final straw on the coffin of the Prosecution as far as the assessment of the strength of the Prosecution’s case is concerned was eloquently put by PW4 under cross-examination when he said:
“The documents in this case do not point to the Accused. I said it is my word against the word of the accused”. Page 41 lines 17 – 19 of the Court records.
Well, discharging the standard of proof is a very serious matter. It certainly demands more that the word of the Prosecution against the word of the Accused to discharge the standard of proof beyond all reasonable doubt.
Counsel for the Prosecution is not surprised that the Prosecution has made a valiant attempt at page 13 of their address to trivialize the purport and effect of section 190 of the Criminal Procedure Act No. 32 of 1965. The key prosecution witnesses in this case have made statements to the Anti-Corruption Commission that are materially inconsistent with their viva voce evidence on oath. Most of these fabricated evidences which show significant inconsistencies, I submit, were made to deliberately mislead the Court. Section 190(3) provides that the “……. judge and jury may take it into account in judging the credibility of the witness on his evidence as a whole”. What we are imploring this Court to do is to give little or no weight to the evidence of these witnesses who have contradicted themselves in material particular.
YADA HASHIM WILLIAMS
COUNSEL per pro for J. B. Jenkins-Johnston, Lead Counsel.Â
Dated 23rd July 2010
- Submitted by Counsel for the Accused pursuant to the Order of Justice S. A. Ademosu (Judge) dated the 22nd July 2010
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