July 7, 2021
By Audrey John
Serious argument ensued between prosecuting counsel for Joseph Spinoso, Sulaiman Banja Tejan sie and Defense counsel for David Dayo, AS Nicloe over the tendering of a statement which Defense counsel object to because of the principle of self-corroboration.
Complainant Joseph Spinoso an American national and David Dayo the accused are before magistrate Sahr Kekura for redress on a matter of fraud
Complainant alleged that the accused defrauded him the sum of thirty thousand united state dollars in a business transaction.
Testifying on the matter, the fourth prosecution witness, Assistant Superintendent of police Saio Conteh attached at Lumley police station recognised both complainant and the accused in the dock.
He said on the 13th of November 2020, he was on duty when complainant went and requested for police officers and made a report that he has been defrauded the alleged sum by the accused who was about to leave the shores of Freetown.
The witness said he informed a team and went to Atlantic Hotel at Aberdeen to trace the accused but to no avail.
He said on the 15th of November 2020, he reported for duty and on arrival he met the accused in custody after been arrested by the Office of National Security (ONS).
The witness further explained that during the investigation, the accused led them to Lungi Hotel where he resides and a search was conducted in his room where they discovered a lap top computer, one Standard Chartered Bank cheque book and some documents they treated as exhibits.
He said the accused also led them along Regent Road in Freetown where he said he had an office space, but upon arrival it was discovered that the office is not existing , it was a mere resident.
“My lord, in his statement, the accused said the thirty thousand United States dollars he defrauded complainant was transferred to the account of one Morris in Indian” he said.
The witness said the accused used his mobile phone to informed Morris that he is in custody for the money, but Morris told him that he should explain better how the transaction took place to the police.
He said due to persistence calls, the accused made an undertaken that he will pay complainant what due him.
“Within the process, complainant showed him a letter of terminated contract sent to Morris in India” he explained.
In continuation of his examination in chief, the witness told the court that based on request they gave the accused his computer to access some information but yet still he was unable to pay the money.
He said on the 18th of December 2020, he was on duty when the wife of complainant, Cathrine Spinoso visited the station to see how far they have gone in their investigation.
The witness said the accused pleaded with the wife of complainant to give him time to refund the money and in the process the wife made an undertaken to represent his husband.
Upon reaching that point, the witness was about to tender the statement when Defense counsel SA Nicole raised an objection.
Defence counsel SA Nicole said the prosecution cannot tender the above statement because of the principle of self-corroboration.
Arguing further, Defense stated categorically that it is the Defense who should apply to the court for a statement of the prosecution witness to be tender in a situation where in the Defense want to prove that the prosecution witness has been untrue to the court and therefore wants to prove to the court that he or she is contradicting the previous statement.
He said the witness cannot tender the statement of prosecution witness number two citing section 4/5of the Criminal Procedure Act of 1865.
Replying to the Defense, prosecuting counsel Sulaiman Banja Tejan said the witness as head of the investigation and recorder of the said statement made by prosecution witness number two on behalf of her husband`s complainant can be tendered.
He said it does not need to be identified by PW2 and there is no provision to counter that.
Prosecuting Counsel Sulaiman Banja Tejan Sie further challenged Defense counsel that section 4/5 of the Criminal Procedure Act of 1856 does not apply on the above.
He said those section can be applied in a situation in cross examination were a prosecution witness gives evidence in court that is contradicting to the precious statement made to the police or where he or she denies making such statement.
On conclusion of their arguments, magistrate Sahr Kekura adjourned the matter to the 7th July for ruling.