WATTA JOILLIA, Appellant, v. REPUBLIC OF LIBERIA, Appellee.
APPEAL FROM THE CIRCUIT COURT FOR THE TENTH JUDICIAL CIRCUIT COURT, LOFA COUNTY.

Heard: October26, 27, 28&29, 1981. Decided: February5, 1982.

1. Unless a witness testifies or deposes to such facts within his certain knowledge and recollection, it is irregular and improper for him to be cross-examined by the opposing party.

2. A criminal defendant is entitled to compulsory process to compel the attendance of a witness to testify in his behalf and the court is obligated to compel the ministerial officer to make diligent search for a witness who has been subpoenaed to testify for the criminal defendant.

3. When the plea of insanity is raised in a criminal trial, the burden of proving it rests on the party who alleges it; and on the other hand, the burden is on the State to prove that at the time of the commission of the offense, the defendant was sane.

4. Proof of insanity can only be settled by the report of a psychiatrist, who alone is competent to testify as regards the mental fitness of the accused to stand trial. So it is reversible error to deny a criminal defendant’s application to the court to be examined by a psychiatrist to prove insanity.

Appellant was convicted of murder and sentenced to death by the trial court. She appealed her conviction, claiming that she was denied her constitutional and statutory right to compulsory process to obtain witnesses in person of a psychiatrist and another person to testify for her. Appellant also claimed that the cross examination of her witness, who offered no evidence and was not examined by her, was irregular and constituted reversible error. The Supreme Court sustained all appellant’s contentions, reversed the judgment, and remanded the case for a new trial.

Robert G. W Azango appeared for appellant. Jimmie S. Geizue, Solicitor General of the Republic of Liberia, assisted by Richard F. McFarland, Assistant Minister for Legal Affairs, Ministry of Justice, appeared for appellee.

MR. CHIEF JUSTICE GBALAZEH delivered the opinion of the Court.

According to the records certified to us, appellant was indicted on the 16th day of September, 1976, by a grand jury of the Circuit Court for the Tenth Judicial Circuit, Lofa County, during the August Term, 1976, for allegedly murdering Moijamas Kanneh.

The hearing of this case for the second time was presided over by His Honour Galimah D. Baysah during the February 1977 Term of that Court. Issues having been thus joined between the parties by obtaining the plea of the defendant, the jury was selected, sworn and empanelled to try the case. The State’s witnesses took the stand, testified and were discharged. The appellant took the stand, deposed and subsequently requested the court to subpoena witnesses John Foday and Abdulai Kanneh, both of Kolahum District, and a psychiatrist to come and testify in her favour; but the trial court denied the application for the psychiatrist and also subpoenaed a certain Varfolly, and not those persons desired by the appellant, to testify for the appellant. Appellant rejected witness Varfolly; hence, he did not testify for appellant. However, the trial court allowed the prosecution to cross examine witness Varfolly against the expressed objections of the defense. At the end of the trial, the jury returned a verdict of guilty and final judgment was subsequently rendered on March 28, 1977, affirming the verdict of the jury. The defendant was sentenced to death by hanging.

On the 8th day of April, 1977, appellant filed a thirty-two count bill of exceptions. But because of the conclusion we have reached in the consideration of this case of the thirty-two count bill of exceptions only counts 22, 26 and 27 have been deemed appropriate for this opinion. The said counts, in their essential parts, state:

“22. And also because Your Honour committed a reversible error when Your Honour denied the defendant the right to have her witness, the psychiatrist as prayed for and the other witness, Abdulai Kanneh, to which defendant excepts. See sheets five and six of the 22nd day’s session, March 11, A. D. 1977.

“26. And also because defendant says that Your Honour committed reversible error when Your Honour allowed witness Varfolly to be cross-examined by the prosecution when the said witness was waived by the defendant not to testify since he, the witness, told the court that he was not called John Foday as was named in all the testimonies of the witness for the prosecution, and that John Foday of Fangonda was the sassywood player. See the entire statement and the questions of the prosecution, as well as the answers to said questions, to which defendant excepted. See sheets two, three and four of the 25th day’s session, March 17, A. D. 1977.

“27. And also because defendant seriously contends and says that Your Honour committed the most serious reversible error when Your Honour denied defendant’s right to have her material witness to testify for her as mentioned in her application on sheet three of the 26th day’s session, March 17, 1977. To which defendant seriously excepted. See sheets three and four of the 26th day’s session, March 17, 1977.

The following are therefore the issues presented by these three counts of the thirty-two count bill of exceptions:

1. Whether appellant/defendant was denied the right to obtaining witnesses in her favour during the trial?

2. Whether a witness who was subpoenaed but later waived and who never testified to anything can be cross­ examined by the opposing counsel?

3. Whether it is sufficient to acquit a defendant charged with murder, who has been denied the right to have compulsory process of obtaining witnesses in her favour? We shall treat these issues in the order of their serial presentation.

As to issue number one, an examination of the minutes of court, 26th day’s session, March 17, 1977, sheets three and four, shows that appellant’s counsel for the second time applied to the trial court to have his client’s witnesses, namely: John Foday of Fangonda Town and Abdulai Kanneh of Bondovalahun Town, Kolahun District, Lofa County, brought, because in appellant’s opinion, their testimonies were vitally material.

Back in 1904, this Court held that the testimony of an ordinary witness that a defendant had shown signs of insanity is not sufficient to prove insanity, but must be corroborated by the evidence of a medical expert. Scott v. Republic, [1904] LRSC 5; 1 LLR 430 (1904).
In the case, Tay v. Republic, [1945] LRSC 13; 9 LLR 92 (1945), this Court held:

“It was error for a trial court to deny a defendant charged with murder the right to produce witnesses to testify that he suffered from temporary spells of insanity since he was entitled under the Constitution to have compulsory process for obtaining witnesses in his favor.”

Additionally, Article I Section 7th of the suspended Constitutions of Liberia, under which appellant was indicted, tried and convicted for the crime of murder, provides that:

“No person shall be held to answer for a capital or infamous crime, except in cases of impeachment, cases arising in the army and navy, and petty offenses, unless upon presentment by a grand jury; and every person criminally charged, shall have a right to be reasonably furnished with a copy of the charge to be confronted with the witnesses against him to have compulsory process for obtaining witnesses in his favour; and to have a speedy, public and impartial trial by a jury of the vicinity. He shall not be compelled to furnish or give evidence against himself; and no person shall for the same offense, be twice put in jeopardy of life or limb.”

The trial judge, therefore, committed a prejudicial and reversible error in denying appellant the right to have a psychiatric examination so as to determine medically whether or not appellant was sane to stand trial. Furthermore, the refusal of the trial judge to compel the sheriff to make diligent search for appellant’s witnesses, Messrs John Foday and Abdulia Kanneh was another serious and reversible error committed by the trial judge. Appellant was therefore deprived of the legal right to obtain witnesses in her own favour. Count 22 of the bill of exceptions is well taken, hence, sustained.

With respect to issue number two, the appellant contended that the trial judge erred when he permitted the prosecuting attorney to cross-examine witness Varfolly, who was waived by appellant on the ground that the said witness had told the trial court that his name was not John Foday, the person for whom a writ of subpoena had been issued based upon the request of the appellant, and reluctantly, did not therefore testify. According to our law, practice and procedure, a witness shall testify or depose to such facts as are within his own knowledge and recollection. Civil Procedure Law, Rev. Code 1:25.21. And unless a witness testifies or deposes to such facts as are within his own certain knowledge and recollection, it is irregular and improper for him to be cross examined by the opposing party when he has not testified to any such facts. Hence, the trial judge erred when he permitted the prosecution to cross examine witness Varfolly, who had been waived by the appellant.

Referring to issue number three, it is our holding that this Court cannot legally order the discharge of the appellant charged with the commission of the crime of murder, who has raised the plea of insanity, and subsequently requested the trial court to be subjected to a psychiatric examination, nor can the Supreme Court affirm the judgment of the trial court without firstly determining whether the appellant herein, was sane or not. The defense of insanity can only be settled by the report of a psychiatrist, who alone is competent to testify as regards the mental fitness of the accused to stand trial.

Under the best evidence rule, it is required that, the best evidence which the case admits of must always be produced; that is, no evidence is sufficient which supposes the existence of better evidence. Civil Procedure Law, Rev. Code 1:25.6(1).

As regards the determination of insanity, we have the following legal authority on the point. It reads:

“The burden of proving insanity is on the party who alleges it, and that of proving mental restoration or a lucid interval on the party who asserts that fact.” In all actions or proceedings the burden of proving insanity is on the party who alleges it, as where it is set up as an affirmative defense the burden of proving it rests on defendant. Moreover, if a party asserts insanity, which had been shown to be only occasional or intermittent in its nature, the burden is on him of proving its existence at the time alleged.

“On the other hand, if a person alleges sanity as an element of his case, the burden of proof, rests on him to establish that fact, although the presumption of sanity operates in his favour at the outset,” 44 C.J.S. Insane Persons §4.

Additionally, we also have the following legal authority in the same connection:

“There is a sharp conflict of opinion as to whether the prosecution or defense sustain the burden of proof where insanity is set up as a defense to a charge of felonious homicide. It is agreed by all that, sanity being the normal condition of man, a person on trial for felonious homicide is to be presumed to be sane until the contrary may be established by competent and sufficient evidence; but some courts assert that, inasmuch as insanity is an exception to the general rule, the defendant, if he would claim the benefit of it, must show to the satisfaction of the trier of fact that he is within it, whereas other courts just as firmly declare that sanity, like any other element of a felonious homicide, must be established by the prosecution. Under this rule, it is error to charge that, sanity being the normal state, there is no presumption of insanity, but the burden of proving it is upon the prisoner.” 13 R.C.L. 712-713 §13.

For the sake of this opinion, we have quoted for reliance the above legal authorities to show that our position taken in this case is in harmony with the statute extant that the burden of proof rests on the party who alleges the existence of a fact, except that when the subject matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true unless disproved by that party. Civil Procedure Law, Rev. Code 1:25.5(1).

Therefore, it is incumbent upon the State to prove that at the time of the alleged commission of the offense, the defendant was sane, while it is also equally incumbent upon the defendant to prove that at the time of the commission of the alleged offense she was insane, when the plea of insanity was raised by the defendant in this criminal prosecution. Not­ withstanding, the fact that these very important and relevant issues were not sufficiently resolved to enable this Court to affirm the judgment of the trial court or order the acquittal of the appellant, our learned colleague, Mr. Justice Ceapar A. Mabande voted to the contrary. Our colleague advocated that appellant be fully discharged without day and the Republic of Liberia made to send appellant to the Catherine Mills Rehabilitation Center, Monrovia, for mental fitness test. We are still at a loss to understand as to what useful purpose this exercise would serve.

Among the several reported cases of this Court cited and argued by appellant’s counsel with emphasis before us are:

Gartargar v. Republic[1934] LRSC 8; , 4 LLR 70 (1934) and Tay v. Republic, [1945] LRSC 13; 9 LLR 92 (1945). In both cases, the plea of insanity was invoked by the defendants/appellants; the judgments rendered by the respective trial courts against the defendants/appellants reversed, and the cases remanded for new trial. Yet, counsel for appellant has argued even in the face of the holdings in these reported cases, that his client, the appellant herein, be discharged by this Court.
On the other hand, counsel for the State contended that the judgment of the trial court not be disturbed because in his opinion, the trial was regular and fair, and that appellant took the witness stand in her own behalf and testified to facts within her own knowledge and recollection without showing any sign or insanity.

This Court holds that there is no basis in law or facts for the submission of either the appellant’s counsel or the State’s counsel In view of the foregoing, the final judgment of the trial court be and the same is hereby reversed and the case remanded with instructions that the case be heard de novo after defendant/appellant shall have been subjected to a psychiatric examination and a report of said psychiatric examination filed with the clerk of trial court to form part of the records in this case. Furthermore, this case should be given priority consideration oil the docket of the trial court. And it is so ordered.
Judgment reversed; case remanded.

MR JUSTICE MABANDE concurs in part and dissents in part.

According to the indictment, defendant/appellant was charged for the illegal, deliberate and malicious petting of Moijama Kanneh, an infant, by given her a banana so that she should not cry or express any disapproval of the appellant/ defendant’s taking her away to the Kahai River; that defendant succeeded in petting decedent and taking her to the river where appellant/defendant illegally, deliberately and feloniously put decedent Moijama Kanneh into the Kahai River and that there she remained, suffered, languished and died.

At the jury trial, the prosecution had eight witnesses, including the caretaker, the father and mother of the deceased. The prosecution’s first witness, Town Chief Boakai Kanneh, testified that he was told of the loss of the child while he was on his farm; he returned to the town and called a council meeting with his people, including strangers who had then arrived in the town, and one being a tax collector and, the other, one Mr. John Foday. He also testified that Old Lady Sumo and Mama Janne told the council of the incident charging appellant/defendant with commission of the crime, at which time the chief referred the charges to the accused and the accused reportedly confessed the crime. Except for the alleged confession, the testimony of the chief was based on information related to him by others.

During, the cross examination, the town chief testified that a stranger, Mr. John Foday, was requested by Chief Saryo to play sassywood (trial by ordeal) for the council in order enable them to locate the deceased and know the doer of the act. Many persons, the chief testified, took the sassywood. The second witness, Boakai Sheriff, testified that he was on his farm when he was sent for and told of the incident. He said that he located and brought out the deceased from the river and that the chief appointed twelve men to examine the body; which they did. The third witness, Mama Sumo, testified that appellant/defendant confessed to the crime at the council meeting. She further told the court that Mama Janne told her that defendant/appellant took and carried away decedent. Continuing her testimony, the witness said that she was told that appellant/defendant killed the child before throwing the body into the Kahai River and that appellant/defendant stepped on the child to make sure that she was dead. The fourth witness, Mr. Cryprian Kollie, a State witness who was Magistrate of the area, testified that a charge sheet against the defendant/ appellant was brought with her to the court by CID Officers. He then issued a writ of arrest charging appellant/defendant for murder. He further told the court that appellant/defendant admitted the crime; and he concluded his testimony by stating that appellant/defendant. ..”was not with her full senses” and that because he did not have jurisdiction over the matter it was forwarded to the Circuit Court.

The prosecution’s fifth witness, a CID agent, David Gabla Dennis, took the stand but because he had placed on record that he was not acquainted with the deceased, the prosecution immediately prayed the court to have him declared a hostile witness in order to be cross examined.

The CID agent answered on cross examination that he was assigned to have an on-the-spot investigation of the crime; that the chiefs and elders narrated the incident to him and members of his team; and that he also investigated the accused, who admitted the crime.

The prosecution’s sixth witness, Mr. Blama Kanneh, father of the deceased, also testified that he was on his farm when he was sent for and told of the incident and that he joined the men who searched for and found the body. He concluded his testimony by stating that appellant/defendant confessed to the crime at a council meeting. All of the other state witnesses testified that they were informed about the incident.

Other than the confession, all of the testimonies offered by the prosecution were based on information received from others and not on personal knowledge of ANY witness. No testimony of any witness connected defendant/appellant with any fact or circumstance directly or indirectly related to the crime. No allegation, material or immaterial, as laid in the indictment was proved.

When appellant/defendant took the witness stand, she testified that she remembered going to farm at a certain time and returning but that thereafter she did not know anything about herself until one morning she saw her feet in the sticks. She remembered seeing one Abdullah Kanneh, who told her that she was naked and gave her panties to wear.

It was at this stage of the trial that the defendant’s counsel applied for a psychiatric examination which was denied by the trial judge on the objection of the State. In spite of this request based on the testimonies received, the trial court permitted the prosecution to subject the accused to rigid and lengthy cross examination that in fact established no clue to the crime. Yet the jury convicted her and the judge affirmed that verdict.

The most important issues presented for this Court to determine are:

1. Whether the violations of the constitutional rights of the prisoner can be properly remedied by the remand of a case?

2. Whether where the state produces no evidence in support of a charge should this Court remand the case in order that the State may procure evidence to convict the prisoner?

3. Whether the practice of trial by ordeal, in disregard of opinions of this Court, should continue unpunished by this Court? and;

4. Whether confession illegally obtained may be considered by a court in support of a verdict of guilty?

Due process of law bars the State and court from procedures which violate any of the basic notions of the accusatorial legal method of prosecuting crimes. It dictates to the con­ sciences of judges and the expert legal minded society the compelling need to decry any conviction based on such procedure. Our task is to assure that every legally protected procedure is meticulously pursued by the State or the trial court before liberty is curtailed or even life is taken.

This growth of the criminal law in according liberties to the accused is the greatest prize of a civilized and just people. Those of us to whom the preservation of the rights and liberties of the people are entrusted may bring security and glory to our people by not jesting with the liberties and rights of any member of the society. The preservation of the rights and liberties of the people is the sure element in preserving and defending the security and stability of a society and its people.
It is a well acceptable principle of law of all civilized nations that every conviction must be based on evidence beyond all reasonable doubts. People are generally prone to accept as a fact that a person once arrested and exposed for the alleged commission of a crime is naturally guilty, but this is contrary to law. An accused is presumed innocent until proved guilty beyond a reasonable doubt.

Other than the confession from the woman who was tied to a stick and made naked by the investigating council of chiefs, no other evidence, even circumstantial, was produced by the State. To uphold such a conviction or remand for the State to retry her is to abet the State in its cruel and inhumane treatment of the accused and to encourage subordinate courts in their trial irregularities.

Merely repeating a statement in an effort to corroborate a confession without any supporting evidence linking the accused to the crime is no sufficient evidence to support a criminal conviction. Though the fact that when a confession was made the hands and feet were tied or that the prisoner was handcuffed or was in chain may not necessarily exclude a confession from admission into evidence against the accused, a court should, in its endeavor to protecting the rights of the accused from any and all other governmental encroachments, thoroughly investigate all circumstances of every confession. The barbarism inflicted on the woman held by the State to obtain the confession renders it involuntary.

At the trial, although two witnesses of the State including the magistrate testified that the defendant’s conduct and statement showed an evident state of mental derangement, the trial judge, on persuasion of the State, denied the accused her fundamental right to produce evidence in her own behalf. Naturally, the trial court denied the accused the opportunity to rebut the mere evidence produced by the State. Had the trial court not denied the accused her request to subpoena her selected witnesses, as well as a psychiatrist, an effort to maintain a fair and just trial may have been exercised.

Where a trial is grossly irregular in all respects, a judgment of conviction should not be upheld; that judgment should be reversed and the defendant discharged without day. To remand such a case is to irregularly imprison the accused, condone all tortures, both mental and physical, inflicted upon the accused by the State, and to judicially keep the prisoner in that state of perpetual agony until whatsoever time the State may deem it necessary to correct its multiple irregularities and collect just any evidence purposely to convict the accused. This is judicially unfair.
The application of the rule of voluntariness of confessions should not be viewed irrationally. Confessions in a true sense are not voluntary. There is always a physical or unseen and unrealized compelling force that may urge one to admit a crime. Such admissions are not necessarily true but only to please another force on the mind of the accused.

The method of questioning and the circumstances of the accused may raise the presence of coercion. The characteristics of the accused, the stage of investigation of the accused, most of whom are uneducated or of very low mentality or emotion­ ally unstable, may render a confession involuntary. Some investigators are bent on obtaining a confession under any inhumane circumstance as evidence of having done their job for the State. All of these generally revealing circumstances should appeal to the conscience of all men of goodwill to view every confession more critically.
There was evidence that they tied appellant and that she was disrobed, naked, exposed to shame and humiliation at all times before both friends, relatives and the public for a crime for which she had not been convicted nor was the treatment given her the legal or authorized punishment. The method of the illegal questioning, the stage on which the accused appeared and her physical appearance should raise presumption of coercion, mental or physical. These savage acts were permit­ ted by the prosecution in spite of the several and continuous pronouncements of this Court against such barbaric acts. Evidently, the accused was tortured. Torture may be physical or mental. A confession obtained under torture being illegal, cannot be legally admitted into evidence against a prisoner. Sheriff v. Republic, [1981] LRSC 9; 29 LLR 103 (1981).

It is my firm opinion that in every criminal case it is the duty of the State firstly to determine and charge the crime committed then to prove its commission by the accused. The evidence must convincingly reveal the several circumstances surrounding the commission of the offense and to lastly prove the guilt of the accused beyond all reasonable doubts. Without these, no one should be held to answer any charge.

In the case Yancy v. Republic, [1935] LRSC 7; 4 LLR 268, 277 (1935), this Court in criticizing the trial role of the circuit court and the prosecution officers in a criminal case held: “This Supreme Court cannot be expected to affirm a judgment of conviction against any person charged, unless the evidence adduced is sufficient to satisfy our minds and consciences that the accused is correctly charged and the evidence satisfactorily proves him guilty of the offense as charged.”

In view of these sound legal reasons, I dissent from the majority holding to remand the case. I also disagree that this Court cannot punish the State and its authorities for the continual administration of sassywood in order to obtain evidence to criminally charge a person as well as for other acts violative of human rights as pronounced by this Court or for disregarding our numerous opinion against repetition of those very prohibited acts and conduct. I therefore strongly hold that we should reverse any judgment that is chiefly supported by illegally obtained evidence or gross trial irregularities induced by the prosecution. Such acts of this Court would serve as deterrence to the State and its officers charged with the administration of the criminal justice system of the State.

I however concur with the majority that the brutal punishments inflicted on the accused and the trial procedures adopted by the trial judge were legal tragedies, disgraceful to the judiciary, adverse to legal ethics, and harmful to the State itself. I therefore dissent in part and concur in part.