Martha Sirleaf of the City of Monrovia, Liberia,   APPELLANT Versus The Republic of Liberia, by and thru Moses Mitchell et al, also of the City Of Monrovia, Liberia,  APPELEE

ARMED ROBBERY

Heard: June 11, 2012                                                                                Decided: August 17, 2012

1. JUSTICE BANKS delivered the Opinion of the Court.

This appeal to the Honourable Supreme Court by the  appellant, Martha Sirleaf, is from  a verdict  returned by the petty jury of the First Judicial Circuit, Criminal  Assizes, Court  D,  Montserrado County,  for the crime of armed robbery, and the  conviction thereon by the  trial  court, confirming the  verdict and sentencing the defendant/appellant to 15 years imprisonment.

The  trial proceedings   against  the  appellant/defendant  and  one  Otis Varfley had their  origin in a fourteen-count indictment brought on the 27th day of

December, A. D. 2010, by the Grand Jury for Montserrado County, sitting in the

November  Term, A. D. 2010, of  the  First Judicial Circuit Court, Criminal Assizes A  on the charge of armed robbery. The fourteen-count Indictment outlined the  basis for  which  the  Grand Jury found  that the  defendants  had committed the  crime  of  armed  robbery. We herewith quote the Indictment verbatim:

The Grand Jurors for Montserrado County, Republic of Liberia, upon their oath do hereby  find, more  probably than  not, that  the defendants, Otis

1. That onthe  night of December  10,  D. 2010, and  going on  to  the morning hours of December 11, A.D. 2010, at 12:21 a. m. or thereabout, in Bola Town, Careysburg, Montserrado County, Republic of Liberia, the defendants, Otis Varfley and  Martha  Sirleaf, with  criminal  minds  and intent,  purposely,  knowingly, willfully and  intentionally  committed  the crime of armed  robbery against the private prosecutors, to wit:
2. Thatco-defendant,   Martha   Sirleaf, and   private   prosecutors   are members of a savings club that is known as Bola Town Women Club in Careysburg, Montserrado County, Republic of Liberia, where the co- defendant serves as secretary to the club.
3. That as customary, during the month of December of each year, some of the members usually gather together to envelope their yearly gains for distribution.
4. Thatco-defendant,  Martha  Sirleaf  who  is  secretary   to  the  Club, together  with  some  of  the members   of  the  club,  to  include  Moses Mitchell et al, gathered  in a room in the  house to envelop the  money at about  midnight to 1’oclock a.m. for distribution  to the club members the following day.
5. That while the packaging of the money was being done, the rest of the team observed co-defendant Martha Sirleaf receiving two telephone calls andcould  hardly  respond  to  the  caller  in an  audible  voice,  but  only murmured something to the caller.
6. That not long afterreceiving the telephone calls, co-defendant Martha Sirleaf left the  room  under the  pretext  of going to  the  bathroom,  but unbeknownst  to the  rest of the  members  of the  club that  were  in the room, left the back door opened  to permit the perpetration of the armed robbery.
7. That after the co-defendant Martha Sirleaf left the back door opened, three(3) unknown  armed  men  with  AK-47, cutlasses,  knives and  other deadly  weapons,  entered the  room and  threatened to  kill anyone  who would alarm, and made away with the money, in the amount  of LD565,000.00.
8. That in the process, private prosecutor Moses Mitchell was stabbed on his left side, while private prosecutrix Tumu Jackson, was stabbed on her back. That the stab wounds made the private prosecutor and prosecutrix to seek medical treatment due to the bodily injuries sustained.
9. That when the crowdin the  area mobilized and came together, they caught co-defendant Otis Varfley, who revealed  to the police  during preliminary investigation that it was co-defendant Martha Sirleaf, who is his aunt, who called him and asked him to stage the armed robbery and told  him  the  club withdrew money  from  the  bank  and that  they  were about  to distribute it and also paid his way to Careysburg; and that  she was the  one who  left  the  door  open to let  the  armed  robbers  into  the room.
10. That the defendants have no affirmative defense.
11. An act is also in the course of committing a theft if it occurs in an attempt to commit theft is successfully completed.
12. An act is also in the course of committing a theft if it occurs in the immediate flight fromthe  commission  of  or  an unsuccessful effort to commit the theft.
13. Theft means to knowingly take and misappropriate and convertand exercise unauthorized control over and make an unauthorized transfer of an interest  in the property of another, with the purpose  of depriving the owner thereof.

14.Defendants’ acts are contrary to: 4 LCLR, Title 26,Section15.32,4 LCLR, Title  26,

Section  1.7(c), and  4LCLR, Title  26, Section  15.51 (a), of  the statutory laws of the Republic of Liberia, and the peace and dignity  of the· Republic of Liberia.

As noted  from  the fourteen counts of the indictment, the basis for which the  appellant  was  charged with the  offense  of  armed  robbery is  that   she engaged co-defendant Otis Varfley  and other  unmanned persons to  rob, with the use of dangerous weapons, certain members of a women’s  club to which co- defendant Sirleaf also belonged, of funds  which  the  appellant had withdrawn from   the  bank  earlier   in  the  day  and  were  intended to be  disbursed  the following day  to  the  members  of  the  club.  The incident, as stated in the indictment, occurred between midnight on December 10, 2010 and one a.m. on December 11, 2010. The amount which the indictment charged the defendants with stealing was put at L$565,000.00.

It is worth  highlighting at this juncture the chronology of events  so that the  assessment and evaluation  of the  evidence  are  viewed  in their  clear and proper  prospective.  We therefore begin from the date of the incident. The records reveal that the incident was reported  to  have occurred  between  the night of December 10, 2009 and the early morning hours of December 11, 2009. Not long thereafter, on  December 11, 2010, the  incident  was reported  to the police and  the  appellant  arrested   and  taken  into  custody  for  interrogation. Whilst the  police was still investigating the  matter,  and without  having drawn any conclusions or  released  any findings, or appeared   before any magisterial court  to  profert  charges  against  the  appellant  which, under  the  command  of Articles 21(f) of the  Constitution, should  have  been  done  within  forty-eight hours of the  arrest  of the  appellant, one  Moses Mitchell and  other  unnamed persons,  stated  to  be the  private  prosecutors  and  private  prosecutrix  in the case, appeared  before the Careysburg Magisterial Court on December 22, 2010, eleven  days  after  the matter  was  reported   to  the  police, and  swore  out  a complaint in regard to the identical incident that  was being investigated  by the police.

Precipitated   upon  the  aforesaid   complaint,  sworn  to   by  the   named private prosecutor  and  prosecutrix, two writs of arrest  were issued by the magisterial court mentioned  herein. The first writ, issued against the appellant, charged her with the offense of criminal facilitation. In the writ, the appellant was accused of aiding one Otis Varfley in the commission of the crime of armed robbery and providing him with an opportunity” to commit the offense. The basis for the accusation, the writ stated, was that the appellant  had promised to assist Otis Varfley with some  money to start  his business upon their sharing of the  money, the  fruits  of the  armed  robbery,  on  the  Saturday  following the incident.  The writ put the  amount   that   was  robbed   at  L$565,000.00 and concluded that for the role played by the appellant, she had acted in violation of section 10.2 of the Penal Law of Liberia, for which she was being charged.

The second writ of arrest, issued simultaneously with the issuance of the writ of arrest against the appellant, charged Otis Varfley and other unnamed persons with the crime of armed robbery. The writ stated that cutlasses, knives, AK-47, glass bottles and other deadly weapons were used by the defendants in the commission of the armed robbery and that two person who were at  the scene at the time sustained  serious injuries.  As with the writ issued against the appellant, the  arrest  warrant  issued against Otis Varfley also put the  amount said to have been robbed from the  Bola Women Savings Club at L$565,000.00. According to the writ, the act of Otis Varfley, in committing the armed robbery, rendered him in violation of section 15.30 of the Penal Law of Liberia.

The records do not reveal that there was any intervention by the police at the issuance of the two writs of arrest or whether there was any involvement by the City Solicitor or other State prosecutors in superintending the process. What the  records  do  reveal  is that  on  December  23, 2010, one  day following the issuance of two writs of arrest against the appellant and defendants Otis Varfley et al., the cases were called by the  magistrate  for preliminary investigation. In the  case  involving Otis Varfley et  al., when same  was called, at  which it appeared that only Otis Varfley was present, he stated  that he had nothing to say. Whereupon, the prosecution made a submission to the court to the effect that as co-defendant Otis Varfley remarks was tantamount to a waiver of the right to preliminary examination, and that as the case was beyond the jurisdiction of the court, the court should forward same to the appropriate court at the Temple of Justice which had jurisdiction to conduct a trial of the  case. This request was granted   by the court and the case  involving Otis Varfley et  al. was ordered transferred to Criminal Court D of the  First Judicial Circuit, Montserrado County.

In the other case, which involved appellant Martha Sirleaf, was called by the court, the appellant requested a postponement until after the Christmas Holidays, which request the court granted and adjourned the case to December 28, 2010.  All of these events in the Careysburg Magistrate Court occurred on December 23, 2010.

One day following the  December 23, 2010 adjournment of the  case to December  28, 2010, the  Police Criminal Investigation  Division (CID)  issued  a document  captioned  Police Confirmation Clearance in which, not finding any magnitude  in  the allegations levied against  appellant   Martha   Sirleaf,  it exonerated her from any association with or involvement in the commission of the  armed  robbery  incident. The Police Clearance made  no reference  to  the pending case before the magisterial court regarding the armed robbery incident which  was before  that  court  pending  preliminary  investigation.  The Police Clearance, dated December 24, 2010, stated:

POLICE CONFIRMATION CLEARANCE

This is to  confirm  that  on December 11, 2010 at 12: 21hrs., Mr. Moses M. Mitchell and others of Bolah Town, Careysburg,  Montserrado County, reported an alleged armed robbery case on behalf of Bolan Town Women Club in which said organization suffered the loss of Three Hundred Fifteen Thousand, One Hundred and Eighty Five Liberian Dollars (L$315,185.00).

During Police/CSD crime scene investigation, it was established that the crime of armed  robbery did occur, in that, while  the Su-su Club members were about to share their savings, the perpetrator/s approached  the  scene, placed  them  (Members  of  Bolah  Town Women  Club) under  gun point, inflicted  wounds  on  the  victim (Moses Mitchell) and made away with the amount of L$315,185.00, which was intended  to be distributed  on Saturday, December 11,2010.

In the course of police investigation, no evidence of any form of criminality was determined on the part of Madam Martha Sirleaf. Thereto, Madam Martha Sirleaf was exonerated from the investigation.

In view of the above, we have issued to Madam Martha Sirleaf this POLICE CONFIRMATION CLEARANCE for reference purposes.

Signed: Hon. Simeon F.  Frank

Commissioner of CID/LNP/RL

It is not clear how the Police Confirmation  Clearance indicated that  the amount reported  to have been stolen in the course of the armed robbery  by Otis Varfley et al., the defendants in the armed robbery case pending before the magisterial court, was LD$315,185.00,whereas the amount stated on the charge sheet and writ of arrest issued by the magisterial court was L$565,000.00.What the records do reveal to us is that there was a complete disconnect between the police on the one hand and the private prosecutor and prosecutrix and the City Solicitor on the other hand.

In any event,  notwithstanding the  Police Clearance issued on December 24,

2010,  counsel   for  appellant   Martha   Sirleaf  made   application   to   the Magisterial Court on December  28, 2010, seeking  a  preliminary  investigation into the complaint. The application,  not having been opposed,  was granted  by the  court  and  the  preliminary  investigation  was  commenced.  Thereafter, on January 4, 2011, at the close of the preliminary investigation, and on motion from the prosecution, the magistrate ordered the matter transferred to Criminal Court D of the First Judicial Circuit, Montserrado County.

At the November Term, A. D. 2010, of the First Judicial Circuit Court, Criminal Assizes, Court A, the Grand Jury, on January 24, 2011, indicted the appellant on the charge of armed robbery, a change from the original charged of criminal facilitation advanced   in the   magisterial court   by the   prosecution. Shortly thereafter, a jury trial was held at the February 2011 Term of Criminal Court D. Following the production of evidence by the state  and the appellant, the  petty  jury, on  the  11th  day of April, A. D. 2011, returned  a  unanimous verdict  of guilty against  the  appellant  for  the  crime  of armed  robbery. The appellant, through  her  counsel,  believing the  jury to  have  been  in error  in bringing a verdict against  her, excepted  to the verdict and announced  that  she would take advantage  of the statute. Acting upon the exceptions taken to the verdict, the appellant, on April 14, 2011, filed a motion for a new trial. The two- count motion, with sub-counts, contended basically that the verdict was against the weight of the evidence and that as such a new trial should be awarded by the court.

The motion was resisted by the prosecution, arguments pro et con were entertained by the court. On April 18, 2011,His Honour Benedict W. Holt, Sr., the  Assigned Circuit Court Judge  Presiding over  the February  2011 term  of Criminal court  D, denied  the  motion  for  new  trial, and  entered  judgment confirming the  verdict of the  petit  jury, adjudging the  appellant  guilty of the offense  charged  and  sentencing  her  to fifteen  years  imprisonment  or  more. Because  we  shall  make  comments   on  the court’s   ruling,  which,  although including the final judgment of the  court, is actually captioned,  Ruling on the motion  for  a  new  trial,  we  deem  it  appropriate  to  quote   the  said  ruling verbatim. The Ruling states thus:

On April 11, at the  hour  of 10:00 A.M. the  case Republic  of Liberia, by  &  thru

Moses  Mitchell et  al., plaintiff, versus Martha Sirleaf, of the  City of Monrovia, defendant crime, armed robbery, was called for hearing for final argument. Before this case reached this stage, plaintiff, by & thru [its] counsel entered a nolle prosequi in favour of Moses Varfley thereby making him a state witness. The prosecution in presenting their side of the case to the jury produced thirteen (13) witnesses.  The witnesses included rebuttal witnesses as well.   During  the  course of the  case the  prosecution requested court  to admit  into  evidence  P/1-/7 as their  physical evidence  in support   of  their  argument  to  the  jury  for  [consideration]. The prosecution also produced rebuttal witnesses  to rebut  statement that were made by witnesses giving different interpretations to the jury for which there was a need for clarification.

Prosecution rested and the defendant presented their part of the case to the jury.

The defendant produced in all three  (3) general witnesses  to include Martha Sirleaf, Solomon Varfley and Charles Williams, and rested. Also she produced two subpoenaed witnesses that testified for and on behalf of the defendant. At the close of defendant’s presentation of its general and subpoenaed witnesses the case was ruled to trial. During final argument, the prosecution produced their legal memorandum as the basis of their legal argument and the counsel for the defendant also produced their legal memorandum as their part of the side.  At the close of oral argument on both sides, the counsels for the prosecution and the defendant requested the court and the judge to charge the jury on various points of law, which was accordingly done.  Thereafter, the jury was escorted into their room   of deliberation and after a lengthy   period   of discussion/ deliberation the trial jury brought a unanimous verdict. It is from their verdict that the counsel for the defendant took exception and filed a motion for a new trial. The first  count in the motion reads: “movant in  the  aforesaid  entitled cause of  action  moves  Your Honour  and this Honourable Court to  set aside the  verdict  of the petit jury and order a new trial for the following legal and factual reasons showeth to wit:

1. That the guilty verdict of thepetit  jury, handed down against movant,  is  utterly  contrary  to  the  weight  of  the  evidence adduced at the trial.
2. Thatthe   prosecution  in  the   presentation   of  its  case  and consistent with the indictment alleged substantially as stand to wit which counts run from A-G  of defendant’s  motion for  RE-TRIAL Also containing the question and other points of laws made in this motion. At the  close of defendant’s  motion the  movant counsel hereby prayed Your Honour and this Honourable Court to set aside the verdict of the petit jury as a matter of law and order a new trial and grant onto movant all that you may deem just and applicable.

The respondent’s resistance, the respondent/plaintiff in the above entitled cause of action most respectfully resists movant/ defendant’s motion in the form and manner to wit:

1. That as to count one of the motion respondentsays that same is false and misleading and has no iota of truth  in that  the verdict of the petit jury brought by the jury on Monday, April, A. D. 2011, was not contrary to the weight of the evidence adduced by prosecution at the trial; rather, it was commensurate with the evidence.
2. Thatprosecution  most  respectfully requests  court  to  take judicial notice of the  testimonies  of the  twelve witnesses  which shall  be  taken  in  part  with  prosecution  first  witness,  Moses Mitchell, 2nd witness, Otis Varfley, 3rd witness, Tumu Jackson, 4th witness, Jenneh Mitchell, subpoena witness, Simeon F. Frank, first rebuttal witness, Patricia Flomo, 2nd rebuttal witness, Madam Elsie Gowur, and submit.

The court having received the contents of the motion and the resistance thereto  souhgt refuge in chapter 2, subsection 22.1, at page 497, entitled motion for new trial  (power to grant), and it reads: When the defendant has been found guilty by the court, a motion for  new trial  may be granted  only on  ground  of newly discovered  evidence.  The  court  in  its  review   of  the  movant’s motion, the  movant’s  counsel has not  indicated to this  court  that she has discovered  new  evidence that  was presented  to this court that  will  change the  outcome  of the  verdict  when  presented. The movant’s   counsel  argued  that   there   are  inconsistencies  in  the records of this case which this court should give a consideration to and accordingly  set aside the  unanimous verdict  of the trial jury. This court  also further says that  there  are other  grounds  given in chapter  22 for new  trial that  do not  meet  the requirement of the motion. Also, that one of counsels for the defendant in his closing argument prayed court to allow the bond which was granted by this court to the defendant not to be set aside while ordering a new trial for the defendant.

This court  says the  right  to bail is a statutory as well  as a constitutional right  but  there  are limitations of  substance in  the statute which  and  of  such  limitations is  chapter  13, page  461, entitled RIGHT TO BAIL and it reads: The person in custody for a commission of capital offence shall before conviction be entitled as a right  to be admitted to bail when the proof  is not  evidence  and presumption not  great that  she is  guilty  of  the  offence.    After indictment for such offence the burden on the defendant to show that the proof is not evidence but presumption not great.

AFTER [CONVICTION] FOR THE CAPITAL OFFENSE NO PERSON SHALL BE

CONTINUED AT LARGE ON (BAIL) OR BE ADMITTED TO (BAIL) [EXCEPT] IN [ACCORDANCE] [WITH]   THE PROVISIONS [PARAGRAPG 3] OF THIS [SECTION].

The interpretation of the law, the criminal [appearance] bond early approved [by] this court is now hereby ordered set aside. The sheriff of this court is hereby ordered to have the defendant into custody after sentencing.

The court will proceed to affirm the unanimous verdict of the petit jury and it is hereby so ordered.   And the court will now proceed to sentence the defendant to the term  of 15 years or more because during the  commission of the  act some  of the  victims sustained injury. And it is hereby so ordered.

It is from the foregoing ruling that the appellant noted exceptions and announced an appeal to this Court for review of the proceedings in the trial court and the judgment rendered by the said court, alleging that the process was engulfed with a series of errors that warrant a reversal of the verdict and the judgment. In furtherance of its appeal, the appellant filed with the trial court, within the time allowed by the appeals statute, a thirty-two count bill of exceptions. Because we believe that there is a need for appreciation, or the lack thereof, of what the appellant deemed important to warrant review by this Court, we quote below the entire bill of exceptions verbatim:

• Your Honor erroneously erred when you granted prosecution’s prayer for the amendment of the Indictment to read as follows:

That in paragraph 1 of the indictment the amended  portion is read as follows (that on the night of December 10, A. D. 2010 and going on to the morning hours of December 11, A. D. 2010 at  about 12:21 a. m. and thereabout,  in Bola Town,

Careysburg District, Montserrado County and Republic of Liberia, defendants Otis Varfley and Martha Sirleaf, together with two other  persons  unknown  to   the private prosecutor,   got contracted by the defendant herein, with criminal mind and intent ) and also in paragraph 7 of the same indictment which amended portion will read as follows, to wit: ( three  men, two  unknown armed with guns, cutlasses, knives and other deadly weapons, entered the house where the private prosecutors were, burst bottles and they, the  unknown armed men attacked, jumped on the private prosecutors for a fight and in the process hurt, injured and inflicted wounds on private prosecutors, Moses Mitchell and Tumu Jackson, all at the instant, orchestration and design of co-defendant Martha Sirleaf, thereby  incapacitating them and they the unknown armed men took and carried away portion of the club’s money which was already on the  mat for counting and thereafter  fled. (See sheet Four (4), 6th Day’s Jury Session, Monday, February 21, February Term, A. D. 2011). That the amendment of the herein stated portion of the indictment is prejudicial to the interest of the defendant for it named her as the one who orchestrated and designed the armed robbery. The statute provides that the court shall permit an indictment or complaint to be amended at any stage of the proceedings to correct a formal defect if substantial rights of the defendant are not prejudiced thereby. 1LCLR, Title 2, Chapter 14, Section 14.7(1& 2), as found on page 115.

• ThatYour  Honor  committed reversible  error  when  You sustained prosecution’s objection  to a question  posed by the  defense counsel to prosecution’s first  witness, Moses  Mitchell, on  the  cross examination when said question  was intended to show his bias, prejudice, motive  and inclination because he testified that  one of the  alleged victims, Jenneh Mitchell, is his mother. The question reads: And you are sorry for her because she is your mother and she was armed robbed. (See sheet five (S), 43rd Day’s Session, Tuesday, March 1, 2011).
• That Your Honor also committed reversibleerror  when you sustained prosecution’s objection to  a question  posed by the  defense counsel to prosecution’s first  witness, Moses  Mitchell, on  the  cross examination when said question  was intended to  unearth the  inconsistencies  in  the witness’s statement with the view to establish reasonable  doubt  as well as discredit him. The question reads: Mr. Witness, in your testimony you said you saw two  other men with the bottles  EXHIBIT P/1.Now you are telling us that it is Otis who had one of the cracked bottles  in his hand. For the benefit  of the jury, please clarify how  can the two  bottles  that  were introduced and marked  EXHIBIT P/1  be in the  hands of the  two  men that ran away and at the same time be in the hands of Otis Varfley? (See Sheet six (6), 13th Day’s Jury Session, Tuesday, March 1,2011.)
• That Your Honor also committed reversibleerror  when you sustained prosecution objection to  a question  posed  by  the  defense  counsel to prosecution’s   first  witness, Moses  Mitchell, on  the  cross examination when  said question  was intended to  unearth the  inconsistencies  in the witness’ statement with the view to establish reasonable doubt  as well as discredit  The question  reads: “Mr. Witness, it is my understanding that  when  two  persons tussled for  a particular  item  the  one that  over powered takes the  item, not  so?” (See sheet seven (7), 13th  Day’s Jury Session, Tuesday, March 1,2011).
• That Your Honor also committedreversible error when you sustained prosecution’s  objection  to a question  posed  by the  defense  counsel  to prosecution’s  first  witness,  Moses  Mitchell, on  the  cross  examination when  said  question  was  intended  to  show  the  inconsistencies  in the witness’ statement. The question reads: “The police took statement from Tumu Jackson, not so?”  (See sheet seven  (7), 13th  Day’s Jury Session, Tuesday, March 1, 2011.)
• ThatYour Honor again committed  reversible error  when  you over- ruled the defense counsel’s objection to a question  posed to prosecution’s second   witness,  Otis  Varfley, on  the  direct  examination   when  said objection  was  intended   to  prevent  the  prosecution  from  asking such question  as similar question  was asked the  witness  by the  prosecution and the defense counsel objected to same and the objection was granted. The second question  objected  to reads: Mr. Witness, as an eye-witness to the December 10, 2010 armed robbery incident, do you have any other thing to claim the attention of the court and the jury apart from what you had already said, if so, what is it?” (See Sheet Twelve (12),

13th Day’s Jury Session, Tuesday, March 1, 2011)

And the first question objected to reads: Mr. Witness, for the benefit of the court and the Jury please refresh your memory and say whatever you have to say in connection with the December 10, 2010, armed robbery incidence for which you were arrested and detained and later released. (See sheet eleven (11), 13th Day’s Jury Session, Tuesday, March 1, 2011). The objection to this question by the defense counsel was sustained but the second one herein stated above was allowed.

• ThatYour  Honor  also  committed   a   reversible  error   when   you sustained   prosecution’s  objection  to  a  question  asked  by the  defense counsel to  prosecution’s  second  witness,  Otis Varfley, on the  cross examination,  when said question  was intended  to test  the credibility of the witness’s statement made to the police during the police investigation and  that  made during  his testimony  in chief in opened  court; thereby, establishing  reasonable  doubts and discrediting him since in fact he was testifying as an accomplice testifying against another. The question reads: Mr. Witness, is it also correct that you told the police during the police investigation that   after  you  arrived   at  George  Mitchell’s  house, you knocked the door and heard someone asked, why, and you said Nana and she asked you what happened. Is it correct that this statement was made to the police?  (See sheet three (3),14th Day’s Jury Session, Wednesday, March

2,2011.)

• ThatYour Honor  also committed a reversible error  when  you  sustained prosecution’s objection to a question asked by the defense counsel to prosecution’s second witness, Otis Varfley, on the  cross examination, when   said   question   was  intended to  establish   the   inconsistencies between his statement made to the police during police investigation and his testimony in court. The question reads: Mr. Witness, you correctly and actually told   the police  the  truth and  nothing but  the  truth as contained in your voluntary statement upon the oath that you took in this open court in the view of the jury. Am I correct?” (See sheet four (4),14th Day’s Jury Session, Wednesday, March 2,2011.)
• That Your Honor also committed reversible error when you overruled the defense counsel’s objection to a question posed by the prosecution to its second witness, Otis Varfley, on the redirect when said question was a misquotation of the witness’s testimony as he did not say that there were slight differences between his voluntary statement made at the police station and those made in the court. That the question was also assuming facts nottestified to by the   witness   on the stand.  The differences between the witness’s voluntary statement made to the police and those made  in  court  were  only unearthed by the  defense counsel during  the cross examination of  the witness.  (See sheet six (6), 14th Day’s Jury Session, Wednesday, March 2,2011.)

10. Your Honor also erred when you sustained prosecution’s objection to a question posed by the defense counsel to prosecution’s second witness, Otis Varfley, on the re-cross, when said question was intended to test the bias inclination of the witness. The question reads: “For the benefit of the court please say how much money did you take during the robbery?(See the bottom sheet 2,15th Day’s Jury Session, Thursday, March 3,2011).
11. Your Honor erred whenyou  sustained  prosecution’s objection to a question  posed by the defense counsel to prosecution’s second witness, Otis Varfley, on the re-cross when said question was intended  to impeach the credibility of the said witness. The question  reads: In answer to one of  my  questions   you said  you  knocked  at  the  door  and  somebody answered  who is that  and you said  My question is, it was also a cover-up when you answered  and said, Nana, not so? (See Sheet Our (4) of the 15th Day’s Jury Session, Thursday, March 3, 2011).
12. Your Honor erredwhen  you sustained  prosecution’s  objection  to  a question  asked prosecution’s  third  witness, Tumu Jackson, on the  cross examination  on grounds that  it burdens the  records when said question was intended to discredit the testimony of the witness with respect to the allegations of misapplication of the club’s fund by the defendant, Martha Sirleaf. The question reads: As an official of the club, please say what happened to the deposit slips for moneys that are deposited?” (See sheet 3, 16th Day’s Jury Session, Friday, March 4, 2011).
13. Your Honor also erred when you sustainedprosecution’s objection to a question  posed to the  prosecution’s  witness, Jenneh  Mitchell, on the cross examination,  when  said  question  was  intended to  impeach  the credibility of the  The question reads: Madam Witness, you, Tumu Jackson, and Martha Sirleaf, were among people that went to the Bank on the 10th day of December, A. D. 2010, to withdraw the money. Is this statement correct?  (See sheet two (2),

19th  Day’s Jury Session, Tuesday, March 8, 2011.)

14. That Your Honor also erred when you sustainedprosecution’s  objection to a question  asked the prosecution’s  witness, Jenneh  Mitchell, on the  cross  examination,  when  said  question   was  intended to  test the veracity of the witness’s testimony to the effect that the defendant misappropriated money entrusted to her by the Bola Town Women Club. The question  reads: Madam Witness, when  the  armed  robbers  arrived that  night they  took some  of the money and carried. Is this statement correct?” (See sheet three (3), 19th  Day’s Jury Session, Tuesday, March 8, 2011)
15. Your Honor also erredwhen  you  overruled  the  defense  counsel’s objection to a question asked prosecution’s  witness, Simeon Frank, on the   direct examination   where   the   question   was  a  misquotation   of  the witness’s  testimony  in chief. The question  reads: Mr. Witness, by that answer,  now that  you have realized that  the  investigator  you call your strength  lied and did not actually conclude this investigation, to warrant the  issuance of a police clearance, what  have you to say to the court?” (See sheet six (6), 21st Day’s Session, Thursday, March 10, 2011).
16. Your Honor committeda reversible error when you sustained prosecution’s   objection   to   a  question  asked   prosecution’s   witness, Simeon Frank, on the cross examination when said question was intended to confirm the  outcome  of the  police investigative report  which cleared the defendant of all charges and based upon the witness executed, signed and issued her a Police Confirmation

Clearance. The question reads: “Your investigative report also revealed that suspect

Martha Sirleaf was not culpable. Not so?” (See sheet seven (7), 21st Day’s Jury Session, Thursday, March 10, 2011.)

17. Your Honor erredwhen  you sustained  prosecution’s  objection  to a question  asked  the prosecution’s  witness,  Simeon  Frank, on  the  cross examination when said question did not burden the records and it was intended to confirm the veracity of the witness’s  testimony   with  respect to the  issuance of the  Police Confirmation Clearance to the  The question  reads: Mr. Witness, you issued a police confirmation clearance based on the report of the investigation that was conducted  by those you referred to as you strength  clearing suspect Martha Sirleaf of all the  charges, including the  charge of armed  robbery. Am I  correct?  (See sheet seven (7), 21st Day’s Jury Session, Thursday, March 10, 2011.)
18. Your Honor erredwhen  you sustained  prosecution’s  objection  to  a question  asked  the  prosecution’s  witness,  Simeon  Frank, on  the  cross examination when said question  was intended to test the bias, motive, prejudice and credibility of the witness with respect to the investigation of prosecution’s second  witness,  Otis Varfley, and  the  issuance  of the aforesaid police clearance. The question reads: Mr. Witness, my question is you do not believe what Otis told you at the investigation, not so? (See sheet eight (8), 21st Day’s Jury Session, Thursday, March 10, 2011.)
19. Your Honor erredwhen  you sustained  prosecution’s  objection  to  a question   asked  prosecution’s   witness,  Simeon   Frank,  on   the   cross examination  when said question  was intended  to test the veracity of the testimony  with respect  to  his reason for requesting  the court to  revoke the  police clearance. The question reads: Tell the court who gave it to you?” (See sheet nine (9), 21st Day’s Jury Session, Thursday, March 10, 2011)
20. Your Honor erredwhen  you sustained  prosecution’s  objection  to  a question  asked prosecution’s  witness, Simeon Frank, on the cross examination  when  said question  was intended  to  test  the  credibility of the witness with respect to his previous statement that  he was misled by his strength. “The question reads: “Mr. Witness, lastly, you told this court that you were misled to  issuing the Police Clearance  by your strength, meaning the officers that conducted  these investigations. My question is, your officers most often do not do thorough investigation, not so? Tell the court who gave it to you?” (See sheet nine (9), 21st Day’s Jury Session, Thursday, March 10, 200.)
21. Your Honor erredwhen  you sustained  prosecution’s  objection  to a question  asked by the defense  counsel to prosecution’s  witness, Pamelia Agbobo,  on  the  cross  when  said  question   was intended   to  test  the credibility of the witness with respect to her previous testimony  that she was  not one  of those  who  investigated  the  incidence of December 10,2010.  The question  reads: Madam Witness, am I  also correct to say that because you were not involved in the investigation, you did not have the opportunity  to handle the two cell phones in question?” (See sheet three (3), 25th Day’s Jury Session, Wednesday, March 16,

2011.)

22. Your Honor erred when you grantedprosecution’s  request  for the issuance of subpoena duces tecum ad-testificandum  when same was requested for the  same  party to appear  and  testify and the  said  party appeared  and testified as to his certain  (See sheet three  (3), 26th Day’s Jury Session, Thursday,

March 17, 2011.)

23. That Your Honor erred whenyou overruled  the defense  counsel’s objection  for a mark of identification  to  be placed on the statement of account of the  Bola Town Women  Club when  the instrument  was  not testified  to  and identified  by the  witness;  moreover,  the  prosecution rested  with the  witness on the  stand  before  requesting  the  court for a mark of identification to be placed on the document. (See sheets one (1) and (2) 31st Day’s Jury Session,

Wednesday, March 23, 2011.)

24. Your Honor also committed a reversible error when you overruled the defensecounsel’s  objection  to a question  posed  to  its witness,  Martha Sirleaf, on the  cross examination  when  the  said question  was hypothetical, argumentative, opinionative, compound, complex and asked merely to  entrap  the  The question reads: Madam  Witness, Otis had been away from Bola Town Community since childhood and that  he does not know where and how the  Bola Town Women go about  the distribution of their club’s money. Madam Witness, for Otis to be present  on the site of the distribution the very day, the very moment of the distribution, you being the  aunt  and who  happened  to  be the Secretary  of the  Bola Town Women Club, one would rightly imply that  Otis went there  at your call. Am I correct? (See sheet five (5), 35th Day’s Jury Session, Monday, March 28, 2011.)
25. That Your Honor erredwhen you sustained  prosecution’s  objection to a  question  asked  the  defense  witness,  Martha  Sirleaf, on the  re-direct when said question  was intended  to indicate and give evidence that prosecution’s  witness, Otis Varfley, did recognize and call the  names of several other  persons in Moses Mitchell’s house where the alleged armed robbery is said to have occurred. The question  reads: “Madam  witness, indicated  in response  to  a question  on the  cross examination  that  Otis Varfley called your name when there  was an attempt to kill him and he said, “my aunt  is in there  call her if she says that  she does not know me then you should kill me, besides calling your name who else name in the house  did  Otis Varfley call at  this  particular  time  of  the  incident  of December 10, 2011?” (See sheet six (6), 36th Day’s Jury Session, Tuesday, March

29, 2011.)

26. That Your Honor erred when you sustainedprosecution’s objection to a question  asked  the defense  witness,  Martha  Sirleaf, on the  re-direct when  said question  was intended  to  rebut  the prosecution’s  allegation that  she  opened  the  door for the  armed  robbers  to  gain access to the room and thereby give the name of the person who opened the door. The question reads: Madam Witness, you said during the cross examination that you did not open the before the alleged armed robbers broke in or entered, who opened the door?”  (See sheet seven (7), 36th Day’s Jury Session, Tuesday, March 29, 2011.)

27.That Your Honor also committed  reversible error when you sustained prosecution’s  objection  to  question asked defense subpoenaed witness on the direct examination when said question was intended to show that the  private  prosecutors/prosecutrix   were  in  possession of  the  club’s money and distributed  same without giving any account of same since in fact  they  accused the   defendant   of  misapplying   the  club’s  money entrusted to her. The question reads: Mr. Witness, when was this money given to your wife?”  (See sheet eleven

(11), 36th Day’s Jury Session, Tuesday, March 29, 2011)

28. That Your Honor also erred when you sustained prosecution’s objection to a question asked defense subpoenaed witness onthe  direct examination when said question was intended to discredit the character and reputation of the prosecution’s principal and accomplice witness, Otis Varfley, who put his character in issue when he admitted that he is one of the armed robbers of the December 10,A.D. 2010 incident. The question reads:

Mr.  Witness, you  also indicated  that  Otis  Varfley  stole  from  you  a number  of items which you named hereinabove, how  did he go about stealing those  things?  (See sheet three (3), 37th  Day’s Jury Session, Wednesday, March 30,2011.)

29. That Your Honor committedreversible error when you overruled the defense  counsel’s objection  to  a  question  put  to  its  witness  by  the prosecution when said question invaded the province of the jury whose responsibility it is to give credibility  to any instrument identified, marked and admitted  into  The question reads: Mr. Witness, are you saying that when you get the Lone Star call log of Martha Sirleaf’s contact number you will be convinced as to all those that  she talked to on the night of December 10,2010?” (See sheet nine (9),37th Day’s Jury

Session, Wednesday, March 30,2011.)

30. That Your Honor committed reversibleerror  when you denied the defense counsels’ motion for a new trial and based your decision on what you termed  movant’s failure to indicate to the court that  she had newly discovered  evidence  and  if   presented   to  the  court   will change  the outcome  of the verdict and  you  relied on 1 LCLR, Title 2, Chapter  22, Section  1 in part, as found  on  page 497, entitled  Motion  for New Trial”. That Your Honor’s ruling runs contrary to movant’s reliance for the submission of  its  motion  for  new  trial.  Movant relied  on  the  same provision of Title 2, herein quoted,  but invoked sub-section  (e): “That the verdict was contrary to the  weight of the evidence”  and paragraph  1 of the same  provision reads: 1. Power to grant. When a verdict has been rendered against the defendant, the  court  on motion  of the  defendant may grant a new trial on any of the grounds specified in paragraph  2 of this section. When the defendant has been found guilty by the  court, a motion  for  new  trial  may  be  granted   only  on  the  ground  of  newly discovered evidence. There was a jury trial and there was a guilty verdict handed down by the jury; therefore, a motion for new trial on ground of newly discovered evidence will not lie.
31. That the verdict and subsequent judgment entered thereupon were against the weight of the evidence adduced at trial.
32. That the counsels for the defendant except to all of Your Honour’s rulings not specifically mentioned herein.

We wonder  about  the  essence  or the  utility of most  of the  thirty-two counts contained  in the bill of exceptions, since most of them, counts 2-29, are of such minor importance or significance, and cannot contribute  to or influence in any way the  decision in the  case, given the  circumstances  revealed  by the records.  We shall therefore focus our attention only on the few counts, 30 and 31, which we deemed important to the decision in the case.

However, before  we  begin to  delve  into  the  allegations  made  by the appellant  in the few significant counts in the bill of exceptions, we believe that it is important  to comment  on what the  judge termed  as “Ruling on Movant’s Motion for New Trial” but in which he pronounces  judgment. The Ruling is of grave concern to us as it portrays either a lack of knowledge of the law, a gross disrespect for good grammar and a disdain for correct spelling by the trial judge, or a deliberate flaunting of the law and appreciation of the facts and the records of the court.  We should indicate, for  the  record, that  we are  dealing  with a circuit court,  not  a  justice of the  peace  or  magistrate  court  where  one  can forgive the  errors  of grammar  and spelling. We cannot,  however, forgive the gross  misapplication  of  the  law  or  a  display  of  an  inability to  distinguish between  the laws cited and relied upon by a party and an utterly inapplicable law. We dare to say that the errors made by the circuit court judge are not even errors acceptable or tolerable in our magisterial courts. We must now begin the process of re-examining the process  and  mechanism  utilized for the appointment of judges if the Judiciary is to gain momentum  in the dispensation of justice.

Even more disturbing is that  the  ruling, in addition  to not  being able to differentiate amongst  the relevant  laws to dispose  of the  issue raised  by the appellant, says nothing of substance  upon which the verdict of the jury was confirmed. Moreover, the ruling mixes up the motion for new trial, the motion of the appellant for admission to bail, and what apparently was intended as the final judgment of the court.

Taking the first concern, the ruling makes reference only to the fact that a certain number of witnesses were produced by the appellee and the appellant. It makes no reference to the testimonies of the witnesses  in order to address the issues raised by the appellant  in the motion for new trial that the verdict of the  petit jury was contrary to the weight of the evidence. How could the judge determine whether the verdict was contrary to the weight of the evidence if he did not believe that it was important to review the evidence presented  by the parties? What was the basis upon which he proceeded  to confirm the verdict of the  jury by the  mere  statement that  “the  court  will proceed  to  affirm the unanimous verdict of the  petty jury without  any reference  to the evidence or the testimonies of the  witnesses  and documents produced  by the  prosecution as compared to the witnesses and documents  produced by the defendant?

In a similar vein, we are constrained  to  pose the  following query: How could the  judge  proceed  to  sentence the  appellant  to  fifteen  years imprisonment  by the  mere  fact that  some  of the  victims sustained  injury’, without   examining  the   magnitude   or  gravity  of  the   role  of  each  of  the perpetrators which could form the  basis upon  which the  court could make a determination on the sentence to be imposed. This was an arbitrary approach to the law, something that we can no longer afford to enjoy the luxury of. When a judge determines that punitive action is needed to deter the commission of a crime or to punish for a crime allegedly committed, he or she must provide a sufficient legal basis, do a full examination  of the evidence, and set out the appropriate rationale for the decision. We can no longer accept that because a judge is vested with authority  to confirm a verdict of guilty brought by a petty jury, or that because he has the authority  to sentence an alleged offender of the law, that  this  should  form  the  lone  and sole basis upon  which  the  judge predicates the punishment or sentence. The trial judge must explain in the most comprehensive manner, with full and adequate law citations and analysis of the evidence in the case, the rationale for his action in confirming or setting aside the verdict of the jury and/or entering judgment on the verdict.

This brings us to the further  concern we have with  the judge’s ruling in the  instant  case and which  we  believe  may  have formed  the  basis or  the premise  for  the  trial  judge’s  failure  to  examine  and  analyze the  evidence presented by the State and the defendant. That premise is that the trial judge relied on a law that was not applicable to the challenge made by the appellant. The records reveal that the  appellant, in  her  motion  for  a new  trial,  had requested a new trial because, she alleged, the verdict of the jury was against the weight of the evidence. The trial judge relied on section 22.1,sub-section 1, of the Criminal Procedure Law, which governs motion for new trial, in disposing of the assertion made by the appellant. The sub-section reads:

1. Power to grant When a verdict has been rendered  against  the defendant, the  court on motion of the defendant may grant a new trial on any of the grounds specified in paragraph 2 of this section. When the defendant has been found guilty by the court, a motion for new trial may be granted only on the ground of newly discovered evidence.

The first sentence of the sub-section quoted above clearly refers to situations  in  which  a trial  was had before  a petty  jury  and a verdict  was returned  by  the  petty  jury  adjudging  the  defendant  guilty  of  the  offense charged. The second sentence of the sub-section was designed to take care of the situation where there is a bench trial a non-jury trial or a trial before the court without the aid of a jury. The first sentence of the sub-section grants the defendant the latitude to set forth a number of reasons for requesting a new trial, amongst which is that the verdict of the jury is against the weight of the evidence  adduced   at   the   trial.  The  second   sentence  of  the   sub-section, recognizing that  the  trial  is held before  the  court  without  a  jury, limits the defendant’s latitude  in requesting a new trial to a single ground, which is, that there  is newly discovered evidence which, had it been known to the trial court, could have resulted in a different judgment.

Unfortunately,  the  trial court,  in addressing  the  defendant’s claim that the  verdict was against  the  weight  of the  evidence,  relied  upon  the  second sentence of sub-section  1, quoted  above, rather  than  the first sentence of the sub-section. The trial judge’s quotation  of the last sentence of sub-section one showed  a lack of recognition of the  vast difference  stipulated  by the  statute between  a verdict brought  by a jury and a judgment handed  down  by a court without the aid of a jury. We wonder how such an error was possible. Was it the lack of attention to  the  averments  of the  motion for  new trial, or a  lack of understanding  of the motion for a new trial, or a lack of adequate appreciation and understanding of the law?

The first sentence of the sub-section  makes It very clear that when a jury returns  a verdict of guilt against a defendant, the  defendant may seek a new trial on any of the following grounds, stipulated  in sub-section (2}, viz:  (a) That the   jurors  decided  the  verdict  by  lot  or  by any  other   means  than  a  fair expression of opinion on the  part of all of the  jurors; (b) that  the  jury received evidence out of court other  than that  resulting from a view of the premises; (c) That a jury has been guilty of misconduct; (d) That the prosecuting attorney has been guilty of misconduct; (e) That the verdict is contrary to the weight of the evidence; (f) that  the  court erred  in the decision of any matter  of law arising during the course of the trial; (g) That the court misdirected the jury on a matter of law or  refused  to  give a  proper  instruction  which was  requested   by the defendant; (h) That new and  material  evidence  has been discovered  which if introduced  at the trial would probably have changed the  verdict or finding of the  court  and  which the  defendant could not with  reasonable  diligence have discovered and produced upon the trial; and (i) That for any cause not due to his own fault the defendant has not received a fair and impartial trial.

It seemed  quite  obvious from the  contents of the  motion for  new trial that  the  defendant relied on sub-section  (2}(e} of section  2, that  is, that  the verdict is contrary to the weight of the evidence. Why then did the trial judge choose to rely on the second sentence of sub-section 22.1(1),which is applicable only to trials  conducted  by the court  without a jury? How could the  judge not know that the latter  part of the paragraph quoted by him was applicable  only to situations in which a trial was conducted by the court without a jury? How could he not recognize that a ground for the granting of a new trial is that the verdict is contrary  to the weight  of the evidence? How could he not recognize that it is only a jury that  returns  a verdict, and not  a court  sitting without a jury? How could he not recognize that in the instant case, there was a jury and that  it was not  the  judgment entered by the  court  without a jury? How  could he rely  on first  sentence of sub-section 22.1(1) when the second sentence, the applicable part of the sub-section clearly mandated that in the case of a jury trial, the court is obligated  to and must rely on sub-section 22.1(2) in determining whether to grant a defendant a new trial or not?

We do not herein infer that the trial judge was compelled to grant a new trial to the appellant. Indeed, the statute is clear in stating that the judge may grant a new trial, inferring that  the granting  of a new trial is discretionary with the trial court. We do hold, however, that where the trial judge proceeds into  a determination of whether to grant  a new trial or not, the  judge must proceed on the proper and appropriate ground for denying the motion for new trial. It is insufficient for  the  trial judge  to merely  state  that  there  are  other  grounds stated in chapter 22 of the statute but that  they do not “meet the requirement of the  motion”, whatever  that  may mean. Certainly  it is not  for  the  grounds stated  in the statute to meet  the  requirement of the  motion; rather, it is the motion that  must  meet  the  requirements stated  by the statute in order  for  a new trial to be awarded.

In  the  instant   case, the  ground  stated  by  the  appellant was that  the verdict   was  contrary   to the weight   of  the  evidence.  It was  therefore the responsibility of the  trial judge to examine  the evidence and to state whether the evidence presented  by the prosecution met that  standard, that  is, that  the evidence presented by the prosecution showed beyond a reasonable doubt  that the  appellant, defendant in the court  below, committed the crime  with which she was charged. This was a prerequisite to warrant the trial judge confirming the verdict  of the jury. The trial judge clearly failed to live up to the standard of analyzing  the  evidence  and determining on the records  whether  the  evidence showed beyond a reasonable doubt that the appellant was guilty of the crime charged.

This lapse by the trial judge causes us to wonder whether our people are being accorded true justice in the trial of matters before some of our lower courts. We are especially concerned about the  many cases which, for any number of reasons, never reach the Supreme Court for review. This is more the reason why we must ensure that the quality, standard and requirements for the position of or service as a trial court judge, and for public defenders, are raised to the highest level so that all of our people, not just those who can afford the good and expensive lawyers, are protected  under the  law and  enjoy the benefits of a fair and impartial trial.

We believe that the time has come for this Court to insist on standards, quality and competence of the highest order for and of judges, so that  they meet the expectations of the law, the responsibilities of the legal profession, and the cravings of our people for due and equal process. Accordingly, under appropriate  judicial guidelines trial  judges will be  required, in all cases, to prepare  written  judgments, whether  in confirmation of verdicts brought  by juries or  judgments by trial courts without the  benefit of juries, which will clearly set out the basis and the  rationale for the  judgments. In all such judgments, every cardinal species of the evidence must be fully examined and analyzed by the trial court and  the  basis for  the  trial  court’s  decision or judgment, supported fully by the law, properly researched and cited, clearly articulated. This will minimize the errors legal, factual, grammatical, spelling, and others– often seen in the rulings and judgments of our trial courts. A judge failing to meet this standard will be deemed not qualified to handle the matters of the court and of the law. The Supreme Court, under the appropriate direction of a judicial order, will have all judgments of our trial courts of record published, the same as are the Opinions of the Supreme Court. The members of the public, and particularly the legal community, must now become the judges of the opinions and decisions of our courts, both the Supreme Court and the subordinate courts of records.

In the instant case, the trial judge compounded the errors by addressing, in the ruling on the motion for new trial, the issue of whether the defendant  should be admitted  to bail, which was the subject of a separate  and distinct motion  filed  by the  appellant,  and  therefore   should  have  been  dealt  with separately  from the motion for new trial. We wonder why the trial judge could not recognize that where separate motions are filed, they are to be dealt with separately unless on the orders of the court or at the request of the parties they are consolidated. This Is particularly important where the issues raised  are dissimilar.

We are further  concerned  that,  as  if  to  make  matters  worse, the  trial judge,  with  no  analysis  or  articulation   of  the  evidence,  oral  and  written, produced  by the prosecution  or the defendant, simply stated  in the ruling that the court will proceed to affirm the unanimous verdict of the petty jury and it is hereby so ordered. That phrase, it would seem, was the trial judge’s way of confirming or affirming the verdict of the jury. The phrase, carefully examined, indicates only what the trial court intended to do. Nowhere in the ruling is that intent carried into effect, for nowhere does the trial judge state that we hereby affirm or confirm the verdict. The trial court had a duty to ensure clarity in its decision, a duty that was absent in the Instant case, and it brings into question the competence  of the judge to administer  justice and interpret the law.

Because the foregoing addresses the contention raised by the appellant in count 30 of the bill of exceptions, we shall not dwell further on the issue raised with respect to the errors made by the trial judge in dealing with the appellant’s motion for new trial.

We shall now address the core issue presented by the appellant in count 31 of the bill of exceptions and further  stated  in the  briefs filed by the  parties. We have determined   to  focus on  the  single count  because  while the  other counts  in the   bill of  exceptions,  29  in  all, which  relate  to  the  trial  judge sustaining or overruling objections to questions posed to witnesses  by the prosecution  or the  defense,  show a  number  of errors  committed  by the  trial judge, the errors are not of such magnitude or of such meaningful prejudice to the rights of the appellant  as would affect the outcome  of the case, to warrant being addressed, especially as they would not add further  to the  value of this opinion. Hence, the one critical issue to which we direct our focus is whether the verdict of the empaneled jury was contrary to the weight of the evidence. In addressing this issue, let us first examine the obligation which the law imposes on the  prosecution and the  standard  to  which  the  State is held  in  order  to secure a conviction of an accused.

Our  criminal  law  is  premised   on  the  legal norm  that   an  accused  is presumed  innocent  until proved  guilty.  The Liberian Constitution, at Article 21(h), clearly sets out that  in all criminal cases, an accused shall be presumed innocent  until the contrary  is proved beyond a reasonable doubt. LIB.CONST., Art. 21(f)(1986). Our Criminal Procedure Law subscribes to the same standard mandated by the Constitution. Section 2.1of the Criminal Procedure Law states: A defendant in a criminal action is presumed to be innocent until the contrary is proved; and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquittal. Criminal Procedure Law, Rev. Code 2:2.1.

This position has also been espoused in numerous opinions of this Court, wherein we have confirmed the dictates of both the fundamental rights stated in the Constitution and reiterated in our criminal procedure statutes. In Keller v. Republic, 28 LLR 49 (1979),handed down several years before  the adoption of the  1986  Constitution, this  Court  said: An  accused  in  a  criminal case is presumed  to  be  innocent until the  contrary   is  proved; and, in  case of  a reasonable  doubt, he is entitled to an acquittal. See also: Swaray  v. Republic, 28 LLR 194 (1979).Then in Alfred  v. Republic, 33 LLR 87 (1985),decided one year before the 1986 Constitution came into effect, this Court re-echoed its previous position that a defendant charged with the commission of a crime is presumed innocent until the contrary  is proved. The Court stated further that  Where a plea on arraignment of the defendant is not  guilty, the onus probandi  is on the  prosecution to  establish  the  defendant’s guilt, devoid  of  all  reasonable doubt. ld., at  90-91. And, as if to  re-emphasize  the  point  made, the  Court added: Thus, although  an accused’s guilt  is satisfactorily proved, if there  is shown to exist any reasonable doubt, he is entitled to an acquittal. ld. Not very long thereafter, in 1988,two years after the new Liberian Constitution took roots and became effective, the Supreme Court, presented with the issue again, said  the  following: Under  the  Constitution [meaning the  new Constitution], a defendant is  presumed  innocent until the  contrary  is proved beyond a reasonable doubt; and in case of a reasonable doubt, whether his guilt is satisfactorily shown, he is entitled to an acquittal.” Munnah and Sommah, 35LLR 40  (1988).  See also: Swaray v. Republic, 28LLR 194  (1979); Wreh  v. Republic, 30 LLR 459 (1983); Thomas v. Republic, 35 LLR 759 (1988); Bah v. Republic, 36 LLR

541(1989);Republic v. Eid et al., 37 LLR 761(1995);Seegboe et al. v. Republic,

Supreme  Court  Opinion, October  Term, A. D. 2008, decided December 18,2008.

As noted in some of the cases cited above, as well as the Constitution and the Criminal Procedure Law, our criminal law, in addition to the presumption of innocence  of a defendant, also imposes on the State the obligation not  only to show by a preponderance of the evidence the guilt  of the defendant but also to meet  the standard of proof  beyond  all reasonable  doubt  before  a conviction of the  defendant can be upheld. See Saar v. Republic, 29 LLR 35 (1981); Feleku v. Republic, 30 LLR 189 (1982); Kroma v. Republic, 32 LLR 198 (1984); Davies v. Republic, 40 LLR 659 (2001);Okrasi v. Republic, Supreme Court Opinion, March Term, A. D. 2009, decided July 23, 2009; Wogbeh v. Republic, Supreme Court

Opinion, October Term, A. D. 2009, decided January 21, 2010; and Brown et al. v.

Republic, Supreme Court Opinion, October Term, A.D. 2009, decided January 21, 2010. In the Brown case, this Court said: A person charged with the com- mission of a criminal offense, ghastly as the crime may be, is presumed innocent until the  contrary   is  proven,  and  where  his  plea  is  NOT GUILTY, the  onus probandi  is  on  the  prosecution to  establish  his  guilt,  devoid  of  reasonable doubt.

The question then  is  whether, given  the  principle of presumption of innocence, the prosecution proved beyond all reasonable  doubt  the guilt  of the appellant  to  warrant  the  jury  returning a  verdict   of guilty   against  her.  In addressing this issue, let us take recourse to the sequence of rather confusing action   taken   by the   prosecution, but   which   nevertheless   resulted   in the conviction of the appellant for armed robbery.

Firstly, the indictment charged a different offense that was proffered in the magistrate court, even though they related to the  same events. Secondly, while the matter was still being investigated by the police, Magistrate Court for the City of Careysburg was simultaneously conducting summary investigations, with the involvement of State prosecutors. Thirdly, although it was alleged that the armed robbery was carried out by three persons, one of whom, Otis Varfley, was apprehended by  one  of  the  prosecution’s witnesses, the  records  reveal absolutely no further attempt, either by the police, the private prosecutors, or the State to pursue or identify the other two  prime  perpetrators of the crime to bring them to justice. In fact, no mention was ever made of their names, where they lived, whether  they were acquainted with Otis Varfley, whether they knew the  appellant, or  if she had hired  them  to  commit the  crime. Thus, the  only witness  who linked the appellant directly  to the  commission  of the  crime  was Otis  Varfley, one of the  perpetrators of the  armed  robbery, and who, after  a nolle  prosequi  was entered  by  the  prosecution during  the  trial, became  the State’s prime  witness in securing the conviction of the appellant.

However, we believe that  any examination of the prosecution witnesses testimonies ,in order to put them in their  proper  context  and perspective, must be prefaced by a full understanding of the theory of the State’s case against the appellant. We do so bearing in mind that it is not for the defendant in a criminal case to, in  the  first  instance, provide  evidence  of  his  or  her  innocence, but rather, that  it is for the State, at every stage of the proceedings, to prove  the guilt  of  the  defendant; and  that  unless  that  guilt is  satisfactorily  proved, a conviction of  guilty  cannot  be upheld.  Let us now  look  at  the  theory of  the State’s case.

According to the prosecution’s theory, the appellant had engaged three armed  robbers  to commit the  crime  with which  she was charged in order  to cover up her misappropriation of L$350,000.00 of  the funds of the  Bola Town Women  Savings Club. The theory suggested that  a misappropriation of  funds had taken place within the Bola Women Club; that the appellant was the party responsible for the misappropriation; that the appellant needed to cover up her misdeed and sought to do so by staging an armed robbery and taking the funds which she and other members  of the Club had withdrawn from the bank earlier on December 10,2010;and that seemingly she would then either have used the funds  to  replace  the  money  she had misappropriated from  the  Club or  claim that the armed robbers had taken the funds. This, the prosecution said, supplied the motive by the appellant for the commission of the armed robbery.

Thus, the  first  element  of proof  required of the  prosecution was that  a misappropriation had occurred. This meant  that  the prosecution was required to present proof  that there  was a shortage of funds within the Women Club, or that  there  had  been  withdrawals of  funds  from  the  Club’s  account  by  the appellant without the knowledge or consent of the officers  or members  of the Club, and that she had used the funds on matters  other than that  of or in the interest  of the Club; that either only the appellant had access to the account or that her lone signature could effect withdrawal from the account, which she did without the knowledge of the officers and/or  members of the Club; that records from the  bank showed that  withdrawals had been made by the appellant and no explanation  had been provided by the appellant as to what she had done with the proceeds; or that funds having been legally withdrawn from the bank, the appellant  had not been able to account for same; or that she had the said funds in her possession but had used the funds for her own personal gains and therefore  needed to armed rob the Club to cove-up her misdeed. The question is whether this burden of proof was met by the prosecution.

The second  level of  proof  required  of the  prosecution  was  that  the appellant  actually engaged  Otis Varfley to  commit the  armed  robbery. Otis Varfley is alleged to have stated, when he was caught, and whilst he was on the witness stand, that he had been engaged by the appellant to commit the crime, in  concert  with  two  other  persons  whom  he  did  not  name.  Interestingly, however, no such statement was made by him to the police when the  matter was investigated  by the  Criminal Investigation Division. This, in our view, increased the burden of proof imposed by law on the prosecution, and thus generates the further question as to whether the testimony of Otis Varfley was sufficient, given the entire circumstances and facts surrounding the case, to link the appellant to the crime.

In seeking answer  to   whether   the   prosecution  established  by  the production of evidence, under the theory advanced  by the State and to show the connection of the appellant to the crime, we take recourse to the evidence provided by the witnesses produced by the  prosecution. This is how the prosecution, in its Brief filed with the Supreme Court, summarized its evidence and the evidence of the appellant, which it said showed that the guilty verdict returned by the petty jury was commensurate with the weight of the evidence:

This is how the prosecution, in its brief, summarized the testimonies of its witnesses:

The  Prosecution,  at  the  trial,  produced  6  witnesses,  including eyewitness accounts, police and an insider, Otis Varfley, who were qualified and sworn to testify before the Jury.

Prosecution’s first witness, Moses Mitchell, a victim of the subject armed robbery, informed court and jury, that on the night of December 10,2010 in Bola Town, Careysburg, while in his room he heard a loud voice saying “give us the money or else we will teach every one of you people.”  SEE SHEET (2) 13th DAY’S JURY SESSION, TUESDAY, MARCH 1, 2011.

Witness Moses Mitchell further  informed court and jury that he was able to  apprehend  Otis  Varfley  in  the  process, whilst  the  (2) other  armed robbers managed to escape the crime scene (room). The witness asserted that  Otis Varfley  cried in a loud  voice, in the  presence of said Martha Sirleaf, saying Aunty  Martha  Sirleaf, will  you  sit  down  here  and  the people  kill me, when you sent for me. SEE SHEET  (3) 13th DAY’S JURY SESSION,MARCH 1,2011

Prosecution’s  2nd witness, Otis Varfley, an insider, informed court  and jury on the direct, and identified the defendant/appellant, Martha Sirleaf, as one of the armed robbers, while the other two  2 escaped and he was apprehended.  Witness Otis Varfley further  informed court and jury that Martha   Sirleaf  (appellant)  is his  aunt  and  she sent  for  him  from  his working  place in  Careysburg to  carry on the  armed  robbery  for  her to recover because she misappropriated L$350,000 from  their  Club money and she needs to  cover up. SEE SHEETS (NINE & TEN) 13th  DAY JURY SESSION,MARCH 1,2011

The witness asserted that  he and Martha  Sirleaf (appellant) communicated over cell phone and that is how he got to know the place (same sheet, line 16) and that he and his collaborators met the door already opened by Martha Sirleaf, for them to enter.(Same Sheet 10)

State  witness  Otis  Varfley  concluded  his testimony on  the  direct  by informing court  and  jury  that  the  defendant/appellant promised  him US$650.00 when the mission is carried out, to buy a machine, which he earlier asked her to buy for him. SEE SHEET (12) 13th DAY’S JURY SESSION, MARCH

1, 2011.

Madam Tumu  Jackson was  prosecution’s   3rd  witness. She is also a member of the Club, of which the appellant is the secretary. The witness testified to the effect that  she identified the appellant  and Otis Varfley, including  two  (2) others  who  escaped, to  be  the  armed  robbers  and pointed at appellant in the dock. SEE SHEET (9) 15th DAY’S JURY SESSION, MARCH 3, 2011, LINES 6-10.

Madam  Tumu Jackson further informed court and jury that  after  the defendant/appellant left  the  door open, she went  outside  (to  the  door) and it was at that  time  the  armed  men stabbed her. SEE SHEET (9) LINE (13) 15TH DAY’S JURY SESSION, MARCH 3,2011.

Madam Jenuneh Mitchell was one of the prosecution’s material witnesses and of the Bola Town Women Saving Club. She informed court  and jury that  on  December  10, 2010, she, along  with other  members,  namely: Martha Sirleaf, Tumu Jackson, Patricia Flomo et al. went  to the bank for their  Club money, and took  it to Bola, for distribution amongst the Club members  at  which  time  she, appellant, joined  them  later. She testified that  when the appellant arrived, she, the appellant, was counting money very  slowly,  which  was very  unusual  and that  while  in  the  room,  the appellant kept going outside faster, under the pretext that she is going to pepe; that just within that time she, appellant, received phone calls about two  times  after  which  three  armed  men, including Otis Varfley, entered the  room  where  they  were  packaging the money  and threatened to kill them.   The  witness  also identified  Martha  Sirleaf,   the defendant/ appellant, and Otis Varfley as two  of the armed robbers, because  she, the appellant, opened the door for Otis Varfley and the two  (2) other  armed robbers to enter. SEE SHEETS 4 & 5,18th DAY’S JURY SESSION, MARCH 7, 2011.

The witness, Jenuneh Mitchell, concluded by informing court and jury that when Otis Varfley was caught, he started to cry saying that it was Martha Sirleaf who sent him. SEE SHEET (6),18TH DAY’S JURY SESSION,MARCH 7, 2011.

The prosecution produced  one Nathaniel Kevin, an employee of the Lone Star Communications  Corporation, who testified to and identified the call log bearing  cell phone  numbers  06438001/06903916 that  were  used by the appellant and Otis Varfley on December 10,2010,during the planning of  the armed  robbery. SEE SHEET TWO (2), 19TH DAY’S JURY SESSION, MARCH

10,2011.

This was the prosecution’s summary of the evidence produced at the trial. The appellant, on the other hand, recapped in her brief, also in summary form, the prosecution witnesses’ testimonies, as follows:

Prosecution 1st witness in person of Moses Mitchell took the stand on March 1st 2011 and testified substantially that  while he was lying down, he heard a loud voice saying ‘give us the money’. He then  left his room and entered  in the next room which was dark and where  he engaged a man wearing  jacket and with arm.  Moses  Mitchell accordingly overpowered  that  man who ran away and apprehended  the other  man who  had stabbed  him on  his back and  who  is Otis Varfley. That  Otis Varfley after his apprehension,  cried in a loud voice saying Aunty Martha Sirleaf you will sit down here and the people kill me. Moses furthered said that  Martha told him to kill Otis Varfley even though she was still in the house. The witness  further  said  that  Otis Varfley told  him that  if   he, Moses Mitchell thinks  that  he, Otis Varfley was lying, let  him, Moses Mitchell take  his phone  from  his pocket and  will see  Martha Sirleaf’s missed call therein but he did not take Otis Varfley’s phone as instructed. Prosecution  then  entered   a  plea  of  nolle  prosequoi  in  favor  of  co- defendant Otis Varfley and used Otis to testify against Martha Sirleaf. Prosecution 2nd witness in person Otis Varfley took the stand on March 1st, 2011 and testified substantially that  his aunty  Martha Sirleaf called him on  10th December, 2010 to  meet  her at  red light where  she  was waiting with two motor cyclists and when he got at the red light, Martha Sirleaf told him that she had misapplied L$350,000.00 of the Bola women club’s  money. Martha Sirleaf give them  10  USD  as transportation  and authorized  him to  carry those two boys to Bola town to Mitchell’s house where she will be waiting and for them  to rob the  balance of the club money so that  everybody can loss and that  Martha Sirleaf promised to give him US$650.00 after  the armed  robbery mission. Accordingly, Otis Varfley and the other two  boys went to 15 Gate to await Martha’s call. Martha Sirleaf called them and told them that they have passed by Bola and later show them the exact location of the house in which they were packaging the  money at  Bola. When they  got  to  Bola, Martha  Sirleaf opened the back door for them. That his number is 06903911 and Martha Sirleaf number is 06438650 and Martha  promised to give him US$650.00 after the mission.

On the  cross, Otis admitted  that  during  police investigation,  he told the police that  he rode motorbike from red light and stopped  to Philip’s farm to ask for Martha Sirleaf and by-standers told him to check at 15 Gate and while at 15 Gate and further  inquiring about  the whereabouts of Martha Sirleaf, someone told him to go to George Mitchell’s house. That he saw some  motor cyclist and asked them to drop him to Bola. Otis agreed  also that  he told the police that when he got to Mitchell’s house he knocked at the door  and identified  himself as Nana at which time  he saw two guys with cutlasses and who attacked  him. That all of the statements he made to the  police were voluntary  but a cover-up for Martha

Sirleaf’s misapplication  of the  club’s money. That while he was detained at  the Monrovia Central Prison; all the club’s members visited him several times. On the re-cross, Otis Varfley said that  Martha Sirleaf told them to go to 15 Gate and  wait for  her call because  it was 7:45pm and  people  were still passing around in Bola.

Prosecution  third  witness, in person  of Tumu Jackson, took the  witness stand  on  March 3, 2011 and  testified  substantially that  they  were  four persons  that  withdrew  the  money  from  the  bank  but  the  money  was small. That after she, Martha Sirleaf, Jenneh  Mitchell and  Patricia Flomo withdrew  the  money from  the  bank, Martha  Sirleaf did not go directly with them to Bola. Martha later arrived at Bola around  7:35 pm and told them that  while she was coming into the house she heard strange  voices. That Martha Sirleaf only gave her $40.00USD as the USD withdrawn  from the  bank. That Martha Sirleaf later  asked them  to  keep the  money until 1:00 am before packaging it but Tumu Jackson objected.

Tumu Jackson also narrated  that  Martha received three calls, the first call from  her  boyfriend  and  Martha  give Tumu the  phone  to  talk  with  her boyfriend. That Martha received a second and third call and responded  to the second  call saying you pass, three  times and Martha  walked out and stay there  for 16 minutes. That Martha Sirleaf later came in and hooked the room door without locking it and when asked, Martha told them that she heard strange  voices; that  when she and Patricia Flomo attempted to go  outside,  the  armed   robbers  entered   and  began  to  ask  for  the  fat woman  who  has the  money. That when  she  came  outside  she  saw  Otis Varfley in Moses Mitchell’s hand, Otis Varfley was then tied, Otis began shouting  with his Aunty Martha Sirleaf’s name  but  Martha  did not come outside. Witness Tumu Jackson also admitted that  L$310,000.00 was withdrawn  from  the  bank on the  10th of December,  2010 and  taken  to Bola but the money collected  by the club should  have been L$900,000.00 plus and  they  were  having L$400,000.00 and  US$150.00 keeping  at the Mitchell’s house.

On the cross, Tumu Jackson said that  the club has always collected  dues from its members,  credit  some  out  and  save some  with the  Bank. That Martha Sirleaf  and  Jenneh   Mitchell  are  the  signatories to  the  club’s account.  Tumu Jackson  also  narrated   that   when  Martha  entered the house,  she  asked  that they  try their  uniforms  because  they  usually do playlet. That they checked the

L$310,000.00 which they  brought from the bank and  it was correct  and the  L$400,000.00 they  were  keeping  in the house  was also correct. That while they  were checking the  money  Hawa and  Bendu also  went  outside  and  after  the  armed   robbery;  the  other executives of the club members took the Liberian dollars bank book. That she, Tumu Jackson told the  police that  Martha  asked them  to sleep until 1:00am before they begin to check the  money and told the court while on the witness stand that  Martha told them to sleep until 12:00 midnight.

The witness continuing on the cross admitted telling the  police that  when Martha  Sirleaf went  outside,  she  remained  there  for four  minutes  and also told the  court  while on the  stand  that  Martha Sirleaf went  outside and remained  there for 16 minutes.

Prosecution  fourth  witness in person of Jenneh  Mitchell took the witness stand  on the  7th  of March 2011 and  testified  substantially that  on the 10th  of  December,  2010 she,  Martha  Sirleaf, Patricia  Flomo and  Tumu Jackson  withdrew   L$310,000.00 from  the  club’s  account   at  LBDI   and Martha Sirleaf asked them  to carry it in front.  That when  Martha  Sirleaf reach  Bola around  7:45  p.m. and  enter  the  house  in which they  were waiting,  Martha Sirleaf told them  to  bring the  money for checking. That when they brought the money out for checking, Martha Sirleaf also asked them to put the money back into the bag and go to sleep, a request  which was objected  to and at that  moment  Martha Sirleaf receive a call from her boyfriend.  Martha  received the second  call, and she answer  and said you pass.  That  Martha  Sirleaf  received  the  third  call, she,  Jenneh   Mitchell asked  as to who was calling and  Martha answer  and said that  it was one woman who asked her to take her share of the club’s money. The witness furthered that   Martha  Sirleaf began  to  go outside  fast,  fast  under  the pretext   of  going  to  pepe  and  tried  to  stop  them  from  carrying  light outside. When  Martha  was asked  as  to  why she  was  frequently going outside,  she  answered   and  told  them  that  there  were  strange   people outside. The witness also narrated  that  the last time  Martha Sirleaf went outside,  she  left the  door  open  and  stood  at  the  door  and  when  Tumu Jackson pushed her and  before Tumu Jackson touch  the  door, the  armed robber  open  the  door  and asked for the fat  woman  that  had the  money and threaten to kill all of them. That when Otis Varfley was caught he told them that it was Martha Sirleaf who sent  him.

On the  cross,  witness  Jenneh  Mitchell  said  that   people  called  Martha Sirleaf three  (3) times and she answer  three  (3) times. That some  money was  left after  the  armed  robbery,  but  refused  to  say how much  of the money was left, even though, she jumped through  the  window when the armed  robbers entered the house.

One of prosecution’s subpoenaed  witness,  in person  of  Nathaniel  Kavil, took the  witness stand  and  presented a call log from  Lone Star intended to establish  contact  between cell number 06438002 and 06903916.

On the cross, the  witness did not have any identification  to show that  he works with Lone Star Cell and indicated  that  the document presented did not have anything or inscription to show that it was from Lone Star Cell. Another  prosecution  subpoenaed witness,  in person  of Simeon  F. Frank, took   the   stand   to   give  clarification   about   the   police confirmation clearance  issued in favor of Martha Sirleaf. The said witness testified  substantially that the clearance was issued by him based on recommendation of  the  investigators who  handled  the  investigation   that   because  calls were  exchanged   by Otis Varfley and  Martha  Sirleaf, and  the  said  Otis Varfley testified  that  he lied in order to cover-up for his aunty; [and that] he was revoking the clearance issued to Martha Sirleaf even though the police investigation team did not make any effort to get the call log to show the communication between Martha Sirleaf and Otis Varfley. Although there are  some  variances  in  the   prosecution  and  defense accounts of the testimonies of the prosecution and defense witnesses, and prosecution reflection of the testimonies of its witnesses is fairly accurate, the issue warranting our attention  is whether the testimonies of the witnesses and other  circumstances attending  the case, as revealed by the  records, met the required threshold of proof beyond a reasonable doubt. let  us review the testimonies of the prosecution witnesses, not how the  prosecution perceived the  testimonies  but  how the  records showed  them,  and  from  that  review ascertain whether the threshold of the prosecution’s theory as to the motive of the appellant and the extent of her involvement were shown by the evidence.

We shall preface the examination of the testimonies of the witnesses, in order to put them in proper perspective, by recapping the theory of the prosecution’s case, keeping in mind that it is not for the defendant in a criminal case to, in the first instance, provide evidence his or her innocence, but rather, that it is for the State, at every stage of the proceedings, to prove the guilt of the defendant; and that unless that guilt is satisfactorily proved, a conviction of guilty cannot be upheld.

The first theory of the prosecution case relates to  the  motive by the appellant for committing the crime. The prosecution presented a number of witnesses, presumably for that purpose. The first witness was Moses Mitchell, named as one of the private prosecutors in both the indictment and the arrest warrants issued by the Careysburg Magisterial Court. Mr. Mitchell testified as follows:

DIRECT EXAMINATION

1. Mr. Witness, for the benefit of the court and the jury, please state your name?

1. My name is Moses Mitchell.
2. Where do you live Mr. Witness?
3. I live Careysburg
4. What work do you Mr. Witness, if any?
5. I am a farmer.
6. Mr. Witness, tellthe court  and the  jury if you know  the  defendant in the dock?
7. Yes.
8. where were you on December 10,2010?
9. I was in my room
10. There is your room?
11. Careysburg, Bola Town
12. Mr.Witness, what happened that night   while you  were  in  you, roam?
13. I heard in a loud voice saying give us the money or else we will each and every one of you people.
14. Mr. Witness, who werethe  people  that  made  that  remark if you know?
15. These people were armed robbers.

Mr. Witness, what happened thereafter?

1. I decided to leave my roomand entered in the next room  opposite my room.
2. And what happened next?
3. There where I engaged a man with a jacket
4. What did you do next?
5. I tried to protect myself.
6. In protecting yourselfwhat  did you do?
7. He and I were tussling over with an arm.
8. In the process of tussling over the arm what did you do next?
9. I over powered him. Q. What happened next?
10. There where another robber stabbed me on my back.
11. Who was the robber that you said stabbed you on your back?
12. That was Otis Varfley.
13. Were you able toapprehend any  of  the  armed  robbers?   If so, where  are they?
14. Yes, Otis Varfley was apprehended by me in the process.
15. Where are the other armed robbersif you know?
16. Two escaped.
17. Mr. Witness, when you apprehended Otis Varfley [what] did he say to you?
18. He cried in a loud voice saying, Aunty Daddy (Martha Sirleaf) will you sit down here  and  the  people kill me? While in process, 1 decided to go in for cloth to tie the wound and there where Martha Sirleaf told me the  man had harmed you, go and kill him. While on my way my mother went and fell over him, protecting him (Otis Varfley). Later Otis Varfley said if you think that  I   lie put your hand into my pocket. When we miss[ed] the area the last call my aunty, Martha Sirleaf made directing me the  area  is now stored  in the phone.

Mr. Witness, where was Martha Sirleaf at the time if you know?  A. Martha Sirleaf was in the house.

1. Mr. Witness, you had told the court and the jury that you and one of the armed robbers tussled over a gun while also another staffed you on the back. What else did you see with the arm robbers? A. They had broken bottles.
2. What happened after your injury?
3. At time the police came and took me to the nearby clinic.
4. And what happened next?
5. The case was forwarded to justice after I was treated.
6. Mr.Witness, you made reference to broken bottles. Were you to see same, will you be able to identify same? A. Yes.
7. By that answer Mr. Witness, and by kind permission of court, I pass you over a black plastic bag, please look thereinand tell the court what are its contacts? A. These are me of the bottles that I identified on that day.
8. Mr. Witness, for thebenefit of the  court and the  jury, 1  pass you over court’s  marked instrument  P/1. Please look at same and tell the court and the juror if the instrument that you had identified and testified were the same instrument  marked by court?
9. Yes, these are the same instruments.
10. Mr.Witness, you told  the  court  and the  jury  that  after  your  injury you were taken to the clinic for treatment. What did you do thereafter?
11. WhenI was  treated the  police  came  in and  took  at  the  Careysburg Magisterial Court.
12. Mr.Witness, refresh  your memory  for the  benefit  of the  court  and jury and say whether  or not you did anything to remind you of your injury? A. Yes, I took some photos.

Mr.  Witness, by that answer were you to see said photo, will you be able to identify same? A. Yes.

1. By that answer Mr. witness and by kind permission of court, I pass you these instruments (photos). Please look at same and tell the court and the jury what you take them to be.
2. These are the photosthat  were taken by me when I was stabbed by the armed robbers.
3. Mr.Witness, by kind permission of court  I pass you over court’s  marked instruments P/2 in bulk.  Please tell the court  and the jury whose photos are they?
4. These photos are my photos when I was attacked that night.
5. Mr. Witness, in your testimony in chief, you toldthe court and jury about phones  that  were  used by Otis  and his aunt, armed  robbers  defender, Martha Sirleaf. For the benefit  of the  Court  and the  jury where  are the phones?
6. This phone is in the hands of the CID Commander in Careysburg.
7. Mr.Witness, for  the  benefit  of the  court  and the  jury  say whether  you were  able  to  know   the  contact  numbers   of  Otis  Varfley  and  Martha

Sirleaf?

1. I don’t know Martha Sirleaf’s contact number.
2. Mr. Witness, what is about Otis Varfley’s number?

A.,  No.

1. Mr.Witness, for the benefit  of the court  and the jury please give a vivid description of your room and the house?
2. My house is on the upper rightof the Monrovia-Kakata Highway and my room is on the right opposite the room in which the incidence took place.

CROSS EXAMINATION

1. Mr. Witness, in your answer to  a question on direct, as to whether you knew Martha Sirleaf you said yes. Not so?
2. Yes.

You know  to be the secretary of the Bola Woman Savings Club. Not so?

1. Yes
2. And you knowthat  she had been serving this savings club for a very long time. Not so?
3. I don’t know because I am not a member of this club.
4. Mr. Witness, even though you are  not  a member  of  this  club  but  you know  some members of this club. Not so? A. Yes.
5. You know that Jaaneh Mitchell is a member of this club. Not so?
6. Yes.
7. And Jaaneh is your mother, not so?
8. Yes.
9. In your statement you said while in your room you heard a loud voice, not so? And that voice said thatif you don’t give me the money I will kill all of your, not so? A. Yes.
10. And the voice was not the voice of Martha Sirleaf, not so?
11. It was not her voice.
12. Mr. Witness, according to you, when you heard the loud voice, you came out of your room and went into the room directly opposite yours. Not so? A. yes.
13. And in that room you met the man with a big jacket. Not so?
14. Yes.
15. Please telland say for  the benefit of the  jury  who  all were  in that  room beside the man with the big jacket? A. Two other men were fighting.
16. So Mr. Witness, by thatanswer only the two  other  men and the man with the big jacket were in the room, not so?

1. The place was dark.
2. Mr. Witness, you rightfully said thatthe  room  was dark  because it was between 12:00 to 1:00 in the night  but  yet, you were  able to see broken bottles in the person’s hand.  Say for the benefit of the jury how  you saw the  gun  in  the  darkness  and  how, you  saw  the  broken bottles in  the darkness, Mr. Witness?
3. I held the gun by the muscle and we tussled over it and thenOtis Varfley was captured right  handedly with the bottles in his hands.
4. Mr. Witness, when the man in the black jacketjumped on you, according to you, you over powered him, not so?
5. Yes.
6. You also said after the incident the police was called to the scene, not so?
7. Yes.
8. The police took statement from you, not so?
9. Yes, Careysburg police took statement from me.
10. Mr. Witness, let me take you to the broken bottles. This pece of bottle is green, not so? A. Yes.
11. You said in your testimony thatone of these was used by Otis, not so?
12. yes.
13. Mr. Witness, forthe benefit of the  jury, please say if you saw bottles of this nature broken even before  the incident?
14. I saw the bottles after the incident and not before the incident.
15. Mr.Witness, you said in your statement that  when you grabbed  Otis and left  Otis and went  to the house to take cloth  and tie your  wound, Martha Sirleaf said why did you not kill him, not so? A. Yes, that is what  she told me.
16. And wherewas Martha Sirleaf when she made this statement to you?
17. She had already left the room and entered into the hallway of the house.
18. You said she had already leftthe  room, which  room?  Is it the same room that  you were tussling with the man with the big jacket or different  room, Mr.

Witness?

1. The room in which they were packaging their money.
2. By thatanswer, the room they  were  packaging their money and the  room which you  tussled  with the  man  with the  big  jacket  are  two   different rooms, not so?
3. That is the same room.
4. Mr. Witness, whenyou grabbed Otis and he asked you to put  your  hands into his pocket to see the  calls that  was received from his aunty, Martha Sirleaf, you  took  the  phones, look  inside  and  saw the calls received, not so?
5. I did not take  the  phone, rather turned over  to the  police  by one  of the men who came to our rescue.
6. Mr. Witness, you knowOtis prior to the incident, not so?
7. No. I heard of him but did not know him at that  time.
8. What did you hear of him, Mr. Witness?
9. That he is related to Martha Sirleaf.
10. Mr. Witness,you  affirm and  confirm all  of  the  statements you  made before the grand jury consistent with you oath, not so? A. Yes.

JURY’S QUESTION

1. Matthew Williams: The gun that is in question that was tussled overby you and the armed robber, where is the gun?

1. As I previously said in the process oftussling and  overpowering this armed robber, I was stabled on my back by Otis Varfley and that  was the time the man escaped.
2. John Blackie:How  many  armed  robbers did  you  see and  which of them attacked you?
3. There were threearmed robbers. Two attacked me with bottles and gun.
4. Alice Johnson:Mr. Witness, in your  testimony you said when  you  were sleeping you heard a loud noise “if you don’t bring  this  money we will kill your” and when  you left  your room making an attempt to enter  the room where  the  armed robbers were,  were  you  not  afraid by  entering that room?
5. As I previously said, I did not say that I was sleeping. I said I was in my room. I was not afraid, reason being I am an old ROTC student and then I have to protect life and property in my house.
6. Mary Peabody:Mr. Witness, were you aware that people were sharing money in that room at that time? A. Yes, I was aware.

This was the  testimony of Moses  Mitchell. We have narrated the  entire testimony to see if  there  is any  part  of  it that  linked the  appellant to  the commission of the crime or established  the prosecution’s theory that  the crime was planned  and executed by the appellant in order  to cover-up  for an amount of L$350,000.00  which  she had  misappropriated from  the  funds  of  the  Bola Women  savings Club.  We do not believe that  either  of those basis advanced by the prosecution was met by the testimony of this witness.  The testimony states only that  a crime was committed; that  one of the perpetrators was the nephew of  the  appellant; that  he  had  cried  out  something about  her  sitting by  and letting the  people  kill him; that  the  nephew of the appellant had said that  the appellant had given him  directions to the house and that  this  could be verified by the number was on his phone; and that  the appellant had asked the witness why he, the witness, did not kill her nephew since her nephew had hurt  him.

In addition to  the  fact  that  the  testimony of  the  witness  is at  variance with some of the testimonies of other  witnesses and the records of the court in a number of respects, it provided no first-hand account that linked the appellant to the  armed  robbery. There  was no  statement that  she participated in  the ongoing  armed  robbery, except  that  she acknowledged that  Otis  Varfley  was her nephew. Nowhere also did  the  witness, in whose  presence  Otis  Varfley  is said to have named the appellant as the one who had masterminded the armed robbery, state that  Otis said my aunt  masterminded the entire affair, although he sought to make some inference by reference  to Otis telling him to examined his (Otis)  phone  to  verify that he had  been  in contact  with the  appellant, a request  which  the  witness  said he did not  carry through. Hence, there  was no verification as to the telephone calls.

Moreover, the  witness  stated  that  upon  the  arrival of  the  police  on the scene  he  was  taken  to  the hospital and  that   from  the  hospital the  police, presumably with him, proceeded  to the  Careysburg  Magisterial Court. This is contrary to the records  we have reviewed. The records  show  that  it was the witness   and  another  person,   not   the  police   that   went   to   the  Careysburg Magisterial Court and swore to the writ for the arrest  of the appellant, and that this occurred not just after  the release of the witness from  the clinic but rather on  December  22, 2010, a period  of  eleven  days  following the incident. The records  also reveal  that  this  was the  same day the  Police Charge Sheet  was issued charging only  Otis Varfley  with  the commission of the crime. Indeed, it was only  two  days thereafter, on

December  24, 2010, that  the  police  issued what  they  called  a “Police  Confirmation Clearance”  which  completely exonerated the appellant  from any association with the crime.

Thus, at  best, much  of  the  testimony of  Witness  Moses  Mitchell  was based on conjecture, not  supported by proof, or on what  the  witness  said he heard  Otis  Varfley  say following Otis apprehension by the  witness.  We note also that  in several respects the testimony of the witness  was in contradictions to  the  testimonies  of  others   of  the  prosecution  witnesses.  He  stated,  for example, that  he had  overpowered one  of  the  armed  robbers  but  that  Otis Varfley had stabbed him, causing the overpowered robber  to escape. Yet, with the  wounds, he  sought  to  have  the  court  believe  that  he  let  the  other  two armed  robbers  go but  apprehended Otis Varfley. Somehow   the  story  did  not seem to add up convincingly  and we have difficulty appreciating the narration. In addition, the witness’ statement was also at variance with  the statements of some of the other witnesses as to exactly what Otis Varfley said. Nowhere in his statement did he say that Otis Varfley, whom he had apprehended, had uttered the words that his aunt had sent him to commit the armed robbery and that she should not let him alone suffer for the act. Yet, other  witnesses, who  were not involved in the  apprehension of  Otis and who  seemingly  were  therefore not present  when  Otis was overpowered by the  witness, said that  Otis had made such statement. Who then should the jury has believed, Witness Mitchell who had actually performed the act of apprehending Otis, or the other witnesses?

Even as he acknowledged that  Otis  Varfley  had  asked him  to  take  the phone   from  his   pocket   to  verify   that  he   and  his   aunt  had   been   in communication just  minutes  before  the  armed  robbery, the  witness  testified that  he did not  take the phone  to  verify  that  such exchange of calls had been made. Instead, he said, he had the phone delivered to the police. But no police officer   was  brought  to  testify   that   the  phone   showed   exchanges  of  calls between Otis Varfley and the appellant. What then happened to the calls or the registration of  the  calls in  the  phone  since it is a matter of  common  public knowledge that all such calls are reflected on the cell phones, showing the times of the  calls are made and the  phone  numbers  of the  callers, unless the  callers are calling from  unknown phones, which  was not  the  situation in the  instance case.

Indeed, from  our entire  review of the case, we have found  that  only  one witness  actually  testified, by way of first-hand information, that  the  appellant had planned  the  crime and was a part  of it. This is the person  who  Mr. Moses Mitchell, in  his testimony had implied implicated the  appellant in  the  armed robbery. That  witness, the  person, who  turned out  to  be the  State’s  principal witness,  was  Otis  Varfley.  Otis  Varfley  admitted to being  one  of  the  three armed  robbers. It was he who, during the trial, the  prosecution had entered a nolle prosequi in favour of. While there is no specific timing as to when the state may enter  a nolle prosequi in favour  of an accused, we have wondered about the motive of the prosecution in its timing in entering a nolle prosequi in favour of Otis Varfley.   The State entered  nolle  prosequi in favour  of  Otis Varfley  on February  28, 2011, the  same day the  appellant entered a plea of not  guilty  to the charged of armed robbery. It is interesting to note the reason for the State’s decision  to  enter  a nolle  prosequi in  favour  of  Otis  Varfley.  This is what  the prosecution said:

At  this stage prosecution begs to inform court and Your Honour  that  due to  the  lack of sufficient evidence  to  warrant a successful prosecution of this  case against  co-defendant Otis  Varfley  and  in  exercising  its  right under   the   law,   as  contained  in  section   18.1,  page  372  of   1 LCLR, prosecution at this stage hereby enters a plea of nolle prosequi against co- defendant Otis Varfley.

Prosecution  however gives notice  and reserve the right  to refile  if and only  if the need arises.” See Minutes of Court, 12th Day’s Jury  Session, February  Term, A. D. 2011, Monday, February  28, 2011,Sheet 1.

It is noteworthy that the prosecution did not believe  that it had sufficient evidence to successfully prosecute the person who was named by all of the prosecution witnesses  as one  of  the  persons  who committed the  offense  of armed and who was apprehended in the process of committing the act, but that it could use his testimony to convict the person who did not actually  participate in the act but is said to have conspired  and planned to have the act committed.

It is also worth noting that  although the prosecution stated  that  it did not  have sufficient evidence to convict  Otis Varfley, and that  therefore it had chosen him to be a witness for the prosecution, yet it was the same Otis Varfley  who, upon taking  the  witness  stand, and  who  had  exonerated the  appellant from  any association  with  the commission of the crime, admitted that  it was he and two other person that carried out the armed robbery.

We know that it is the right  and the prerogative of the State to determine whom  it will  prosecute  for the commission of a crime, whom  it will  exonerate from  prosecution, whom  it will  enter  a nolle prosequi in  favor  of in order  to have  said person  used as a witness  for  the  State. The State is not  required to state  any  grounds  or  reason  for  entering a  nolle  prosequi  in  favour   of  an accused. No court can or should question the State for entering a nolle prosequi in favour  of any one or several accused persons. That is a decision for the State and the  State  alone. However, when  the  State chooses to  state  a ground  for seeking  nolle   prosequi  of  an  accused  person,  it must   be  cautious   not   to embarrass  itself  by a showing  in the records  that  the grounds  set forth by the State was false or had no legal basis. In the instant  case, the  State had said as the  basis  for  entering a nolle  prosequi  in  favour  of  Otis  Varfley  that  it has insufficient evidence  to  successfully  prosecute  him  even  though most  of  the state witnesses had identified him personally as being one of the armed robbers and that  in fact he had been captured  in the  process of committing the  crime with which  he was charged. The State’s ground  for entering the nolle  prosequi became even more  ridiculous in the face of the  testimony of Otis Varfley  that not only was he one of the three armed robbers  but that indeed he was the one who had injured witness Moses Mitchell in the process of committing the armed robbery and that  he had been captured by Moses Mitchell and prevented from escaping as had his other two  armed robbing companions.

Again it is not our prerogative to tell the State how to prosecute its cases. However, we do wonder  how the  State determined that  three  armed  robbers who  had actually  committed the  crime  not  be prosecuted. let us now  turn  to the testimony of Otis Varfley.

In the  course of his testimony, Otis Varfley  advanced  what  he said was the motive for the appellant in planning the armed robbery and in engaging the three  armed  robbers  to  commit the  crime. Here is the dialogue  that  occurred between Otis Varfley and the  prosecution counsel on the  direct  and between Otis Varfley and the defense counsel on the cross-examination: Q. Mr. Witness, what is your name again?

1. My name is Otis N. Varfley.
2. Where do you live?
3. live on Jamaica Road, Bushrod Island
4. What work do you do Mr. Witness, presently?
5. I work as a tailor.
6. Who do you work for, Mr. Witness, if any?
7. Mrs. Edith James.
8. Until yesterday, Mr. Witness, you were in detention. What were you in detention for?
9. For armed robbery.
10. When did the armed robbery take place?
11. December 10, 2010.
12. Where did it take place?
13. Careysburg District, Bola.
14. Who were the armed robbers if you know?
15. The armed robbers were Martha Sirleaf, two others and I.
16. Where are the others if you know?
17. Two escape[d] and Martha is here in the court.
18. Mr. Witness,who is Martha Sirleaf to you?
19. Martha is my aunt.
20. How did you get to Bola, Careysburg on December 10, 2010?
21. My Aunt Martha called me from my working place to meet her at the Redlight and she said that she was waiting there with two motorcyclists.
22. Mr. Witness, what did Martha Sirleaf, your aunt and the defendant in this proceeding, exactly tell you?
23. Martha Sirleaf told me that she had misappropriated almost three hundred fifty thousand (LD350,000.00) of their club money that she needs cover up. After I asked her to loan me six hundred United States (US$600.00) dollars to buy a design diesel.
24. Mr. Witness, how were you to cover up the defendant, Martha Sirleaf, after she misapplied the club’s money in the amount of three hundred fifty thousand (L$350,000.00) dollars?
25. She said: “carry these boys straight to Careysburg District, Bola, to Mr. Mitchell’s house. There I will be waiting and I want you people to rob the balance of the money so everybody can lose.
26. Mr. Witness, what the defendant do to facilitate your trip to Bola, Careysburg District?
27. She gave us ten dollars United (USD10.00) to buy gas for the motorcycle.
28. Mr. Witness, where did you go directly when you left Paynesville?
29. We went directly to 15 Gate to await her call.
30. Did she call you, if so what did she say to you?
31. She said you pass and go to 15th Gate.
32. Mr. Witness, how did you get to know the exact location of the house?
33. Martha Sirleaf and I communicated over cell phone and that is how I got to know the place.
34. Mr. Witness, you told the court and jury that you were going to rob. What were you having to subdue the victims in case of any eventuality? A. I use knife and broken bottles.
35. Mr. Witness, how did your group gain entrance to the house?
36. It was Martha that opened the back door for us.
37. For the benefit of the court and the jury Mr. Witness, please explain what part she played and how was it accomplished?
38. As a fourth in the click I stayed outside to guard the perimeter.
39. What happened at the Mitchell’s house when you and your group got there?
40. As I said, the door was already opened by Martha Sirleaf and two other persons went in and by then Tumu was at the door. While outside fighting was going on inside the house between Mitchell and one of the boys. Mitchell disabled him and that was when I came within and stabbed Mitchell on his back. That was how Mitchell left him and both of them escaped.
41. Mr. Witness, you told the court and jury that Martha Sirleaf, the defendant and the architect of the December 10, 2010 armed robbery incident communicated with you minutes before the incidence. For the benefit of the court and the jury refresh your memory and say the numbers that were used by you both at the time?
42. 06903916 that is my number and 06438002 is Martha Sirleaf’s number.
43. Mr. Witness, please tell the court and the jury where and who arrested you?
44. Mitchell. Careysburg District, at Mr. Mitchell’s residence.
45. You made reference to broken bottles that you had when you went on the mission. Were you to see specimens thereof will you be able to recognize same?
46. Yes
47. By that answer and by kind permission of court I pass you over court’s marked instrument P/ 1. Please look at same and tell the court and the jury what you take it to be?
48. This is one what I used while in the fight; it dropped from me at the crime scene.
49. Mr. Witness, as an eye witness to the December 10, 2010 armed robbery incidence, do you   have  any  other thing to  claim   the attention of the court  and the jury apart  from what you had already said, if so what  is it?
50. I told her [Martha Sirleaf] that his mission is a deadly one. Should in case something happens  to me and I die  will you  not  bury  on the farm  among  the  people  that  committed the  act. She said nothing will happen  to you; just go. After  this  mission I will give  you  the amount of  six hundred fifty United States  Dollars  (US$650.00)  to buy  the  machine  that  you  requested for. Before  then, I asked my father for  this  money  and he refused  that  was how  I called  her  to help  me  with this  said  amount. Lastly, I directed her where  she could  find  my  wife  and children, should something happens to me in case I die, and she said you go, nothing will happen to you  and that  was how  we left.

CROSS EXAMINATION

1. Mr. Witness, you informed this court and the jury that you were  arrested and  taken  to the  police  station. It is my understanding that you were investigated by the police. Am I correct?

1. Yes. I was investigated by the police.
2. By that answer Mr. Witness  am  I also correct to say that  you  made  a voluntary statement to the police  during that  investigation?
3. Yes
4. By thatanswer  Mr. Witness, is it correct to say that you  told the  police during that  investigation that  you rode  a motorbike from the  Redlight  to

Philip’s Farm  junction and  asked  for  the  whereabouts of  your   aunty, Martha Sirleaf, the defendant in these  proceedings. Am I correct? A. Yes, that  is correct.

1. By thatanswer  Mr. Witness, am I also correct to say that  when  the inquiry was  made  that  is when you  asked  for  the  whereabouts of  your  aunty, Martha Sirleaf,  you  were  told by  the  by-standers to check  around 15- Gate?  Am I correct?
2. Yes, you are correct because it was a team work.
3. Mr. Witness, is  it also   true  that    you   told  the   police   during this investigation that  while at  15-Gate  someone told you  to go to George Mitchell’s house?
4. Yes
5. Mr. witness, in your testimony in chief you told this  court  that  you were at your  work  place  when  your  aunty  the  defendant in these  proceeding called  you to meet  her at the  Redlight  and that  she was awaiting for two motorcyclist to join her?
6. Yes
7. By that answer    Mr.   Witness,   it is  also   my   understanding  that   you informed the  police  during the  investigation that  the  same  two motorcycles and they  told you that  they  were  on their way back to town and that  you thought it wise they  should  drop  you to Bola Town and they did.  Am I correct to say this?
8. Yes. Because it was a cover up.
9. By thatanswer  Mr. Witness  you told the  jury  and this  Honourable Court that  the defendant Martha Sirleaf told you to carry the two boys straight to Careysburg District to Mr. Mitchells’ house  and  there she would be awaiting you.  Is that  correct?
10. Yes
11. Mr. Witness, is it true that you informed the  police that  when  you got to Mr. George Mitchell’s house you knocked at the door?  A. Yes, based on the cover up.
12. By thatanswer  Mr. Witness, are  we  correct to also  say from the  police investigation that  upon knocking at Mr. Mitchell’s house  door  you felt  a force from the back and people  begin to shout.  Am I correct? A. That is correct based on cover up.
13. Mr. Witness, by thatanswer, is it also true  from the  police investigation that  you identified yourself as Otis Nana Varfley. Was this a cover up? A. I called my name and that  was not cover up.
14. Mr. Witness, is it also true from the police investigation that you informed the police  that  upon  the  knocking of Mr. George Mitchell’s door  you saw two guys  with cutlasses  in their hands  who  attacked you  with the  said cutlasses and sticks?
15. Yes
16. Mr. Witness, you informed the police that the defendant is your aunt. Is it true that the  last time you saw the  defendant prior to December 10, 2012, was in the year 2006? A. No.
17. Mr. Witnessyou informed this  court  that  you requested assistance from the  defendant in the amount of six hundred (USD600.00) United States to purchase   diesel.   By  what   means   did   you  communicate to  her   said request?
18. Telephone first and them face-to-face.
19. By that answer Mr. Witness  is it correct  that  this request to your  aunt  was made in 2010,September?
20. Yes
21. Mr. Witness, in the same September 2010, you also requested your aunt to call your father in U.S.A and advised him to help with some money and when she didn’t you got outraged. Am I correct?
22. After I asked her for the money, she told me that she had misappropriated three hundred fifty thousand Liberian dollars so I should wait for December. To correct your answer, I asked her to call my father for the money that she had misappropriated because she is the only one that he can listen to.
23. Mr. Witness, is ittrue  that  you  lied to  the  police in your voluntary statement  even after you were advised that said statement  could be used against you in the court of competent jurisdiction.
24. The statement from the police station was a make-up story by Martha Sirleaf and I, Otis Varfley for a cover-up, because she had told me  from the beginning including the whole family that I shouldn’t uncover her up that she would find a lawyer to plea on my behalf, but all of time that I stayed in prison, I  could not see a sign of a lawyer. So I said this was an organized crime, I alone will not suffer it.  That is how I had to uncover her up. So that  before this Honourable Court and the  jury that the truth should be revealed.  In so doing, Martha Sirleaf is my blood aunt so I had no reason to lie on her.
25. Mr. Witness, you informed this Honourable court and thejury that  you were accompanied by two motor cyclists who took you to Bola town at Mr. George Mitchell’s residence; these  motorcyclists and you were co-armed robbers. Is that correct?
26. Yes, that she had provided.
27. Mr. Witness, by thatanswer, for the  benefit of the Petit Jury and this Honourable Court please state  the  names and descriptions of your two coconspirators?
28. She did not give me their names.
29. Mr. Witness, is it correct that while you were detained at the Monrovia Central Prison some members of the Bola women Club to include Tumu Jackson visited you with respect to these proceedings?
30. Yes, the whole group visited me including these two counsels, the defense counsels.
31. Mr. Witness, you were arrested wearing the same trousers  and shirt  you are wearing. Am I correct?
32. No

RE-DIRECT

1. Mr. Witness, you toldthe  court  and the  jury  that  you made  “voluntary” statement at  the  police  station which  statement maybe  slightly different from what  you said in the opened  court. For the benefit of the court  and the jury what do you have to say about  that  voluntary statement?

1. Mr. Witness, by  that  answer, you  were  taken  to the  Monrovia Central Prison and detained in the same clothes you are wearing. Is that  correct?
2. The statement I made at the  police  station. I continuously say to this Honourable Court and the Jury that  it was a cover-up made  by my aunt

, Martha Sirleaf and I, Otis N. Varfley. I also want  to inform this court  that  I made  such cover-up  because  of  what  she  had  promised me  after   the mission. And because she did not meet up to her promises, so I deemed it necessary upon the oath that  I had taken in this court  to say the truth and nothing but the truth, so help me God.

1. By that answerMr. Witness, are you telling the  court  and the  jury  that what  you had said here in this opened  court  is the truth of all matter?
2. Yes, it is the truth and nothing but the  truth, because I am the  one  she had   previously told  about this   money   which   is  three   hundred fifty thousand Liberia  dollars  that  she had misapplied form their club money. So she told me that  we should use this mission as a cover-up.

RE-CROSS

1. Mr.Witness,  you  did  the  cover-up because  the  promised to give  the money. Not so?

1. Yes.
2. So Mr. witness tell this court since indeed and in fact that you and Martha

Sirleaf  and the  other  two persons  did plan  to do the  armed robbery and you and the  other two persons  executed  the  said plan.   Simply say what was the plan that  was put in place to do with the money that  was armed robbed after the armed robbery, Mr. Witness?

1. Isaid in my statement before this Honourable court and the jury that  the plan for the armed robbery that  was carried  on by Martha Sirleaf and few others  and  I was  complete cover-up for  three  hundred fifty  thousand Liberian  dollars  she told me  that  she misapplied.  In  so doing, you  will come to know  the facts that  those two  motorcyclists she connected and I, Otis Varfley  went  directly to 15-Gate to await  her call, when she told us to pass and reach 15-Gate  to wait  for  her  call, because it was around 4:45 PM and people  were still passing around in Bola Town. I want  the court to also   know   that   the   police   officer  that   investigated  this   case  from Careysburg  will  tell  this court  that  it was said or proven by the  owner  of the  bike that  the two  motor cyclist and I waited for  the  call from Martha Sirleaf.
2. So, you are telling thecourt  and the  jury  that  the  intent of the  robbery was only to do a cover-up. Not so?
3. That is what I was told by Martha Sirleaf
4. So by that answer you people  did  not  take  any money  but  only  did  the robbery for the mere  purpose of hiding the  three  hundred fifty thousand Liberian dollars that  was allegedly misapplied by Martha Sirleaf, Not so?
5. I said in my statement before this  Honourable court  and  the  jury  that Martha Sirleaf had contacted these two  motorcyclists before calling me to meet  them at Redlight, so, I don’t know  if she had other  plan under  her sleeves besides the one she and I discussed.  So this mission as a cover-up and  I also  said  before  this  court  that  I remained outside to  guard  the perimeter of Mr. Mitchell’s  residence, so if those that  went  in and Martha Sirleaf had planned to take  money  from in Mitchell’s house it was not  to my knowledge.
6. Mr. witness, you said in response one of my question on the re-cross that you and the rest of the two other persons  were  motorcyclist went  to 15- Gate in order to await to the call of Martha Sirleaf not so?
7. Yes
8. And what timeas it Mr. Witness:
9. Around 8:45
10. And she did call you?
11. Yes
12. Mr. witness, you also told tis court that he police officer who investigated this case initially will say that it was proven by the owner of the bike that the two motorcyclist and you waited for Martha Sirleafs call not so?
13. I told this court that the police officer that initially investigated this case talked  with the  owner  of the  bike that  we were  waiting at  the  call of Martha Sirleaf and if  he will be allowed to testify under oath  the court will hear what he has to say about my above statement.
14. Mr. Witness, it was a cover-up when you toldthe  police that  Martha Sirleaf promised to give you some money. Not so?
15. In my statement to the police if this Honourable Court and Jury will study and also my statement that I made before this court you find clued that lead to my factual statement. I made before this Honourable Court and the jury and to lead this court to the facts, I would like to state the clues that  lead to  the  facts in my statement that  I made  in this court  after taking oath:
16. Inmy statement to the police, I   said two motorcyclist dropped  me at Philip Farm Junction and later on dropped  me back to Bola.  It is the clue that  lead to the facts in my statement that I made  before this Honourable Court that  Martha had contacted two motorcyclists for us to wait for her at 15-Gate for her call.
17. In my statement to the police, Isaid Mr. Mitchell’s door was knocked on and I called my name, Nana. This is a clue that lead this Honourable Court when I said in my statement that Martha Sirleaf said he was going to leave the back door open for us to enter through.
18. Mr. Witness, my question is, you said your statement at the police was a coverup. So,the statement that your aunty, Martha Sirleaf, was also a cover-up?
19. I want to tell this court that it is the  money that  my aunty  Martha Sirleaf promised me that motivated me to do what I did. A. No. that is not a cover-up.

JURY QUESTIONS

1. Glen Johnson: Mr. Witness, in your testimonyyesterday,  you told this court that you and Martha Sirleaf are related, not so?

1. Yes, Martha Sirleaf is my aunt.
2. Mr.witness, you  said in this  court  that  you people  were  four  in number  that  went  to  armed  rob  unfortunately two  of  you  were captured, while  the other  two  escaped. I would like  to know  Mr. witness, as to  whether  you ever recognized  any of  these guys by their names or places of origin?
3. I said before this Honourable Court and the jury that Martha Sirleaf was theone that  contacted  the  two  armed  robbers  that  escaped and Martha  Sirleaf before  among us the four persons names is the one I know.  I do not know the other two.
4. John Blackie: Mr. Witness you told the court and the jury that  your name  is Otis  Varfley.    My question  is have  ever  armed  robbed before and if yes or no why were contacted?
5. I wouldlike to inform this  court  that  I. Otis N. Varfley, had never armed robbed before or do I have bad records at any police station or court.  To clear your doubt  why I was contacted, it was because I am the  only  family  she trusted at the  time  and that  she used to share this information with for misapplying her club’s money.
6. NelsonGbongon:  Mr.  Witness, all of  these  plans  were  they  on phone or on one to one basis?
7. Mostof this plan between Martha  Sirleaf and I was on phone  till lately  when  I met  her  at  the  Redlight  with the  two  motorcyclist awaiting me and if you have the communication call log from Lone Star here  now  you  will  notice  that  we have been communicating much apart from all other times.
8. Chris Faye: Mr.Witness,  what  was  guaranteed   you  for  Martha Sirleaf that  if this mission was successful she would give what  she promised?
9. Like I said previously, she is my aunt and I am very closed to her and she is closed to me so that guaranteed the promise  she made to me after the mission.
10. Matthew Williams:Mr.  witness,  according  to  you  , your  father  is residing in the U.S.A. and  you wanted to purchase a designing machine and also after your aunt, Martha Sirleaf the club’s money you advised her to contact  your father in U.S.A. to credit her some money to assist her.  My question  is Mr. Witness, since you were  in dire  need  for money why you cannot request from your father for assistance?

A.I asked my father  before even going to Martha Sirleaf and he told me your  mother  is sick and  I    don’t  have any  money  to  give you  now. Based upon that, I  was encouraged  to ask my aunt,  Martha Sirleaf. That was when she told me that she had misappropriated  $350,000.00 of her club.

From the foregoing testimony of Otis Varfley, the question  is, did it meet the  test  of establishing  for  the  prosecution  the  motive  of  the  appellant   in planning and engaging him and the other  two perpetrators of the  crime with which the  appellant  is charged, taking into  consideration  the  testimonies  of other  witnesses, to warrant  the  jury returning a verdict that  indicated  such a test  was established?  We do not believe that testimony of the witness met the test or the standard  to warrant the verdict returned  by the jury, considered with all of the other testimonies,  the credibility issues arising from his conduct, and particularly given the  sequence  of events  and  the  status  of  the  witness.  A review of the testimony  shows enormous  contradictions.  But let us start  with the status of the witness.

Otis Varfley was not just another  witness for the prosecution. He was one of the perpetrators of the act of which the State complained. In legal parlance, he was an accomplice to the crime. In the case Monie and Garzu v. Republic, this Court defined an accomplice as: one  who knowingly, voluntarily and with the principal offender  unites  in the  commission of a crime. 34 LLR  502 (1988). Given the position of such a person, this Court has also held that “the testimony of [such] accomplice to a crime should be taken with caution, adding that what is of concern in such situation “is the credibility of his testimony. ld., at 516. In examining  Otis Varfley’s testimony,  we  must  therefore   do  so  with  caution, ensuring that the standard  which the law requires in such circumstances is fully upheld and that the testimony is credible.

We should note that we do not here set out that an accomplice to a crime cannot testify for the State. Indeed, in the case Kpolleh et al. v. Republic, 36 LLR 623 (1989), this  Court held that  “an accomplice is competent  to  testify  as a witness for the  State. The Court added: “Where  several  persons  conspire to commit  a crime, the  act and declaration  of any co-conspirator  pending such conspiracy  and in furtherance thereof, are admissible  evidence  against  any conspirator  on  trial. ld.,  at  658.  t  is a  settled  principle  of  law  that   an accomplice  testifying  for the  prosecution notwithstanding the  turpitude of his conduct  is not on that  account  an incompetent witness;  the fact that  a witness is an accomplice  as a matter of law does  not preclude the use of his testimony by  the  State. The same is true even though   he has pleaded   guilty.  This is likewise true   even   though   the   accomplice   witness   confesses his criminal culpability or testified under promise of immunity.  Citing 2 Wharton’s Criminal Evidence, section  729, at p. 1224.

In the case Davies v. Republic, 40 LLR 659 (2001), this Court, noting that the  prosecution of all criminal matters in our  jurisdiction  has its foundation in certain  basic principles of law, then  proceeded to hold that in all trials upon indictments order  for the State  to convict the  prosecution must  prove the guilt of  the   accused   with  such   legal  certainty  as  to  exclude   every   reasonable hypothesis of his innocence; that  material  facts essential to constitute the crime charged  must  be  proved  beyond  a  reasonable doubt;  otherwise, the  accused will be entitled to a discharge. ld., at 676-77.  The Court, citing the case Burphy v. The Bureau of Traffic, 25 LLR 12 (1976), in support of its holding, added: To warrant a conviction  in a criminal case, the  state must  prove its case beyond  a reasonable  doubt;   and  the   burden   of  proof  remains   with  the   prosecution throughout the  trial. The Court further propounded: In criminal  prosecution, in order  to eradicate every  reasonable doubt, the evidence  must  be conclusive; and  if  it be circumstantial, it should  be so connected as to  positively  connect one element within another for a chain of evidence  sufficient  to lead the  mind irresistibly to the conclusion that  the accused  is the guilty party. Citing Kojee v. Republic, 20 LLR 18 (1970); Republic v. Smith, 25 LLR 207 (1976). The Court then set  out  the  critical  question. Citing the  case  Kamara  v. Republic, 22  LLR  329 (1974) the  Court said: The question in criminal cases therefore, is not  of mere proof   but  proof  beyond  a  reasonable doubt. Thus,  where   an  accused   has presented proof or evidence  as to raise a strong  doubt  regarding the substance of prosecution’s case,  the  latter  is under  a duty  to  rebut  said evidence  or the conviction  will be overturned. The question is whether the  prosecution formed link  by link  the   chain  of  evidence   needed   in  criminal  cases  to  lead  any reasonable  mind  to  the  conclusion   of  the  guilt  of  the  appellant  beyond   a reasonable  doubt. Id., at 680.  See also Heith  v. Republic, wherein  this Court said:  A judgment of conviction in a criminal case must be supported by proof of all  elements  of  the  crime  charged  beyond  a reasonable  doubt. 39LLR  SO (1998). And while in the Davies case, the Court held that  the prosecution  had adequately  rebutted the appellant’s  claim of innocence, we cannot  say that  in the instant case, that rebuttal standard was met. Whenever there is reasonable doubt, the defendant is entitled to an acquittal. Heith  v. Republic, 39 LLR SO (1998).

It is therefore critical  that   we  review   his  testimony  in  light   of  the sequence of events, the lack of other  evidence to support  his theory, and the inconsistencies  in  his  testimony. We  commence  the  examination  with   his appearance  at the  police  investigation. This is what the  police  charge sheet, issued on December 22, 2010 and submitted to the Magistrate  Court for the City of Careysburg on December 23,2010,said:

That  on December 11, 2010, at the hour  of 12:21A.M., defendant  Otis Varfley  was arrested, acquainted  with  his  constitutional rights, investigated  and charged with  the crime of armed robbery  in violation of Chapter 1S, section 1S.32 of the Revised Penal Code of Liberia based on the complaint of victim  Moses Mitchell in which the Bola Town Women Club sustained the loss of L$31S,18S.OO and complainant Moses Mitchell sustained serious bodily  injuries  on his left  side of his ribs with  knife by the robbers.

According to  the complainant, on December 11, at 12:21A.M. while  in doors, they heard a loud noise in the house at the front  door, after which about three  unknown men brandishing cutlasses, knife, AK-47 rifle, glass bottle  and  other  deadly  objects,  entered,  boot the  house  door, threatened to  kill  anyone who  alarm  at the  same time· demanding  and searching for their  cash that  the unknown men took  away the money in question. Two of the armed robbers absconded with same and defendant Otis Varfley was caught by the citizens of the town.

Suspect  Otis  Varfley  told   the  investigation  that   he  was  arrested   at Mitchell’s residence by some people (Mitchell’s family). During Police/CID investigation conducted  with the herein named defendant, he denied his involvement into   said  crime  (armed  robbery). Defendant  Otis  Varfley further  [said]   that   he  went to  see  his  Aunt   (Martha  Sirleaf),  when promised to assist him  with some monies  to start  his business after  they share their  club on Saturday, December 11,2010.

In view  of the above, coupled with eye witnesses  accounts  and the arrest of defendant Otis Varfley  at the scene of the  crime, the investigation has resolved to charge  defendant Otis  Varfley  with armed robbery, criminal facilitation and criminal solicitation and criminal trespass  in  violation of chapter 15, section  15.32, 15.51and chapter  10, section  10.2 of the  New Penal Code of Liberia and forwarded to court.

The records  further reveal that  as a consequence of  the  findings of the police, upon  which the charge sheet was issued, the police  took  the further step in   issuing,   on   December   24,   2010,   another document  captioned  Police Confirmation Clearance.  The Police Confirmation Clearance stated in part: In the  course  of  police  investigation, no  evidence  of  any form of  criminality was determined on  the part  of  Madam Martha Sirleaf.  Thereto, Madam Martha Sirleaf  was exonerated from the  investigation.” This latter document was also based on the  failure  of Otis Varfley, during the  course  of the  investigation, to implicate the appellant in the armed  robbery. And while  we do not  believe that the  prosecutors were  bound  to accept  the  findings of the  police, it makes  the burden of  proof of  the  prosecution much  greater, for  the  State  must  now demonstrate reasons for  deciding not  to accept  the  findings  of the  police. The issuance  of  the  police  charge  sheet  as  well  as  the  Clearance  given  to the appellant was predicated upon  the statements made  by Otis Varfley  during the police  investigation. During the investigation, as his answers   on  the  cross- examination show, he  completely exonerated the  appellant from  any association with the armed robbery. Yet, in his testimony he implicated her. The explanation he gave for not implicating her at the police investigation is that  he wanted to protect her. How  is one  to be  sure  that  at  the  trial he  sought  to implicate her in order  to be free from  accounting for his crimes, even though he admitted being a principal perpetrator of the crime?

How also could one believe, although the possibility cannot  be completely erased, that  a person  would associate with others  to commit such gave offense as armed robbery without knowing the persons with whom he was associating? There were just too  many lingering questions. Who, for example, was the team leader? How were the proceeds to be divided, i.e. who would take what amount or what percentage? Where were they  to  assemble  to  divide  the  proceeds following the robbery?  How confident was he that following the armed robbery, the others would not take off without him, as indeed occurred?

Also disturbing regarding the testimony of the witness is that it is littered with  inconsistencies. For example, the  witness  stated  that  it was due to  Mr.

Mitchell being injured that he let the other  perpetrators escape from  the scene of the crime, yet he states that it was the same Mitchell that apprehended him. Had Mr. Mitchell recovered from his injuries?

Then there was the unimpeachable evidence that the accounts of the Bola Town Women Savings Club had several signatories. How was it possible for the appellant to have taken the proceeds from  the bank without their  knowledge? Indeed, on the day the proceeds were withdrawn from  the bank, the appellant was accompanied by several other members  of the Club. All of them  knew how much was in the bank. No one complained that the amount which should have been in the bank was not there. They were all aware of the amounts  that  were to  be  distributed and  they  prepared  themselves  for  the  distribution. Where then was the misappropriation that the appellant sought to cover up by putting together the scheme to commit the armed robbery?  One must  also keep  in mind  that  all  amounts  collected  for the  Club were  deposited  into  the  bank, except for amounts determined by the Club to be kept by certain members. The deposit  slips were delivered  to the President of the Club at all times. We have seen nothing in  the  records  evidencing  that  deposits  were  not  made  by the appellant when  they  should have been made and that  therefore, there  was a shortage in the Club’s account.

Further, the amount which was withdrawn from  the  Club on December 10, 2010 for distribution was L$310,000.00, which  presumably was the correct amount  deposited into the account. Where then did the L$350,000.00 which the appellant was supposed to have stolen come from? How then was it possible for the appellant to have stolen an amount of money that belonged to the Club that no one knew about, or that didn’t exist?

But more importantly, there  was not a single witness  who could show or present any documentary or other  evidence that there  was any shortage of any amount   within the  Club  prior  to  the  incident and the  records  of  the  bank showed  no such shortage.  In the absence  of such showing, the

prosecution’s theory,   the motive  of  the   appellant   for  allegedly  committing   the   crime crumbles, and the testimony of Otis Varfley as to why the appellant initiated the armed  robbery also crumbles. How could a person commit a crime in order to cover up a misappropriation when no misappropriation  was shown by the prosecution?

Further, Otis  Varfley stated   that  he had  made  several  calls  to  the appellant   just  immediately  prior  to  the  occurrence  of  the  incident  or  the commission of the crime to get the location of the town and house where they were to commit the crime. That information, standing by itself, could have been given some credence. Yet, he also testified  that  he had stopped  at 15 Gate to get directions for the place. We wonder as to what was the need for him to stop at 15 Gate to ask for directions if  he had already  been given directions  by the appellant.   Nevertheless,  the   prosecution   believed  the  story  and  therefore requested  the  court  to  subpoena  the  records  from  the  Lone Star Communications Corporation, which request was granted  by the court.

A person, under the name of Nathaniel Kevin, purporting to be from Lone Star, appeared  in court, with documents  which he said were the  records from Lone Star. This is the  dialogue  that  occurred  between the  witness  and  the prosecution counsel on the direct and re-direct and the witness and the defense counsel on the cross-examination and re-cross: Q. Mr. Witness, [what] is your name?

1. My name is Nathaniel Kevin
2. Where do [you] live?
3. live on Randall Street, Monrovia, Liberia.
4. work at Lone Star Communication Corporation.
5. “Mr. Witness, the management of your employer  was summoned by  this  Honourable  Court  upon the  request   of  prosecution   to produce  call log of cell  phone  number  06438002  and  06903916 made  on  December 10, 2010. Now that  you are  on  the  witness [stand]  representing  the  management, my question  to  you is do you have said call log ready and if so can you preen t same to the Court?
6. Yes, I do have the call log.

Pros. At  this   stage,   as   per   virtue   of  the   witness   response, prosecution  prays court for the mark of identification to be placed [on the] instrument  (call log) presented  by the witness on the stand and submits.

The Court:  The instruments, call log with two cell phone numbers, cell phone 06438002 and 06903916 is hereby ordered  marked plaintiff’s exhibit P/4. And submits.

4. Mr. Witness, by kind permission of court pass you overcourt’s marked instrument  P/4. Please look at same and tell court and jury if the document that you presented   to court is the same document been marked by court?
5. Yes, it is the same document.” This was all that the prosecution  extracted  from  the  witness.  On the  cross-examination of the witness, the following transpired:
6. You said you worked with Lone Star Communications right?
7. Yes.
8. Do you have any identification to show thatyou work with  Lone Star Communications?
9. I don’t have it on me, but I can get it if I can leave the court and go to my car.
10. So Mr. Witness, you donot  have any identification  to show that you work with Lone Star?
11. Yes, I do not have it on me.
12. Mr. Witness, on the face of the document you have just identified and marked by court P/4, you have said is a call log from Lone Star. Not so? A. Yes, the document is from Lone Star.
13. Mr. Witness, by that answerI pass to you court’s  P/4 which you have identified from Lone Star. Please look at it Mr. Witness and say whether for the clarity for the court and  jury it has on its face the name Lone Star. A. The document do[es] not have on its face Lone Star.

Redirect:

1. Mr. Witness, in your last response to the question on the cross you said that the  document  that  you  presented   does  not  have  the inscription on its face. For the benefit of the court and  jury, please look at the document  and say what on it indicates that  it is from Lone Star?
2. There are several columns on the document and Ispeak to the first column.

The  first   column  state   subscriber   number   and   that   is subscriber of Lone Star as evidence requested for to produce today.

Re-cross

1. Mr. Witness, you have just told  the  court  that  the  first  column shows that subno-abbreviation in the first column for subscribed number shows that the document P/4 comes from Lone Star, not so?
2. Yes, sir.
3. By thatanswer  Mr. Witness, taking into consideration  that  there  are several communication  companies  here in Liberia, tell this court and jury whether  the abbreviation  subno which is the abbreviation according to  you for subscribed  number  is unique to  Lone Star Communication?
4. I cannot speak for any other company but I can speak for Lone Star. I can say yes.

From the  quoted  minutes,  it can clearly be seen  that  the  prosecution failed  in its attempt   to  verify the  testimony  of Otis Varfley that  he was in communication with the appellant just before the armed robbery took place, seeking direction from her for the Mitchell’s house.

Firstly, the witness had no form of identification on his person to verify that  he worked  with  Lone Star Communications Corporation  or that  he was authorized  by Lone Star Communications Corporation to present the documents which  he  brought  to  the  court.  The defense  attacked   him on  that  ground, effectively challenging his statement that  he worked with the corporation. Yet, the prosecution made no effort to cure this defect. Why did the prosecution not ask the court to allow a few minutes recess to enable the witness to secure his identification card, if  he had one? Why was another  witness not produced with the appropriate identification to verify that  the witness did work with and for Lone Star and that  he was authorized to respond to the writ issued by the court on Lone Star to produce the documents requested by the court?  How could  any person otherwise determine that  the witness  actually work  for Lone Star?

Secondly, according to the prosecution, the armed  robbery is said to have taken  place at about  12:21a.m. on the  morning of December  11, 2010. This is also the time stated in the Police charge Sheet, the Arrest  Warrant issued by the Careysburg   Magisterial  Court,   the  Police   Confirmation  Clearance   and   the Indictment brought by the  Grand  jury  against  the  appellant and  Otis  Varfley. Yet, no  effort was made  by  the  prosecution to have  the  witness  specifically identify the  times  indicated on  the  call  log  as to when  the  numbers of  the appellant and Otis Varfley  appeared to show that  at about  or close to the time of the armed  robbery, they  were  in contact, since that  was the objective of the prosecution in praying the  court  for  the  wit  to subpoena  the  document. Such questions may even have raised  suspicion  in the minds  of the  jurors as to how just pass midnight the appellant and Otis Varfley  were  still in communication at that   unusual  hour. It certainly would have  raised  credibility issues  with the testimony of  the  appellant that  she communicated with Otis  Varfley  around 7:30 p.m. on the evening of December 10,2010.

Thirdly, how  was the so-called  call log to be authenticated as being  from the  Lone  Star Communications Corporation, when  the  said  document has no make  of  identification of the  corporation on it?  It is possible  that  any person could  have prepared such a log. And given the fact that this  was needed  by the court  for purpose  of verification of certain call times, there was certainly a need for  the  document to have  such identifiable symbols  as would authenticate or verify that  it was from  Lone Star and not  be susceptible to challenge.  We note that  no corrective steps were  taken  to cure the situation. How  then  could  the jury not have had reasonable doubt as to the guilt  of the appellant, exclusive  of whether the appellant was actually  guilty  as charged or not?

But even more  than that, it would have at least corroborated and verified the  claim  made  by  Otis  Varfley  and  the  other  witnesses  who  said  that  they suspected  that  the  appellant was speaking  with Otis Varfley  at the  times  they indicated she was whispering on the phone, just before the armed  robbery took place.   It  certainly would have   corroborated  or   added   some   measure   of credibility to the testimony of Otis Varfley  that  he had been on the phone  with the appellant just before the armed robbery.

We believe that all of the above mentioned shortcomings raised or should have raised reasonable  doubt  in the  minds of the  jury. They certainly raised such  doubts  in  the  eyes  of  the  law,  unless  they  were overcome  by the testimonies of other witnesses. Our review of the testimonies of the other witnesses connecting the appellant to the crime remained mere speculation and conjecture, and cannot be give validity. Several witnesses, for example, testified to accounts held at various banks by the Bola Town Women Savings Club, but none of them testified to any misappropriation by the appellant as would have confirmed the  prosecution’s theory relative to the  motive of the appellant  in wanting to commit the crime.

Our examination of the testimonies of other witnesses also showed that most of the  testimonies  of the  witnesses  who testified  for the  prosecution bordered on conjecture and hearsay rather than substantive evidence of the magnitude to warrant the conclusion that definitively the defendant/appellant was  responsible   beyond  any  reasonable   doubt   for  the   crime  that   was committed or that she was a part of the crime. None of the witnesses testified that  the appellant arrived on the scene of the armed  robbery along with the other armed robbers; none of them testified, other than stating that she was an armed  robber,  that  she  participated  in the  armed  robbery. The sole  claim asserted   by them  was  that  she  received a  number  of telephone  calls and responded in inaudible tune and that she left the door opened  which enabled the armed robbers to enter the house.  No one disputes. that an armed robbery occurred in the early morning hours of December 11, 2010. But that is not the issue in the case. What is at issue is whether  the appellant  was a part of the armed robbery. The police that investigated the matter did not believe that to have been the case, and the State’s  prime witness who could have linked the appellant  to the crime admitted  that  he had told the  police that  she was not involved in the commission of the  crime. His testimony, with such credibility issues, was of no aid to the  State. To the  contrary,  our examination  of the witness  testimony  shows  that  he  was  of  more  harm  to  the  State  than  of assistance.

We also have difficulty understanding why the sole concentration seemed to have been on the appellant, rather than expanding the investigation to seek out and find the other  members of the gang that  committed  the act, so that justice is truly  served. No logical explanation is revealed by the  records for this failure. Moreover, although the police charge sheet, the arrest warrant  from the magisterial court  and the indictment  indicated  that  L$350,000.00 was robbed, the evidence showed that  not only was this amount  in excess of the amount withdrawn from the Bank, but also that the amount actually robbed was far less than  the  stated  amount, and  that  the  members  of  the  Club shared  in  the amount which they claimed was robbed from the Club.

This Court has held in  a number  of cases that  where  the  evidence  is insufficient  or show reasonable doubt, as in the instant case, a jury’s verdict of guilty cannot and will not be upheld. We believe such to be the situation  in the instant case.

Accordingly, we  hold  that  the  prosecution, having  failed  to  meet  the threshold  of establishing the  guilt of the  appellant  beyond  every  reasonable doubt, the verdict of guilty brought  by the petit  jury and the judgment  of the lower court entered confirming the said verdict be and are hereby reversed. We further hold  that  in accordance with  our holding, the  appellant  be released forthwith from imprisonment and not be answerable any further  for the offense of armed  robbery  with  which she was charged. We direct  that  her  bond  be returned to her.

The Clerk of this Court is hereby ordered to send a mandate  to the trial court  commanding  the judge presiding therein  to resume jurisdiction over the case and to give effect to this judgment.

Judgment reversed.

Counsellor Sayma Julius Syrenius Cephus of Kemp and Associates Legal Consultancy Chambers appeared for the appellant. Counsellors M. Wilkins Wright, Solicitor General of Liberia, and Samuel K. Jacobs, Senior Legal Counsel, Ministry of Justice appeared for the appellee.