THE SEYCHELLES
LAW REPORTS
SUPREME COURT DECISIONS
______VOLUME 2009 ______
Editor
John M R Renaud, LLB (Lond) Certificate in Legislative Drafting of Lincoln’s Inn, Barrister Chairman of the Public Service Appeal Board Practising Attorney-At-Law
Published by Authority of the Chief Justice
[2009] The Seychelles Law Reports 2 ______
JUDGES OF THE SUPREME COURT
CHIEF JUSTICE
Hon A R Perera (till 28 August 2009) Hon B Renaud (Acting Chief Justice June – August 2009) Hon F Egonda-Ntende (from August 2009)
OTHER JUDGES
Hon D Karunakaran Hon D Gaswaga Hon M Burhan
EDITORIAL BOARD Hon Fredrick MS Egonda-Ntende, Chief Justice Hon Ronny Govinden, Attorney-General Mr Kieran Shah of Middle Temple, Barrister Mr Bernard Georges of Gray’s Inn, Barrister Mr Melchior Vidot, Attorney-at-Law, Master and Registrar, Supreme Court (Secretary to the Editorial Board)
CITATION These reports are cited thus: (2009) SLR
[2009] The Seychelles Law Reports 3 ______
CASES IN THIS VOLUME
Ladouceur v Republic [Evidence]...... 131
Republic v Barbe...... 39
Republic v Bradburn ...... 99
Republic v Edmond ...... 9
Republic v Ladouceur [New trial]...... 19
Republic v Meme ...... 32
Republic v Payet …………...... 148
Republic v Vel ...... 92
Seychelles Development Corporation Ltd v Commissioner of Taxes ...... 116
Under Water Centre (Pty) v Beau Vallon Properties ..... 205
[2009] The Seychelles Law Reports 4 ______
DIGEST OF CASES IN THIS VOLUME
ABSENT DEFENDANT
Absent defendant – lost evidence
Republic v Ladouceur 19
Drug trafficking – absent defendant – new trial Constitution – international law
Ladouceur v Republic 131
BUSINESS TAX
Business tax – assessment - interpretation
Seychelles Development Corporation Ltd v Commissioner of Taxes 116
COMMON INTENTION
Jury direction – burden of proof –unlawful acts – common intention – corroboration – murder – retracted confessions– circumstantial evidence
Republic v Payet 148
CONFESSION
Jury direction – grievous harm – procurement – voluntary confession – witness identification
Republic v Barbe 39
Jury direction – burden of proof –unlawful acts – common intention – corroboration – murder – retracted confessions– circumstantial evidence Republic v Payet 148 [2009] The Seychelles Law Reports 5 ______
CORROBORATION
Criminal law – mens rea – intoxication – corroboration of evidence of child
Republic v Edmond 9
Jury direction – burden of proof –unlawful acts – common intention –corroboration – murder – retracted confessions– circumstantial evidence
Republic v Payet 148
EJECTMENT
Lease – ejectment – termination
Under Water Centre (Pty) v Beau Vallon Properties 205
EVIDENCE
Criminal law – standard of proof – evidence – recall of detail
Republic v Bradburn 99
Criminal law – mens rea – intoxication – corroboration of evidence of child
Republic v Edmond 9
Absent defendant – lost evidence
Republic v Ladouceur 19
[2009] The Seychelles Law Reports 6 ______
Jury direction – burden of proof –unlawful acts – common intention –corroboration – murder – retracted confessions-circumstantial evidence
Republic v Payet 148
GRIEVOUS HARM
Jury direction – grievous harm – procurement – voluntary confession – witness identification
Republic v Barbe 39
IDENTIFICATION
Jury direction – grievous harm – procurement – voluntary confession – witness identification
Republic v Barbe 39
INTERPRETATION
Business tax – assessment - interpretation
Seychelles Development Corporation Ltd v Commissioner of Taxes 116
INTOXICATION
Criminal law – mens rea – intoxication – corroboration of evidence of child
Republic v Edmond 9
[2009] The Seychelles Law Reports 7 ______
JURY DIRECTION
Jury direction – grievous harm – procurement – voluntary confession – witness identification
Republic v Barbe 39
Jury direction – burden of proof –unlawful acts –common intention –corroboration – murder – retracted confessions-circumstantial evidence
Republic v Payet 148
LEASE
Lease – ejectment – termination
Under Water Centre (Pty) v Beau Vallon Properties 205
MENS REA
Criminal law – mens rea – intoxication – corroboration of evidence of child
Republic v Edmond 9
NEW TRIAL
Drug trafficking – absent defendant – new trial – constitution – international law
Ladouceur v Republic 131
[2009] The Seychelles Law Reports 8 ______
SENTENCING
Sentencing –totality principle
Republic v Meme 32
Sentencing
Republic v Vel 92
WITNESS
Jury direction – grievous harm – procurement – voluntary confession – witness identification
Republic v Barbe 39
[2009] The Seychelles Law Reports 9 ______
Republic v Edmond
Criminal law – mens rea – intoxication – corroboration of evidence of child
The accused was charged with indecency toward a child under 15 years of age. He was intoxicated at the time of the offence. The child testified under oath.
HELD:
(i) Sexual offences cannot be labelled as requiring basic intent or specific intent, and must be judged objectively;
(ii) An act that is an offence while sober is equally an offence while drunk, if the intoxication is voluntarily caused;
(iii) There is no defence of intoxication as a ground for diminished responsibility; and
(iv) It is prudent to corroborate evidence given by a child. The Court can convict on the sworn uncorroborated evidence of a child, if the Court is convinced of the child‘s evidence.
Judgment: Conviction entered.
Legislation cited Penal Code, s 14(1)
Cases referred to Jean-Baptiste v R (1961) SLR 262 Noel v R (1983–87) 2 SCAR 221
[2009] The Seychelles Law Reports 10 ______
Foreign cases noted Harding v Price [1948] 1 KB 695 R v Baskerville [1916] 2 KB 658 R v Heard [2008] QB 43 R v Zoolfikar 16 WR Cr 36
Joel CAMILLE for the Republic Alexia ANTAO for the accused
Judgment delivered on 15 May 2009 by:
PERERA CJ: The accused stands charged as follows –
Count 1 Statement of Offence
An act of indecency towards a child under the age of 15 years, contrary to section 135(1) of the Penal Code (amended by Act 15 of 1996) and punishable under the same section.
Particulars of the Offence Simon Pierre Edmond of Bel Ombre, Mahe, on 17 March 2004, at Roche Caiman, Mahe, committed an act of indecency towards A, a girl under the age of 15 years, by inserting a finger in the said A‘s vagina.
The complainant A born on 25 June 1998 was 6 years old at the time of the alleged offence. She was 7 years old when she was called to testify on 28 October 2005. The Court held a pre-evidence inquiry before the complainant testified and was satisfied that she understood the nature of the oath and the duty to speak the truth. Hence she gave evidence on oath.
The complainant testified that she was living at Roche Caiman [2009] The Seychelles Law Reports 11 ______with her mother, and the accused who is her step father, and also three brothers and one aunt called C. But after the alleged incident she was staying at the President‘s Village. According to her testimony one night when everyone else was asleep, the accused entered the bedroom where she was sleeping on a mattress on the floor, and removed her panty. Thereafter he got on top of her and inserted his penis in her vagina. He also inserted five fingers of his hand in the vagina. Thereafter there was bleeding from the vagina which stained her panty and a pair of long trousers she was wearing. She saw blood on the hand of the accused as well. The complainant further stated that when he was inserting his penis in her vagina, she screamed, and then he put a pillow over her mouth. When he inserted the fingers she tried to press her legs together, but he opened them. At that time her mother entered the room, and the accused put on his trousers. She told her that the accused had done ―bad things‖ to her. The accused then attacked her mother with a knife.
The following morning, the complainant was taken to hospital by her aunt C. A sample of urine taken contained blood. Shown a photograph, (P5) she identified the mattress she was sleeping at the time of the alleged incident, and showed the blood stain thereon. The prosecution also produced the panty and the trousers she was wearing that night which also had bloodstains. The photographs were admitted through the evidence of Det L/C Jane Barbe the photographer, and Mr Jean Louis of Photo Eden, who developed and printed them.
On being cross-examined, the complainant stated that she was sleeping with the lights off on a mattress on the floor without a bed sheet. The complainant also stated that the accused licked her vagina the next morning. Her mother saw that and asked him to stop, but he did not obey. It was put to her by counsel that she had not mentioned anything about the insertion of the penis and fingers in the vagina and the subsequent licking in her statement to the Police. She replied [2009] The Seychelles Law Reports 12 ______that what she was stating in Court was the truth. However on being re-examined, she stated that the licking incident was on another occasion before the present complaint.
Dr Dilip Harjanis testified that he examined the complainant on 17 March 2004.
Re: Miss A, D.O.B. 29/06/1998, Medical Report
A, 6 years old was referred to me by Dr Michel on 17/03/2004 with history that this young girl was bleeding per vaginum after an alleged sexual assault.
The young girl was scared, apprehensive and understandably un-cooperative. Therefore I decided to examine her under general anaesthesia, which was performed on the same date.
The findings were as follows.
1. SUPERFICIAL LACERATION ABOUT 0.5 cms, ON THE INSIDE OF HER LEFT INNER LIP (LABIA MINORA) as drawn. This laceration was not actively bleeding.
2. ABRASION OF THE HYMEN AT 5 O‘CLOCK POSITION, as drawn.
3. The hymen as such is intact.
4. I performed a swab test to detect SPERMATOZOA from the vagina but NONE were found. The injuries she had sustained did not require any surgical repair and the same [2009] The Seychelles Law Reports 13 ______
were cleaned aseptically.
The patient was discharged from the hospital on 18/03/2004.
Dr Dilip testified that the injuries on the vagina could be caused by many ways, one of which was manipulation with fingers and causing abrasion with the finger nail. As regards other causes, Dr Dilip stated that the injury on the hymen was consistent with any manipulation with an erect penis or any object like wood or metal.
Detective Inspector Neige Raoul testified that she was called to the Victoria Hospital after the medical examination. The complainant was in a state of distress and fright. She interviewed her mother and aunty C. When she went to the residence, she was shown the mattress where the complainant was sleeping. She was also given the panty and the pair of shorts she was wearing. There were blood stains. A machete which allegedly was used by the accused to frighten the mother of the child was also given to her.
Inspector Raoul also recorded the statements of the complainant, her mother and aunty, as well as that of the accused.
B, the mother of the complainant testified that she had a relationship with the accused for about 5 years, and that he visited her off and on. She has one child with him who is 3 years old. Sometimes he stayed with her for a week or few days. He drinks alcohol, uses obscene language and comes home late at night.
On the day of the incident, she was away. She went around 3 pm on 16 March 2007 and came home around 1 am on 17 March. The alleged incident had happened that night. When she came, her sister C who was near the road, told her to get [2009] The Seychelles Law Reports 14 ______a police officer, as the accused had threatened her with a knife. However she decided to confront him. As she entered the house she heard the complainant scream. When she went to that room, she saw the accused standing naked with his pair of shorts in his hand. The complainant was crying. When she asked him what he had done, he stated ―I have done some harm to you and your daughter‖. When she asked the complainant, she told her that the accused had pressed a pillow on her face and ―urinated‖ on her. Then the accused grabbed her and kicked her. However, she went to bed with the accused that night. The complainant was sent downstairs to sleep with the other children, and C slept with a neighbour. She examined the complainant by opening her legs, but did not see any blood or scratches. She herself had taken 4 beers that night, but claimed that she was not drunk at the time she got home.
The following morning, C asked her to examine the child. When she did, she saw blood and some scratches on her vagina. When she questioned the complainant, she told her that the accused had touched her vagina with his hands. She then asked C to take the complainant to the hospital, as she was too depressed to go and also as she had to look after the other children at home. The accused was also still at home. After the doctor had examined the child, she was called to the hospital. A further examination was done by Dr. Michel in her presence after she signed a consent form. By then Police Detective Officer Neige Raoul and another woman police officer were present.
When she returned home, the accused was still there. Then, when the police officers came in search of him, he climbed to the ceiling and hid himself, but was arrested.
As regards the condition of the accused at the time of the alleged incident, the witness stated that when she saw him standing naked, ―he was drunk, he did not understand [2009] The Seychelles Law Reports 15 ______anything‖. In her cross-examination she stated ―or deta‖, that is ―he was paralytic drunk‖. She assumed that he was drunk to that extent, as he lifted her, threw her on the ground and kicked her. When he is sober he does not act like that.
The witness stated that usually, the complainant does not sleep on a mattress on the floor of that room. She admitted that as the mattress was close to the door, anyone could trip and fall when the room was dark. However she and the accused slept on the double bed in that room with their baby, who was about 3 months old at the time of the incident. She stated that the accused could not have made a mistake and urinated on the complainant, as he tried to choke the child with a pillow before committing the alleged offences.
C, the sister of B, and the aunt of the complainant testified that her sister went out around 3 pm that day. Around 11.30 am that night the accused came home drunk and asked for B. He appeared to be angry. The complainant was sleeping on the mattress on the floor of the room in which both her sister and the accused slept on the bed. He chased her with a machete. B came home around 12.30 pm – 1 am that night. She fought with the accused, and she (the witness) heard the sound of a machete hitting the wall. C‘s boyfriend was also in the house. Both of them went to his house to sleep. Next morning when she returned, B was crying. She had seen some blood on the panty of the complainant. She also examined the complainant and saw the blood. The vagina was also red and swollen. She took her to the hospital, where she was examined.
At the end of the prosecution case, the Court ruled that a prima facie case had been established, and consequently called up to the accused to present a defence. He first opted to testify on oath. However upon entering the dock, he became emotional, and hence the case was adjourned for a short time. Upon resuming the proceedings, he changed his [2009] The Seychelles Law Reports 16 ______option to the right to remain silent, but to rely on the evidence of two witnesses who would testify that they were drinking that night with the accused. However, upon being shown that the two prosecution witnesses B, and C had already testified about the State of drunkenness of the accused at the time of the alleged incident, counsel for the accused decided not to call these witnesses, but to make a legal submission. She submitted that in the offence the accused is charged with, specific intent is an essential element, and that hence evidence of the state of drunkenness rendering the accused incapable of forming such an intent should be taken into consideration in order to determine whether he had in fact formed the intent necessary to constitute the offence. A sexual offence of any form made punishable by the Penal Code must constitute both mens rea and actus reus, As Lord Goddard CJ stated in Harding v. Price [1948] 1 KB 695, actus non facit reum nisi mens sit rea (an act is not punishable without a mental element). Hence unless a statute either clearly or by necessary implication rules out mens rea as a constituent part of a crime, the Court should not find a man guilty of an offence unless he has a guilty mind.
In the case of R v Heard [2008] QB 43, the Court held that sexual offence cases could not be labelled as one of either basic intent or specific intent and that it had to be judged objectively. The Court also held that drunkenness did not destroy the intentional character of the offence.
Counsel for the accused sought to negative mens rea on the basis of the evidence of B, the prosecution witness who stated that the accused was ―paralytic drunk‖, and ―did not understand anything‖. As was held in R v Zoolfikar 16 WR Cr 36, Drunkenness is an excuse, and an act which if committed by a sober man is an offence, is equally an offence if committed by one when drunk, if the intoxication was voluntarily caused. [2009] The Seychelles Law Reports 17 ______
Section 14 of the Penal Code of Seychelles provides that ―(1) save as provided in this section, intoxication shall not constitute a defence to any criminal charge‖.
Intoxication shall be a defence to a criminal charge if at the time of the act or omission, the person did not know that such act or omission was wrong or did not know what he was doing, but only if that state of intoxication was caused without his consent by the malicious or negligent act or another, or by reason of intoxication he was insane temporarily or otherwise at the time of the act or omission. Hence the defence of intoxication as a ground for diminished responsibility fails.
Although the Court can convict on the sworn uncorroborated evidence of a child, it must, after warning itself of the danger of convicting without it, express itself to be convinced of the truth of the child‘s story notwithstanding that danger (Jean- Baptiste v R (1961) SLR 262). Hence there is no requirement that the sworn evidence of a child should be corroborated as a matter of law. However, it is still prudent to find corroboration as there is the possibility that a child, who understands the nature of the oath, would still have been “coached‖ and hence truth may be distorted. In the case of R v Baskerville [1916] 2 KB 658, it was stated as a principle that no piece of evidence amounted to corroboration unless it came from a source independent of the witness to be corroborated, and confirmed not merely the general truthfulness of the child‘s evidence, but also the truth of that part of its evidence which implicates the accused with the offence. However medical evidence that the child has been sexually assaulted does not usually amount to corroboration where someone other than the accused could have committed the offence. But where the accused admits that he was with the child, but denies committing any offence, the medical evidence would be very relevant.
In the present case the Court finds corroboration of the [2009] The Seychelles Law Reports 18 ______complainant‘s testimony that the accused inserted his fingers in her vagina causing bleeding, in the medical evidence. The complainant was examined the day following the alleged incident, and on examination Dr Dilip found vaginal bleeding and a superficial laceration of about 0.5 cms on the inside of the left inner lip of the vagina, and also an abrasion of the hymen at 5 o‘clock position. There is also evidence that there were blood stains on the mattress, the knickers and the trousers of the complainant. The hymen was however intact. These injuries are consistent with the particulars of the offence in the charge. Dr Dilip has also observed that the complainant was scared, apprehensive and uncooperative, to the extent that the examination was done under general anaesthesia. The evidence of the mother, B as regards the distressed state of the child is thereby corroborated.
The Court is satisfied that the complainant was speaking the truth. On a consideration of the totality of the evidence, the Court is satisfied that the prosecution has proved its case beyond a reasonable doubt. Consequently the accused is convicted as charged.
Record: Criminal Side No 38 of 2004
[2009] The Seychelles Law Reports 19 ______
Republic v Ladouceur
Absent defendant – lost evidence
The defendant was charged with trafficking in a controlled drug, resisting arrest and assaulting a police officer. Two blocks of cannabis resin and a pen knife were found at the defendant‘s house, but were lost in a police station robbery. The defendant was repeatedly absent from his trials.
HELD:
(i) In cases of lost evidence, the Court should consider whether the evidence has been lost because of acts or omissions by the police involving bad faith, and whether the lost evidence would have been of real assistance to the defence in creating or contributing to a reasonable doubt as to guilt; and
(ii) The repeated absence of the defendant is reasonable evidence of absconding.
Judgment: Convicted of trafficking.
Legislation cited Constitution, art 19(2)(i), 19(12) Criminal Procedure Code, ss 184(1), 133A, 133(3)
Cases referred to Noel v R (1983–87) 2 SCAR 221
Foreign cases noted R v Hamer (2004) 4 CHRLD 385
[2009] The Seychelles Law Reports 20 ______
David ESPARON for the Republic Anthony JULIETTE for the accused
Judgment delivered on 17 August 2009 by:
PERERA J: The accused stands charged on three counts. Count 1 with the offence of trafficking in a controlled drug, namely 459 gms and 960 mg of cannabis resin, Count 2 with the offence of resisting arrest, and Count 3 with assaulting a police officer.
As regards Count 1, P.C. Davies Simeon was on duty at the La Digue Police Station on 26 November 2001. Around 6 pm he was informed by the officer in charge, Sgt. Amade that there was drug dealing in a room occupied by the accused in the property of one Medine Camille. Before entering the premises, he and three other police officers observed the movements from behind a bush near the house. There was sufficient light to identify persons. He saw the accused standing in front of the house and collecting money from people. He was giving something in return. There were about six persons who had come to that house. The police officers then decided to search the premises. When he was about to enter, the accused tried to close the door, but he managed to get in. Then the accused jumped on him and struggled. While struggling, he stated that the drugs were in the other room. At the same time, he heard the accused say ―ouch‖. He then noticed that the head of the accused has been injured and that it was bleeding. When he handcuffed him, he agreed to a search of the room, which was an extension to the main house with only one entrance. P.C. Simeon stated that he saw two black substances on the floor near the door of the bathroom. They were wrapped in cling film. On one, it was engraved ―maza gold‖. Then he saw another black substance on his bed, and a plastic bag with money in local and foreign currencies. There were four notes of R 100, one of R 50, and twelve of R 25. There was also a pen knife. He then kept all [2009] The Seychelles Law Reports 21 ______the exhibits in his possession. At the police station, formal entries were made, and the exhibits were kept in the locker, the keys of which were in his custody.
On 28 November 2001, he brought them to Mahe for analysis. He obtained the request letter from Inspector Hermitte and took the exhibits to Dr Gobine for analysis. PC Simeon stated that the exhibits were in his sole custody from the time they were seized, until they were given for analysis. Dr Gobine got him to sign on the letter of request (P2).
On 3 December 2001 he went back to collect the report and the analysed drugs. The drugs were placed by Dr Gobine in a plastic bag and in an envelope, which was sealed, and signed by him. The report was admitted as (P3). He then took them back to La Digue and kept them in his locker.
P.C Simeon was transferred to Mahe in 2002. He brought those exhibits and gave them to the Adams Unit. He left the police force thereafter, and hence did not see those exhibits thereafter.
On being cross-examined, P.C. Simeon denied that the case against the accused was fabricated. He maintained that drugs were found in the room occupied by the accused. As regards the injury, he denied that he assaulted the accused, but stated that it happened while both of them were struggling.
L/C Daniel Dugasse corroborated the evidence of P.C. Simeon. He too stated that the officers observed the drug transaction from the bushes. He saw clearly money being exchanged. He saw about 15 to 20 persons there. He also stated that the accused tried to close the door, but they managed to enter. Then the accused ―attacked‖ P.C. Simeon by fighting with him to prevent him from entering. L/C Dugasse stated that the accused got hold of P.C. Simeon and ―squeezed him‖. Then PC Pillay hit the accused with a torch, [2009] The Seychelles Law Reports 22 ______but as he ducked, it hit him on his head.
L/C Dugasse also corroborated PC Simeon as regards the seizing of two black substances wrapped in plastic from the floor of the bathroom, and another black substance from the top of the bed. He also stated that there was also a pen knife, a transparent plastic bag and money in local and foreign currencies. The accused was taken to the hospital to get the injury attended to.
On being cross-examined L/C Dugasse stated that although they saw money being received by the accused, they could not see what was being handed over to those persons, and it was for that reason that they went into the room. He stated that what he called ―items‖ in the statement to the police, was money.
S.I. Ahmed Emmanuel was the officer in charge of the La Digue Police Station on 26 November 2001. He too corroborated PC Simeon and L/C Dugasse as regards the observations made from outside the house, before conducting the raid. He however did not stay there, but only dropped the officers and went back to the police station. Subsequently he received a telephone call stating that the accused was arrested. He went back and brought the accused to the police station. Later after getting his injury attended to, he elected to give a statement. He recorded it, and PC Simeon signed as witness.
When that statement was sought to be admitted in evidence, counsel for the accused objected on the ground that it was an involuntary statement and that it was obtained by oppression and intimidation by assaulting. This Court, by ruling dated 25 May 2005, overruled that objection and allowed the statement to be admitted in evidence. That statement (P4) is as follows-
[2009] The Seychelles Law Reports 23 ______
I wish to state to the Police that today Monday the 26th day of November in the year 2001, I left La Digue to Praslin at 07.30 hrs on a ferry named Silhouette. At around 09.00 hrs in the morning I board Cat Coco to Mahe. I arrived on Mahe at 10.00 hrs. Whilst on Mahe I went to town at Market Street where I bought a pair of sandals at a shop near Lovenut. I roam about until 13 00 hrs where I took a bus to Plaisance at the bus stand. Arriving at Plaisance at 13.20 hrs I disembark at Fiennes Institute (Kazern). I took the church lane and I met some people unknown to me. Amongst those people there was two rasta man and few had long beard like Muslim. I approached one of the man with long beard whom I don‘t know his name and I told him that I was willing to buy piece of ―Chalas‖ for the value of R5000/-. He told me to wait, where he later came back with two pieces of hashish and I pay Rs5000/-. I took the hashish, which was wrapped in a plastic and went away. At 16.00 hrs I board Cast Coco for La Digue. I arrived on La Digue at 17.45 hrs and I went straight away home at Anse Reunion. After taking a rest I took out the two pieces of hashish in my bag and I place it in the bathroom floor. At 19.00 hrs, I saw three Police Officer came running to my house, I became panic and they informed me that a search will be carried out in my house. At that time I was in a room that I am renting from Medine Camille. I push the door to prevent them from getting inside and they also force the door open. They made me witness the search where a Police Constable picks up the two piece of hashish on the bathroom floor. I was arrested. In the room there was also a pen knife and a small piece of hashish near a white plastic bag labeled DAISY containing [2009] The Seychelles Law Reports 24 ______
some money. I was brought to La Digue Police Station where I was detain in cell.
Sdg: A. LADOUCEUR
SI Emmanuel was further cross-examined as regards the items which PC Simeon had seized. He stated that he was informed that there were ―two blocks of hashish, a pen knife and another smaller piece‖ of hashish.
Dr Philip Gobine, the analyst, was called to testify regarding the analysis of the exhibits in the case. Mr Juliette, counsel for the accused stated that he did not challenge his expertise. Dr Gobine then proceeded to testify that on 28 November 2001, he took possession of the following items from PC Davies Simeon -
Item No 1 One piece of resinous material wrapped in clear red cling film and further wrapped in clear transparent plastic.
In his report, he further described that item, as -
Having a length of 15.2 cms, possessing a black outer surface and light brown within. The piece of resinous material has a small golden emblem written ―mazar gold” embossed on the surface. Weight: 204 gm 900 mg – cannabis resin.
Item No. 2 One piece of resinous material wrapped in clear transparent plastic.
In his report he further states –
Having a length of 15 p cms possession a black [2009] The Seychelles Law Reports 25 ______
outer surface and light brown within Weight: 247 g. 810 mg – cannabis resin.
Item No. 3 One slice of resinous material having a thin film of clear red cling film adhered to its sides.
In his report, he further states –
Having a length of 10.3 cms. The slice of resinous material has a black outer surface and light brown within weight 7 g. 250 mg. – cannabis resin.
Item No 4 One red multipurpose pen knife having a length of 8.9 cms when folded. The large blade of the red multipurpose pen knife has thin streaks of dark brown resinous material on its surface, containing cannabinoids.
Dr Gobine described the testing protocol adopted by him in his analysis. He corroborated the evidence of PC Simeon as regards the handing over of the exhibits, and the handing back with the report. He identified his signature on the request letter, and the certificate. When the prosecution sought to produce the report as an exhibit, Mr Juliette stated that he had no objection, and also that he had no cross- examination.
At the end of the prosecution case however, Mr Juliette made a submission of no case to answer on Count 1 on the sole ground that the substances allegedly recovered from the accused had not been produced by the prosecution as exhibits in the case, and that consequently, the accused could not be called upon to present a defence, as he would be [2009] The Seychelles Law Reports 26 ______prejudiced in any defence he would put forward. However, no submission was made in respect of Counts 2 and 3. Admittedly, all the exhibits that were analysed by Dr Gobine were lost in a break-in at the police station before the trial commenced.
This Court, by ruling dated 9 March 2007, ruled that there was a case to answer on all three counts. As regards Count 1, the Court, relying on several authorities stated that the prosecution had adduced evidence to establish the chain of custody of the exhibits from the time they were recovered from the accused, until they were analysed and returned to the police with the certificate. The Court also observed that the counsel for the accused had not challenged the expertise of Dr Gobine, and raised no objections to the production of the certificate. Further, counsel for the accused did not cross- examine Dr Gobine. Hence, the accused was not challenging the veracity of the analysis of the drugs, but relying on a possible prejudice being caused to his defence due to their non-production in Court. In that respect the Court relied on the case of Noel v R (1983 – 87) 2 SCAR 221, which in essence, did not establish the principle that material found in the possession of an accused and subsequently analysed must necessarily be produced in Court at the trial as an exhibit, but rather that it was sufficient for the prosecution to prove that ―the material was so found, that it was analysed, and that it was a dangerous drug‖. As regards the possible prejudice to the defence, the Court relied on the case of R v Hamer (2004) 4 CHRLD 385, in which the Court of Appeal of New Zealand stated –
It is not correct to maintain that a criminal trial cannot proceed, and there is a breach of section 24(d) of the Bill of Rights Act, merely because certain material or testimony which might possibly have contradicted the prosecution case is unobtainable or has been contaminated. [2009] The Seychelles Law Reports 27 ______
Rather there are two relevant considerations:-
Firstly, whether the evidence has been lost because of acts or omissions by the police involving bad faith, and secondly, whether it is possible that the lost evidence would have been of real assistance to the defence in creating or contributing to a reasonable doubt as to guilt.
In the present case, after the submission of no case to answer was overruled, the Court called upon the accused to present his defence, and make his election under section 184(1) of the Criminal Procedure Code. At that stage, counsel for the accused made an application to have access to the ―exhibits‖ for the purpose of re-analysing them by Dr Jackariya, the analyst who succeeded Dr Gobine. This Court, by ruling dated 21 January 2008, dismissed that application, holding inter alia that the accused was seeking to ―have non existing drugs to be analysed‖. Thereupon counsel for the accused in the presence of the accused, sought a date for the defence, and was given 3 March 2008 at 1.45 pm. On that day, again in the presence of the accused, the case was fixed for mention on 14 March 2008 at 1.45 pm, and again on 19 March 2008 at 1.45 pm, when the case was fixed for continuation on 6 June 2008 at 1.45. On 19 March 2008 and on 6 June 2008, the accused was absent. Although counsel for the accused had undertaken to inform the accused to be present, he was absent when the case was mentioned. A further mention date was given for 8 July 2008. On that day, I was on overseas leave, and hence the case came up before Gaswaga J. On the application of counsel for the prosecution, and Mr F Elizabeth standing in for Mr Juliette, the case was fixed for continuation for the defence on 28 and 29 May 2009. Since 19 March 2008 the accused defaulted appearance and on each subsequent date for mention, after 28 May 2009, a total of four warrants of arrest were issued for his apprehension, as he was on bail. In the last warrant issued [2009] The Seychelles Law Reports 28 ______on 30 July 2009, the police officer has reported that efforts had been made to trace the accused in the district of Anse Aux Pins and La Digue, but that he could not be located. Those two addresses were given to Court by Mr Juliette who himself stated that he had not been contacted by the accused as regards the position of the case.
On 10 August 2009, when the case was taken up for continuation, I informed counsel that I am due to retire from service, effectively from 24 August 2009 and hence inquired as to what stand they took. Mr Juliette then moved to withdraw his appearance on the ground that he had no instructions, and stated that he had no objection to the case proceeding. Consequently, counsel for the prosecution relied on article 19(2)(i) for the Constitution, read with article 19(12) and also section 133 A of the Criminal Procedure Code as regards trials in the absence of accused persons. Accordingly, I decided to act under section 133 A of the Criminal Procedure Code, as amended by Act No 17 of 2008. Under that provision, the Court that decides to proceed with the trial should be satisfied
That the summons or other process requiring the person to appear at the time and place appointed for the trial has in accordance with law, been served on such person and that –
(a) ……………….. (b) He does not appear in Court; or (c) …………….
(2) The commencement or continuance of a trial under this section, shall not be deemed or be construed to affect or prejudice the right of such person to be defended by an Attorney at law at such trial.
[2009] The Seychelles Law Reports 29 ______
In that respect, the accused was present in Court on 21 January 2008 when the case was fixed for hearing of defence on 3 March 2008. He was present on that day when the case was fixed for mention on 14 March 2008 to fix a date for continuation. Thereafter he defaulted appearance, and according to Mr Juliette, he did not contact him or attempt to ascertain the progress of the case to present his defence. One of the conditions of his bail order, made on 29 November 2001 was –
(a) That he reports to the Central Police Station at least once a week starting from the 1 December 2001 when he is on Mahe and thereafter to La Digue Police Station whenever he is on La Digue.
Hence I am satisfied that the spirit of section 133 A of the Criminal Procedure Code has been satisfied as he was present in Court when the first date to present his defence was given. The continued inability of the police to locate him on the warrants attracts the reasonable presumption that he is absconding. Further, as regards the provision under subsection (2), Mr Juliette appeared to defend him, and was ready to continue if he had instructions. Hence, the accused by his own conduct, has deprived himself of the benefit of that provision.
Section 133 (3) provides that –
Where in the course of or after the conclusion of the trial of an Accused person under paragraph (b) of Section (1) the Accused person appears before the Court and satisfies that Court that his absence from the whole or part of the trial was bona fide.
[2009] The Seychelles Law Reports 30 ______
Then -
(a) ……………………….. (b) Where the trial has been concluded, the Court shall set aside the conviction and sentence, if any, and order the accused be tried de novo.
In this case, it may not be possible for this case to be heard de novo before another judge, as the exhibits have been lost at the police station after the drugs were analysed, and also as Dr Gobine, the analyst, is no longer available to testify as he is permanently incapacitated due to an illness.
It was in those circumstances that I decided to continue with the trial in the absence of the accused. In this respect, I have considered the evidence for the prosecution, and the defence impliedly presented by the accused in cross examining the prosecution witnesses, and the submissions made by his counsel in making a no case submission. I am satisfied beyond a reasonable doubt that the drugs, as charged in Count 1 were seized from the possession of the accused. He was the sole occupant of the room which he had rented. That room had only one entrance. He closed the door of that room when police officers came to search. Hence he had knowledge that the substances in his possession were illicit drugs. As regards the presumption of trafficking, the accused has not rebutted it even impliedly. In fact the presence of a pen knife with streaks of cannabinoids attached to it, and the evidence that persons were seen engaged in monetary transactions, and the presence of currency notes in a plastic bag together with drugs on his bed, provide overwhelming evidence that he was engaged in trafficking. The absence of the drugs in Court as exhibits, in these circumstances will not provide ―real assistance to the defence in creating or contributing to a reasonable doubt as to guilt‖. Hence I convict the accused with the offence of trafficking, as charged in [2009] The Seychelles Law Reports 31 ______
Count 1.
As regards Count 3, there was no positive evidence that the accused assaulted PC Simeon. At best there was a struggle, and it was the accused who was injured on the head. Hence I find it unsafe to convict him for the offence of assault on a police officer. He is therefore acquitted under Count 3.
There is however sufficient evidence that the accused resisted arrest by closing the door and struggling to prevent the police officers from entering to search the room. I therefore convict him under Count 2.
Record: Criminal Side No 49 of 2001
[2009] The Seychelles Law Reports 32 ______
Republic v Meme
Sentencing – totality principle
The accused was convicted on multiple counts of sexual assault of children. The judge considered the factors relevant to sentencing.
HELD:
When sentencing on multiple counts, the Court should consider whether the aggregate, rather than consecutive punishment is just and appropriate in the circumstances.
Judgment: Sentenced accordingly.
Legislation cited Penal Code, 130(1), 135(1)
Cases referred to Appasamy v R SCA 6/2004 Auguste v R SCA 7/2007
Helen CAROLLUS for the Republic Frank ALLY for the accused
Sentence delivered on 25 March 2009 by:
GASWAGA J: Mr Paddy Meme has been convicted herein (Cr No 60 of 2008) for the offence of sexual assault of a child contrary to and punishable under section 135(1) of the Penal Code, Cap 158 as amended by Act No 15 of 1996. The particulars allege that Paddy Meme of Anse La Mouche, Mahe, on 9 February 2008 at La Retraite, Mahe, committed acts of indecency towards another person namely by sucking the vagina of A, a girl aged nine (9) years and therefore under [2009] The Seychelles Law Reports 33 ______the statutory age of fifteen (15) years.
The same accused has already been convicted by this Court on three other files of related offences but with different victims namely:
(i) Criminal Side No 18 of 2008, R v. Paddy Meme
Two counts of committing an act of indecency towards a person under the age of fifteen (15) years contrary to and punishable under section 135(1) of the Penal Code as amended by Act No. 15 of 1996 and Act No. 10 of 2005 have been proffered.
The particulars on Count I allege that Paddy Meme of St Louis, Mahe, on 24 February 2008 at Bel Air, Mahe, inserted his finger in the vagina of B, a girl aged five (5) and therefore under the statutory age of fifteen (15) years while those on Count II alleged that the accused on the same day, time and place did lick the vagina of the said girl.
(ii) Criminal Side No 19 of 2008, R v. Paddy Meme
One Count of sexual interference with a child contrary to and punishable under section 135(1) of the Penal Code as amended by Act 10 of 2005. The particulars allege that Paddy Oliver Meme of St Louis, Mahe, on 17 February 2008 at Bel Air, Mahe, committed an act of indecency towards C (aged five (5) years), who is under the statutory age of fifteen (15) years, by licking her vagina. [2009] The Seychelles Law Reports 34 ______
(iii) Criminal Side No 36 of 2008, R v. Paddy Meme
One count of sexual assault contrary to and punishable by section 130(1) of the Penal Code as amended by Act 10 of 2005. The particulars allege that Paddy Oliver Meme of St Louis, Mahe, on 26 February 2008, at Castor Road, Mahe, sexually assaulted D (aged ten (10) years), being a girl under the statutory age of fifteen (15) years, by way of kissing D on the lips and penetrating her vagina with his finger for a sexual purpose.
For convenience all the four files will be dealt with herein for purposes of sentencing.
It is clear from the nature of offences and manner in which the events unfolded that the accused followed a particular pattern with a preference for young children as his victims. It was like a fishing expedition in the marine park which he knew very well to be illegal. With properly orchestrated plans, the accused, not once, not twice, not thrice, severally lured and tricked young, innocent and unsuspecting children by promising to give or giving them a little money to buy sweets and small snacks before unleashing the savage assaults on them. They have been robbed of the sanctity of their bodies and childhood which has since been replaced with severe scars of emotional and psychological trauma, agony and shame for life. Their personality has been marred. Given the small population of our country where everyone knows everybody, and the chances of the victim meeting with their assailant again on the street, it is believed that the stigma and public revulsion is much more intense. Relocation of the victims may be of less help.
[2009] The Seychelles Law Reports 35 ______
This is unacceptable in our society. Children are a precious gift from God and represent the future generation. They must be jealously protected, properly nurtured and given all the required support and care by each and every adult person instead of taking advantage of them. Mr Paddy Meme has failed that test. This obviously calls for his removal from the public for quite some time to enable him reform and become a benevolent and useful person.
Sentencing is one of the most difficult tasks faced by a Judge in a criminal trial. A number of factors are brought into purview for consideration to guide the Court in reaching a suitable punishment. In the case of Nigel Auguste v R, SCA No 7 of 2007 where a father raped his own daughter (aged below fourteen (14) years) in a guest house room he had hired after luring her into collecting a Christmas gift, a sentence of twelve (12) years was maintained by the Court of Appeal. In Naddy Appasamy v R, SCA No 6 of 2004 the accused committed an act of sodomy on a three month old baby girl. The baby died. He then sexually assaulted the baby‘s mother who had caught him in the act. On appeal, the Court of Appeal ordered the sentences of fifteen (15) and six (6) years to run concurrently thereby replacing the ‗consecutive‘ order ie he was to serve a maximum term of fifteen (15) years.
The maximum sentence prescribed in each of the five (5) counts is twenty (20) years. This leaves the accused entirely open to a total of one hundred (100) years. But will this serve the justice of the case?
The accused‘s counsel, Attorney-at-Law, Mr Frank Ally moved the Court to be lenient and impose minimum sentences on all counts which should them run concurrently because the accused was a first offender (before case number 18 of 2008), he pleaded guilty and saved the Court‘s time; he is sorry and did not have penetrative sex with the victims like in the above [2009] The Seychelles Law Reports 36 ______two cases.
Indeed the Court will consider this mitigation in toto and the fact that the accused is a young man of thirty-four (34) years and a casual labourer who has asked for forgiveness and wishes to rejoin his community. He has now realized the gravity of his actions. As compared to the matters at hand, the above cited cases (Appasamy and Auguste) were more serious with loss of life and far-reaching mental and physical consequences on each victim as well as their relatives.
The Court specifically notes that by tendering a guilty plea, the accused has saved the precious judicial time. He should be credited for that. In all four cases there were about fifty (50) witnesses whose testimonies would take about a month if the Court were not to hear any other cases. The victims particularly are vulnerable and have been saved of the painful task of having to relate the incident afresh to Court.
Having considered the mitigation, the sentencing pattern of the Supreme Court as well as the Court of Appeal in similar cases, the nature of these offences and the fact that they were all committed in a period of one month, together with the effects on the victims, their relatives and societal dictates, I shall impose the following suitable sentences:
File No. 1 – Criminal Side No 18 of 2008 Count I – Seven (7) years. Count II – Seven (7) years.
File No. 2 – Criminal Side No 19 of 2008 Count I – Fourteen (14) years.
File No. 3 – Criminal Side No 36 of 2008 Count I – Fourteen (14) years.
[2009] The Seychelles Law Reports 37 ______
File No. 4 – Criminal Side No 60 of 2008 Count I – Fourteen (14) years.
The foregoing triggers the penological principle of ―totality of sentences‖. The traditional position is that where a man is guilty of two or more offences, there was and always had been power to order the subsequent sentence(s) to commence at the expiration of a previous sentence already imposed. Mr Paddy Meme would therefore be serving fifty-six (56) years in jail if this method is followed.
Many countries eg Australia, Canada, the United Kingdom, the United States of America, Tanzania, Uganda, Seychelles, etc have since departed from this approach. The jurisprudential signs of the times are pointing a way from ―consecutive‖ sentences to the ‗totality of sentences‘ principle. In fact, Judges are implored to consider the effects of the total length of imprisonment vis-à-vis the kind of offences committed, particularly the longest sentence, and such Court should at the end of it all consider whether or not the aggregate punishment is ―just‖ and ―appropriate‖ in the circumstances.
Accordingly the following orders are made:
That bearing in mind the ‗totality principle‘ the sentences in respect of both counts on File No. 1 (Criminal Side No 18 of 2008) are to run concurrently while all the sentences imposed on File No. 2 (Criminal Side No 19 of 2008), File No. 3 (Criminal Side No 36 of 2008) and File No. 4 (Criminal Side No 60 of 2008) are also to run concurrently.
It is further ordered that the latter sentences (fourteen (14) years) are to be served AFTER the convict has completed serving the first [2009] The Seychelles Law Reports 38 ______
sentence of seven (7) years.
For purposes of clarity, the accused will be serving a total jail term of twenty-one (21) years.
The period spent on remand is to count towards this sentence.
Right to appeal against the sentence is explained.
Record: Criminal Side No 60 of 2008 Record: Criminal Side No 18 of 2008 Record: Criminal Side No 19 of 2008 Record: Criminal Side No 36 of 2008
[2009] The Seychelles Law Reports 39 ______
Republic v Barbe
Jury direction – grievous harm – procurement – voluntary confession – witness identification
HELD:
(i) Grievous harm means any harm which amounts to a maiming or dangerous harm, or seriously or permanently injures health or which is likely to injure health, or which extends to permanent disfigurement or to any permanent or serious injury to any external or internal organ, membrane, or sense;
(ii) Procurement means to produce by endeavour. A person can procure someone else to commit a crime even if there is no conspiracy between them. The two people do not need to agree on or even discuss the form, place, or manner of the criminal act;
(iii) A conviction for procurement carries the same consequences as a conviction for committing the offence;
(iv) A voluntary confession is admissible even if elicited by a person in authority or while the confessor is in custody; and
(v) In cases of witness identification, juries should consider the duration of observance, the distance between the witness and accused, visibility, obstructions, whether the witness knows [2009] The Seychelles Law Reports 40 ______
the suspect, any particular reasons for the witness to remember the suspect, time lapse since the witness saw the suspect, errors in the witness‘s description.
Judgment: Direction to the jury.
Legislation cited Penal Code, s 22(d)
Cases cited R v M (1966) SLR 218 R v Marie (1973) SLR 237
Foreign cases noted Benedetto and Labrador v R [2003] UKPC 27, (2003) 2 Cr App R 25. Director of Public Prosecutions v Smith [1961] AC 290 Ibrahim v R [1914] AC 599 Miller v Minister of Pensions [1947] 2 All ER 372 R v Base (1953) 37 Cr App R 51 R v Godinho (1912) 7 Cr App R 12 R v Hyam [1975] AC 55 R v Sykes (1913) 8 Cr App R 233 Turnbull v Turnbull [1976] 3 All ER 549
Krishnan LABONTE for the Republic John RENAUD for the 1st defendant Charles LUCAS for the 2nd defendant
[2009] The Seychelles Law Reports 41 ______
Summing-up to the Jury delivered on 4 August 2009 by:
KARUNAKARAN J:
PART I
Ladies and gentlemen of the Jury, we have now reached the concluding stage of the trial. Soon you will be called upon to decide on the guilt or innocence of these two gentlemen in the dock, Mr Stanley Barbe and Mr William Renaud, who are accused of (i) murder and (2) procuring another person to commit murder, respectively. Throughout your deliberations you will have access to all exhibits admitted in evidence. If you want to see the photographs, the clothes or the statement of the defendant to the police, medical and post mortem reports or depositions etc at any time, you may ask the orderly in charge and she will assist you. Amongst those exhibits, there are some important documents like the post mortem report, photographs retracted statements of the defendant and the like. For obvious reasons, you may need them for your perusal and examination. You may do so at any time if you wish. At the same time, I will rehearse the facts to refresh your memory in the second part of my summing-up. You may also refer to the notes you were taking during the trial.
First of all, I wish to offer you a clear guidance on the law and then, I will proceed to summarize the evidence in the second part of my summing-up. I will give only my views and opinion on the facts in issue; but, the ultimate determination is yours. You are not bound by my opinion or by the opinion of any counsel or that of others expressed on any of those factual issues. You are the sole judges of those facts. You should determine those issues accordingly. However, as regards the questions of law, you must take my directions against the background of counsels‘ addresses, arguments and in the light of the evidence on record. Obviously, the case is important to the accused persons because your verdict is [2009] The Seychelles Law Reports 42 ______going to determine their future. They should not be convicted if the evidence is found to be doubtful, unsafe, weak or unsatisfactory. It is also equally important for you to truthfully discharge the duty you owe to the community as jurors and deliver justice. If the evidential proof is there according to my directions in law, and you have no reasonable doubt about it, then, however unpleasant the duty may be, your duty would be to say that the case is proved and give your verdict accordingly. You should therefore, discharge your duty impartially and honourably, without fear or favour, affection or ill-will for the proper administration of justice in the country.
As you know, the charge against Mr Stanley Maxwell Barbe (hereinafter called A1) is one of murder. The particulars of the offence state that on 14 March 2006 at Baie Lazare, Mahé A1 murdered Mrs Lynne Renaud. What has to be determined here in respect of A1 is whether it has been proved beyond reasonable doubt that it was A1, who murdered Mrs Lynne Renaud.
The charge against Mr William Renaud (hereinafter called A2) is one of ―Procuring another person to commit murder‖. The particulars of the offence state that on 14 March 2006 at Baie Lazare, Mahé A2 procured A1 to commit the murder of Mrs Lynne Renaud.
What has to be determined here in respect of A2 is whether it has been proved beyond reasonable doubt that A2 procured A1 to commit the murder of Mrs Lynne Renaud.
In the consideration of the case as a whole, to begin with I will give you a practical guidance. As you start considering the evidence, it is always better to start from the facts, which are not in dispute. From there, if practicable, you would collect, for your consideration all the facts that you might accept with confidence. Then you would move on to other matters which are in dispute and more under challenge. At the outset, [2009] The Seychelles Law Reports 43 ______considering the entire case of the prosecution and the defence, there arise five fundamental questions, for your determination, namely -
(1) Was Mrs Lynne Renaud (hereinafter called the deceased or Lynn) murdered by someone?
(2) If so, is it Stanley Barbe (A1) who committed that murder? (3) If yes, has it been proved beyond reasonable doubt?
(4) Did Mr William Renaud (A2) procure or engage A1 to commit that murder?
(5) If yes, has it been proved beyond reasonable doubt?
What is “murder” in the eye if law?
Murder, as a matter of law, is simple enough. A man commits murder if he -
(i) causes the death of another person,
(ii) by committing an unlawful act, and
(iii) at the same time does so with malice aforethought which shall be deemed to be established by evidence proving any one or more of the following circumstances -
(a) an intention to cause the death or to do grievous harm to any person, whether such person is the person actually killed or not; [2009] The Seychelles Law Reports 44 ______
(b) knowledge that the act causing death will probably cause the death or grievous harm to some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused.
Therefore, the three elements defined above, are absolutely necessary to constitute and complete the offence of murder.
With this background in mind, now ask yourselves: Can you have any doubt that Mrs. Lynne Renaud was murdered by someone? If so, was it A1 who committed the murder? Are you sure of it? Obviously, there has been no suggestion of any lawful excuse on the part of anyone for it. Any murder for that matter has to be unlawful. None of the other things that sometimes arise in a murder case, such as self-defence or provocation or even insanity - things of that kind, has been raised in the instant case. At any rate, none has been debated but, of course, you still have to be satisfied beyond reasonable doubt that not only Lynn Renaud was murdered but also more importantly it was A1 Stanley Barbe, who committed it. Theoretically, you can bring in, if you wish, a verdict of manslaughter, provided there is some basis for that. I say ―theoretically‖ because there has to be some evidential basis for that. However, in the instant case, neither counsel has suggested the slightest basis for manslaughter as opposed to murder. There is no evidence at all to suggest self-defence or provocation or even insanity and the like. The whole case as to murder revolves around the issue ―who is responsible?‖ Therefore, for all practical purposes the verdicts open to you are simply as follows:
[2009] The Seychelles Law Reports 45 ______
(i) Mr Stanley Barbe (A1) is ―not guilty‖ or ―guilty‖ of the offence of murder as he stands charged in count 1; and
(ii) Mr William Renaud is ―not guilty‖ or ―guilty‖ of the offence of procuring A1 to commit murder as he stands charged in count 2.
Nothing more and nothing less is open to you.
The burden of proof
Ladies and gentlemen of the Jury, I will now turn to something which you are all well aware of. That is, the burden of proof. In all criminal cases, it is a fundamental rule of law that the prosecution bears the entire burden of proving the guilt of the accused by adducing evidence. In almost all cases, this means that the burden of proving all essential elements of the offence always lies on the prosecution. The accused does not have to prove his innocence; his guilt must be proved by the Republic. What the Republic has put before you is the submission that A1 committed the crime of murder and A2 procured or engaged A1 to commit that murder. To put the matter bluntly, was it Stanley Barbe, who stabbed Lynne with a sharp-edged weapon or a knife with the necessary intention either to kill or cause grievous harm, and caused her death? Or at the least, whether he had the knowledge that the act he committed would probably cause the death or grievous harm to Lynn. It doesn‘t matter, even if such knowledge was accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused.
The thrust of the prosecution case has thus really been to place before you a submission that A1 with malice aforethought actually stabbed Lynne in her chest, stomach, sternum, scalp, back and in her neck using a sharp-edged weapon or a knife and caused her death. At the end and on [2009] The Seychelles Law Reports 46 ______the whole of the case, members of the Jury, you should be satisfied that the prosecution has discharged the evidential burden of proof as to whether the accused killed the deceased with a malicious intention and as to whether A2 procured or engaged A1 to commit that murder.
The standard of proof
The standard of proof defines the degree of persuasiveness which a case must attain before a Court may convict an accused person. Especially, in criminal cases, the law imposes a higher standard on the prosecution with respect to the issue of guilt. Here, the invariable rule is that the prosecution must prove the guilt of the accused beyond reasonable doubt or to put the same concept in another way, so that the Court is sure of guilt. As Mr Labonte, State counsel rightly pointed out in his opening address that the expression proof beyond ―reasonable doubt‖ does not mean proof beyond any ―shadow doubt‖. You should also remember, these formulations are merely expressions of the higher standard required, which was defined by Lord Denning in Miller v Minister of Pensions [1947] 2 All ER 372,373 as follows:
It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt… If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‗of course it is possible, but not in the least probable‘, the case is proved beyond reasonable doubt, but nothing short of that will suffice.
The law, therefore, precludes a conviction based on suspicion or guesswork or mere satisfaction or even a feeling of being [2009] The Seychelles Law Reports 47 ______
‗fairly sure‘. Hence, the standard of proof, bearing in mind that the Republic must prove the charge, is, of course, proof beyond reasonable doubt. If you have a doubt as to proof of guilt that fairly arises out of the evidence and that, to your minds, exercising your consciences as jurors, appears to you to be a reasonable doubt, and if it relates to one of the essential elements of the charge, like the identity of the accused or the proof of murder, then the verdict ―not guilty‖ must follow. Is it reasonably possible that the accused is not guilty? Is there a reasonable explanation or theory consistent with innocence? And if any one of those things occurs to you as the result of your deliberations, and if you find answers to these questions in the affirmative, then they all mean the same thing, that there is a reasonable doubt. The accused should be acquitted. On the other hand, if you decide otherwise, I have to caution you that you must find before deciding upon such conviction, that the inculpatory facts either revealed from direct evidence or inferred from circumstantial evidence are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis other than guilt.
The question of motive
It is necessary, I think, that I should say a word about the question of motive. As a result of various exposé by story- writers, play-writers, novelists, movie makers of Hollywood or Bollywood and the people of that kind, it is very easy for a common man to get wrong ideas about motive, which is different from malice aforethought. Although Mr J Renaud, counsel for A1 in his opening address touched on the issue of motive, he did not elaborate on it. I will do it now for you to avoid any confusion between these two. Your first enquiry would be to consider whether a murder was committed at all by someone. The motive for the crime, subject to your better judgment, would eventually, appear to be immaterial. Because, whoever committed the crime, assuming you find, it [2009] The Seychelles Law Reports 48 ______was murder, that person did it for some motive and some adequate motive - whether it was a concealed motive, or whether it is now undiscovered and is undiscoverable, or whether it was at some time apparent. All these are immaterial. In connection with this enquiry, it is not legally necessary for you to look for a motive. It is not necessary, in your minds or in your discussions, that you should reproduce or recreate the precise scene which culminated in Lynn‘s death; because whatever the motive was, do you have any doubt that she was in fact murdered by someone? If yes, then you may safely forget about motive and you may proceed to examine the evidence.
The question of premeditation
Again, premeditation is to be distinguished from malice aforethought, defined supra. As a matter of law, no premeditation needs to be proved under our law. There are some countries in the world where they have two kinds of murder, a clearly premeditated one, and one that is not premeditated. As far as we are concerned, from the point of view of our law, no premeditation needs to be proved. Whether the killing was the climax of some deep laid plan of long-standing, or whether the resolution to kill and the deed itself arose on a sudden, from a quarrel or from some other promptings of the moment, or whether it was something in between, that does not matter. It is legally nothing to the point, if you are satisfied -
(i) that Lynne was stabbed by someone other than herself;
(ii) that it was not an accidental stabbing; and
(iii) that the person who stabbed her did so, unlawfully and deliberately with the intention [2009] The Seychelles Law Reports 49 ______
of either of killing her or of causing her serious bodily harm.
If you are satisfied of those three things then murder was done by someone.
Well, you have got the entire picture from the evidence and I will say no more about that. You have, on the one hand, the legal situation that neither motive nor premeditation required to be proved by the prosecution.
Intention
Members of the jury, I spoke about the element of ―malice aforethought‖ before. I spoke about the circumstances that establish inter alia, an intention to cause the death or to do grievous harm to any person. As far as the present case is concerned, I would advise the members of the jury to concentrate on the intent to kill rather than the intent to do serious bodily harm. I say so because of the following reason.
Since, whoever the assailant was, the fact remains that person had stabbed the deceased more than 8 times repeatedly and continuously causing deep injuries around her neck, around her heart, stomach and on her back. From the number of stabbings, the nature and the extent of the wounds and the vital location of those injuries on the body and from the amount of force that could have been applied by the assailant to cause those injuries penetrating to the internal organs, what would be the inference a reasonable person can draw as to the intent of that assailant? Do you think, the only logical and irresistible inference is that the intent of the assailant could have been to kill? Or simply to do a grievous harm? Or simply to threaten her in order to steal the valuables from the shop or for any reason, whatsoever?
Now, members of the Jury, some of you may wonder what [2009] The Seychelles Law Reports 50 ______
"grievous harm" means in law. It means any harm which amounts to a maiming or dangerous harm, or seriously or permanently injures health or which is likely to injure health, or which extends to permanent disfigurement or to any permanent or serious injury to any external or internal organ, membrane or sense.
Be that as it may. You members of the jury, in the case on hand, if you are satisfied on evidence that the assailant had stabbed Lynn having known that it was highly probable that those stab injuries would cause death or serious bodily harm to her, then the prosecution had proved the necessary intent and that it does not matter, even if the defendant‘s motive had been simply to do serious bodily harm to the deceased and to steal any valuable thing from her or from the souvenir shop at the material time. This aspect of the intent, you may consider, later when you revert to the evidence that I will discuss in the second part of my summing up. If the assailant, even without intending to endanger the life of Lynn, had simply stabbed her knowing that it was probable that grievous bodily harm would result to Lynn, then he would be guilty of murder since death resulted.
I believe, the following case that was decided by the House of Lords in the UK would assist the members of the jury to understand the point in this respect as to intent. On appeal from R v Hyam [1975] AC 55 - 99, the House of Lords held - in dismissing an appeal against conviction of murder - that a person who, without intending to endanger life, did an act knowing that it was probable that grievous bodily harm would result was guilty of murder if death resulted. [See also, Director of Public Prosecutions v Smith [1961] AC 290].
For the benefit of the members of the jury, I would like to state briefly the facts of that case (Hyam supra), which are as follows.
[2009] The Seychelles Law Reports 51 ______
The appellant, a lady had a relationship with a man, who became engaged to be married to B. In the early hours of July 15, 1972, that lady went to B‘s house and poured petrol through the letter box, stuffed newspaper through and lit it. She gave B no warning but went home leaving the house burning. B escaped from the house but her two daughters were suffocated by the fumes of the fire and died. The appellant was charged with murder. Her defence was that she had set fire to the house only to frighten B so that she would leave the neighbourhood and that lady could continue her relationship with that man.
Ackner J (the trial judge) directed the jury that the prosecution had to prove beyond reasonable doubt that the appellant had intended to kill or do serious bodily harm to B. If they were satisfied that when she had set fire to the house, she had known that it was highly probable that the fire would cause death or serious bodily harm, then the prosecution had proved the necessary intent and that it mattered not, if her motive had been to frighten B. He advised the jury to concentrate on the intent to do serious bodily harm rather than the intent to kill. The appellant was convicted of murder, even though there was no direct intent to kill. Her appeal against conviction was dismissed by the Court of Appeal confirming the direction was proper.
Coming back to the present case, even if one assumes for a moment that the intent of the assailant in causing those injuries to Lynn was simply to cause grievous harm or even to threaten, such intent is sufficient to constitute and complete the offence of murder. This is what I too, advise you in this case as well, on the point of law as to intent.
Now, I will move on to the charge under count 2 against A2, which states that A2 procured A1 to commit of offence of murder. In fact, section 22 (d) of the Penal Code reads thus:
[2009] The Seychelles Law Reports 52 ______
When an offence is committed, each of the following person is deemed to have taken part in committing the offence and be guilty of the offence, and may be charged with actually committing it, that is to say -
(a) every person who actually does the act or makes the omission which constitutes the offence;
(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c) every person who aids or abets another person in committing the offence;
(d) any person who counsels or procures any other person to commit the offence.
In the fourth case ie (d) he may be charged with himself committing the offence or with counselling or procuring its commission.
In the present case, A2 William Renaud is charged in count 2 with the offence of procuring its commission under category (d) above. What is procuring? To procure means to produce by endeavour. You procure a thing by setting out to see that it happens and taking the appropriate steps to produce that happening. We think that there are plenty of instances in which a person may be said to procure the commission of a crime by another, even though there is no sort of conspiracy between the two, even though there is no attempt at agreement or discussion as to the form, which the offence should take or where, when and how it should be executed. In my opinion, the offence alleged against A2 in this reference is such a case, though I remind you that it is only my opinion on [2009] The Seychelles Law Reports 53 ______a point of law.
In law, a conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence. A person who procures another to do any act of such nature that, if he had himself done the act that would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act.
Witnesses and their testimonies
Very many witnesses have been called. In fact, 25 witnesses have testified for the prosecution and 7 witnesses for the defence including the accused persons. Many hundreds of pages have been recorded. In the nature of things, I must refer to much of that evidence and to many of the witnesses. However, in performing your duties to determine on the facts, you are also judges of the witnesses and you should assess each one carefully. You will remember that both counsel made submissions to you about witnesses and about what reliance you should place upon them. And, naturally, included in the list of persons that you are to assess, are also the accused persons, as they have also given their sworn evidence. Now you may reject everything a witness says; you may accept everything a witness says; you may accept part of what a witness says, and reject the rest but for valid reasons. That is all within your function and responsibility. You may either believe or disbelieve a witness. You might have also observed the demeanour and deportment of the witnesses whilst in the witness box. So you can make your own assessment on the veracity of his or her testimony. You may also use your notes in this regard, as I mentioned to you earlier during the trial.
Having said that, it is pertinent to note that human memory is not infallible. We all tend to forget things at times. Individuals [2009] The Seychelles Law Reports 54 ______differ in their ability to observe events and remember. Who is the more credible – the witness who recalls in tremendous detail every bit of what went on when he involved in or observed some incident, or the one who says honestly that he cannot exactly remember every minute details? I am not here referring to a dishonest witness, who so often seems to suffer from selective amnesia. Obviously, it is task for you to try and distinguish the honestly forgetful witnesses from the ones who choose not to remember. You should separate the wheat from the chaff. Hence, please, remember forgetful witnesses need not necessarily be dishonest in all cases.
As a practical matter, it is important to bear in mind what parts of the witness's testimony have been challenged, and what have not. For example, on one hand, the defence did not challenge, to any noticeable extent, the evidence of the Pathologist Dr Brewer on the cause of death, nor did they challenge to any noticeable extent the identification evidence given by some of the prosecution witnesses nor did they challenge to any noticeable extent the first and the second statements given by the defendant to police under caution. The defence did not challenge the substance of the confession of the accused Stanley Barbe made to the father of Lynne at the Central Police in the presence and hearing of Lynne‘s relatives and other police officers, although A1 denied his act of giving such confession. It involves only the credibility of A1. If you believe A1 that he did not give that confession, you have to completely reject that part of the evidence against him. Mr Mathurin, father of Lynne, who testified categorically that he accurately and clearly heard that statement from the mouth of A1 and repeated the contents. It is for you to decide on his credibility. Now A1, for example, gave the explanation under oath as to what happened on 14 March 2006 at the souvenir shop, what he saw and what he did. He has also narrated that episode in his statement to the police. In it, he narrated his alleged role as an innocent visitor to the scene of crime when Lynne was struggling for life in a pool of blood. [2009] The Seychelles Law Reports 55 ______
According to A1, he happened to see another man in an orange t-shirt coming out of the shop presumably after attacking Lynn at the relevant time, place and circumstances. He also narrated his own version as to the sequence of events following his visit to the shop including the scene of dying Lynn in a pool of blood, the shock he suffered, his stepping on the blood-spattered floor, going near the table in the corner and then going to the sea for washing his face, hands and his sunglasses. He gave the description of the possible assailant and the reasons for not attempting to help Lynn at the critical moment. You members of the Jury, you are the judges of facts. You may decide on the credibility and the weight you may attach to the evidence of any witness for that matter. I would like to remind you that evidence will succeed in persuading a Court only if that evidence appears as truthful, reliable, cogent, consistent, and not contradicting with the rest of the proven facts and circumstances.
I want you to understand, and to remember throughout this summing-up, that when I refer to a fact, or to what a witness has said, my reference is always subject to your assessment. It is as if every time I speak of an act or an event or a circumstance or an opinion, described or expressed by a witness, I am also saying, ―If you the jury, accept that evidence‖, or, ―To the extent that you accept this or that witness‖, or, ―If you accept this or that opinion or judgment‖. I do not propose to say that every time, because it would be an insult to your intelligence and secondly it would become intolerably wearisome to you. You know quite well, you have the responsibility for judging the facts and the witnesses and that responsibility never departs from you.
Sometimes, I may express, or you may think I am expressing, some view about the evidence. But if I do express a view or if you think I am expressing one, that is simply and solely for your consideration, because I am not the judge of the facts, but you are. [2009] The Seychelles Law Reports 56 ______
I now refer to what I might term slips, errors or omissions - the sort of human mistakes that men and women may make, while giving evidence in Court. As to the men and women who have figured in this trial, let me say a word of general application. This Court is after all a human court dealing with human beings and working to make judgments on men and matters. Obviously some works for example, work by accountants, or doctors, or scientists - must be done with accuracy and precision. Any assessment or criticism of their works is entitled to be put on that basis. However, the Court work is concerned, no-one would suggest that allowance should not be made for slips or errors or omissions committed by men and women, who testify as witnesses in any proceeding before the Court. In short, we obviously, acknowledge human infallibility. But, ladies and gentlemen, the distinction is both wide and clear between mistakes of that kind namely, forgivable human errors and omissions vis-à-vis falsehoods that are produced deliberately with intent to deceive. An important part of your duties is to detect the difference, whenever ―errors‖, or ―omissions‖, or ―slips‖ have occurred, and to act accordingly.
Cell confession or confession to an inmate
An Indian soldier was charged with murder of his officer. While in custody, his commander said to him ―Why have you done such a senseless act?‖ to which ―A‖ replied ―some three or four days the officer has been abusing me and without doubt I killed him‖. This is what happened in the case of Ibrahim v R [1914] AC 599 - in which the Privy Council held that -
(i) The soldier‘s confession, not being induced by hope or fear as admissible in evidence;
(ii) His confession cannot be rendered inadmissible just because elicited by a [2009] The Seychelles Law Reports 57 ______
person in authority and whilst the prisoner was in custody.
In the present case, if you come across any evidence of confession by any of the accused persons, you may consider the legal effect of such confession in the light of the case law set by the Privy Council in this respect.
The evidence of a witness about the confession made by the accused to another while he was in prison or police custody is sufficient to warrant a conviction without any corroboration provided it is a voluntary confession of guilt vide R v. Sykes (1913) 8 Cr App R 233. In this situation the case for the prosecution depends on the credibility and reliability of that witness‘s evidence. See, Benedetto and Labrador v R [2003] UKPC 27. A confession is not necessarily inadmissible on the ground that the exact words were not repeated by the witness. vide R v Godinho (1912) 7 Cr App R 12.
Circumstantial evidence
Generally, the prosecution would produce either direct or circumstantial evidence to prove their case. In this matter, the prosecution is obviously, attempting to prove their case mainly by adducing confession of the accused persons and circumstantial evidence as well. Hence, I have to guide you, members of the Jury, on circumstantial evidence and how it should be evaluated, so that you will be able to examine the evidence properly without danger, and come to the right conclusion.
What does circumstantial evidence mean? For instance, an eye-witness who testifies that he saw the defendant while shooting the victim, gives direct evidence. On the other hand, a forensics expert who says that the bullets or the finger-prints found on the trigger proves the defendant‘s gun has killed the victim, gives circumstantial evidence, from which the [2009] The Seychelles Law Reports 58 ______defendant‘s guilt may be inferred. Similarly, if a witness testifies that he watched the defendant while stabbing the victim with a knife, gives direct evidence. On the other hand, if a witness says that he saw the defendant enter a house, that he heard screaming, and that he saw the defendant leave that house with a bloody knife in his hand, gives circumstantial evidence.
Circumstantial evidence usually accumulates into a collection, so that each piece corroborates the other pieces like jigsaw puzzle and gives a clear picture of the unseen. These pieces then become corroborative evidence. Together they support more strongly the inference that the assertion is true. Circumstantial evidence is usually given by an expert witness who provides forensic evidence like finger-print, DNA etc.
When and why should you look for circumstantial evidence? Needless to say, no defendant would risk committing a crime in the presence of an eye-witness, who may give direct evidence against him, unless it so happens without defendant‘s control and knowledge. The circumstantial evidence is therefore, very important especially in criminal cases, where direct evidence is lacking or not available. Any inference which you may draw from the circumstantial evidence should be logical, irresistible and should lead to the only conclusion that the crime alleged should have been committed by the defendant. It is wrong to assume that circumstantial evidence is weaker than direct evidence. In fact, witnesses are human beings. Therefore, there is a possibility, they may lie or manipulate at times but the circumstances do not. Ladies and gentlemen of the Jury, however, I have to warn you, if you rely and act upon only circumstantial evidence to condemn a person, before reaching a verdict of guilt if any, you have to make sure that the inculpatory facts, which you draw from the circumstances, are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis other [2009] The Seychelles Law Reports 59 ______than guilt. I believe, the warning and the guidance I have given you herein would be sufficient for you to make proper evaluation of the circumstantial evidence in this matter.
Identification evidence
Although most of the identification evidence is not in issue and the prosecution rely substantially on the correctness of one or more identifications of the defendant in this matter, I would like to give you, members of the jury some important direction hereinafter called the Turnbull guidelines, which you should apply when you consider the identification evidence that I will refer to you in the second part of my submission. The Turnbull guidelines are these:
1. First, I should warn you of the special need for caution before judging the accused in reliance on the correctness of the identification made by the witnesses. There is a possibility that witnesses may have mistaken the defendant for someone else, his brother or relative etc. In addition, the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. This is called ―Mistaken Identity‖.
2. Members of the jury I direct you, to examine closely the circumstances in which the identification by each witness came to be made and remind of any specific weaknesses in the identification evidence. I should remind you that mistakes even in the recognition of relatives or close friends are sometimes made. Hence, you should be sure that there has been no mistaken identity, when the witnesses identify the [2009] The Seychelles Law Reports 60 ______
defendant in Court or Identification Parade conducted by the police.
You have to enquire whether the witnesses had sufficient light, time, opportunity and circumstances to properly recognize the defendant during the whole episode of their observation of the defendant; whether you find any reason to disbelieve those witnesses in any aspect of their testimony. Although identification evidence is not much in dispute in this matter, you have to carefully examine this aspect in the light of the Turnbull guidelines vide R v Turnbull 1976, giving necessary warning and due consideration to the relevant factors, which, may collectively be called - for your ease of remembrance - the Rule of “ADVOKATE”, if I may use this acronym to represent the following factors -
A - Amount of time the suspect was under observation by the witness;
D - Distance between suspect and witness;
V - Visibility at the time the witness saw the suspect;
O - Obstructions between suspect and witness;
K - Knows suspect or has seen him/her before;
A - Any particular reason for the witness to remember the suspect;
T - Time lapse since witness saw suspect and subsequent identification; and
E - Error or any material discrepancy in the description given by witness.
[2009] The Seychelles Law Reports 61 ______
Retracted confession and corroboration
You all know that a confession is the name given to an adverse admission made by the accused in a criminal case, which suggests or confirms his guilt of the offence charged. A voluntary confession is sufficient to warrant a conviction without any corroborative evidence. In the instant case, having held a trial within a trial, this Court ruled on law that the statement, which the accused A1 gave on 30 May 2008, to the police under caution was admissible in evidence. Obviously, this statement exhibit P20 is a confessional statement. However, in Court the accused retracted that statement alleging that it was not made voluntarily. According to the defence, the police obtained this confession by oppression, force, promise and other inducement and in breach of the Judge‘s Rules.
Members of the jury, it may be taken as a rule of universal jurisprudence that an unequivocal confession of guilt made by an accused person freely and voluntarily to a judicial tribunal is sufficient to base a conviction. However, in the case of a confession made to police though the Court found it a free and voluntary statement and though admitted in evidence, subsequently if retracted by the accused, as a rule of law, the Court can rely and act upon that confession and safely base a conviction, if and only if, there is independent evidence corroborating the statement in material particulars. To corroborate a retracted confession all that is required is some evidence from other sources, which implicates the accused in some material particular and which tends to show that what is said in the confession is probably true. See, R v. M (1966) SLR 218. It is to be noted that in the case of R v. Marie (1973) SLR 237, the Court after declaring admissible a voluntary statement given by an accused person to the police, is not bound to accept or reject its contents in toto. Although the whole of the confession is received in evidence, the trial Court is entitled to form an opinion as to the credit to be given [2009] The Seychelles Law Reports 62 ______to the different parts of the statement and to believe only such parts found to be true. As a rule, evidence which itself requires corroboration cannot provide corroboration for other evidence which also requires corroboration. However, for instance, if there is some other evidence coming from independent source like finger-prints or confession made to another person apart from police, then such evidence if found to be credible that can be used as corroborative evidence in this respect.
It is also pertinent to mention that once the evidence is admitted, the only question for you members of the Jury, is to consider its probative value and effect. However, in the case of a confession, which in your view, was not made freely and voluntarily by the accused, then you should disregard it. In any event, admissibility of any statement is not an absolute test of the truth of its contents. See, R v. Base (1953) 37 Cr App R 51, 57. Members of the Jury, bearing these principles in mind, I should caution you, if you decide to rely and act upon a retracted confession, you must look for independent evidence to corroborate the confession on material particulars. I believe, the matters so far I have summed up on points of law, would suffice to meet your requirement in this case.
Summing-up to the Jury - PART II
Members of the Jury, in the first part of my summing-up I told you that I would direct you as to the law and then remind you of the evidence. I dealt with the law in the first hour or so. I noticed that you were paying very close attention to it, as you did throughout this trial. Therefore, I do not intend at this stage, to repeat my earlier directions as to the law. You must apply those directions to the facts revealed from the evidence, which you have heard in this trial. I will now proceed to summarize the evidence in this second part of my summing up. [2009] The Seychelles Law Reports 63 ______
If I say something about the facts with which you do not agree, you should ignore entirely what I say. You may act upon your own views of the matter. The facts and the way the facts are to be interpreted are your responsibility. Neither the judge nor the counsel can exercise that responsibility for you.
The facts of this case as transpire from the evidence on record can be stated briefly, as follows.
It is not in dispute that the deceased Mrs Lynne Renaud, a young lady, 24 years of age, hereinafter called ―Lynne‖ or ―deceased‖, was at all material times, a resident of Val D‘andor, South Mahé. She was married to one William Renaud, who is none other than the second accused in this case. Lynne was living with her husband sharing the same household of her parents namely, Mrs & Mr Mathurin (PW12) at Val D‘andor. Lynne had no children. According to her friends Vivienne (PW11) and Marie Legaie (PW22), Lynne was a very good person, a lovable and quiet personality but reserved. She would not give problems to others either. She was employed. In fact, she was managing a souvenir shop known as ―Variety Souvenir Shop‖ owned by her aunty Mrs Gaetanne Payet (PW9). Lynne had taken a life insurance policy in her name, having nominated her husband (A2) and her parents Mathurins as beneficiaries in case of any eventuality that may happen to her life. According to Mrs Anna Payet (PW5), Manageress of SACOS, Lynne was paying her monthly premiums through a standing order from her personal account with Seychelles Savings Bank. Be that as it may, the said souvenir shop is situated at Anse Goulette, Baie Lazare, Mahé on the mountain side of the Belazare Main Road opposite to a beach stretching along the seaside of the road. At a distance of about 10 feet adjoining that shop, there are two small chalets, which belong to a hotel known as (La Sa Picco) ―Lazare Picault‖ situated at a distance of about 75 metres from that souvenir shop. In 2006, one Ms Vivienne Sanguignon (PW11) was working as a Chambermaid at [2009] The Seychelles Law Reports 64 ______
―Lazare Picault‖. It was part her regular work that in the mornings at around 10 am, she used to clean the said two chalets adjacent to that shop. Lynne and Vivienne being workers in the neighbouring premises and having known each other for over four years, they became good friends. In the mornings, whenever Vivienne came to clean those chalets, she always used to meet her friend Lynn next-door and have a friendly conversation with her. According to Vivienne, such meetings took place almost every day, as Lynne was a very close friend of hers.
Vivienne (PW11) testified that on 14 March 2006 at around 10.30 am, as usual, she went to clean those chalets. Reaching the chalets, she met her friend Lynne, who was that time sweeping outside the souvenir shop. Both exchanged greetings and had their usual friendly conversation. After sometime, Vivienne saw the owner of the shop Mrs Gaetanne Payet (PW9), who came to the shop and gave a basket of clothes to Lynne for ironing. After a couple of minutes she left. Thereafter, Lynne had been presumably, alone in the shop. Vivienne was still around in that area and continued cleaning the chalets. A few minutes later, she saw a tall man in black t-shirt and trousers with a plastic bag in his hand coming from the direction of Anse Goulette towards the shop. He was walking along the seaside lane of the road. As Vivienne was looking at that man, he also looked back at her and thereafter turned towards the seaside and appeared to be urinating. Vivienne had a good look at his back and then, continued her work. After a short while she heard the howling noise of the dog, which used to sleep normally at the door step of the said souvenir shop. As she was looking outside towards the shop, she saw the same man, whom she had seen earlier. That time he was coming out of that shop. He crossed the road and went to the seaside and disappeared. After she finished cleaning the chalets, Vivienne went back to the hotel. There she met some tourists, who alerted her to some incident at the souvenir shop. As a result she rushed to [2009] The Seychelles Law Reports 65 ______the souvenir shop and saw Lynne lying down on the floor facing up in a pool of blood. In no time, the matter was reported to the police, who rushed to the scene. They noticed, Lynne had sustained a number of stab wounds with profuse bleeding. She was lying motionless. She was not breathing. No heartbeat. Police immediately transported her to the Baie Lazare Clinic for emergency medical attention. At the same time, they also cordoned off and secured the scene of crime for investigation.
The doctor in charge of that clinic Dr Dora Romo upon examining the body of Lynne declared that she was brought dead with multiple stab injuries on her neck, chest, back, chin, abdomen, scalp and other parts of her body vide medical report exhibit P17. Subsequently, a pathologist conducted a post mortem examination on the body of the deceased. The pathologist Dr Ruben Brewer (PW14) testified that the cause of death was ―Excess-bleeding‖ and ―Post haemorrhagic Shock‖, due to multiple stab injuries she had sustained all over her trunk and head particularly, on her chest, stomach, back, scalp and neck. Because of the deep stab injuries, some of her internal organs like liver, lungs had also been ruptured. Especially, the stab wound on the neck had pierced through the right-internal-carotid artery that carries the oxygenated blood to the brain. According to Dr Brewer, this was the immediate cause of death as such injury should have affected her brain function. He also produced the post mortem report, exhibit P13 in evidence.
Be that as it may, soon after the occurrence, the same afternoon at around 1.30 pm a police team consisting of forensic experts inspected the scene of crime and carried out an investigation. They photographed the scene of crime and all parts of the shop. They also photographed some fresh shoe-prints found on the beach close to the sea opposite to the souvenir shop. They also photographed the body of the deceased, as it was lying at the scene of crime and later while [2009] The Seychelles Law Reports 66 ______kept in the mortuary of Victoria Hospital. All 46 photographs contained in an album was produced in evidence and marked as exhibit P3. According to Forensic Expert ASP Leon (PW2), after a meticulous search for a clue, he discovered a piece of paper from a partly opened drawer of a table, situated in one of the corners of the shop. This paper had some finger-prints on it. The print was wet and soaked in blood. ASP Leon seized that paper - exhibit P4 - and kept the same in his safe custody for further processing and examination. Later, ASP Leon photographed and processed the print found on that paper and made an enlarged print of it. More than two years after the occurrence of the crime, in 2008, A1 was arrested by the police as a suspect in this crime. Soon after the arrest, the police took a set of his finger-prints on a form. The finger - prints of A1 taken on the said form were also photographed, processed, enlarged and finally compared with the finger print of the suspect found on the paper recovered from the scene of crime. The finger-print expert SP Reginald Elizabeth (PW3), after carrying out a comparative examination of both prints, gave his expert opinion to the Court stating that the left thumb impression of A1 (Stanley Barbe) was identical to the one found at the scene of crime, namely the finger-print of the suspect. Having identified 10 points of similarities in ridge characteristics between the finger print of the suspect and that of A1, SP Elizabeth categorically concluded that both prints should have been made by one and the same person that is A1, namely, Stanley Barbe.
Mrs Gaetanne Payet (PW9) the owner of the shop also testified corroborating the evidence of Vivienne in that on the alleged date at around 10. 30 am, presumably, a few minutes before the alleged incident, she also went to the shop and met Lynne while she was talking to Vivienne and then she returned home. Moreover, Mrs Payet stated that on 3 June 2008, as a result of a phone call received from the police, she and her relatives including the father of Lynne Mr Guy Mathurin (PW12), her sister Merlin, one Merna, her husband, [2009] The Seychelles Law Reports 67 ______
Mr Hardy Lucas all went to the Central Police Station, where they met A1 sitting in an office. There were also police officers including SI Dogley, PC Bell in the surroundings. A1 in the presence and the hearing of all relatives and Father Lionet confessed that he did kill Lynne and asked for forgiveness. Lynne‘s father Mr Mathurin (PW12) also testified in corroboration stating thus:
A1 said ‗Are you the father of Lynne? My conscience is heavy. I wanted to see and talk to you. I am the one, who killed Lynne‘.
One Ms Marie Jacqueline Legaie (PW22), a resident of Anse Goulette, who lives in the vicinity of the souvenir shop, testified that she was a close friend of Lynne. On two occasions prior to the alleged incident of crime, she happened to notice the unusual movement of a tall man, a stranger in that area. That stranger was wearing a black t-shirt and black trousers and always seen with a black bag in his hand. On the first occasion that was three days prior to the incident, she saw that stranger going towards the souvenir shop and was standing outside. On the second occasion that happened on the day before the incident, she again saw the same stranger in the same clothes standing outside the souvenir shop. On both occasions, she observed his face clearly and stared at him wondering what that stranger had to do in that area. She even asked her boyfriend Ralph Paul about that stranger‘s movement in that area. Ralph also told her that he too saw that stranger standing near the souvenir shop, but he did not know who he was. After the occurrence of the crime, she in hindsight concluded that the stranger whom she saw on both occasions could have been the killer of her friend Lynne. Although she could recognize and remember the face of that stranger, she could not do anything nor could she help the police in the investigation. She remained passive as that stranger was nowhere to be seen again. However, about two years after the occurrence of the crime, a fateful coincidence [2009] The Seychelles Law Reports 68 ______happened. That was on 28 May 2008. Ms Legaie (PW22) was on that day going to Social Centre at Baie Lazare travelling in a bus coming from Takamaka. As she disembarked from the bus, she had a shock of her life. She saw the same stranger in the same black t-shirt and trousers with a black bag in his hand. She could clearly recall and recognize that face. He was standing at the bus stop in Takamaka, called ―Cable‖ stop. He was leaning on a wall. Ms Legaie along with one of her friend ―Gulda‖ approached that man and developed some conversation with him. Having recognized the stranger, with her photographic memory, Ms Legaie immediately gave a tip-off to the police. In fact, while she testified in Court, she also made a dock-identification of the accused Stanley Barbe stating that he was that stranger whom she had repeatedly observed at the material time and place. Following the tip-off, the police arrested that man A1 as suspect and took him to the Central Police Station. Upon searching his bag, the police found among other thing, a copy of a ―Nation‖ newspaper - exhibit P15 - dated 14 March 2008, which carried an advertisement with a picture of Lynne with homage being paid by her parents in memory of her death anniversary.
One Mrs Franklin Souzier (PW13), a resident of Baie Lazare, working as a beach cleaner testified that on the fateful day ie 14 March 2006, at around 11.15 am she and her co-worker one Genette during their break time, were seated on the beach opposite the ―Souvenir Shop‖ near ―Lazare Picault‖ facing the sea. That time a man dressed in black clothes with a black bag in his hand went to sea, bent over, washed his hands and shoes and then proceeded in the direction of Takamaka. She could see that man‘s face clearly as he was passing very close to them at a distance of about 2 feet from them. When she testified in Court, she also made dock- identification of A1 as the man whom she saw that day. Further she confirmed the evidence of SI Jean-Paul Ernesta (PW7) in that, on 30 May 2008 she positively identified A1 in [2009] The Seychelles Law Reports 69 ______an identification parade properly, mounted by police at the Central Police Station. Further SI Ernesta (PW7) testified that Vivienne (PW11) also positively identified A1 in the same identification parade mounted by police at the Central Police Station. A1‘s brother-in-law Mr Michel Albest (PW10) also testified that in 2006, A1 admitted to him that it was him, who was seen washing hands in sea, near the scene of crime as was broadcast in the media.
Following his arrest and detention, A1 gave four different statements to the police on different dates concerning his alleged involvement in the crime. In his first statement to the police under caution dated 28 May 2008, in exhibit P18, A1 admittedly, stated inter alia, thus -
……. I know that at Anse Goulette, Baie Lazare has a souvenir shop and at the shop I know a woman namely Lynn, who once worked there… Lyn and I knew each other. …… it might be during the month of February or March I went to the same Souvenir shop at Anse Goulette to seek for answer with Lyn regarding the candles product. On that day, I took a bus at the Bus terminal in town, it was a Baie Lazare via Takamaka bus, and I boarded that bus around 10am. On that day, I was dressed in black wearing a black jeans trousers and black short sleeves T-shirt. I was wearing blue shoes, which I have bought in Mauritius. I had also with me a black plastic bag …. I walked out and went towards the Souvenir shop, where Lyn was working. When I arrived opposite where some boats moored at the beach, I saw a white hired car, but I did not take a look of the registration number. The car was parked in the entrance of that Souvenir shop and it was facing towards Takamaka. In the car, I recognized someone's [2009] The Seychelles Law Reports 70 ______
elbow at the driver's seat but I did not remember the colour of that person. I kept walking, when I reached about 50 meters from the car, I saw a black man in a three quarter trousers and an orange T-shirt and the man came from the Souvenir shop and got in the car that was parked there and the car left towards Takamaka. Therefore, I approached and I went to the Souvenir shop and as soon as I got in the shop, I saw blood on the floor and saw Lynn on the floor lying facing upwards in a pool of blood and she was breathing. I was wearing a sunglass and I removed the sunglass and tried to call Lyn but she did not respond. In the shop, there was a small step, which is near a glass table and Lyn was there near the steps. My sunglass fell down near the glass window and I moved around to pick up my sunglass and in doing so I walked in the blood and my sunglass had blood also on it. Lynn was wearing a skirt and a blouse but I did not know the colour. Her blouse was lifted a bit up and I saw blood near her belly. I also leaned on the window of the shop with my hand especially when my sunglass had fall down. At that, time there was nobody else apart from Lynn. At that time, it was around noon, and I've been in the shop for about a minute and some seconds. Then I went out and went towards the beach and I washed my face with the seawater, because I was shocked and I washed the blood that was on my sunglass. When I finished washing my face, I returned on the road. I saw two women sitting on trunk at the beach. They are the Beach cleaners. I passed close to them but I did not talk with them…… I did not go there to wait for the bus at the bus stop because I was in a shock. I rather decided to walk to go to [2009] The Seychelles Law Reports 71 ______
another bus stop. ….. However, on the second occasion when I went there and saw the incident in the shop, I was scared to wait for the bus stop in public view in case people will think that I was the one who has committed this incident and therefore I preferred to walk towards Takamaka direction to stop a bus where no one will see me. …. Apart from Michel, I did not tell anyone regarding the incident.
In his second statement to the police under caution, dated 29 May 2008, in exhibit P19, A1 admittedly, stated thus -
In reference to the first evidence I have given to the Police today I wish to certify that I am married to a Mauritian woman namely Marie-Lise Barbe and her maiden name is Battour and we have two children together namely Stephano Barbe aged 16 years and Juliette Barbe aged 12 years. Most of the time I was in Mauritius and the last time I was in Mauritius was in 2005. Since then I have not been in Mauritius or any other country. I have been here in Seychelles. I wish to state that even if I go to Baie Lazare, I do not know anyone there and I do not have any friends there.
As regards the alleged killing of Lynne, the accused A1 himself gives a clear picture as to what really happened in his third statement to the police under caution, dated 30 May 2008, in exhibit P20. The said statement obviously amounts to a confession though retracted by him, which reads thus -
In reference to the first evidence that I gave to the Police on the 28th of May 2008, regarding the incident of Lyn‘s death I wish today to tell the truth. Firstly I wish to state that I was the one [2009] The Seychelles Law Reports 72 ______
who killed Lynn and now I will state why and how I killed her. On that day of the incident, I took a bus at around l0 am to come to Baie Lazare. I state also that before the incident, I have been at Baie Lazare at least on three occasions and I have been hanging around in the area at the Souvenir‘s Boutique where Lyn was working. The day before the incident, I was there also, I even came in the Boutique and talked with Lynn, and at that time, I had already intent to come to steal and kill Lynn. I do not know why I had that temptation but ever since I have known Lyn I just wanted to kill her. So the day of the incident as I have mentioned, I came at the bus terminal in town. I got a bus around 10 am, and that was the bus Baie Lazare via Takamaka. And in my possession there was a black plastic bag. Inside there was a knife measuring around 50cm and it was a knife with black plastic handle and that knife I had picked up previously and have always kept it in my workshop. In the said bag, there were also some Artisanal candles that I was trying to sell with the Curio‘s sellers. On that day, I was dressed in a black jeans and it is the same jeans that I am wearing today. I was also wearing a black T-Shirt with short sleeves and the said T-shirt is at home. I was in blue shoes and that shoes I had already thrown it away because it had been torn. So I went to Baie Lazare with intention to steal and kill Lynn but on the way sometimes I got the idea to return and not to do what I had intended to do; but the temptation remains and therefore I continued on my way in the bus. When I passed opposite the Souvenir boutique where Lyn worked, the Boutique was opened. I saw Lyn drinking a glass of water inside. I alighted near a Chinese [2009] The Seychelles Law Reports 73 ______
shop and went in the said shop to get a cigarette. After I got the cigarette, I started to walk towards the Souvenir Boutique direction where Lyn was working. When I was approaching the said boutique I noticed a car which was parked opposite the Boutique like I have mentioned in my first statement and the said car then went away before I reached the said Boutique. Before I reached the said Boutique, I went on the beach, removed the knife from the bag, and placed under my T-shirt, then I went towards the Boutique, and at that time, I did not see anyone in that area. I entered the Boutique and said hello to Lyn and she answered, and she asked me if I had brought the candles as we had talked about before. When Lyn asked me that I did not answer and I came out from the shop to make sure that there was nobody in the area. I then entered the Boutique again and told Lyn that I have came to buy some necklaces and Lyn went where the necklaces where in order to show me and she bent down with her back facing me. I removed the knife under my T shirt and stabbed Lyn on her back. When I stabbed her, Lyn got up and screamed and she was also going towards the Boutique door and there I dragged her inside and she struggled with me and she slapped the knife from my hand and the knife fell. I picked up the knife but I do not know if I stabbed her again with the said knife, I may have stabbed her again but I can‘t recall. Lyn fell down and she was bleeding I tried to pull her towards the toilet but she was too heavy and so I left her next to a step. Right away, I took some necklaces from the Boutique and put them in my bag. I also searched in a drawer but I did not take anything [2009] The Seychelles Law Reports 74 ______
in it. I went outside and went directly to the beach and there were blood on my hand, on my shoes and also on the knife. I washed myself with seawater to remove the blood and at that time, I saw two women who clean the beach sitting on a tree trunk. I passed next to them but I did not speak with them. I walked towards Takamaka direction to get a lift and I was walking on the right side of the road-facing seaside. On the way but I can‘t remember the exact place I took the knife and threw it away towards seaside. After having thrown the said knife, a bus came going towards Takamaka direction and I crossed the road and stopped the bus and got inside. When I was in the bus, I took the necklaces that I have taken from the Boutique and threw them on a seat behind me. I disembarked at Anse Aux pins.. I want to state after I had killed Lyn I had a dream of her and I had the intention to surrender myself to the police; but I was scared to do so. About one year after the incident, I returned to the said Boutique where I killed Lyn and I saw another person in the said Boutique. I was in a bus one day going home. I saw a Nation on a seat in the bus, and I picked up the said nation. When I was at home later I was looking at the Nation and I saw Lyn‘s photo in the Nation and the Nation was dated 14th of March 2007 and that day was the first anniversary of Lyn‘s death. When I looked at her photo I was upset. This year again on the 14th of March I bought a Nation again I saw Lyn‘s photo in the Nation and I have always kept this Nation with me and goes everywhere with it until I was arrested with the Police on the 28th of May 2008. I regret of what I have done. I do not wish to get a service of a [2009] The Seychelles Law Reports 75 ______
lawyer to come, to deny that I have not committed this murder. Instead I wished to see father LONNIE to talk with him to explain to him and asked for forgiveness for what I have done. I wish to add that I picked up the knife after I had tried to pull Lyn towards the toilet what I did not succeed to do. On the day of the incident, I was also wearing a sunglass and it fell in the blood. When I left, Lyn was still breathing. I also wish to add that I am a left-handed person and I had used my left hand to stab Lyn. The whole incident happened in about five (5) minutes. I did the action quickly in case people came in the Boutique and saw me.
On 3 June 2008, when A1 was in police custody at the Central Police Station, he told Inspector Dogley (PW24) that he wanted to see Father Lonnie to confess to him. Inspector Dogley made the necessary arrangements and took him to the Point Larue parish church. After his return from church, A1 confessed his guilt to Lynne‘s father as stated supra. Following this confession, A1 again wanted to give a free and voluntary statement to Inspector Dogley, that was for the fourth time concerning the alleged involvement of A2 in the crime. The fourth statement of A1 dated 3 June 2008 in exhibit P21 reads thus -
In reference to the case of murder of Lyn Renaud which I am involved in, I wish to add today that I did not tell the whole truth in my other previous evidence, as I was scared. Today after I have made some reflection, I have decided to tell the whole truth in this murder case. The truth is that I killed Lynne Renaud but I was paid to commit that murder. I recalled on the second occasion that I went to Baie Lazare and it was about February 2006. I came to that [2009] The Seychelles Law Reports 76 ______
Souvenir‘s Boutique where Lyn worked and I saw Lyn in the shop. …. and she was arguing with a man of light complexion … that man was swearing at Lyn. Since I had come to see Lynn regarding the candles that I spoke to her about in December as I mentioned in my other previous evidence, I went outside to wait for the man who was arguing with Lyn to leave for me to be able to talk to Lyn regarding the candles. I stood outside by the roadside and then the man came out and he was still swearing. He came to where I was and he started to talk to me. He asked me where I live and I told him at Mont Buxton. He asked me my name and I told him. Then that man told me to come next to a white pick-up that was parked by the roadside. There was nobody at the pick-up and it seems that he was the driver of that pick-up. So we went to that pickup and that man told me that his name is William but he did not tell me his surname. He asked me if I wanted money and I told him yes. He told me that he will make me do a mission for him and if I agree, he will pay me an advance of R25,000.00 today. I asked him what mission he had and William told me that he will hire me to kill Lyn. William also told me that altogether he will give me R100,000.00. He also told me that in two weeks time he will give me another R25,000.00 and that will be on the 13th of March 2006 and he told me that he will give the remaining R50,000.00 after the mission. When William mentioned all this money to me, I was tempted. I told him that I accept to do that mission. William told me to wait for him there, he embarked in that white pick-up, and he went towards the direction of Anse Gaulette market. About five minutes later William came back in that pick-up and he [2009] The Seychelles Law Reports 77 ______
gave me R25,000.00 in notes of R100.00 in a brown envelope. William then told me to come again in two weeks in the afternoon here next to the shop and he will give me another R25,000.00. So I left and went home. Two weeks after that, being the 13th of March 2006 as William has told me I went to Baie Lazare to meet him for him to give me my money again. So that day I arrived there around 10.30 am to 11am and when I arrived there, I did not see that white pick-up that William was in on the first day. So I hanged around in that area and several people saw me where I was hanging around waiting for William. I wish to add the first time, when William gave me the R25,000.00 before I left, he informed me that Lyn was his wife. So on the 13th of March 2006 when I waited for him, around 3.00 pm William had not yet arrived; I went inside the shop to see Lyn and asked her to phone William and told him that there is someone waiting for him at the shop. Lyn told me that there was no money on her phone card but anyway William will call her later and at that time Lyn was ironing in the shop. So I walked around in the shop and looked at the products. Then Lyn‘s phone rang and Lyn answered the phone and I heard Lyn telling to the person on the phone that there is a man waiting for you and I suspected that it was William who was talking to Lyn on her mobile phone. Lyn asked him if he will come to see her and also told him to bring fish when he comes. When Lyn had finished talking on the mobile phone, she told me that William was coming. So I went outside to wait for William. About fifteen minutes later William came in his pick-up coming from Takamaka direction and he parked the pick-up next to me. [2009] The Seychelles Law Reports 78 ______
He disembarked and came up to me and he gave me R25,000.00 in notes of R 100 and William told me sorry, that day he did not have any envelope and he gave the money in my bare hand. He counted the money before he gave me. Then William told me to do the mission on the following day meaning the 14th of March 2006. He told me to choose the time of the mission myself and William also told me that in a week after the mission he will give me the other R50,000.00 and he told me to come and collect the money at the bus stop opposite Baie Lazare Police station and that will fall on the following Tuesday. After William had given me the other R25,000 I left. So the following day the 14th of March 2006 1 went there and killed Lyn as I‘ve mentioned in my other evidence. William did not give me his mobile phone. After Lynne‘s death on the following Tuesday I went to Bale Lazare to meet William to get the rest of my money as we had spoken but I did not see William at all and during all this time I have not seen William again until yesterday Monday the 2nd of June 2008, 1 saw him at the Court house.
Subsequently, William Renaud (A2) was arrested as a suspect in this case. Following investigation, he was charged with offence first-above mentioned and remanded in custody pending trial. In November 2008, he was on extension of remand and had been kept in a cell at the Central Police Station. He was in fact, sharing cell No 4 with another prisoner one Mr Murali Vallipuram (PW20), a Sri Lankan national, who had also been in custody during that time as an under trial prisoner. Admittedly, Murali had a bad record and was an accused person as well as a convict in a number of criminal cases involving a series of ―White-Collar‖ crimes such as fraud, misappropriation of funds, money laundering, bribery [2009] The Seychelles Law Reports 79 ______etc. In some of those cases, he had already been convicted and sentenced. In some he was awaiting trial and some had been withdrawn by the Attorney-General. Be that as it may. Murali and A2 were admittedly, staying together in the same cell for about three nights. According to Mr Murali, during their stay as inmates of the same cell, he and A2 became friendly. They had been talking to each other about their personal life and their pending criminal cases. Mr Murali (PW20) testified in essence, that on 7 November 2008, during the course of their casual conversation in the cell, A2 confessed to him that he had engaged a man by name ―Rabi‖ to kill his wife Lynne and Rabi asked him to pay R 100,000 to do that job. Police arrested A2 because ―Rabi‖ had disclosed A2‘s name to the police. When Murali asked A2 why he had to kill his wife, A2 told him that he had an extramarital relationship with another lady and his wife was creating problems with him. When Murali asked A2 why he could not leave his wife and go to live with that other lady, A2 replied that he could not do that since his wife had insurance money, bank accounts and a house from which he would not get anything if he leaves her. Therefore, A2 stated that he had no other option than eliminating her. Then Murali asked A2 ―Why did you do such a serious thing?‖ For which A2 said ―I cannot leave the lady with whom I have an affair. At the same time, I need to start my life. So I decided to find the way to keep her out of my life‖. Then Murali asked him how and what happened? A2 replied ―I was looking for somebody to kill her for some time. Then I met this Rabi in Victoria. He came looking for a job. He came from Mauritius. I found him to be a suitable person to do this job. If other people do it I will get into problem… I gave Rabi the details of my wife… It all happened 2-2½ years ago‖. Thus, A2 narrated to Murali of all details regarding the job he had assigned to Rabi, who eventually killed Lynne. At this juncture, I wish to remind you that Mr Labonte, State counsel has rightly, brought to your consideration certain evidential indicators, to infer the fact that Rabi and A1 should be one and the same person. Having [2009] The Seychelles Law Reports 80 ______heard the whole story of A2 about murdering his own wife, Murali got scared to stay with A2 in the same cell. According to Murali, if a man is capable of killing his own wife, for his personal benefit, he would go to any extreme even to the level of killing his own inmate in the cell. Therefore, Murali requested the police not to put him in the same cell with A2. As police asked him for the reasons, Murali had to give them the reason for his fear. Subsequently, police acceded to Murali‘s request and moved him to another cell. In view of this incident, Murali was asked to give a statement to the police and he did. Murali was therefore called as a witness to testify for the prosecution in order to establish the role of A2 in the murder of his wife. This is the evidence the prosecution has adduced and relied upon to prove the case against both defendants in this matter.
After the close of the case for the prosecution, A1 testified in defence. According to A1, he did not kill Lynne, but he was in the scene of crime and saw the assailant in an orange t-shirt presumably escaping from the scene. He also repeated under oath what he had already stated in his first and the second statement - exhibit P18 and 19 - he gave to police under caution as an innocent visitor to the scene of crime. However, he retracted under oath the third statement - exhibit P20 - which he allegedly gave to the police confessing his guilt. Moreover, he admitted the fact that he did go to the sea and washed his hand and blood-stained sunglasses soon after he left the scene of crime. Moreover, A1 retracted the fourth statement - exhibit P4 - that incriminated A2 with the offence alleged. He also denied the fact that there was a copy of the ―Nation‖ newspaper in his bag on the day he was arrested while travelling in the public transport. He also testified that A2‘s role in the crime was a simply a fabrication by the police and he was forced to sign that statement exhibit P4. As regards his alleged confession to the father and relatives of Lynne, A1 testified they were not true. Thus, he denied any of his or A2‘s involvement in the murder of Lynne [2009] The Seychelles Law Reports 81 ______as alleged by the prosecution. A1 also called a witness a young man Pascal Bastille (DW2) who testified that he met A1 in Praslin the day before the alleged murder of Lynne. This witness obviously, was of no assistance to A1 in any aspect of his defence.
A2 also testified in defence denying his involvement in the murder of his wife. He also stated in essence, that he never engaged A1 or anyone for that matter to kill his wife. Besides, he testified that he never made any confession to Murali nor had any conversation with him regarding his involvement in the murder of his wife. According to him, he loved his wife Lynne and his married life with her was smooth and cordial. He had no problem with her. As regards his financial status he testified that he was earning only around R 2,500 per month and out of which sum he was paying a sum of R 900 as alimony for his children outside the marriage. In the weekends he was only assisting his father-in-law Mr Mathurin in his vegetable farm but had no revenue therefrom. He had no other source of revenue at the material time to pay any large sum such as R 25, 000 or so to A1 or any other person. He also called two bank officials (DW6 & DW7) from two commercial banks to give evidence for the defence. Both of them testified as to his financial means to the effect that A2 had no funds in his bank accounts during the period in question, namely March 2006. Ms Edwina Essack (DW4), a former concubine of A2 also testified that A2 was paying alimony in the sum of R 600 for two of her children during the relevant period. She also testified having known him and lived with him for about 8 years in concubinage, she never found A2 a man of violent disposition. Mrs Dolores Robinson (DW5), Assistant Administrative Officer from Transec (ex- employer of A2) also testified that on the alleged date of Lynne‘s murder A2 told her that he received a call from Mr Booster stating that his wife Lynne had an accident. As a result A2 wanted to go to Baie Lazare Clinic using his employer‘s transport, a white pickup. Mrs Robinson gave [2009] The Seychelles Law Reports 82 ______permission for his private use. Later A2 phoned her and stated in sobbing voice that he could not see his wife‘s body there at the Baie Lazare clinic. These are the essential parts of the evidence adduced by the defence in this matter.
Ladies and gentleman of the Jury, I have already explained to you the position of relevant laws, case laws and the principles applicable to the evidence in this case. You may proceed to examine the evidence and determine the issues applying those laws and the principles accordingly. In my view, the following questions may arise in the mind of any common- man, as one analyzes the evidence:
(a) Is it possible for anyone to invent a story with remarkable imagination and give a false confession to police, narrating every minute details with so much of factual accuracy and correctness as to how, when, where Lynne was murdered unless that person himself had really involved in the murder?
(b) Do you think any reasonable person like A1, who claims to have witnessed the scene as soon as the crime had allegedly been committed by someone else and especially while Lynne was still dying in a pool of blood, would simply leave the scene and go to wash his hands in the sea water? Had he been innocent, what prevented him from reporting the incident to police immediately or alerting the neighbours?
(c) Do you think Lynne‘s father, her aunty Mrs Payet could have lied in their testimony that A1 confessed to them that he killed Lynne and asked for forgiveness? [2009] The Seychelles Law Reports 83 ______
(d) Do you think, prosecution witnesses, who gave identification evidence could all have misidentified A1 for someone else in all incidents of recognition and identification?
(e) When fresh blood is splashed on the black clothes of a person, will it be visible to others, in the normal course of events? Is it possible to trace shoe-prints on the tarmac of the public road?
(f) Are these accused persons put on trial before you or the investigating officers for omission or commission in their investigation?
(g) Is it relevant at this stage, for you to make an assessment on the standard or quality of investigation or to make an assessment on the quality of evidence on record?
As people of the world, members of the Jury you will surely, find answers to those questions. You may also estimate the duration as to how long the witnesses would have taken to clearly recognize the face of A1 in each incident. Could witnesses have had sufficient time and opportunity to identify the face of A1? Do you believe the testimony of Murali, in that, A2 had confessed his involvement and told the truth to Murali? Do you see Murali as a credible witness? Do you believe A2, when he testified that he did not discuss those matters with Murali? Who is lying between these two? You are the judges of facts and you may decide accordingly. If you are satisfied on evidence that all ID witnesses did properly and correctly recognize A1, and they are all truthful, then you may safely rely and act upon their ID evidence.
A1 claimed in his statement that he saw someone coming out [2009] The Seychelles Law Reports 84 ______of the shop in orange t-shirt going towards a car at the material time and place. Soon after that incident he went inside the shop and saw Lynne breathing in a cold blood state. But he never approached Lynne in order to render any help rather he chose to go to the table kept in a corner. According to him, he was shocked by the gruesome sight but still he could walk in the blood and went to the table in the corner. Could this be true? A1 in his confessional statement exhibit P4 has given very minute details of the episode of stabbing. If it is not true, then the accused should have been very imaginative to foresee and invent such a story in his statement given to the police (exhibit P20). His version in this respect is so cogent, consistent and tallied with other evidence, which were subsequently, came to light during the police investigation. Then, ask yourself, whether the accused had the foresight of a prophet or whether the police had such ability to write stories covering all minute details of the incident. Is it a coincidence that the story of fantasy A1 narrated in his statement and the evidence from other sources tally each other revealing one and the same version on material particulars? You may find answers to these questions, along with other questions that might arise in your mind, while you examine the evidence in its entirety.
Now, let us move on to the evidence if any, to corroborate the retracted confession. If you look for evidence to corroborate the confession given to police under caution, first of all, you should ask yourself ladies and gentlemen the following question -
Is there any independent evidence, other than the retracted confession of the accused to implicate him in some material particulars and tend to show that what is said in the confession is probably true?
[2009] The Seychelles Law Reports 85 ______
In this respect, you may consider the following. Apart from the statements given to the police, A1 has confessed to a number of witnesses including Lynne‘s father stating that he was the one, who killed Lynne. There is also another independent source of evidence namely, ―Finger-Print‖ to show that A1 has left his left thumb impression on the paper soaked in fresh blood in the scene of crime. Do you think, A1 could have innocently, gone near the table kept in a corner of the shop, opened the drawer and took out the paper, while Lynne was dying in a pool of blood all around? Could this be a coincidence that A1 had been preserving an old newspaper containing the said advertisement, in his bag for no reason? Are you satisfied that all prosecution witnesses are credible and spoke the truth? Did they identify A1 correctly and properly? Are you sure that the cumulative effect of the entire circumstances lead to the only inference that the person, who killed Lynne could only be the accused Stanley Barbe, no one-else? Is this fact corroborated by other independent evidence? Does it implicate the accused (A1) in all material particulars? Does it tend to show that what is said in the confession is probably true? You should find answers to all these questions.
As regards A2, there is a free and voluntary cell-confession by himself to Murali, regarding his role behind the murder of Lynne. Murali was obviously, on even terms with A2 as an inmate that time. The question of promise, threat or any other inducement that would normally vitiate a confession is ruled out. If you believe Murali as a credible witness, despite his criminal record, and if you are satisfied as to the truth of the contents of their cell-conversation then you may safely rely and act upon that piece of evidence alone to base a conviction against A2. Having said that, if you think it is desirable, you may also look for corroboration from other relevant facts and circumstances in the whole of the case, leading to the only inference that A2 should have procured A1 to murder his wife. Such circumstances may include A2‘s [2009] The Seychelles Law Reports 86 ______conduct and behaviour subsequent to murder, insurance claims, the story of ambulance and Mr. Booster, repeated reference to a white pickup by A1, and A2‘s statement that he could not see his wife‘s body at the Baie Lazare Clinic soon after the alleged incident etc. It is for you to determine those factual issues. At the same time I should remind you that a confession is not necessarily inadmissible on the ground that the exact words could not be given by the witness, see, R v. Godinho (1912) 7 Cr App R 12. Equally, voluntariness is only a test of admissibility of the statement in question. It is not an absolute test of the truth of the contents in the statement. From observing his demeanour and deportment, in your assessment, if you find that Murali did not lie then you have sufficient evidence to consider and act upon in respect of A2‘d guilt. In passing, I must remind you that witnesses may lie but not circumstances!
It is interesting and strange to note that A1, in his fourth statement to police has stated thus: ―I have not seen William again until yesterday Monday the 2nd of June 2008, I saw him at the Court house.‖ That was the day, when A1 was first brought to Court for remand proceedings. Indeed, A2 also corroborated this fact in his evidence under oath. If A1 and A2 had not known each other or to say the least, if A1 had not known and seen A2 before 2 June 2008, how come he could first time identify A2 (William) that day, amongst the crowd of public visitors in Court? Could A1 be a clairvoyant possessing the power to know matters beyond the range of normal human being? It should also be noted that A2 confirmed in re-examination that even Inspector Dogley was not there in Court that time. That rules out the remote possibility that Dogley might have falsely inserted that fact in that statement. I can only draw your attention to these facts, but it is for you to analyze the factual situation and determine accordingly.
[2009] The Seychelles Law Reports 87 ______
You may also consider the following:
(1) A1 was admittedly seen in or around the area of the souvenir shop on a couple occasions before the day of occurrence of the crime. Particularly, on the day of occurrence, A1 was seen coming out of the shop, immediately after the alleged incident admittedly, when Lynne was breathing last in a pool of blood.
(2) The confessional statement of A1 in exhibit P21 also corroborates the forensic evidence as to his finger-print found on a paper exhibit P4 in a partly opened drawer of the table kept in a corner of the shop, where no innocent customer could have had access in the normal course of events.
(3) Before giving the confessional statement in exhibit P21, A1 had already made confession verbally to Lynne‘s father in the hearing and presence of her relatives and police officers. Both confessions in pith and substance corroborate each other on all material particulars of the offence of murder and sequence of events.
(4) The accused claimed in his evidence that he saw another man in orange t-shirt leaving the shop at the material time, when Lynne was still breathing. He by necessary implication indicated that person could have been the assailant, who would have possibly murdered Lynne. Thus he introduced a story alleging the involvement of another ―suspect‖, in the commission of [2009] The Seychelles Law Reports 88 ______
the crime. Had this story been true, what prevented the accused from informing the police or others to assist in the investigation of the crime? What prevented him from helping Lynne in that critical moment, had he had good intention in his visit? As I see it, A1 is telling a cock and bull story in his statement and evidence. It is only my opinion. Members of the Jury, it is not binding upon you. You may make your assessment on the accuracy and correctness of my opinion. You may either differ or agree.
(5) It is also interesting to note that A1 is admittedly, a left handed person as per his statement in exhibit 20. At the same time, the impressions found on the paper in exhibit P4 recovered from the scene of crime also indicates that the suspect, who had handled that paper should also have been a left handed person, as it had contained only left-thumb prints on it.
(6) If a person has been an accused or been convicted of white-collar crimes, one should not always presume that person would be a liar throughout his life or would be telling lies in all matters unless he is a pathological liar or his lies are intended for personal gain or motivated to harm others for a reason.
(7) You should be satisfied beyond reasonable doubt that not only the offence has been committed but also equally be satisfied that it was the accused, who committed it. [2009] The Seychelles Law Reports 89 ______
After giving careful thought to all what I have spoken so far, now you should find answers to the fundamental questions, which I have formulated for you in the first part of my submission. They are -
(i) Was Mrs Lynne Renaud murdered by someone?
(ii) If so, is it Mr Stanley Barbe, who committed that murder?
(iii) If yes, has it been proved beyond reasonable doubt?
(iv) Did Mr William Renaud procure or engage A1 to commit that murder?
(v) If yes, has it been proved beyond reasonable doubt?
In your deliberation you should examine the entire evidence, applying the law, principles and the rules, which I have explained to you in the first part of my summing-up. In the circumstances, the verdicts now open to you are simply
(a) the accused No: 1 Mr Stanley Barbe is ―not guilty‖ or ―guilty‖ of the offence of murder as charged under count 1; and
(b) the accused No: 2: Mr William Renaud is ―not guilty‖ or ―guilty‖ of the offence of procuring another person to commit murder as charged under count 2.
As I have said earlier, it is clear to me that you have paid very careful attention throughout the whole of this case and [2009] The Seychelles Law Reports 90 ______throughout the whole of my summing up. I know that you have your own careful and detailed notes. However, it is very important that you should not feel that your deliberations will involve you in some sort of exacting memory test. Let me make it very clear to you that if you wish to hear any of my directions on the law repeated or if you have any query as to the evidence which you have heard, you simply send me a note through the orderly. I will give you appropriate further assistance.
Unless you have already done so, the first thing you should do once you have retired to consider your verdict is to elect from amongst your member a lady or a gentleman to act as your foreman, if you have not already selected one. He or she should organize and chair your deliberations and, in the fullness of time, deliver your verdict on this indictment.
Your verdict must be unanimous, that is to say your verdict must be one upon which you all have agreed. You may have heard that in certain circumstances, I am able to accept the verdict of a majority of your number. The circumstances in which I am able to accept a majority verdict have not yet arisen in this case. If those circumstances do arise, then I will ask you to return to Court and I will give you further directions about that particular aspect of the matter.
I remind you, of course, that it is your function and your obligation to bring in a true verdict according to the evidence and that means only according to the evidence. You must decide this case only on the evidence which has been placed before you. There will be no more. You are entitled to draw inferences. That is, you may come to common sense conclusions based on the evidence which you accept, but you may not speculate about what evidence there might have been or allow yourselves to be drawn into speculation.
[2009] The Seychelles Law Reports 91 ______
Finally, remember what I told you at the very outset of this trial and at the very beginning of this summing-up. You must have an open mind. No preconceived notions or ideas. Please, put out of your minds anything which you might have heard, read or seen about this case or its background outside this Courtroom or through media like SBC, newspapers etc. You must reach your verdict in this case only upon the evidence which you have heard, seen and read in this Courtroom.
Now, I believe I have completed my charge, ladies and gentlemen of the jury. You may if you all so desire, retire to consider your verdict. Thank you very much for your kind indulgence.
Record: Criminal Side No 2 of 2008
[2009] The Seychelles Law Reports 92 ______
Republic v Vel
Sentencing
The accused was charged with multiple counts of housebreaking and stealing. He was convicted and sentenced to six months imprisonment. The appellant sought review of the sentence in light of the gravity of the offences.
HELD:
An appeal Court will only alter the sentence imposed by a trial Court if it is evident that it has acted on a wrong principle or overlooked some material factor, or if the sentence is manifestly excessively in view of the circumstances of the case. An appeal Court is not empowered to alter a sentence on the mere ground that if it had been trying the case, it might have passed a different sentence.
Judgment: Sentence amended.
Legislation cited Criminal Procedure Code, s 27 A (1) Penal Code, ss 23, 260, 264, 289, Chapter XXIX
Cases referred to Dingwall v Republic (1966) SLR 205 Jourbert v Republic Crim Side 16/1994 (Unreported)
Foreign cases noted R v Harvey (1990) 12 Cr App 165 R v Vierra (1991) 12 Cr App R 713 Smith and Woollard v R (1978) 67 Cr App R 211
[2009] The Seychelles Law Reports 93 ______
Rene DURUP for the Republic Sammy FREMINOT for the accused – Absent
Judgment delivered on 15 May 2009 by:
GASWAGA J: The Attorney-General, on behalf of the Republic, has invoked the jurisdiction of the Supreme Court in revision in respect of the sentences imposed by the Magistrates‘ Court ‗C‘ sitting at Victoria, Mahe. The accused, a resident of Anse Royale who stood unrepresented was convicted on his own plea of guilty in four different files each with two distinct counts of: (i) House-breaking contrary to section 289 (a) read with section 23 of the Penal Code, and (ii) stealing contrary to section 260 as read with section 23 and punishable under section 264(b) of the Penal Code. In Criminal Case No. 580 of 2006 the accused was sentenced to six (6) months on count one and to three (3) months on count two while in Criminal Case No.581 of 2006 a sentence of four (4) months was imposed on count one and another of one (1) month on count two. Jail terms of six (6) and two (2) months were also handed down on counts one and two respectively in Criminal Case No.582 of 2006. As for Criminal Case No.583 of 2006 the sentences meted out were six (6) months on count one and two (2) months on count two.
The Magistrate further ordered each one of the above sentences to start running on the same day ie 23 October 2006, meaning that the accused would serve the longest of all these sentences being six months. It will be recalled that the accused, together with another person still at large, on diverse dates in 2006 and places in south Mahe did break and enter various dwelling-houses owned by different people and stole therefrom numerous household items and money.
State counsel, Mr Durup invited the Court to revisit the sentences so imposed in light of the gravity of the offences. He further argued that although the offences were committed [2009] The Seychelles Law Reports 94 ______within a small space of time and all the guilty pleas recorded on the same day, the Court was supposed to treat them as different transactions thereby applying section 27 A (1) of the Criminal Procedure Code, Cap 54 after the first conviction and impose the minimum mandatory sentence of three (3) years in each of the subsequent cases (files).
It was submitted for the defence by Mr Freminot that since all the charges were heard on the same day and convictions entered in quick succession of each other about five minutes apart, and before the same Magistrate at the same sitting, the accused was entitled to be treated as a first offender on each one of the four files whereby the provisions of section 27 A (1) would not apply.
The foregoing clearly shows that both counsel are poles apart with regard to the interpretation of section 27 A (1) and its applicability to the facts at hand. The section reads thus:
Notwithstanding section 27 and any other written law, a person who is convicted of an offence in Chapter XXVIII or Chapter XXIX shall-
(a) Where the offence is punishable with imprisonment for seven years or more but not more than eight years and the person had, within five years prior to the date of conviction, been convicted of the same or similar offence, be sentenced to imprisonment for a period of not less than three years;
(b) Where the offence is punishable by imprisonment for more than eight years but not more than ten years and the person had, within five years to the date of the conviction, been convicted of the same or similar offence, [2009] The Seychelles Law Reports 95 ______
be sentenced to imprisonment for a period not less than five years.
With due respect to defence counsel the accused cannot be considered to be a first offender in all the four cases which he has admitted to have committed on different dates and diverse places. I reject the invitation by Mr Freminot to hold that all the said incidents should be categorized as falling under the ―same transaction‖. When the accused pleaded guilty to the first charge (File No 580 of 2006) and a conviction entered he ceased being a first offender. It matters not whether the subsequent convictions were done on the same day in quick succession of each other at the same sitting since one conviction is entered at a time.
I am also unable to agree with the submission of State counsel that the minimum sentence prescribed by section 27 A (1)(a) for a non-first offender is three years. The offence of ‗housebreaking‘ falls under Chapter XXIX of the Penal Code and since it carries a maximum penalty of ten years, by whatever rule of interpretation, the legal provision of subsection (1)(a) cannot lend itself to the interpretation which Mr Durup has placed on it. This provision only applies to sentences of between seven (7) and eight (8) years. However, subsection (1)(b) would in the circumstances apply. It provides for a minimum sentence of five (5) years if the one prescribed in respect of the offence proffered in the charge sheet is between eight (8) and ten (10) years. I think the intention of the legislature here was not only to severely deal with habitual, serial or repeat offenders in the same or similar line of offences but also discourage or put an end to recidivism such that whoever commits a string of similar offences is sufficiently penalized for each one of them with a minimum mandatory sentence.
In all the four cases there is evidence of considerable loss, distress and suffering on the part of the victims which they [2009] The Seychelles Law Reports 96 ______have clearly indicated in the letter dated 7 November 2006 and signed by the husband and wife occupying each of the four houses which were broken into. Such houses however never seem the same again as the break-in induces an immediate feeling of insecurity. Further revelations on the record show that a considerable amount of money, household items valued at substantial sums of rupees, and a set of spare keys for one of the houses were taken yet no restitution or compensation order was made to ameliorate the loss. Finding the term of eighteen months rather lenient in a related offence, and further stating that ―the misfortunes and suffering experienced by the complainant…..cannot be quantified in terms of the 18 months meted out‖ Bwana, J in the case of Antonio Jourbert v R Criminal Side No 16 of 1994 warned that society needs protection and that protection is of different aspects.
Expected from the Courts is longer prison terms to convicts so as to keep them out of the streets. Or as stated recently by a USA congressman:….we need to shift the cruel and inhumane treatment from the victims to the criminals.
See also Smith and Woollard v R (1978) 67 Cr App R 211, R v Harvey (1990) 12 Cr App R (s) 165, and R v Vierra (1991) 12 Cr App R 713.
Section 36 of the Penal Code provides as follows -
Where a person after conviction for an offence is convicted of another offence, either before sentence is passed upon him under the first conviction or before the expiration of that sentence, any sentence, other than a sentence of death or of corporal punishment, which is passed upon him under the subsequent [2009] The Seychelles Law Reports 97 ______
conviction, shall be executed after the expiration of the former sentence, unless the Court directs that it shall be executed concurrently with the former sentence or of any part thereof:
Provided that it shall not be lawful for a Court to direct that a sentence of imprisonment in default of payment of a fine shall be executed concurrently with a former sentence under section 28 (iii) of this Code or of any part thereof.
It was held in the case of Dingwall v R (1966) SLR 205 that
An appeal Court will only alter a sentence imposed by the trial Court if it is evident that it has acted on a wrong principle or overlooked some material factor, or if the sentence is manifestly excessive in view of the circumstances of the case.
However, an appeal court is not empowered to alter a sentence on the mere ground that if it had been trying the case, it might have passed a somewhat different sentence.
A further perusal of the record in light of the above provisions shows in my view that the Magistrate fell into grave error with regard to the sentences imposed in case files number 581 of 2006, 582 of 2006 and 583 of 2006. The said sentences are wrong in law and in principle and cannot be allowed to stand. They are accordingly set aside and instead replaced with the following custodial sentences:
Case file No. 581 of 2006: Five (5) years on count I and One (1) month on count II.
Case file No. 582 of 2006: Five (5) years on count I and Two (2) months on count II. [2009] The Seychelles Law Reports 98 ______
Case file No. 583 of 2006: Five (5) years on count I and Two (2) months on count II.
Both sentences on each file are to run concurrently. It is further ordered that all the sentences in respect of case files No. 580 of 2006, 581 of 2006, 582 of 2006 and 583 of 2006 are to be executed with effect from 23 October 2006, meaning that the accused will spend a total period of five (5) years in jail for these offences.
However, during the hearing of this matter it transpired that the accused was currently serving time of three (3) years in another case. For purposes of clarity I shall make further orders that the said three (3) years run concurrently with the above five (5) year sentence imposed.
Record: Revision Side No 4 of 2006
[2009] The Seychelles Law Reports 99 ______
Republic v Bradburn
Criminal law – standard of proof – evidence – recall of detail
The defendant was found with 5 grams of heroin. He was charged with trafficking in a controlled drug. The two policemen who searched the defendant testified that the drugs were in the defendant‘s mouth, and that he threw them away. The defendant testified that there was nothing in his mouth and that he was framed.
HELD:
(i) Possession of more than two grams of a drug gives rise to a presumption that the drug is possessed for trafficking;
(ii) The ability of individuals differs in the degree of observation, retention, and recollection of events. The Courts should try and distinguish a genuinely forgetful witness from one who chooses not to remember. Forgetful witnesses may give different, discrepant, or even contradictory descriptions on minute details, without necessarily being dishonest;
(iii) ―Proof beyond reasonable doubt‖ does not mean proof beyond a shadow of a doubt. The standard will be met if evidence is so strong against a person as to leave only a remote possibility in his favour which can be dismissed with the sentence ―of course it is possible, but not in the least probable‖.
Judgment: Conviction entered.
[2009] The Seychelles Law Reports 100 ______
Legislation cited Criminal Procedure Code, s 184(1) Misuse of Drugs Act, ss 5, 6(a), 14(c), 26(1)(a), 29(1), sch 2.
Cases referred to Cedras v R Criminal Appeal 7/1998 (Unreported) R v Quatre (2006) (Unreported)
Foreign cases noted Miller v Minister of Pensions [1947] 2 All ER 372
Rene DURUP for the Republic Frank ELIZABETH for the defendant
Judgment delivered on 24 July 2009 by:
KARUNAKARAN J: The defendant Roy Bradburn stands charged - under Count 1 - with the offence of ―Trafficking in a controlled drug‖ contrary to section 5 read with section 14(c) and 26(1)(a) of the Misuse of Drugs Act 1990 as amended by Act 14 of 1994 and punishable under section 29(1) read with the Second Schedule to the Misuse of Drugs Act, hereinafter called the ―Act‖ and - under Count 2 - with the offence of ―Possession of a controlled drug‖ contrary to section 6(a) read with section 26(1)(a) of the said Act as amended by Act 14 of 1994 and punishable under section 29(1) read with the Second Schedule to the same Act.
The particulars of the charge in Count 1 alleged that the defendant on 4 March 2008, at Roche Caiman, Mahe was trafficking in a controlled drug by virtue of having been found in possession of 5 grams of heroin, which gives rise to the rebuttable presumption of having possessed the said controlled drug for the purpose of trafficking; whereas the particulars in Count 2, alleged that the defendant on 4 March 2008, at Roche Caiman, Mahe had in his possession a controlled drug namely, 5 grams of heroin. [2009] The Seychelles Law Reports 101 ______
The defendant denied the charge. The case proceeded for trial. He was duly defended by a competent defence counsel Mr Frank Elizabeth. The prosecution adduced evidence by calling a number of witnesses to prove the case against the defendant. After the close of the case for the prosecution, on a cursory look at the entire evidence on record, it appeared to the Court at that stage - there was sufficient evidence before the Court to base a conviction against the defendant on both counts first-above mentioned. Accordingly, the Court found that the defendant had a case to answer in defence for the offences charged. He was accordingly, put on his election in terms of section 184 (1) of the Criminal Procedure Code. The defendant elected to give evidence on oath and called two other witnesses in support of his defence.
The facts of the case as they transpire from evidence are these:
The defendant, aged 23 was at all material times and is a resident of Corgate Estate, Mahé. According to the defendant, he had never been a drug dealer or a drug-trafficker. He had been employed as a snack-seller in the tuck-shop at Mt Fleuri Secondary School. However, he stated that in the past, the police officers used to suspect him of being a drug dealer and often conducted searches of his person as well as at his residence for controlled drugs. In spite of many such attempts by the police, the defendant testified that he had never been found in possession of any controlled drug. Be that as it may.
On 4 March 2008, at around 12.30 pm, the defendant was admittedly, travelling in a car - a black Sirion - driven by his friend one Mr Dean Estico (DW3) and going home. The defendant was sitting in the front passenger seat next to the driver. They were travelling from town to Plaisance via Roche Caiman taking the Stad Linite round-about opposite the petrol station and going towards Fresh Cut, the meat shop. A few hundred yards before reaching Fresh Cut, a police jeep, which [2009] The Seychelles Law Reports 102 ______was behind, overtook and stopped the defendant‘s car. Four police officers from the Drug Squad, namely, Police Constable Allen Lucas (PW1), Sergeant Rose, Constable Leon and Constable Hubert Oreddy (PW2), who were all on mobile patrol in that area, disembarked from that Jeep and approached the defendant‘s car in order to conduct a search following certain information they had received earlier. PC Lucas (PW1) and PC Oreddy (PW2) went towards the left, front door of the car, where the defendant was sitting. The other two police officers went towards the driver‘s side. They identified themselves as police officers to both persons in the car namely, the defendant and the driver Mr Dean Estico (DW3), and asked them to disembark from the car since they wanted to conduct a search of them. The defendant disembarked from the car and submitted himself to the body search. PC Lucas started to conduct a body search on the defendant in the presence of the other police officers. The evidence given by PC Lucas (PW1) on crucial facts in this respect runs thus -
I did not find anything on him (defendant). Then I asked him his name. The way he was telling me his name, I noticed that it was not normal. So I asked him to open his mouth. As I asked him to open his mouth he acted as if he wanted to run away. I managed to grab him. But, he managed to take out what was in his mouth. It was something red. He threw it away and it fell near a fence. … When I got to the fence I saw that it was a red plastic bag. Then we brought him (defendant) to the fence and saw the plastic bag that was on the floor there. And I opened it in his presence and in the presence of PC Oreddy (PW2). ... the red plastic bag contained some white powder, which at that time I suspected to be heroin. He (the defendant) was saying it was not for him.... I pointed out the offence to him [2009] The Seychelles Law Reports 103 ______
telling that he is being arrested for possession of dangerous drugs. The driver (Mr. Dean Estico) was also arrested along with him by Sergeant Rose.... It (the substance seized) was kept in my possession to bring to Mont Fleuri Police Station to show him the cause of his arrest. Both of them were taken to the Mont Fleuri Police Station. ... When all formalities are done, Roy (the defendant) was taken to the central Police Station, where he was detained. I took the drugs (sic), which was in my possession and brought to the ADAMS Unit. There Inspector Marie did a letter of request to take the drugs (sic) to Dr. Jackaria... I brought the drugs (sic) to Dr. Jackaria the same day. From the time that I took possession of that plastic bag at the scene to the time that I handed the plastic bag to Dr. Jackaria I had been in possession of that plastic bag. No one had interfered with the plastic bag between that time.
PC Lucas further testified that Dr Jackaria (PW4), a forensic chemist to whom he had handed over the substance, carried out the analysis and concluded that the substance in question was a controlled drug namely, 5 grams of heroin. The evidence of PC Lucas in this respect reads thus:
On the next day, the 6th of March around 8. 30 am I went to get the result from Dr. Jackaria. He gave me back the exhibit that I had brought to him. He showed me the plastic bag. Then he placed it in an envelope and he wrote the CB number in front of it and details concerning the drugs brought to him. Then he signed at the back and I also signed at the back and he sealed it with cello tape. He also gave me a paper, which I brought directly to the Investigation Unit. [2009] The Seychelles Law Reports 104 ______
The drug itself was given by me to Lance Corporal Confiance (PW3) who at the time was attached to the Drug Squad. He took the drugs and placed it in the exhibit room. Today I went to the Drug Squad, I saw PC Robinson, who is the one in charge of the store presently. He took out the drugs from the exhibit store and gave it to me to produce before this Court.
PC Hubert Oreddy (PW2) testified that he was also in the company of PC Lucas (PW1), at the material time when they conducted stop and search of the defendant. According to PC Oreddy, he too noticed that the defendant‘s voice was strange, while he was answering the question of PC Lucas before he carried out the body search. The testimony of PC Oreddy in this respect runs thus:
PC Lucas was talking to him we noticed that his voice was strange. He did not want to speak and he was a bit aggressive too. He made a gesture to run away but PC Lucas grabbed and that instance he turned and whilst he was turning I noticed him taking his right hand into his mouth removing something and threw it away. PC Lucas also saw the action that he did and told me to hold the Accused. PC Lucas went in the direction of the wooden fence and picked up the object, which the Accused had thrown. The object was a red plastic bag. Lucas came towards us and opened the object and in it there were powdered substance. Lucas told him that we suspect this to be heroin and he pointed out the offence to him. He told him his constitutional rights and arrested him. At that time Sgt Rose was speaking to the driver. We took the Accused and the driver of the black car to the Mont Fleuri Police Station. [2009] The Seychelles Law Reports 105 ______
Lance Corporal Confiance (PW3) also testified that in March 2008 he was in charge of the exhibit store at ADAMS unit at the New Port. He confirmed that on 6 March 2008, he received the exhibit in this case with CB No: 265/08 with analyst-report from PC Lucas, after the substance being examined by Dr Jackaria. Corporal Confiance kept the exhibit in the exhibit room in a safe under lock and key until 20 November 2008, when he delivered its safe custody to PC Jules Robinson, who took charge of all the exhibits in the exhibit store replacing the former. PC Jules Robinson (PW 5) also testified that after taking charge of the exhibit store from Corporal Confiance, he had kept the exhibit in question in his safe custody in the exhibit store at ADAMS until he handed over the same to PC Lucas (PW1) to be produced in Court in this trial.
Indeed, the analyst Dr Jackaria (PW4) testified that on 4 March 2008 at 1.45 pm, whilst he was on duty in his office at Mont Fleuri, PC Lucas (PW1) brought an envelope containing the ―substance‖ folded in a red plastic bag (exhibit P3) and a letter - exhibit P1 - from ADAMS requesting for analysis. As he opened the envelope and the plastic bag, he found some powder in it. He took the net weight of the powder. It weighed 5 grams. After that he proceeded to do a number of tests. He also carried out colour test and chemical analysis of the substance. In fact, he conducted four tests including physical analysis. They all confirmed that the substance in question was ―heroine‖ a controlled drug. Accordingly, he issued the analyst-report - exhibit P2 - confirming his findings. He also while testifying, opened the sealed envelope, which PC Lucas - PW1 - had handed over to Court as an - Item P2. Dr Jackaria took out all the items contained in that envelope, identified and produced them in evidence. The Court marked them all as exhibits including the ―red plastic bag with white powder‖ which was marked as exhibit P3. Thus, Dr. Jackaria concluded that the substance, which PC Lucas (PW1) handed over to him for analysis on the said date and time with CB No: [2009] The Seychelles Law Reports 106 ______
265/08 was undoubtedly, 5 grams of ―heroine‖ a controlled drug. In view of all the above, the prosecution now contends that the defendant has committed the offences under both counts and it has proved the case beyond reasonable doubt.
On the other side, the defence did not dispute any of the material facts pertaining to the stop and search operation conducted by police and the resultant arrest and detention of the defendant for the alleged drug offences. In defence, the defendant gave evidence under oath and also called two more witnesses to testify for the defence. The defendant testified in essence that on the day in question, the police did stop the car he travelled and conducted a body search. According to him, during the said search the police hit him and he fell down. The testimony of the defendant in this material aspect of his defence runs thus:
then he (PC Lucas) told me to spit what was in my mouth……. So, I spat and there was only saliva. Then PC Oreddy (PW2) left us and walked towards a wooden fence…. He stood on top of the wooden fence and shook an avocado tree. PC Lucas left me with Sergeant Rose. He went and jumped over the wooden fence and started to search.
Further the defendant testified that he never took out anything from his mouth at the material time nor did he throw anything towards the wooden fence. The police did not pick up any substance from the ground near the fence nor did they show him at the material time any red plastic bag with white powder. At the Mont Fleuri Police Station he saw PC Lucas (PW2) was putting a plastic bag in an envelope. And he was telling other police that he caught the defendant with drugs. According to the defendant, the police have falsely fabricated this case, when he had neither been in possession of nor been involved in trafficking of any controlled drug. [2009] The Seychelles Law Reports 107 ______
In cross-examination the defendant stated that when the police asked his name he coughed as his throat was dry that time. According to the defendant, the police have maliciously foisted this case since PC Lucas had a personal grudge against him due to an incident happened in the past. According to the defendant, he once accused PC Lucas of being a thief as he stole the money from one of his friends. Besides, PC Oreddy - PW2 - was telling lies against him in Court, though he had no reason for doing so.
Ms Christian Letourdie - DW2 - testified that she is a resident of Roche Caiman and on the alleged date and time noticed two men searching the yard of a lady opposite to where she lives. Then one of them stood on a laundry basin. They were trying to shake an avocado tree and one was searching the ground. The one who was on the laundry basin told the other one to look on the corrugated iron sheet of the adjacent veranda. The one who was on the ground climbed on top of the roof of that veranda and stated to the other one ―yes‖ there it is and he picked up something on the roof and jumped down and they both left.
Mr Dean Estico - DW3 - the driver of the car, in which the defendant was travelling at the material time, testified that although the police stopped and conducted a body search of the defendant, the police did not pick up anything from the ground near the fence nor did the defendant throw out anything taken out of his mouth. However, in cross- examination, he admitted that he was kept on the other side of the car he could not see the defendant, when he was on the ground after the police physically restricted his movement. Moreover, he did not know what the officers were doing on the fence side. In the circumstances it is the case of the defence that the police had planted the controlled drug on the defendant and had manufactured the evidence to incriminate him with drug offences.
[2009] The Seychelles Law Reports 108 ______
Mr Elizabeth, defence counsel in his final submission contended that the prosecution had failed to prove the guilt of the defendant beyond reasonable doubt, in that the evidence given by the police officers leaves a doubt as to whether the defendant was in possession of the substance. According to Mr Elizabeth, police officers PW1 and PW2 are not credible witnesses. Mr Elizabeth submitted that there are a number of discrepancies in the evidence given by the police officers, which create a doubt on the credibility of the witnesses. Counsel also submitted that Dr Jackaria has described the colour of the substance, which he examined was light-brown vide analyst-report - exhibit P2 - whereas PW1 and PW2 testified it was white powder. Because of this variation in the description of colour, Mr Elizabeth contented that the substance, which the police allegedly found on 4 March 2008, is not the same substance that was taken to Dr Jackaria for analysis. According to counsel, in any event, the case was not proved to the standard required in criminal cases, in view of the doubtful evidence on record.
Thus, Mr Elizabeth argued that prosecution had failed to establish their case against the defendant beyond reasonable doubt and hence this Court cannot convict the defendant in this matter for the offences charged. For these reasons, defence counsel urged the Court to dismiss the charge and acquit the defendant.
On the other side, State counsel Mr Durup in reply, submitted that the evidence adduced by the prosecution including the testimony of the two police officers (PW1 and PW2) the key witnesses for the prosecution were very reliable, strong, consistent, cogent and corroborative. The discrepancies alleged by the defence counsel were immaterial to the charge levelled against the defendant. According to the State Counsel, there were no weaknesses or inconsistencies in the evidence adduced by the prosecution. He argued that the difference between white and light brown is a matter of [2009] The Seychelles Law Reports 109 ______nuances in the perception of individuals. Dr Jackaria being an expert was more precise in the colour description of the substance, than the two police officers, who merely gave a general colour description of the substance. Therefore, Mr Durup contended that prosecution has established the case against the defendant beyond reasonable doubt. Hence, he submitted that the Court should rely and act upon the evidence on record and convict the defendant for the offences he now stands charged with.
I meticulously perused the entire evidence on record. I diligently analysed the submission made by both counsel touching on a number of issues, mostly, based on facts. First of all, on the issue as to credibility of the witnesses, I observed the demeanour and deportment of both police officers PW1 and PW2, when they testified in Court. From my observations, I conclude that both of them are credible and spoke the truth to Court. Their evidence is strong, reliable and corroborative in all material particulars, which was not shattered or discredited by cross-examination. However, the defendant‘s evidence did not appeal to me in the least nor appeared to be credible. On the other hand, the evidence given by PC Lucas (PW1) was aptly corroborated by the cogent evidence given by PC Oreddy (PW2), in all material particulars necessary to constitute the offence levelled against the defendant. Especially, the fact that the defendant had the substance in his mouth at the material time of body search and the fact that he took out that substance and throw it towards the fence on the road side at Roche Caiman. The police officers did witness his act of taking out the substance from his mouth and throwing it towards the fence. They did pick up that substance, from the ground near the wooden fence. On a careful examination of the evidence on record, I find the following facts have been proved to my satisfaction and to the required degree in criminal law –
[2009] The Seychelles Law Reports 110 ______
(i) The defendant was in possession of the substance namely, a ―red plastic bag with white powder‖ - exhibit P3 by keeping it in his mouth on 4 March 2008, whilst he was stopped and searched by the police at Roche Caiman. He did take out and throw that substance towards the fence on the roadside presumably to avoid its seizure by the police.
(ii) PW1 did pick up and seized the substance - exhibit P3 – as and when the defendant threw, from the ground near a wooden fence on the roadside at Roche Caiman. This PW1 did in the presence of the defendant and PW2 PC Oreddy.
(iii) From the time the substance was seized until it was handed over to the analyst, it had all along been kept in safe custody and possession of PW1 and then by the officers in charge of the exhibit store at ADAMS. No other person at any time had circumstances and opportunity to tamper with it. There had been no break in the chain of possession of the substance either by PW1 or officer in charge of the exhibit store at ADAMS during the intervening period between the seizure and its production in Court.
(iv) There was no possibility at all for the analyst to muddle up the ―substance‖ in question with some other items in his laboratory nor was there any possibility for any other person to tamper with it during the time it had been kept in the safe at the office of the analyst.
(v) Neither PC Lucas (PW1) nor PC Oreddy (PW2) nor any other police officer from the [2009] The Seychelles Law Reports 111 ______
drug-squad for that matter, planted or could have planted the ―substance‖ on the defendant nor did the police officers in the squad conspire to frame the defendant in this case.
(vi) Undoubtedly, the substance that was found in defendant‘s possession and seized by PW1 from the ground as and when it had been thrown by the defendant was a controlled drugs namely, 5 grams of heroin.
(vii) Since the quantity of the said controlled drug exceeded 2 grams, the defendant is presumed in law of having possessed that controlled drug for the purpose of trafficking by virtue and operation of Section 14(c) of the Misuse of Drugs Act.
(viii) Obviously, the defendant did not adduce any evidence to rebut the said presumption activated against him by operation of law or to rebut the quantity of drug as proved by the prosecution.
At this juncture, it is pertinent to quote what the Chief Justice Seaton stated in Phillip Cedras v Republic (Criminal Appeal No 7 of 1988) on the issue of possession that amounts to trafficking in law -
If the prosecution has no evidence, which it can present to the Court to show either an act of trafficking or an offer to traffic in the drug or preparatory to an act, then it might show that the accused person has had possession of the drug and that the quantity amounted to 15 grams or more [as it was 15 grams then under the previous Dangerous Drugs Act, whereas now 2 [2009] The Seychelles Law Reports 112 ______
grams under the Misuse of Drugs] in which case there would arise a presumption of trafficking, which could lead to a conviction unless the accused person rebutted the presumption.
Indeed, the defendant in this matter did not adduce any evidence in rebuttal nor did he testify under oath about his personal consumption so as to negate the presumption. In any event, I do not believe his claim that he was not in possession of the substance in this respect. Besides, I note both of the defence witnesses DW2 and DW3, were not much helpful to support the evidence of the defendant on any material aspect of his defence. In any event, I do not believe DW3, who is none else than a friend of the defendant, in any aspect of his testimony, as he has been simply trying to help his friend in the entire episode of stop and search.
I will now turn to the submissions of Mr Elizabeth on the issue as to unreliability of evidence due to discrepancy allegedly found in the testimony of the two police witnesses PW1 and PW2. In fact, these two percipient witnesses having recalled their memory; narrated the sequence of events as they individually observed, which led to the arrest of the defendant and seizure of the substance at the material place and time. In this respect, I would like to repeat what this Court had to state in the case of Republic v Marie-Celine Quatre [2006] which runs thus:
…. It is pertinent to note that human memory is not infallible. All tend to forget things sometimes; some all the time; others maybe, from time to time. It is normal. Witnesses are not exceptions or superhuman. The ability of individuals differs in the degree of observation, retention and recollection of events. Who is the more credible - the witness who recalls in tremendous detail every bit of what went on when he was involved [2009] The Seychelles Law Reports 113 ______
in or observed some incident, or the one who says honestly that he cannot exactly remember every minute detail? I am not here referring to dishonest witnesses who so often seem to suffer from selective amnesia for reasons best known to them. Of course, a liar ought to have a good memory to keep his lie alive! Obviously, it is a task set the Court to try and distinguish a genuinely forgetful witness from the one who chooses not to remember.
Hence, to my mind, forgetful witnesses though at times give seemingly different or discrepant or even contradictory description on minute details based on their observations of the same incident, they need not necessarily be dishonest all the time, in all cases. Having said that, in the case on hand, I do not find any discrepancy or contradiction or inconsistency in the evidence of either PW1 or PW2 on any material fact or particular that constitutes the offence alleged against the defendant. The discrepancies on trivial details are not uncommon; they are bound to occur as ability of individuals differs in the degree of observation, retention and recollection of events.
The last but not least, is the issue as to the standard of proof. In fact, the standard of proof defines the degree of persuasiveness, which a case must attain before a Court may convict a defendant. It is true that in all criminal cases, the law imposes a higher standard on the prosecution with respect to the issue of guilt. Here the invariable rule is that the prosecution must prove the guilt of the defendant beyond reasonable doubt or to put the same concept in another way, the Court is sure of guilt. These formulations are merely expressions of high standard required, which has been succinctly defined by Lord Denning (then J) in Miller v Minister of Pensions [1947] 2 All E R 372 - 973 thus:
[2009] The Seychelles Law Reports 114 ______
It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt….. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence ―of course it is possible but not in the least probable‖ the case is proved beyond reasonable doubt, but nothing short of that will suffice.
Having said that, on a careful analysis of the evidence on record first, I find that the prosecution evidence is so strong and no part of it has been discredited or weakened or contradicted by any other evidence on record. I am sure on evidence, that the police officers did not plant the controlled drugs in question on the defendant at any stage before, during or after investigation. Secondly, I am satisfied that the prosecution has proved the case beyond reasonable doubt covering the essential elements of the offences the defendant stands charged with.
In the final analysis, therefore, I find the defendant Roy Bradburn guilty of the offences of -
(i) ―Trafficking in a controlled drug‖ contrary to section 5 read with section 14(c) and 26(1)(a) of the Misuse of Drugs Act 1990 as amended by Act 14 of 1994 and punishable under section 29(1) read with the Second Schedule to the Misuse of Drugs Act; and
(ii) ―Possession of a controlled drug‖ contrary to section 6(a) read with section 26(1)(a) of the said Act as amended by Act 14 of 1994 and punishable under section 29(1) [2009] The Seychelles Law Reports 115 ______
read with the Second Schedule to the same Act.
Accordingly, I convict him of the offences under both counts as charged.
Record: Criminal Side No 21 of 2008
[2009] The Seychelles Law Reports 116 ______
Seychelles Development Corporation Ltd v Commissioner of Taxes
Business tax – assessment - interpretation
The plaintiff is a property developer. It sold some land. Profits from the sales were not taxed. Later, the defendant issued a new tax assessment, taking into account the profits from the sale of land. The plaintiff objected to the new assessment in writing, under section 104 of the Business Tax Act. The Commissioner disallowed the objections.
HELD:
(i) Where there is an ambiguity in the provisions of a tax statute, it should be construed in favour of the taxpayer;
(ii) The word ―assessment‖ in section 104(1) of the Business Tax Act should be interpreted to mean the new assessment, not the original assessment; and
(iii) In the absence of clear provision in the Business Tax Act, the profits from the sale of assets are not assessable income for tax purposes.
Judgment for the plaintiff.
Legislation cited Business Tax Act, ss 97, 104, 105, 106, 108.
Cases referred to Central Stores Development Ltd v Commissioner of Taxes SCA 14/2008
[2009] The Seychelles Law Reports 117 ______
Foreign cases noted Cape Brandy Syndicate v IRC 12 TC 358 CIT v Kulu Valley Transport Co [1970] 77 ITR 518 (SC of India) CIT v Madhav Prasad Jatia [1976] 105 ITR 179 (SC of India) CIT v Vegetable Products Ltd [1973] 88 ITR 192 (SC of India) FCT v Whitfords Beach Pty Ltd 82 ATC 4031 Russell (Inspector of Taxes) v Scott [1948] AC 422
Davino SABINO for the appellant Ronny GOVINDEN for the respondent
Judgment delivered on 5 October 2009 by:
KARUNAKARAN J: This is an appeal preferred under section 106 of the Business Tax Act - hereinafter referred to as the ―Act‖ - against the decision of the Commissioner of Taxes - hereinafter referred to as the ―respondent‖ - on the amended assessment of business tax levied against the appellant, namely, Seychelles Development Corporation Ltd for the tax years 1999, 2000 and 2001, hereinafter collectively referred to as the ―relevant years‖.
The appellant is a company incorporated in Seychelles, whose principal activity - since its incorporation - had been the development of properties for profit. During the years particularly, in the 1960s, the appellant had acquired a large extent of land with a view to developing tourism facilities such as marina, golf, resort etc. According to the appellant, no planning permission for such projects was granted and a large portion of the company‘s land was compulsorily acquired by government in 1989. No compensation was paid and no land was ever returned by government. No tax loss was either claimed or given by the respondent. Since, the appellant was not able to use the land for its original purpose, it treated the land as part of the company‘s assets and started to sell the land piecemeal during the relevant years in order to realize its [2009] The Seychelles Law Reports 118 ______investment on assets. The sales of land during the relevant years were therefore, considered by the appellant as a sale of the company‘s assets and the income thereof as realization of its assets. Hence, the appellant, in its tax returns for the relevant years namely, 1999, 2000 and 2001 disclosed the profit on the sale of that property (the land) as income and claimed that those incomes were not assessable income for business-tax purposes under the Act. The respondent originally allowed the profit on sale of land as not assessable income and had accordingly, issued notice of (original) assessments for the relevant years impliedly ascertaining the non-taxable nature of such income for each tax year. However, the respondent subsequently, in May 2004 reopened those previous assessments of the relevant years, reassessed for each year and issued fresh Notice of Amended Assessments, taking into account the said profit on sale of land as assessable income in respect of the relevant years and increased inter alia, the assessment adding a fresh tax liability and penalties burdening the taxpayer. In essence, following are the details of the said Notice of Amended Assessments reissued by the respondent for each of the relevant years in dispute in this matter -
1. Against the original assessment for tax year 1999, the respondent reassessed and issued the Notice of Amended Assessment dated 11 May 2004 having levied inter alia, a business tax on the profit on sale of land, which income the appellant received during the tax year 1999.
2. Likewise, against the original assessment for tax year 2000, the respondent reassessed and issued the Notice of Amended Assessment dated 11 May 2004 having levied inter alia, a business tax on the profit [2009] The Seychelles Law Reports 119 ______
on sale of land, which income the appellant received during the tax year 2000.
3. Likewise, against the original assessment for tax year 2001, the respondent reassessed and issued the Notice of Amended Assessment dated 11 May 2004 having levied inter alia, a business tax on the profit on sale of land, which income the appellant received during the tax year 2001.
Being dissatisfied with the said Notice of Amended Assessments issued by the Commissioner, for the tax years 1999, 2000 and 2001 the appellant exercised its right under section 104 of the Act and served on the Commissioner, its objections in writing to those amended assessments - vide letters dated 9 July 2004. However, the Commissioner - pursuant to section 105 of the Act - in his considered decision disallowed the objections. The appellant therefore, in terms of section 106 of the Act, requested the Commissioner to treat its objections as an appeal against his decision and refer the matter to the Supreme Court for determination. The Commissioner accordingly, referred the matter to the Supreme Court with the relevant records in terms of section 106(1) of the Act and hence the appeal before this Court.
Pursuant to section 108 (1) of the Act, the Commissioner filed his submission in relation to the appeal, setting out his reasons both on facts and on law in support of his decision made under section 105 of the Act. On the other side, the appellant through its counsel Mr Pardiwalla also filed a written defence of objection dated 4 August 2006 under section 108(2) of the Act, in response to the submission filed by the Commissioner.
With these background facts, I meticulously perused the appellant‘s objections to the assessments in dispute, as well [2009] The Seychelles Law Reports 120 ______as the submission of the respondent setting out his reasons for those assessments. I also perused the written defence of the appellant filed in the appeal proper. I gave diligent thought to the arguments advanced by both counsel on points of law as well as on the facts in issue. Although the parties have joined a number of ancillary issues on points of law and facts, as rightly conceded by Mr Sabino, counsel for the appellant, there are only two fundamental questions before the Court for determination that would effectively and substantially dispose of this matter. They are:
1. Has the Commissioner correctly interpreted and applied section 104 in rejecting the objection against the 1999 amended assessment to the extent it relates to the assessment of profits on the sale of land? And
2. Are the profits on the sale of land the company received in the tax years 1999, 2000 and 2001 are assessable income?
As regards the first question, in relation to the assessment of income in the tax-year 1999, the respondent has rejected the objection of the appellant on the ground of statutory time-limit stating that the Appellant has failed to file the objections within the statutory time-limits of 60 days from the date of service of the notice of assessment, as required under section 104 of the Act. On the other side, the appellant contends that the objections were filed within the time-limit of 60 days from the date of service of the notice of amended assessment. Hence, according to the appellant, its objections were not time-barred.
Indeed, section 104 of the Act reads thus:
(1) Subject to subsection (2), the owner of a business dissatisfied with an assessment [2009] The Seychelles Law Reports 121 ______
under this Act may, within sixty days after service of the notice of assessment, serve on the Commissioner a notice in writing against the assessment stating fully and in detail the ground for his objection.
(2) A separate objection shall be served in respect of each assessment objected against.
(3) Where the Commissioner has amended an assessment under this Act, the owner of a business shall have no further right of than he would have had if the amendment had not been made, except to the extent to which by reason of the amendment a fresh liability in respect of any particular is imposed on him or an existing liability in respect of any particular is increased.
On a plain reading of the above section it is evident that the meaning of the words used in subsection (1) namely, ―dissatisfied with an assessment under this Act‖ and the notice of assessment, appear to be ambiguous in the sense, that if one gives those words their natural and ordinary meaning, it is not clear whether the term ―an assessment‖ and its cognate ―assessment‖ used therein (i) means only the original assessment or (ii) it means and includes all subsequent amended assessments as well. Thus, there are two possible constructions that can be given to the term ―an assessment‖ and its cognate used by the legislature in this context. On the one hand, the first construction or approach is obviously, a restrictive one, if I may say so, since it purports to mean that a taxpayer shall have right to file objection within 60 days, only to the original assessment and shall have no right at all to file objections to any subsequent amended assessment after the expiry of 60 days following the original [2009] The Seychelles Law Reports 122 ______assessment. The second construction or approach is undoubtedly a liberal one since it purports to mean that a taxpayer shall have right to file objection not only to the original assessment but also to any subsequent amended assessment as well within 60 days after service of notice in respect of each and every such amended assessment, if any, which amends the previous one.
Having said that, I would simply ask: Which construction or approach is to be preferred ―restrictive or liberal‖, when there is an ambiguity especially, in the taxing statute?
It is truism that the legislature makes the laws and the judiciary interprets them. In the process of such interpretation, the role of the judiciary is to ascertain the meaning of the words used in the statute, by giving those words their natural and ordinary meaning and give effect to it. This is the golden rule. However, when there is an ambiguity in the use of words or where alternative constructions are equally open in a statute - like the one we come across in the present case - in my considered view, it is the duty of the Court to choose the meaning that would accord with reasoning and justice and prefer that alternative which will be consistent with the smooth working of the system, which the statute purports to be regulating. Undoubtedly, in the case on hand the liberal one is to be preferred among the two possible constructions. For, liberal construction or approach not only accords with reasoning and justice but also it is in line with the established rules of statutory interpretation as it stipulates that when there is an ambiguity in the provisions of any taxing statute, it should be construed in favour of the tax payer. As Lord Simonds rightly put it in the decision of the House of Lords - vide Russell v Scott (Inspector of Taxes) [1948] 2 All ER 1 - that 'the subject is not to be taxed unless the words of the taxing statute unambiguously impose the tax upon him'. It is also pertinent to note that ambiguity in interpretation has to be resolved in favour of the taxpayer vide CIT v Kulu Valley [2009] The Seychelles Law Reports 123 ______
Transport Co Pvt Ltd [1970] 77 ITR 518 Supreme Court of India. Besides, the view that the benefit of doubt as to interpretation of law should also go to the taxpayer is now well established in many common law jurisdictions, as was held in the case of CIT v Madhav Prasad Jatia [1976] 105 ITR 179 (SCI) & CIT v Vegetable Products Ltd [1973] 88 ITR 192 (SCI).
Now, coming back to the case on hand, it is clear on the record that the Commissioner issued the Notice of Amended Assessment for the tax year 1999, on 11 May 2004, whereas the appellant filed its objection in response to that assessment on 9 July 2004. Applying the liberal construction to the term ―an assessment‖ used by the legislature in section 104(1) of the Act, the intervening period obviously, falls well within sixty days after service of the amended assessment. Hence, I find that the Commissioner has misconstrued section 104 on the issue of time-limit and erred in rejecting the objection of the appellant against the 1999 amended assessment to the extent it relates to the assessment of profits on the sale of land. This answers the first question.
I will now turn to the second question: Are the profits on the sale of land the company received in the tax years 1999, 2000 and 2001 are assessable income?
As I see it, an effective answer to this question is found in the recent judgment of the apex Court - the Seychelles Court of Appeal - in Central Stores Development Limited v Commissioner of Taxes SCA No: 14 of 2008 delivered on 14 August 2009. The relevant facts and the issues that arose in the said case, which are quite similar to that of the present case, are in essence, as follows:
The Central Stores Limited, a company engaged in the business of property development, received income from profits on a piecemeal sale of its property (land and building [2009] The Seychelles Law Reports 124 ______registered under the Condominium Property Act) over a couple of years. The company treated those sales as a sale of the company‘s assets and the income received therefrom as realization of its assets. Hence, the company, in its tax returns for the relevant years disclosed the income from the sale of property (the land and building) as income but claimed that those incomes were not assessable income for business tax purposes under the Act. The Commissioner, in his original assessments accordingly, allowed such income as not assessable; but, subsequently - after a couple of years - reopened those assessments, reassessed and issued the Notice of Amended Assessments treating those incomes as assessable and increased the tax liability. The Central Stores objected to those amended assessments but the Commissioner rejected their objection. The matter was referred to this Court on appeal preferred by the Company. This Court after hearing the appeal on the merits upheld the decision of the Commissioner. This Court found in its judgment dated 27 June 2008 that the profits on the sale of property the company had received in the relevant tax years were assessable income under the Seychelles Business Tax Act. Although there is no specific and unambiguous provision governing such assessment, this Court found so, by placing reliance on the Australian case law - vide FCT v Whitfords Beach Pty Ltd 82 ATC 4031, as well as by drawing an analogy from the Australian Income Tax Act to iron out the creases found in the Seychelles Business Tax Act. However, the Court of Appeal disapproved of this approach and reversed that finding in its judgment cited supra and held that such profits were not assessable income under the Seychelles Business Tax Act, which in the words of their Lordships, ―lacks clarity and precision‖ on taxability of such income .
Obviously, the core issue in the present case is identical to the one determined by this Court in the Central Stores cited supra, which determination was subsequently, reversed by the Court of Appeal. The crux of the issue is whether the profit on sale of [2009] The Seychelles Law Reports 125 ______a company‘s assets is assessable income for business tax purposes, and whether the Commissioner of Taxes is right in reopening and levying business tax on those incomes, in the absence of a clear and unambiguous provision in the Act, and in the absence of any taxing statute to govern the capital gains tax in Seychelles.
To resolve the issue, I believe, it is important to restate what the Court of Appeal has stated in Central Stores supra. Please, forgive me for quoting in extenso the relevant excerpts from the judgment, which reads thus:
The Law: The law governing matters in issue in this appeal is embodied in the Business Tax Act, 1987. It is a piece of legislation which sometimes poses problems of comprehension even to legal practitioners. Whereas we are of the view that the Act does not suit the present needs of our business community, this appeal must be adjudicated upon in accordance with the law as it stands.
Section 97 of the Act is most pertinent to this appeal and we quote the first five of thirteen sub-paragraphs thereof:
(1) Subject to this section, the Commissioner may at any time amend an assessment by making such alterations therein or additions thereto as he thinks necessary, notwithstanding that tax may have been paid in respect of the assessment.
(2) Where a business has not made to the Commissioner a full and true disclosure of all material facts necessary for his [2009] The Seychelles Law Reports 126 ______
assessment, and there had been an avoidance of tax, the Commissioner may –
(a) where he is of the opinion that the avoidance of tax is due to fraud or evasion, at any time; or (b) in any other case, within six years from the date when the notice of assessment is issue in accordance with section 101,
amend the assessment by making such alterations therein or additions thereto as he thinks necessary to correct an error in calculation or a mistake of fact or to prevent avoidance of tax, as the case may be.
(3) Where a business has made to the Commissioner a full and true disclosure of all the material facts necessary for his assessment and an assessment is made after that disclosure, no amendment of the assessment increasing the liability of the owner of the business in any particular shall be made except to correct an error in calculation or a mistake of fact, and no such amendment shall be made after the expiration of three years from end of the tax year in which the assessment was made.
(4) No amendment effecting a reduction in the liability of the owner of a business under an assessment shall be made except to correct an error in calculation or a mistake of fact, and no such amendment shall be [2009] The Seychelles Law Reports 127 ______
made after the expiration of three years from the end of the tax year in which the assessment was made.
(5) Where an assessment has, under this section, been amended in any particular, the Commissioner may, within three years from the end of the tax year in which the amended assessment was made, make in or in respect of that particular, such further amendment in the assessment as, in his opinion, is necessary to effect such reduction in the liability of the owner of a business under the assessment as is just.
Registration: The Appellant had a condominium project for the property known as Victoria House. It is common ground (see page 5) that in March 1999, the Appellant obtained the services of a surveyor to subdivide the property into 33 (thirty-three) condominium units. In August 1999 it registered these units in the Land Registry, under the Condominium Property Act (page 5) and sale of the units commenced in July 2000. It is trite law that registration gives notice to the whole world. Hence, registration gave notice to the Commissioner, of the project and its state of advancement as at the date of registration.
Full and true disclosure: The Appellant is required under the Act, to make a ―full and true‖ disclosure of all facts material to and necessary for tax assessment by the Commissioner. These facts include profits made during the year of assessment. In our understanding, ―full‖ disclosure means disclosure of matters within [2009] The Seychelles Law Reports 128 ______
the knowledge of the tax payer and which are necessary for assessment by the Commissioner.
Fraud: It is pertinent to note that, in the present case, the Commissioner has not made any allegation of fraud or malpractice on the part of the Appellant. In our jurisdiction, fraud must be pleaded and proved; citizens benefit from a rebuttable presumption of honesty. Section 97.(2) (a) gives to the Commissioner power to amend an assessment and make such alterations as he thinks fit and necessary ―where he is of the opinion that the avoidance of tax is due to fraud or evasion, at any time‖; this not being the case, the sub-section has no application.
The Appellant contends that because it had made ―full and true‖ disclosure in its returns and attached documents, the Commissioner had no power to reassess as taxable, profits he had initially assessed as non-taxable…
As we have stated earlier in this judgment (page 8, para. [7.1), I am of the opinion that our Business Tax Act 1987 does not suit the requirements of the business environment in this country. According to both the Commissioner and the learned Judge, our Act is modeled on the Australian Income Tax Assessment Act, 1936. Indeed, the learned Judge commented as follows: ―... it is correct as submitted by the Respondent, that Section 97(3) of our Act is identical to the corresponding former provision in the Australian Income Assessment Act (1936) ....― (Page 36, record). Be that as it may, as was stated by Raulatt J in Cape Brandy Syndicate v. [2009] The Seychelles Law Reports 129 ______
IRC (12 TC 358) ―A subject is only to be taxed upon clear words, not upon intendments or upon equity‖ of an Act. Any taxing Act of the Legislature is to be construed in accordance with this principle ... in a taxing Act one has to look mainly at what is clearly said.
Even procedure must be reformed. Following the Australian model, a unique double-appeal system - to the Supreme Court and to this Court -, hitherto unknown in our jurisdiction, has been introduced.
We are informed that the Australian legislation of 1936 has been updated, whereas we are still laboring under provisions of a law which above all lacks clarity and precision.
What is required is legislation which is clear, easily understood and business friendly. The ultimate objective is to facilitate the collection of revenue, in a spirit of mutual understanding, devoid of unnecessary confrontation. Perhaps, a more user-friendly conciliatory system should be considered as a more effective process for resolving differences.
The Minister for Finance has recently announced that the fiscal policy and tax collection procedures are being reconsidered. Hence, the timing is most opportune to consider the above suggestions. We are of the view that cases like the present one, which are costly and time consuming, should in future be resolved with greater fluidity.
For the reasons stated above and based on the same ratio [2009] The Seychelles Law Reports 130 ______decidendi given by the apex Court in its judgment in Central Stores (supra), I find that the profits on the sale of land the appellant received in the tax years 1999, 2000 and 2001 are not assessable income. I am loath to accept the contention of the Commissioner of Taxes to the contrary, in this respect. Therefore, I uphold the objection of the appellant, the Seychelles Development Corporation Limited contained in its letter dated 9 July 2004 against the Business Tax Amended Assessment issued by the Commissioner of Taxes dated 11 May 2004 in respect of income/profits on the sale of land the appellant received in the tax years 1999, 2000 and 2001. Consequently, the reassessment for the relevant years and the decision of the Commissioner dated 13 February 2006, disallowing the objection of the appellant is hereby set aside.
Accordingly, I allow the appeal and make no order as to costs.
Record: Court of Appeal (Civil No 6 of 2006)
[2009] The Seychelles Law Reports 131 ______
In Re: Republic v Ladouceur and Ladouceur v Republic
Drug trafficking – absent defendant – new trial – Constitution – international law
The appellant was convicted of drug offences and sentenced to 8 years. He did not attend trial and so did not present a defence. He applied to the Court to set aside his conviction and sentence, and to order a new trial. He claimed that he did not intend to abscond from Court. His first failed appearance was due to a broken boat. He was unable to contact his attorney. The attorney‘s assistant informed him that the case was to be called on 8 July, but when he attended he was informed that it was in fact called on 7 July. He was unable to get in touch with the attorney. He learnt of his conviction on national television.
HELD:
(i) A person who has absconded from trial is deemed to have consented to trial in absentia;
(ii) Section 133 A of the Criminal Procedure Code allows trials in absentia. This section should be interpreted in light of the Constitution and international norms;
(iii) To grant a trial with the defendant absent, the Court should be satisfied that –
a. The summons has been served in accordance with law,
b. The defendant had knowledge of the trial date, and [2009] The Seychelles Law Reports 132 ______
c. The defendant wilfully did not attend trial.
(iv) A person convicted in absentia can have the conviction set aside and a new trial ordered, if the Court is satisfied that the reasons for absence are bona fide.
Judgment: Conviction and sentence set aside and new trial ordered.
Legislation cited Constitution 19(1), 19(2)(i), 19(12) Criminal Procedure Code, s 133A, 133 A (3)(b), 184(1) Misuse of Drugs Act, s 26(1)(a) Penal Code, s 238(b)
Foreign legislation noted International Covenant on Civil and Political Rights, art 14
Joel CAMILLE for the applicant David ESPARON for the Republic
Ruling delivered on 7 September 2009 by:
KARUNAKARAN J: The applicant Albert Ladouceur, a young man of La Digue (hereinafter called the defendant), was first produced before the Court on 29 November 2001, having been charged with the offences of:
1. ―Trafficking in a controlled drug‖ contrary to section 5 read with section 26(1) (a) of the Misuse of Drugs Act 1990 - under count 1;
2. ―Resisting Arrest‖ contrary to section 238 (b) of the Penal Code - under count 2 – and
[2009] The Seychelles Law Reports 133 ______
3. ―Assault on police officer‖ contrary to section 238 (b) of the Penal Code - under count 3.
The defendant was then, duly assisted by counsel and denied the charges. He had been released on bail. After eight years of procrastination, on 17 August 2009, the trial Court presided by Perera, J at an unusual and abrupt conclusion of trial, found the defendant guilty of the offences under count 1 and 2, without hearing the case of the defence and securing the presence of the defendant on a mere presumption that the defendant was absconding. His presumption was based on the fact, which in his own words, at page 10 of his judgment reads thus:
The continued inability of police to locate him (the defendant) on the warrants attracts the reasonable presumption that he is absconding.
Be that as it may. Having thus found him guilty, the trial judge convicted as well as sentenced the defendant in his absence and imposed a penalty of 8 years and 1 year imprisonment for the offences 1 and 2, respectively.
In fact, from the beginning of the trial through to the stage of closing of the case for the prosecution, the defendant has been cooperative and regularly attending the Court and was duly defended by counsel Mr A Juliette. The prosecution adduced evidence by calling a number of witnesses to prove the case against the defendant. After the close of the case for the prosecution, counsel for the defendant submitted on no case to answer. He contended before the trial judge that there was no evidence before the Court to incriminate his client since the substances allegedly recovered from the defendant had not been produced by the prosecution as exhibits in the case and that consequently, the accused could not been called upon to present a defence, as he would be prejudiced in any defence he would put forward. However, [2009] The Seychelles Law Reports 134 ______the trial judge rejected the defence submission and on 9 March 2007 ruled that there was a case to answer and invited the defendant to make his election under section 184 (1) of the Criminal Procedure Code and present his defence if any. After a number of adjournments and orders dispensing with the attendance of the defendant, on 14 March 2008 the trial judge had fixed the case for mention. The defendant was not present. The case was adjourned to be mentioned again on 19 March 2008 at 1.45. In the said sitting of 14 March 2008, the trial judge, upon counsel‘s request, had also dispensed with the attendance of the defendant in advance, for the adjourned mention-date i.e. 19 March 2008. The defendant with the Court‘s prior approval was not present in Court that day. Immediately, the trial judge, in the absence of the defendant proceeded to fix the continuation of trial for 6 June 2008. The defendant was again not present. Subsequently, he had fixed the case for a couple of mentions, again, all those mention-dates were fixed in the absence of the defendant. The time was ticking for the trial judge to vacate his office and retire from service on 24 August, 2009. The judge has obviously, been under pressure of time, which pressure has effectively been transferred from the Bench to the Bar. A gusty reaction of counsel to such pressure has unfortunately, resulted in his abrupt withdrawal from the case altogether and led to the continuation of trial in the absence of the defendant. In fact, the defendant had no knowledge about what happened in Court nor had he received any summons/ notice informing him of the date set for continuation of trial or about the withdrawal of his counsel‘s appearance from the case at a critical stage. This unusual happening is evident on record and speaks for itself, when defence counsel Mr Juliette in an outburst says
My Lord, I do not feel comfortable with this, I would move for leave to withdraw. If it was for the prosecution case, the prosecution can proceed. [2009] The Seychelles Law Reports 135 ______
Indeed, the trial judge has also made reference to this incident in his own version at page 9 of his judgment, which reads thus:
On 10 August 2009, when the case was taken up for continuation, I informed counsel that I am due to retire from service, effectively from 24 August 2009 and hence inquired as to what stand they (sic) took. Mr Juliette then moved to withdraw his appearance on the ground that he had no instruction.
Be that as it may, on the face of the record it is evident that the trial judge with due respect, has hurried to conclude the trial before his retirement date by resorting to section 133A of the Criminal Procedure Code, and eventually convicted and sentenced the defendant in his absence and without his knowledge. The defendant, a Digwa and a permanent resident of La Digue, having learnt about his conviction and sentence from the 8 o‘clock news on SBC, at his earliest opportunity on the following morning surrendered himself at 6.00 am to the La Digue Police Station.
In these circumstances, the defendant has now come before this Court with the instant application seeking an order to set aside his conviction and sentence and order the said matter to be tried de novo in terms of section 133 A (3)(b) of the Criminal Procedure Code, as amended by Act No 17 of 2008.
The affidavit filed by the defendant in support of his application reveals the following.
On 17 August 2009, in a judgment of the Supreme Court before Judge Ranjan Perera, he was convicted on one count of trafficking in a controlled drug, namely cannabis and a further count of resisting arrest. He was sentenced to 8 years imprisonment in total. The said conviction and sentence were [2009] The Seychelles Law Reports 136 ______given in his absence and he got legal advice that this was done in accordance with article 19(2) (i) of the Constitution read with section 133A of the Criminal Procedure Code as amended. He has further averred that the said conviction was given before he had presented his defence of the case.
According to the defendant, in reaching the said judgment the Court held incorrectly that there was a ‗reasonable presumption‘ that he was absconding from Court in view of the fact that since his last appearance on 14 March 2008, he had not put up appearance in Court. Consequently, there have been four warrants for his arrest and the police reported to Court that they could not locate him either on Mahé or La Digue where he was residing. His then attorney, Mr Anthony Juliette had also indicated to Court the he had not heard from him and on 10 August 2009 withdrew his appearance on his behalf and did not object to the trial proceeding against him. The defendant avers that he had not been aware of any of those facts and happenings in Court.
The defendant thus, rebuts the said presumption stating that at no point of time had he intended to abscond or had absconded from Court. He had always attended Court up to his last appearance. The alleged defaults have all been attributed to legal advice he received from his attorney‘s office.
On 19 March 2008, he failed appearance as he had to travel from La Digue to Mahé on the 5.30 am schooner, Seraphina to arrive Mahé at 8.30 am. Without his knowledge the schooner broke and could not leave La Digue on the said date. He then made contact with his sister, one Rency Ernesta, who resides on Mahé, to inform his attorney. The defendant was informed by Rency that she contacted his attorney‘s office and spoke to one Veronique Juliette, assistant to his attorney. Miss Juliette was to advise the Court accordingly. The defendant was then informed that he would [2009] The Seychelles Law Reports 137 ______be informed of his next date by Miss Veronique Juliette. Subsequent to that date, he had contacted the office of his attorney on many occasions and at all material times he could not speak to his attorney as he was not available. He had the chance to speak only to Veronique, who informed him that the case was to be called on 8 July 2009.
On the said date he attended Court and verified the Court‘s list but could not see his name. He then met with his attorney at the Court who informed him that the case had been called the day prior ie 7 July 2009. The defendant insisted that he was advised that the case was for 8 July. The defendant was then advised by the attorney to leave and that he would be contacted by his chambers to be informed of his date. As at all material times, he was working on La Digue at the construction site, he left Mahé immediately for La Digue. He was further advised by his attorney, that there was a possibility of a re-trial in view of the fact that Judge Perera was completing his tenure and that he would advise him of what was going to happen with his case thereafter.
Whilst on La Digue he contacted his attorney‘s chambers and was advised by Veronique that the case was to be called on 20 July 2009. Again he was advised not to put in an appearance as he would be informed of the outcome at a later date from the chambers. Thereafter, after various contacts by phone to the chambers, he could not get in touch with his attorney. He did get in touch with Miss Julliette who again advised him that the case was to be called on 6 August 2009 and that again he could stay on La Digue and will be advised of his next hearing date.
Sometime after 15 August he was informed by a friend on La Digue that there has been a judgment against him. And he was declared wanted by police on national television. The defendant verified for himself on the 8 o‘clock news on the same day and on the following day he surrendered himself at [2009] The Seychelles Law Reports 138 ______
6.00 am to the La Digue police station.
According to the defendant, he had not at any time been advised by his attorney or the police that he was wanted in regard to the matter before the Court on account of the various warrants of arrest issued against him. At all times he was doing construction works and living on La Digue and had shown no intention of escaping or absconding from Court. His attorney‘s representation in Court, that he had not ascertained the progress of his case, was made without his knowledge. He had indeed been in touch with his chambers on various occasions for the progress of his case. This is further supported, in his view, by the fact that at all times he had contact with his assistant and not him personally. Furthermore, the police averments that his whereabouts could not be ascertained are incorrect in view of the fact that, at all material times, he remained on La Digue and was only working on construction site publicly, on the island. He had been renting a small bedsitter with one Mr Medine Camille at Anse Reunion La Digue. Prior to that, he was occupying the property of one Alvis Way Hive at Anse Reunion, La Digue.
In the circumstances the defendant avers that he did not deliberately absent himself or abscond from Court proceedings. He had at all material times, acted upon instructions of his counsel through his chambers. The defendant further begs the Court‘s indulgence in considering this application in view of the fact that he had been deprived of presenting his defence to Court and his attorney, as per proceedings of 10 August 2009, had withdrawn his appearance on his behalf without informing him and has further consented for the trial to proceed against him without his instructions for the same.
On the question of jurisdiction, according to Mr J Camille counsel for the defendant, although this Court is not the trial Court, which actually convicted and sentenced the defendant, [2009] The Seychelles Law Reports 139 ______still this Court has concurrent jurisdiction with that of the trial Court in this matter, to order a trial de novo in terms of section 133 A (3) (b) of the Criminal Procedure Code, as amended by Act No 17 of 2008.
In these premises, Mr J Camille submitted that the defendant has bona fide reasons in the instant case, for having defaulted appearance before the Court during trial. Therefore, he urged that the said conviction and sentence against the defendant be set aside and that an order for the matter to be tried de novo be made in this case, so that the defendant can present his defence properly ensuring a fair hearing as guaranteed by the Constitution of Seychelles.
On the other side, Mr D Esparon, State counsel resists this application contending in essence, that the defendant has failed to give bona fide reasons for having defaulted appearance for trial in this matter. Moreover, according to Mr Esparon, this Court not being the trial Court has no jurisdiction to make an order as sought by the defendant in his application.
I meticulously perused the record of proceedings on file. I carefully considered the submission made by both counsel for and against the application for a trial de novo. Obviously, there are two fundamental questions that arise for determination in this matter. They are:
1. Does this Court have jurisdiction to set aside the conviction and sentence of the trial Court and order that the defendant be tried de novo? If yes, then;
2. Has the defendant satisfied this Court that his absence from part of the trial was bona fide?
Before one proceeds to find answers to the above questions, [2009] The Seychelles Law Reports 140 ______it is important to peruse the relevant provisions of law pertaining to ―trials in the absence of the accused‖ as contemplated in our Constitution and the Criminal Procedure Code.
―A trial in absentia‖ is indeed, an antithesis to the constitutional right namely, ―Right to a fair and public hearing‖, which is a fundamental human right guaranteed by article 19 (1) of the Constitution of Seychelles. The right to a fair trial or hearing explicitly includes the right to be tried in one‘s presence. This is a key part of the right to defend oneself. This particular constitutional right is expressly, guaranteed by the Constitution as a rule under article 19 (2) (i), which reads thus:
Every person who is charged with an offence ...shall, except with the person‘s own consent, not be tried in the person‘s absence unless the person‘s conduct renders the continuance of the proceedings in the person‘s presence impracticable and the Court has ordered the person to be removed and the trial to proceed in the person‘s absence.
It is also pertinent to note that the same Constitution has also provided a reasonable restriction as an exception to the above rule, under article 19 (12) thereof, which reads thus:
For the purpose of clause 2(i), a person who has, in accordance with law, been served with a summons or other process requiring the person to appear at the time and place appointed for the trial and who does not so appear shall be deemed to have consented to the trial taking place in the person‘s absence.
It is not uncommon that in many democratic countries, [2009] The Seychelles Law Reports 141 ______occasionally a criminal trial is conducted without the defendant being present when he/she gives his/her consent to ―a trial in absentia‖ or ―walks out‖ or ―escapes‖ or ―flees‖ after the trial has begun, since the defendant has thus impliedly waived the constitutional right to have a fair hearing, to be present and face one's accusers. At times, such attempts are made by some to defeat the trial and divert the course of justice. In a historical view, it may be observed that during the Nuremberg War Crime trials following World War II, involving heinous crimes against humanity such as genocide, ethnic cleansing etc it was employed against Nazis who had committed atrocities and then disappeared, the most famous being Martin Bormann, Hitler's closest aide.
In common law legal systems, conviction of a person in absentia, that is in a trial in which they are not present to answer the charges, is held to be a violation of natural justice. Specifically, it violates the second principle of natural justice, audi alteram partem. No one should be condemned unheard. By contrast in some civil law legal systems, such as Italy, trial in absentia is permitted. For instance, in Italy a trial in absentia is called ―in contumacia‖ and is perfectly allowed, as long as the tried person is notified. It is also interesting to note, there is a widespread perception that trials in absentia should not be provided for in the statute as this would be inconsistent with article 14 of the International Covenant on Civil and Political Rights which provides that the accused shall be entitled to be tried in his presence. Hence, it is always desirable for the Court to avoid such trials as far as possible and should exercise its discretion in this respect sparingly and judiciously and may allow trials in absentia, in deserving cases, for extraordinary circumstances or reasons. Indeed, a person accused of an offence must be given every opportunity to prepare and present his best defence, lest it be said that justice hurried is justice buried.
With these constitutional thoughts, international norms, [2009] The Seychelles Law Reports 142 ______jurisprudence and historical background of the concept in mind, one should approach, interpret and apply the relevant provisions of the statute applicable to trials in the absence of the accused in our jurisdiction. The relevant provision contained in section 133 A (3) (b) of the Criminal Procedure Code, as amended by Act No 17 of 2008 runs thus -
(1) In the trial of any person before the Supreme Court with or without a jury or before any Magistrates Court may commence and proceed or continue in his absence if the Court is satisfied that the summons or other process requiring the person to appear at the time and place appointed for the trial has in accordance with law, been served on such person and that—
(a) he had consented to the trial taking place in his absence; or
(b) he does not appear in Court; or
(c) by reason of his conduct the continuance of the proceedings in the person‘s presence has become impracticable and the Court has ordered the person to be removed and the trial to proceed in the person‘s absence.
(2) The commencement or continuance of a trial under this section, shall not be deemed or be construed to affect or prejudice the right of such person to be defended by an attorney- at-law at such trial.
(3) Where in the course of or after the conclusion of the trial of an Accused person under [2009] The Seychelles Law Reports 143 ______
paragraph (b) of subsection (1) the Accused person appears before Court and satisfies the Court that his absence from the whole or part of the trial was bona fide then-
(a) where the trial has not been concluded, the evidence led against the Accused up to the time of his appearance before Court shall be read to him and an opportunity afforded to him to cross- examine the witnesses who gave such evidence and challenge any such evidence; and
(b) where the trial has been concluded, the Court shall set aside the conviction and sentence, if any, and order that the Accused be tried de novo.
(4) The provisions of subsection (3) shall not apply if the Accused person has been defended by an attorney-at-law at the trial during his absence.
I will now, proceed to find answers to the fundamental questions, in the light of the facts on record , the submissions of counsel and the laws relevant to the case rehearsed supra.
Needless to say, it is important to determine the question of jurisdiction first as it involves a fundamental point of law, before we proceed to determine the application on the merits.
It is true that this Court is not the trial Court which actually, convicted and sentenced the defendant in absentia. However, section 133A (3) (b) clearly states that -
After the conclusion of the trial in absentia of an [2009] The Seychelles Law Reports 144 ______
accused person who was convicted and sentenced in his absence for having defaulted appearance, if he appears subsequently before Court [vide 133A (3)] and satisfies the Court [vide 133A (3)] that his absence from part of the trial was bona fide then – the Court [vide 133A (3) (b)] shall set aside the conviction, if any...
As I see it, the crucial words namely, ―Court‖ and ―the Court‖ used in the above section of law, require a careful interpretation in order to distinguish their respective meanings in the context in which they have been used by the legislature. This distinction holds the key to the jurisdictional issue. In fact, section 133A (3) reads inter alia, thus: ―Accused person appears before Court…‖ Obviously, the omission of definite article ―the‖ before the word ―Court‖ used herein indicates that there is no specificity of reference to a particular Court or to the trial Court in this matter. The generic term ―Court‖ used herein means and includes all courts of equal and competent jurisdiction, which all have original jurisdiction to entertain an application made by an accused person, who was convicted and sentenced by a different Court of competent, equal or concurrent jurisdiction and so I find. The corollary is therefore, that an accused person who has been convicted and sentenced in absentia, by a trial Court of competent jurisdiction, for having defaulted appearance from trial, may appear before any other Court of competent, equal or concurrent jurisdiction as that of the trial Court and satisfy that Court that his absence from the whole or part of the trial was bona fide. If the Court, before which the defendant appears, is so satisfied, then it shall set aside the conviction and sentence and order that the accused be tried de novo. For these reasons, I find answer to the first question thus, in the affirmative. Yes; This Court does have jurisdiction to set aside the conviction and sentence of the trial Court and order that the defendant be tried de novo provided he satisfies this Court that his absence from part of the trial was bona fide. [2009] The Seychelles Law Reports 145 ______
I will now turn to the second question. Needless say, this involves a question of fact. On the face of the reasons given by the defendant in his affidavit, I am satisfied on more than a balance of probabilities that his absence from part of the trial before the trial Court was bona fide.
On the one hand, it is truism in any justice delivery system that ―justice delayed is justice denied‖; on the other hand one cannot turn a blind eye to the fact that at times, ―justice hurried is justice buried‖. It is therefore, the duty of the Court to strike a delicate balance between these two conflicting interests, which are irreconcilable in the administration criminal justice, as both are inherent to the fundamental human rights and freedoms guaranteed by the supreme law of the land. Society is hurt when justice is delayed because of a legal and procedural technicality, but in the long run a democratic society is hurt still more, when lawless conduct by law enforcement agencies goes unchecked in the name of speedy justice. Having said that, I note, following are the conditions precedent required to be satisfied for the Court to allow a trial in the absence of the accused invoking section 133A of the Criminal Procedure Code:
1. First of all, the Court should be satisfied that summons or other process requiring that the person to appear for trial has been issued. [vide s 133A(1) (supra)];
2. The said summons or process has been served in accordance with law; and
3. Despite such service, the accused having taken notice or having had the knowledge of the trial date, should have wilfully defaulted appearance for trial. So, the courts ought to be careful to make sure that a defendant's absence is truly voluntary, rather than the result of foul play, ill health, or lack [2009] The Seychelles Law Reports 146 ______
of notice, lest they create grounds for an appeal. [or]
4. In the alternative, the defendant should have consented to the trial taking place in his absence; [or]
5. Again in the alternative, by reason of the accused person‘s conduct in open Court the continuance of the proceedings in his presence become impracticable and the Court therefore, should have ordered the accused to be removed and the trial to continue in his absence.
In fact, the first three condition precedents [1, 2 and 3 supra] are the ones relevant to the case on hand. All of them should be satisfied conjunctively, for the Court to commence or continue the trial in the absence of the accused in this matter, whereas the conditions 4 and 5 though are not relevant to the case on hand, each of them may be satisfied disjunctively, depending on the peculiarity of the case the Court deals with.
Coming back to the instant case, it is evident conditions No. 1, 2 and 3 were not satisfied since (a) no summons or other process was ever issued by the trial Court, requiring the defendant to appear for trial or continuance of trial nor was he present in Court, when it set the date for continuance of trial (b) No summons or process was ever been served on the defendant in accordance with law, informing him of the date, the trial Court had set for continuance of trial in his absence; and (c) There is no ground for any reasonable tribunal to presume that the accused had constructive notice or had the knowledge of the trial date and to conclude that the defendant had wilfully and maliciously defaulted appearance for trial.
For the reasons stated hereinbefore, in my judgment, the defendant herein has satisfied the Court that his absence from [2009] The Seychelles Law Reports 147 ______part of the trial before the trial Court was bona fide. Consequently, I hereby set aside the conviction and sentence of the trial Court, dated 17 August 2009 and order the accused be tried de novo. Accordingly, I order the release of the accused Albert Ladouceur from prison forthwith. Furthermore, I restore the original bail conditions imposed on him, pending trial de novo in this matter.
Record: Criminal Side (CR) No 49 of 2001
[2009] The Seychelles Law Reports 148 ______
Republic v Payet
Jury direction – burden of proof –unlawful acts –common intention –corroboration – murder – retracted confessions – circumstantial evidence
HELD:
(i) No adverse inference should be made if the accused chooses to remain silent;
(ii) Intention can be adduced from other acts done at the material time and the surrounding circumstances;
(iii) Murder requires an unlawful act, which is an act without legal justification or excuse;
(iv) If two or more people form a common intention to commit an offence, each individual whose will contributed to the wrongdoing is in law responsible for the whole. Common intention to commit the offence may be tacit and may be inferred from the circumstances;
(v) To corroborate a retracted confession, independent evidence must be presented which does not require corroboration; and
(vi) Where a case depends exclusively on circumstantial evidence, a guilty verdict can be reached only where the inculpatory facts are incompatible with the innocence of the accused, and cannot be explained by any other reasonable hypothesis that that of guilt. The jury must also be sure that there [2009] The Seychelles Law Reports 149 ______
are no other circumstances weakening or destroying the inference of guilt.
Judgment: Direction to the jury.
Legislation cited Criminal Procedure Code, s 193
Cases referred to Pool v R (1974) (Unreported) R v Emmanuel (2004) SLR 11 R v M (1966) SLR 218 R v Marie (1973) SLR 237
Foreign cases noted Miller v Minister of Pensions [1947] 2 All ER 372 Teper v R [1952] AC 480
David ESPARON and Mr Durup for the Republic Alexia AMESBURY for the 1st accused Frank ELIZABETH for the 2nd accused Both accused present Nine (9) members of the jury present
Summing-up to the Jury delivered on 15 July 2009 by:
GASWAGA J: Ladies and gentlemen of the jury, you have been addressed by the counsel for the prosecution as well as both counsel for the accused persons on the law and the facts. During the trial you heard all the evidence that was adduced by all the prosecution witnesses and those for the defence. It is now my turn to address you and enlighten you on all the aspects of the relevant law as should be applied to the facts. You may excuse me if I go over some other aspects which you may now be very familiar with as both counsel have already expounded them.
[2009] The Seychelles Law Reports 150 ______
Your indulgence, patience and maximum attention will be sought as I do the summing-up for you because this is the basis upon which you can come to a conclusion of ‗guilty‘ or ‗not guilty‘ verdict. This is the material that will be challenged before the appellate Court in case of any grievance. In addition, I have to explain to you in a very comprehensive and yet simple manner what I think is pertinent about the facts and the law of this case. This is because the law in our jurisdiction directs that a person charged with the offence of murder be tried by ordinary men and women belonging to and familiar with the day to day living conditions and behaviour of the accused‘s community who are not necessarily trained judges. These are therefore judges of facts who are however guided on matters of law by the professional Judge.
I wish to stress that only you, ladies and gentlemen, should reach the final determination of the facts in issue, as presented before Court and perceived by yourselves, and not the judge or the counsel although the latter categories may express their opinion or view on those facts which you are not bound to follow. Your functions will also include a requirement to ascertain and consider all the facts carefully, then evaluate and examine the prosecution as well as the defence evidence in its entirety before making findings of fact in respect of each piece of evidence. With regard to those pieces of evidence so ascertained and believed, you are to accept them and act upon them. You are to marry this evidence so proved to your satisfaction with the law in order for you to reach a just conclusion in this case in accordance with the solemn oath taken by yourselves at the beginning of the proceedings without fear or favour, affection or ill-will or bias. As for the other pieces of evidence which you do not believe, you are entitled to disregard them.
Members of the jury, you may now be wondering and asking yourselves how reliable evidence is sieved from the rest of the evidence presented before the Court. All through the trial we [2009] The Seychelles Law Reports 151 ______have seen various types of evidence being tendered; ranging from documentary evidence in form of police statements and medical reports to photographs and household items and implements suspected to have been used in this horrendous murder of Mary Anne Hodoul. Most of the evidence however was oral – being adduced before the Court through testimonies of human witnesses. Human beings, you would readily agree, are susceptible to a myriad of weaknesses. You will have to bear in mind that human perception, power of observation, the power of mental retention will inevitably differ from one individual to another. For example, it is not surprising or uncommon to find in real life that two or more persons who have witnessed an incident may, if asked later to speak about it, relate the same incident differently! They may not use the same language to describe the incident. One may be struck by something which the other has completely missed. The fact that the story is being told in different ways does not mean that the witness is lying. They are all referring to the same incident which they witnessed at the same time and under same conditions.
To drive the point home, ladies and gentlemen, I shall give the following illustration. You have all been in Court right from the start of this trial up to this time. You have all heard the same versions of testimonies being given in Court. I have seen most of you taking notes, but I am sure that if we were to compare all of your notes we will find that they are not identical. Some of you have included details or points that others have missed or thought unimportant to record, but all the notes taken down relate to the same incident. If they are different, that does not necessarily mean that you did not hear or witness what went on in Court.
Ladies and gentlemen of the jury, under the usual and normal flow of events you will find such variations in statements and testimonies of even truthful witnesses. I am sure you have seen people telling lies. But employing common sense, [2009] The Seychelles Law Reports 152 ______diligence and experience one would be in a position to identify a false witness. Observation of demeanour and manner in which questions are answered especially in cross-examination is crucial in pointing out a prevaricating witness. You all had opportunity to hear and observe the witnesses while in the box. Each one of the witnesses must be assessed individually to establish whether they were truthful and credible, mistaken, confused, of below average intelligence or simply telling lies.
Ladies and gentlemen of the jury, you are bound to take all directions I give you on all points of law in this case, that is, you should accept the explanations I give you on legal matters. In that respect you have no choice but to accept them. However, where I express my own opinion on the facts of the case you are not obliged to accept it and act upon it unless you are of the same opinion as I am. You are the sole judges of facts. Please do not do your own research on the internet or library, but rely only on the evidence you have heard. Whatever you may have heard, or read in the news media or heard from others about this case outside this Courtroom must be erased from your mind and should not be considered at all while discharging this honourable civic duty. Through the Court orderly in charge of you, you will be at liberty to access all the exhibits tendered in this case at any time for your examination and perusal.
Before proceeding to explain to you, in simple terms, some of the legal terms you may encounter as you evaluate the facts, I shall remind you of the charges before Court now. The men in the dock, the accused persons, stand charged with murder and the particulars allege that on 30 October 2007, at Anse à la Mouche, Mahe, the accused persons, with common intention murdered one Mary Anne Houdoul.
I must warn you at this point that I know, as you do, that the loss of such an elderly, productive and useful member of our community is a tragedy and you are likely to have sympathy [2009] The Seychelles Law Reports 153 ______for her family. Be very careful, this sympathy must not sway you.
BURDEN OF PROOF
Ladies and gentlemen of the jury, it is a cardinal rule of law that the burden or onus of proving a criminal case solely rests on the shoulders of the Republic. The two men sitting in the dock have no duty at all to prove their innocence. They remain innocent until proved or plead guilty. The burden of proof therefore is the responsibility to prove guilt. This burden places the responsibility on the prosecution to adduce cogent and admissible evidence to establish every single ingredient of the offence, in this case, the crime of murder. The Constitution also allows the accused, if he so wishes, to remain silent and say nothing for his defence or make an unsworn statement, (like the accused have both done) whereby he is not cross-examined. In either case no adverse inference should be made against him. Even where the accused does not call witnesses, the burden to prove the charges still remains on the prosecution.
STANDARD OF PROOF
Ladies and gentlemen of the jury, again the prosecution is required to prove the case beyond a certain standard, so high so that no doubt should ever be entertained thereafter once a guilty verdict is entered. The standard of proof required is that falling beyond a reasonable doubt. A conviction cannot therefore be entered basing on a suspicion or guesswork or mere satisfaction or even a feeling of being ‗fairly sure‘. There is no yardstick or specific formula for measuring or calculating the standard of proof. What the Courts follow is the availability of evidence laid before it in support of the charge putting it beyond a reasonable doubt, that is, satisfying that the guilt of the accused is the only possible verdict. This standard of proof is applicable to all the evidence in respect of [2009] The Seychelles Law Reports 154 ______each of the accused persons individually.
Ladies and Gentlemen, all the evidence in this case is right before you. After offering guidance on the law, it will be up to you to determine whether that evidence has proved all the ingredients of the charge of murder beyond a reasonable doubt.
REASONABLE DOUBT
Ladies and gentlemen of the jury, as you have been addressed by counsel for the prosecution and counsel for the defence, where you entertain a doubt in this case that doubt should be resolved in favour of the accused. But what do we understand by the term ‗a reasonable doubt‘. In simple terms, when one has a doubt about something, it means you are not sure about that thing, there is no certainty about it. A reasonable doubt is a doubt for which you can assign a reason. The doubt must be real as opposed to imaginary, vague or fanciful doubt. So before finding a guilty verdict the evidence must bring to your mind a degree of certainty leaving no room for doubt.
The Courts have attempted to offer a comprehensive definition of the term ‗reasonable doubt‘. Lord Denning judicially interpreted the term in the case of Miller v. Minister of Pensions [1947] 2 All ER 372, 373 as follows:
It need not reach certainty, but it must carry a high degree of probability. Proof beyond a reasonable doubt does not mean proof beyond the shadow of a doubt… if the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‗of course it is possible, but not in the least probable‘, the case is proved beyond reasonable doubt, but nothing short of that will suffice. [2009] The Seychelles Law Reports 155 ______
If you have a doubt as to proof of guilt that fairly arises out of the evidence and that, to your minds, exercising your consciences as jurors, appears to you to be reasonable doubt, and if it relates to one of the essential elements of the charge or as to the identity or participation of any or both of the accused, or the proof of murder, then the verdict ―not guilty‖ must follow. On the other hand, if you decide otherwise, I have to caution you that must be satisfied before deciding upon such conviction, that the inculpatory facts either revealed from direct evidence or inferred from circumstantial evidence are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis other than guilt.
INGREDIENTS OR ELEMENTS OF MURDER
It is imperative at this point in time to explain to you the ingredients or the elements of the charge herein which is murder contrary to section 193 of the Criminal Procedure Code, Cap 158. These elements, like I have stated before, must all be proved by the prosecution beyond a reasonable doubt if a guilty verdict is to be returned. According to our law one commits murder if he –
(i) with malice aforethought; (ii) causes the death of another; (iii) by means of an act or omission which is unlawful.
I shall first explain to you the meaning of these ingredients and how one can make logical findings on each in relation to the facts. Soon hereafter I will show you the application of the concepts defined herein above together with these three ingredients of murder in relation to the evidence that we already have on record.
[2009] The Seychelles Law Reports 156 ______
MALICE AFORETHOUGHT
According to section 196 of the Penal Code malice aforethought is said to have been proved where the following circumstances exist, where there is evidence before the Court that the accused had intended to bring about the death of the deceased by his act or omission or had an intention to cause grievous harm to the deceased or where there is evidence that the accused had knowledge that his act, or omission causing death will probably cause death of or grievous harm to someone whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous harm is caused or not, or by a wish, that it may not be caused.
It therefore follows that the prosecution must adduce evidence to prove that the accused persons had intended or foreseen the death or grievous bodily harm as the possible or probable result of this act or omission or had the knowledge that the act or omission causing death would probably cause the death of or grievous harm of Mary Anne Hodoul even though such knowledge was accompanied by indifference whether the death or bodily harm was caused or by a wish that it may not be caused. It should be emphasized that the proof required herein is proof beyond a reasonable doubt.
Members of the jury, in real life there is always a reason for everything. The entire public would want to know the reason behind the murder of Mary Anne Hodoul. Even you may be wondering how you can establish the intention of the murderer at the material time of the commission of the offence. But I must inform you at this juncture that it is generally difficult to tell the intention of an accused to cause the death of or grievous harm to another. Most people do not voice their intentions when they set out to commit illegal acts. Sometimes the intention can be formed on the spur of the moment. In the latter situation one need not pre-meditate and [2009] The Seychelles Law Reports 157 ______plan death of another or cause grievous harm to the victim but the intention is formed spontaneously, and where there are numerous participants, at times tacitly. The accused‘s intention can therefore be gathered from the acts done at the material time and the surrounding circumstances. This is revealed by way of adducing relevant evidence of what the accused did at the material time, and not before or after. It is said that actions speak louder than words.
There is wide latitude of situations from which we can infer malice aforethought. For instance the manner in which the death or the injuries were caused. Another is by way of looking at the part of the body that sustained the said injuries and the force that may have been used while striking. We have been told by Dr Brewer the pathologist that Mary Anne Hodoul died of brain injuries resulting from injuries occasioned on her head, and strangulation. Ladies and gentlemen of the jury, we all know that the head is a very vital and delicate part of the body containing and encasing the brain which coordinates all the activities of a human being. Had such injuries as reflected in the photographs (PE2) been occasioned on the deceased‘s legs, it is most likely and probable that we would have gotten different results in the medical report given that the legs are not as delicate as the head. As testified by Dr Brewer the force applied on and size as well as shape of the object used to hit the head of a victim has a direct bearing on the kind of injuries occasioned. The perpetrator of the crime must have known that gagging Mary- Anne Hodoul with a towel thereby preventing her from breathing and at the same time strangling her neck with force would lead to asphyxia (suffocation). A very small and light object for instance or, slight hitting of the head on the wall would not have occasioned such grave injuries on the deceased.
I will therefore remind you that for malice aforethought to be established any of these elements must be proved. When [2009] The Seychelles Law Reports 158 ______one strikes so hard or causes serious or grave injury to the vital or sensitive part of the body like the head, brain, skull of another with a heavy or sharp object he should have had the knowledge that it would probably cause the death of, or grievous harm to that person, although such knowledge is accompanied by indifference whether death or grievous harm would be caused or not or even by a wish that it may not be caused.
Ladies and gentlemen of the jury, you should also know that the law does not require that for one to be convicted of the offence of murder, he should have intended to kill his victim years, months, weeks, days or hours before the actual killing. As I have already said intention could be formed on the spur of the moment. Intention however, is not the same as pre- meditation. Pre-meditation is planning of an occurrence well in advance. According to our law one need not prove pre- meditation.
For example a man who keeps sharpening his knife before finally going with it to church on Christmas day and using it to stab and kill his neighbour with whom he has a land dispute could be said to have premeditated the crime well before executing it.
MOTIVE
Motive too cannot be assimilated to intention. Motive is the reason why someone kills. It is the feeling which prompts someone to do something. For instance whoever committed this crime, assuming you find that it was murder, that person did it for some motive and some adequate motive – whether it was a concealed motive, or whether it is now undiscovered and undiscoverable, or whether it was at some time apparent.
I must emphasize that premeditation and motive are not necessary ingredients for the offence of murder to be proved. [2009] The Seychelles Law Reports 159 ______
What is required of the prosecution according to our law is the proof beyond a reasonable doubt of the intention. Motive would only be relevant if there is evidence showing it otherwise it is not one of the ingredients of murder.
Before I move on to the next ingredient of causing death of another person I will explain to you what is meant by grievous harm. First of all ‗grievous‘ is no more or no less than ‗really serious‘. The law defines grievous harm as any harm, which amounts to a maim or a dangerous harm, or seriously or permanently injures health which is likely so to injure health, or which extends to permanent disfigurement or to any permanent or serious injury to any external or internal organ, membrane or sense. One could also say that it simply means injury or injuries which are serious but not necessarily dangerous to life.
UNLAWFUL ACT
Another element yet to be proved by the prosecutor is that of an unlawful act. This means that the act committed by the accused was one which is unlawful without legal justification or excuse. The closest example allowed by the law is self- defence.
However, only situations where reasonable force, and not that out of proportion to the attackers, is applied is what is justified by law. The burden rests on the prosecution to negative self- defence.
Another instance is where a convicted prisoner sentenced to death by the Court of competent jurisdiction is executed by the hangman. That is lawful killing. But the intentional strangling or suffocation and or hitting or striking the head of another person with a hard object or against the wall or the hard floor cannot be said to be anything but unlawful.
[2009] The Seychelles Law Reports 160 ______
I will go further, members of the jury and introduce yet another aspect that I find relevant and important for you to know. This is provocation. Our law does not recognize provocation or what is termed as accumulated provocation ie provocation over a period of time. In law when a person unlawfully kills under circumstances which would constitute murder but if the act which causes death was committed in the heat of passion caused by sudden provocation and before there is time for his passion to cool, he is guilty of manslaughter only. In other words the murder charge is reduced to manslaughter. But what is provocation? It is an unlawful act or insult of such a nature as to be likely, when done to an ordinary person deprives him the power of self-control and induces him to assault the person by whom the act or insult is done or offered. When such act or insult is done or offered by one person to another, the former is said to give the latter ground for provocation for the assault.
However, before you consider the issue of provocation in a murder charge you must be satisfied that the prosecution has proved beyond a reasonable doubt all the elements of murder, namely, (a) malice aforethought, (b) causing the death of another person and (c) by an unlawful act. From this point you proceed to consider whether there is evidence that the accused was provoked, whether by things done or things said or by both together to him was that he lost his self-control. Circumstances which induce the desire for revenge are inconsistent with provocation. The question whether provocation was enough to make a reasonable person do as he did shall be determined by the jury.
None of the counsel has suggested the slightest basis of manslaughter as opposed to murder, that is, evidence to suggest self-defence or provocation or even insanity. Moreover, looking at the evidence adduced before the Court, there is no disclosure of any aspect or issue of provocation. Ladies and gentlemen of the jury you must not consider [2009] The Seychelles Law Reports 161 ______provocation at all.
CAUSING DEATH OF ANOTHER
Ladies and gentlemen of the jury, as I have already explained to you, the prosecution is to prove beyond a reasonable doubt that Mary Anne Hodoul‘s death was caused by the accused. Five separate situations are listed under section 199 of the Penal Code and any one of which, if proved will amount to causing death. Therefore one would be deemed to have caused the death of another person if by his unlawful act he brings about the death of that person. His unlawful act must be without legal justification or excuse as discussed before. The evidence of the pathologist is crucial for the determination whether these injuries were the direct cause of death. The injuries inflicted on the vital parts, the head (skull and brain) and neck, of Mary Anne Hodoul‘s body were sufficient to cause her death in the ordinary case. If the jury so finds then it must go beyond this and establish whether there is a concrete and impeccable nexus between this murder and the accused persons.
THE ELEMENT OF COMMON INTENTION
Ladies and gentlemen of the jury, there is yet another provision of the law under which the accused have been charged in conjunction with section 193. This is section 23 of the penal code which reads as follows:
When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of that purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence. [2009] The Seychelles Law Reports 162 ______
You will note that this section in itself does not create an offence but provides for the establishment of a common intention and lays down a principle of joint criminal liability, which is only a rule of evidence. The section is framed to meet a case in which, just like the one at hand, it may be difficult to distinguish between the acts of individual members of a party or to prove exactly what part was taken by each of them. The reason why each of them are deemed guilty in such cases is that the presence of accomplice gives encouragement, support and protection to the person actually committing the act. Common intention does not necessarily, and in all cases, imply an express agreement and pre- arranged plan before the act. The act may be tacit and common design conceived immediately before it is executed on the spur of the moment. There need not be proof of direct meeting or combination nor need the parties be brought into each other‘s presence; the agreement may be inferred from circumstances raising a presumption of a common plan to carry out the unlawful design.
For example in a similar case of R v Cliff Emmanuel Cr No.85 of 2003 three men broke into a house at Port Larue, stole jewellery and money from a safe and before leaving tied the legs and hands of an old woman they found at the premises. She was also gagged with a piece of cloth and died of asphyxia (suffocation). Applying section 23 and rejecting the defence argument that there was no evidence pointing to a particular accused as the one who killed or dealt the fatal blow, I convicted them all including the one who claimed not to have entered the house but remained at the road keeping a lookout. The principles of common intention and joint liability were relied on.
THE RETRACTED CONFESSIONS
I shall now turn to the retracted confessions of both accused persons while in the hands of the police at the Central Police [2009] The Seychelles Law Reports 163 ______
Station. You will remember that J P Kilindo gave one confessional statement while G Payet gave three confessional statements although the third one was not contested or retracted, meaning that it was given voluntarily. A confessional statement is actually evidence given by the accused himself and tending to show or prove that he committed the offence with which he is charged. A Court of law can safely enter a conviction basing on it without any corroborative evidence if it is given voluntarily. However, where the voluntariness of the statement is in issue, like it was in the instant case, the Court holds a trial within a trial and if it finally establishes that it was given voluntarily and is admissible (PE 25, 27 and 28) then it will act upon it but only after providing some independent evidence to corroborate it in some material particular. Once in, the jury will be required to consider the probative value and effect of the evidence. You all heard allegations of oppression, breach of the Judge‘s Rules and constitutional rights during the recording of the confessional statements by the accused persons. The Court has already heard evidence in your absence and over-ruled these objections and admitted the statements. You are also at liberty to reject and disregard these confessional statements if in your view they were not made freely and voluntarily to the police. If not, and in your opinion you feel the allegations are baseless and untrue or just an afterthought when the accused started feeling the ‗real pinch‘ of the confessions then you must act upon them.
It was stated in R v M (1966) SLR 218 that ―to corroborate a retracted confession all that is required is some evidence alliund which implicates the accused in some material particular and which tends to show that what is said in the confession is probably true‖. Ladies and gentlemen of the jury, this is exactly what I direct you to do with statements PE 25, 27 and 28 – look for independent corroborative evidence.
Further, as a general rule such evidence must be [2009] The Seychelles Law Reports 164 ______corroborated by evidence which itself does not require corroboration. See R v Marie (1973) SLR 237. This means that Kilindo‘s confessional statement cannot be used to offer corroboration to the first two statements of G Payet and vice versa.
Another rule you will be required to follow was clearly expounded in the case of Pool v R (1974) where the Court took the view that
there is no reason why a Court should not accept and act upon admission made by an accused as against himself, though rejecting as untrue the part of the statement sought to implicate other persons.
It is clear to you by now that the statements of Quilindo and Payet are both exculpatory and inculpatory whereby the respective authors mildly incriminate themselves and heavily incriminate the co-accused. Therefore, G Payet‘s statements only incriminate himself and not Kilindo. Similarly, Kilindo‘s statement only incriminates himself and not G Payet. It is for you members of the jury to examine each statement and determine if there is any evidence incriminating its author.
EVIDENCE
Ladies and gentlemen of the jury, the facts leading to this charge of murder are as follows.
On 31 October 2007 Mary Anne Hodoul ,deceased, went to Anchor Café at Anse à la Mouche, for dinner with Maryvonne Burke, her first cousin. This is one place she used to frequent almost on daily basis. Mary-Anne Hodoul left Anchor Café for her home at about 9:45 pm. The next morning she was found dead in her house. Maryvonne‘s son climbed onto a pillar facing her bedroom window but could not see her on the bed. [2009] The Seychelles Law Reports 165 ______
Maryvonne, her mother and daughter among others called out the deceased‘s name as they knocked on the windows and doors around the house but there was no response. However, one door facing the Baie Lazare side was found locked but the upper part only closed and Maryvonne‘s son called Benjamin Burke (PW 21) got in through the window. Shortly thereafter Benjamin Burke informed the others that the whole house was in a mess and Mary-Anne was lying in the bathroom tied with ropes. Keith Michael Burke (PW 29) was called to the scene and found many people screaming. On reaching the body in the bathroom he untied one knot of a white towel that was around the neck and also covered the mouth. From the horrible smell that came out of the mouth Keith Michael realized that Mary Anne Hodoul was dead. The police were called in.
Inspector Gracia Bethew (PW6) was the Regional Commander of the southwest District Mahe. She was based at the Anse Royale Police Station. At 8:45 hrs on 1 November 2007 she received a phone call from Lance Corporal Orphey from Baie Lazare Police Station informing her that Ms Hodoul had been murdered and therefore requested her assistance at the scene. In the company of Sub-Inspector of Jean-Claude Kilindo and WPC Wilna Mousbe, Inspector Bethew arrived at the said scene at 8:58 hrs and took charge of it.
Inspector Bethew had found Mrs Maryvonne Burke at the scene crying and she informed her that she was a relative of Mary-Anne Hodoul. There were four or five persons sitting on the stairs of the main door. Mrs Maryvonne led Inspector Bethew into the house and right into the small bathroom where the body of Mary-Anne Hodoul was lying. After a brief examination of the body and the scene generally the inspector safeguarded the scene until the arrival of ASP Leon, SI Tirant (PW2), SP Elizabeth (PW19) and others later at 10:35 hrs.
[2009] The Seychelles Law Reports 166 ______
Sub-Inspector James Tirant (PW3) is a crime scene expert attached to the Scientific Support and Crimes Record Unit. On 1 November 2007 he attended the scene in question upon receiving instructions from his superior Mr Elizabeth. He took photographs of the body of Ms Mary-Anne Hodoul, the entire house and surroundings and part of the beach located about 100 metres away from the house and across the main road. After developing and printing the negatives thereof by Henry Jean Louis (PW 1) the said photographs were mounted in an album. At the beach he also recovered a number of items including pieces of black and red gunny-line, an empty cigarette box (PE6), an empty packet of strawberry flavoured biscuit (PE18) from which Garry Payet‘s finger prints were lifted (PE19 to 21 and PE24). Sub-Inspector Tirant and Inspector Reginald Elizabeth (PW19) opined that finger-prints on the biscuit‘s packet could be erased if it got in touch with water. From the house he recovered a broken piece of surgical glove (PE3), a piece of nylon string (PE5), from the bathroom a broken necklace and button (PE4) among others. He also removed a piece of white towel from the hands of the deceased. Despite dusting most of the conspicuous areas in the house no useful finger-prints were lifted from the scene. On 5 November at 10:30 hrs, the witness proceeded to the mortuary at Mont Fleuri where he collected from the body of the deceased a white bra (PE13), a brown pair of shoes (PE9), grey coloured pair of shorts (PE16) and two grey strings (PE12) which had been cut from the said shorts and used to tie the wrists together and the feet.
Inspector Gracia Bethew (PW 6),(PW 29),(PW 21),(PW 3), as well as Dr Brewer (PW 2) described the inside of the house as one that had been ransacked. That things had been thrown about in the bedrooms, clothes scattered on the beds and all over the wooden floor. Mary Anne Hodoul, aged 64, was lying down in a concrete bathtub. Apart from the hands and the legs being tied tightly together with black ropes and grey strings there were also white towels around the neck and [2009] The Seychelles Law Reports 167 ______covering the lower face. There were bruises on the left side of the body and defence wounds on the arms. See photographs No. 2 to 6. This evidence was also corroborated by Maryvonne Burke (PW 14) and Superintendent Reginald Elizabeth (PW 19). Police officer, Freddy Malbrook (PW 10) guarded the scene until the body was taken away to the mortuary.
Dr Rubel Brewer (PW2) is a pathologist of 37 years standing. On 1 November 2007 at 3:00 pm while on duty he was called to visit an alleged crime scene at Anse à la Mouche at the home of one Mary-Anne Hodoul. He went there with one Dr Xiang Lei also attached to Victoria Hospital. He observed the scene, the position of the body, touched it for death signs and presumed the victim dead. He then asked the police to transfer the body to the Victoria Hospital Mortuary. The body was still dressed and according to the oral temperature taken at the scene, the doctor opined that the victim had been dead for approximately ten to twelve hours, although he later stated that such temperature was not conclusive of actual time of death. On 5 November the body was removed from the refrigerator and a post mortem was performed by Doctor Xiang Lei in the presence of the mortuary attendant Mr Rabat and Detective Emile, and under the supervision of Dr Brewer. In his detailed post mortem report (PE 1) dated 5 November Dr Xiang Lei listed the following visible marks on the body as evidence of violence : (1) One abrasion on the back of the left thumb, 7 x 1 cm in size; (2) Some small abrasions on the region of left tibia; (3) One abrasion on the region of right tibia, 8 cm long; (4) One contusion on the right knee, 10 x 7 cm in size; (5) Hematoma of right eye; (6) Cyanosis found on the nails of both hands. The internal examination revealed sub-scalpular hematoma on the top of the skull, 17 x 14 cm and transverse fractures found on the middle cerebral fossa of basal skull. On the brain subdural hematoma was found, on the region of parietal and occipital bones and bilateral contusion and edema was also present. The examination of [2009] The Seychelles Law Reports 168 ______the lungs revealed bilateral terminal pulmonary edema and congestion. There was also bleeding from the nose. The doctor concluded that the cause of death was (a) head injury; (b) multiple fractures of basal skull and subdural hematoma and (c) concomitant asphyxia due to smothering and strangulation. The head injury was the predominant cause of death in this case, while the others were facilitating causes. To arrive at this conclusion the doctor had first removed the skin above the skull and brain, opened the chest cavity and the abdominal cavity to expose all the organs, and removed the skull and brain. The heart, lungs, liver, spleen, and intestines had also been removed and examined one by one.
Dr Brewer stated that the brain is a very vital organ of the body. He also opined that the injuries on the head were caused with force. It was Dr Brewer‘s evidence that smothering is a type of suffocation where the mouth and the nose is covered by an object maybe a towel, cloth or something else which stops air from entering the nose and the mouth, and further, that the victim herein was dealing with both smothering and strangulation at the same time. That strangulation mounts pressure on the neck which will close the airways and stop the air from going into the brain thereby bringing about an embarrassment of the respiratory system as well as the circulatory system. This is asphyxia which causes death.
Dr Brewer observed that it was unlikely that the injuries on the head were by a fall on the floor by the victim. But, that a person whose head is hit repeatedly against a wall or on the floor could sustain a cracked skull.
Again on 8 November 2007 at 1:15 pm Sub-Inspector Tirant proceeded to Anse Aux Pins at the Chetty Flats with Assistant Superintendant Leon, Inspector Jerris Dogley (PW24) and another man named William. Mr William led this group to a hill overlooking the Chetty Flats and in the bushes showed the [2009] The Seychelles Law Reports 169 ______team a location in between some rocks where a small brown and yellowish jewel bag (PE17) was recovered and photographed by ASP Leon. The bag contained two gold chains, one gold necklace, two notes of 50 Kenya shillings and two notes of 100 Kenya shillings.
(PW4) Patsy Figaro was on sentry at the mortuary on 2 November 2007 from 11:50 hrs to 23:25 hrs, having taken over from Police Officer Sidonie. She handed over the body to PC Victor. On 5 November 2007, WPC Patsy returned to the mortuary taking over from WPC Nicette. On that day at 10:35 hrs SP Elizabeth, ASP Leon and SI Tirant and Lance Corporal Omblime came to the mortuary to examine and photograph the body of Mary-Anne Hodoul in presence of WPC Patsy. They left and returned at 13:35 hrs this time in the company of Inspector Songoire and Police Officer Fred to attend the post mortem examination. I am satisfied that there was no interference with the body during that time.
Pursuant to information furnished by Garry Payet to Superintendant Philip Cecile (PW5) on 2 November 2007 while at the CID Headquarters, the said Superintendant together with other police officers accompanied Garry Payet to Caryole Estate, Anse Aux Pins where he (Garry Payet), reaching a banana plantation close to where he was residing at the time removed from under a heap of rubbish and handed over to Superintendant Cecile a black pouch (PE22) containing an assortment of jewellery. ASP Leon photographed it before it was handed over to Inspector Justin Dogley.
Inspector Francoise Freminot (PW7) recorded a statement from Cyril Lau Tee who also handed over 100 Euro (PE 23) to him on 9 November 2007. The said Cyril Lau Tee (PW 18) is the manager of ‗Izup‘ bar and on 31 October 2007, he was serving behind the counter when two gentlemen, one dark- skinned and another of light complexion, came in at 11:30 pm. [2009] The Seychelles Law Reports 170 ______
He identified both men as being the accused in the dock. The dark one, Kilindo purchased beers and cigarettes worth 50 Euro. He later made another purchase of similar amount. Cyril however refused to buy foreign currency from the two accused even when Kilindo called Garry and the later pulled out of his trouser a plastic bag containing Euros. He also stated that the two men were the last people to leave his bar at about 5:30 am on 1 November 2007. While at this bar Garry Payet also interacted with one Jean Dogley (PW 12) with whom they used to live in the same district.
Cecile Hodoul (PW 8) was a sister to the deceased. She identified some of the jewellery in the yellowish pouch (PE 17) which had been brought to her by the police as being that of her sister. She further testified that some of that jewellery she had personally given to her sister, while some she used to see her wearing it. Cecile Hodoul also identified some of the jewellery which was in the black pouch (PE 22). Similarly one Nonna Papadakis (PW9) a teacher by profession and a friend to the deceased testified that she had been staying with Mary- Anne Hodoul for two weeks before the incident occurred. That on the night of 31 October 2007, Nonna had gone to attend some activity in Victoria leaving behind some of her belongings in her bedroom including an assortment of diamond and gold jewellery spread on the table and in the wardrobe. After the activity she spent the rest of the night with the deceased‘s mother at Mont Fleuri. Nonna too was called by the police and she identified some of the jewellery in the black pouch (PW 22) as being hers.
David Lai Moy (PW 11) is a marine engineer and stated that on 31 October 2007, at about 11:00 pm he gave a lift in his pickup truck to two men whom he later identified in Court as the two accused persons. He was returning from Baie Lazare after conveying one of his workers when he was stopped by the two men at the Baie lazare and Les Cannelles road junction. David Lai Moy further testified that he had seen [2009] The Seychelles Law Reports 171 ______
Garry Payet before but never talked to him. As for Kilindo the witness said that he had known him for about two years and used to see him on tuna vessels where he worked as a stevedore although they never had long conversations apart from just saying ‗hello, how are you‘. That both accused persons sat in front with David Lai Moy and alighted at the bus terminal of Anse Aux Pins. Later Kilindo offered David a beer.
Nigel Pillay (PW 13) is a farmer and resident of Chetty Flats, Anse Aux Pins. On 1 November 2007 while in the forest cutting grass for his goats, Nigel Pillay saw Kilindo seated on a rock, smoking and counting money. That as Kilindo left the rock where he had been sitting Nigel Pillay called him back and asked him about the small yellowish bag (pouch) which he had placed and left under the rock. The witness also stated that the said pouch (PE 17) contained a necklace, two bracelets and four notes of Kenya Shillings. It is also the evidence of Nigel Pillay that later he handed over the said bag when the police came and asked for it. Mr Nigel Pillay was vigorously cross-examined by both defence counsel who also suggested to him that the said pouch of jewellery had been given to him in exchange for drugs. The Court takes the view that it is immaterial whether Kilindo had given Nigel Pillay the pouch of jewellery as a consideration for illicit drugs. What matters in this case is to establish the source of that pouch which contained jewellery that was removed from the house of the deceased.
STATEMENTS
You must consider all the evidence adduced in this case although reference has been made to the testimonies of only some witnesses who deponed during the trial. This does not however mean that the testimonies of other witnesses should not be considered or ought to be discarded. You must take into account the four statements given by the two accused persons which I shall now reproduce [2009] The Seychelles Law Reports 172 ______
The statement by Jean-Paul Kilindo (PE25):
STARTED AT 13:18 HRS
I am living alone at Anse Aux Pins, I know one Garry whom I do not know his surname and Garry is also living at Anse Aux Pins, Caryole Estate and he works with Beautification (lanbelir). I have known Garry during this year 2007, and he sometimes bring me to his place and I have even slept at his place. I recall one day while I was at Garry‘s place but I do not recall the day and date while talking Garry told me that he know a chalet at Anse à la Mouche where a lady lives alone and there is a safe over there and while he was in the prison someone gave him this plan and he informed me that Louis Hoareau who has given him this plan and therefore Garry suggested for us to plan to go there. I told him that I have never done that kind of action and Garry told me that I have nothing to worry about. Since that day, Garry has told that to me, then I tend to avoid him, since I was not in favour of his plan. On Monday the 29th day of October 2007, I met Garry at the Anse Aux Pins school in the afternoon but I do not recall the time, and Garry repeated the same topics to me and told me that tonight we shall go and do a check at the said place at Anse à la Mouche. Therefore, in the evening at around 5:30 p.m., we left Anse Aux Pins in an SPTC bus Baie Lazare via Les Cannelles and we alighted at the Anse à la Mouche junction. We then walked on the main road towards Baie Lazare direction. Further, along the way we went towards the beach and walked until we reached opposite a house but I did not recognize the colour of the [2009] The Seychelles Law Reports 173 ______
house and Garry informed me that it is the same house that we have to conduct the said mission inside. We sat on a wall and smoked a cigarette and at that time, the lights were on in the said house. We sat there on the wall and observed for a quite long time and I then saw a white car came towards the said house, coming from Baie Lazare direction. The car went to the house but nobody alighted from it. It only turned and proceeded to another upper lane where Garry informed me that there are chalets. When the white car came Garry also informed me that this was the owner of the place. We continued to stay there on the wall, and the said car then returned down to the house and I saw a lady of fair complexion alight from the car and entered the house. At the same time Garry was explaining to me how the house is inside and it seems that Garry knew this house very well. After some time that the lady has entered the house the light was switched off, and there Garry told me that we are going to see Louis Hoareau who has given him the plan and Garry told me that Louis lived just a bit further up the road. I followed Garry and he went to a house with some steps leading to it and at that house we went to the kitchen which had some nets and it looks like a fisherman lives there, Garry told me to wait for him, that he would go round the house to call Louis Hoareau, then he came back and told me that he has not seen anyone. We remained at that house then we went to sleep under the verandah of the house which Garry told me, Louis Hoareau live in. In the early morning at around 5:30 a.m. Garry woke me and told me that we have to go, so we went and took a bus to Anse Aux Pins. On the same day in the [2009] The Seychelles Law Reports 174 ______
afternoon, I met Garry again and there we made a plan to make the mission on Wednesday night, and Garry told me that we must go on Wednesday. So, on Wednesday the 31st day of October 2007, at around 6:30 p.m. when I was sitting down at Anse Aux Pins school, Garry came and we talked and at that time Garry had a black back pack with him and Garry told me that we have to make the mission today, so I agreed to go with him. We went to the bus stop to take a bus. Garry even gave SR5.00 and I only had SR1.00 with me I asked him how we will go back after that, he told me that one of his friend will come to fetch us later but he did not told me whom. We took a bus to Baie Lazare via Les Cannelles, we did not sit next to each other, we took the bus at around 7:30 p.m., we disembarked at Anse à la Mouche farm, and at that time, it was already dark. We walked for a while on the main road and we were close to that house. We went to the beach and on the beach, we saw a few people fishing but they did not notice us. We went on the wall next to the beach where we were on Monday. We saw the house, but there were no lights and also the white car was not there, we remained there for a while until the people who were fishing left, and there Garry opened the bag that was with him and gave me a pair of gloves, similar to what they use in hospitals and he also wears one. Garry also put a tracksuit on him but the upper part was already on him and he also gave me a tracksuit but only the bottom part and I wore it. In the bag, Garry had a screwdriver, a pincer and tong and two kitchen knives. Garry told me to wait there at the wall, he will go and check the house before, and he went. I did not wait for [2009] The Seychelles Law Reports 175 ______
Garry to come back; I also crossed the road and went to the house, upon arriving at the house I did not see Garry right away, I went to the garage where the lady parked her car on Monday and there Garry called me, so I went towards his direction. At that time, we were already wearing gloves. Garry told me to wait at the garage to see if anybody comes to signal him, he went round the house to check the windows but they were all locked. He came and told me that everywhere is locked. So we went to the back of the house, I watched out at the step if nobody is coming and Garry went to break a window at the side of the house facing Baie Lazare, and the window separated in two, and there we went inside and started to search everywhere. I had matches with me I saw a piece of candle inside and I light it for us to have some light. I told Garry that there could not be a safe in a place like this but Garry told me that we should keep searching. While we were searching I saw Garry taking things from the house and putting them in his jacket pocket, and I had not taken anything yet. Garry told me that I should stand in a corner if I was scared and checked if anyone comes, so I went next to the front door to check and at that time I was also using my match sticks that were with me to light and they had almost finished. Garry kept on searching and took things from the house and then he come back and told me that the candle has run out, so I told him that we should leave, but he told me no, we have to see the safe first to get the money. I told him that I was leaving and I was really getting ready to live, when I saw the lights of a vehicle coming and Garry told me that the lady is coming and we came to the front [2009] The Seychelles Law Reports 176 ______
door. The lady disembarked from the car, she went to the back of the house and came inside. As soon as the lady entered the house she switched on the lights. Garry told me to remain quiet, Garry was in front of me, he told me to watch all her movements. The Garry told me that the lady has gone to the toilet, he will watch when she came out of the toilet and he will hold her for me to tie her. When the lady came out of the toilet Garry approached her from behind and held her in the neck, and then he told me to tie her. I asked him for ropes and Garry told me that there are some in his bag, remove them and at the same time the lady was calling a man‘s name but I do not recalled which name. The lady was wearing a long pale green trouser. I saw some ropes with the trouser, so I pulled the ropes but it did not came out. I had to cut them with the knife that was with Garry and I tied both her legs and her hands. I tied her at the bathroom. When I had tied her, Garry took a sock and out it in the lady‘s mouth to prevent her from screaming and we left her on the floor and Garry kept on searching but we did not see any safe in the house. I do not know if Garry took anything else from the house. The lady kept on screaming and I told Garry that we should leave and at that time I was at the front door watching. Garry told me to bring some more ropes. I saw white gunny-line in a room, I pulled it, to where Garry was next to the lady, and we tied her some more, both legs, and hands, Garry took a towel and tied it on her mouth. The lady struggled with us, I did not hit her but there is a possibility that she has hit her head on the floor, when she was struggling. I then went to search in the rooms and I left Garry with the lady for a while. I did not [2009] The Seychelles Law Reports 177 ______
have sex with the lady and I do not know if Garry had sex with her. When we arrived at Anse Aux Pins later Garry told me that he wanted to have sex with that lady. I also wish to state that when we were inside that lady‘s house we wore t-shirt on our faces and I got a t-shirt inside the lady‘s house. Garry also took the bag that was with the lady, and there were money and a mobile phone inside. Then we broke two wardrobes and there were foreign currencies inside and we took all and there I told Garry that we should go. I also told him that we should release the lady but he did not want to, so we went out to leave, when we left, the lady was still breathing. Garry also told me that his glove was torn when we held the lady in her neck and he had to use a sock to put in his hand. My glove was torn only when we were leaving. The t-shirt that I used to cover my face with, I took it and put in the toilet bowl when I was leaving. Upon leaving the house, we walked until to Anse à la Mouche junction and there we hitched a ride in a pick-up to Anse Aux Pins. Upon arriving at Anse Aux Pins we counted the Seychelles currencies that we took from the lady‘s bag and altogether there were SR585.00. We went 122-Up bar where we had some drinks but we did not consume in the bar, we bought our drinks and we went to drink at the ―zanblon tree‖ next to the clinic. The same night I went to sleep at Garry‘s place and when we left Garry‘s place the following morning, Garry gave me R 500.00, and it was Thursday 1 November 2007. Garry told me to keep all the foreign currencies with him, as his wife is travelling in December and she will buy things for me. Garry also said that he would keep all the gold‘s with him. The same night on Thursday, Garry gave [2009] The Seychelles Law Reports 178 ______
me R1,200.00. Until now, Garry has given me only R1,700.00, one mobile phone that Garry took from the lady‘s bag is a blue Nokia 3310. I also wish that on Thursday night when I met Garry he told me that the lady had passed away. The pick-up that we got a lift in is white but I do not know that driver. I regret to what has happened, as I had already made up my mind to get a job, it was Garry who influenced me to do such act, and from the bottom of my heart, I regret it.
Ended at 16:10 hrs
Garry Payet gave three statements to the police. The first one PE27 follows hereunder:
On Wednesday the 31st October 2007 I left my place at Caryole Estate and went by the roadside to call my wife Jacqueline ROSE who is actually living with her mother Jovana SIMEON at Jerusalem Estate. I was going to make the call on the public phone in front of the bus stand in front of the Anse-Aux-Pins Police Station. This was at around 18:30 to 18:45hrs. There was a problem with the call box and so I was not able to make my call. So I went to a call box at the Community Centre and I went then going via the Anse Aux Pins clinic and the crèche. After making the phone call I came back through the same route. Arriving at the old Anse Aux Pins school I met a guy whom I know as ‗Pti Paul‘ as well as ‗Papa‘. Pti Paul was sitting on the Court with some other guy whom I know by face. He called me by my name. When I reached him he asked me what‘s up and that I am not serious. (Ki deal? ou en doner grenn). Then he asked [2009] The Seychelles Law Reports 179 ______
me if I will go at that place. I told him I do not know. ‗Pti Paul opened a bag which is worn on the back and in the bag there was a machete, two pair of gloves, a black T-shirt and something which I did not recognized. There was also a black pair of socks going towards purple. The gloves look similar to those uses in the clinic. I went with ‗Pti Paul‘ and we talk under a ‗zonblon‘ near the clinic. Pti Paul told me that he heard that the woman who had the chalets at Anse à la Mouche had a safe at her house. I answered ‗Pti Paul‘ and told him that if he knew that the woman had a safe to leave her alone and that the safe belongs to her. He sweared at me saying cunt of my mother (‗lannget mon manman‘) and told me that we have to go. I agreed to go but told him that I will wait for him on the beach. ‗Pti Paul‘ told me if the car is there it means that the woman is there but if it is not here it means she is absent from the house. He told me that we have to take the bus at 19:30hrs. I waited under the bus shelter and ‗Pti Paul‘ hides behind the office of the bus inspectors. We took the Baie-Lazare bus which went via Les Cannelles. I sat at about the 32nd seat on the left. ‗Pti Paul‘ sat nearly at the back close to the rear door as this was a long bus which had two doors. I alighted at the agricultural school at Anse à La Mouche and I use the public road but ‗Pti Paul‘ went through the beach. Arriving at the bend near the road that lead to the chalets I took a small step that lead to the beach and went on the beach. Pti Paul hid behind a Takamaka tree and I sat on the wall and smoke a cigarette. Whilst I was smoking, ‗Pti Paul‘ went to the direction of the house that faces mountain side. I have seen this house before when I was [2009] The Seychelles Law Reports 180 ______
passing by in the bus but I always believe that no one lives in that house. During such time it was dark. However, when the vehicles pass by I could see the house. I saw a small white dog charging on him and barking and then it ran to the house. After that ‗Pti Paul‘ came back and called me, I asked him what the matter is and he said it is ok let‘s go. I told him that I am not going anywhere and if he wants to do his deal he can do it alone as I do not want to get involve in Police matter as I already have two Police case. Whilst he was talking to me he was at the same time going to the house. During such time he had his machete at his waist as well as a small knife. He had tied the T-Shirt around his face as a mask and had already put on his gloves and the socks. He was wearing a flip-flop with the socks. He went towards the house but as for me I remained on the beach. I was not on the beach to watch but was there to look for an opportunity to escape. ‗Pti Paul‘ went on the right side of the house and at around ten to fifteen minutes later I heard a noise but I did not know if it was a door or window. I kept on sitting on the beach and when I look at the house I could see the lights of a torch inside. A few moments later the torch in the house got out and some minutes later I saw a white car that came to the direction of the house where ‗Pti Paul‘ were. When the car went inside the garage I saw the small dog came down and went to the owner. At this time I stood up on the beach. When the person open the car door and got out it was then that I noticed that it was a rather old lady. I recalled that the upper part of her clothes was white but I do not recall the lower part. I saw the lady close the door of her car and it appears that she use a remote to [2009] The Seychelles Law Reports 181 ______
lock her car because I heard the beeping of the signal. The woman went at the corner of the garage and behind the house. I do not know how she opens her house at the back of her house whether she uses the key or not. I saw the light of a tube light and that of a globe alighted. I do not know what the woman did once inside and I do not know where ‗Pti Paul‘ was during that time but he was in the house. I just overheard the cried of the voice of a woman and she was mentioning the name of a man as if asking for help. I got out from where I was and ran until the junction road at Anse à la Mouche. I went through the beach. At around twenty to thirty minutes later I got a lift in a pick-up with a man. I do not know this man and he was alone and I sat at the back of the pick-up. The pick-up came from Anse Boileau direction and the driver appears to be young. He told me that he was going to town to collect his relatives. I alighted at Anse Aux Pins near the telephone cab in front of the Police station. I sat on the cab near the clinic and thought to myself. It was at around 23:30hrs, there were some people on the road as well as in the bar in front of the Police Station. I remain sitting there for a long time. At a certain time in the lights of the vehicles I saw ‗Pti Paul coming along from the bridge, so I got out from where I was sitting and sat under the bus shelter under the light. He came in my direction and asks me to come. We went to the ‗zonblon‘ tree near the clinic. ‗Pti Paul‘ at that time was wearing a black or brown trouser and it was a long one but it was folded upwards. He was barefoot and he was wearing a white T-Shirt with sleeves that reached until his elbow which is partly blue on both handle. This was not the [2009] The Seychelles Law Reports 182 ______
clothes that were on him earlier. He asked me if I want a Guinness and I answered yes. He went away and when he came back he came with three beers, three Guinness and a box of Mahe King cigarette. The bag was still on his back but appears to be empty. He uncorked a Guinness for me and a beer for him. During such time I was sitting on a block facing the public road but as for ‗Pti Paul‘ he had his back turned away from the road. As we were drinking he was telling me that if he attacked the woman outside, he would not have got the money. He said the woman is very strong and strong in the wrist. I asked him what he had done with the woman. He answered and said that he got hold of the woman while she was urinating, he got hold of hair by the neck and cut the rope of her pants and tied her with and there was rope with him that he had tied the woman with. He also told me that he cut a towel and tied the woman on the face for her not to shout. After he had done his mission he came back and looks at the woman and felt her chest and her heart but they were not moving and he believes that the woman had passed away. So I said ―Pti Paul, you killed the woman!‖ We drunk the drinks that he brought whilst we were talking and there was a Guinness left. ‗Pti Paul‘ told me let‘s go and drink at the bar. I took the Guinness and went with it at the bar. I exchange it for a cold one. Whilst I was in the bar ‗Pti Paul‘ called me and told me to go to the toilet and that he will show me something. Whilst we were in the toilet he put his hand in his trouser and removes a white plastic bag. In the bag there was foreign exchange which comprises of Euros. ‗Pti Paul‘ removed two Euro Notes and went with it. I [2009] The Seychelles Law Reports 183 ______
remain in the shop and urinate and soon after ‗Pti Paul‘ came back in the toilet and there were a lot of hundred rupee notes in Seychelles rupees in his hand. He told me lets go to the bar. I told him that I am not drinking again but I told him to buy a Guinness for me. He bought a Guinness for me and also bought strong liquor for him because it was in a glass. He also placed two coins of Rs5/- on the billiard table and told me that one is for him and one for me. He played first and when I ended my turn I drunk the rest of the Guinness and without saying anything to him I left. When I left the bar he was still drinking with a few people male as well as female. There was one Dogley who is the brother of Francis and Jerris Dogley who resides at Montagne Posee. I do not know any of those women. I would like to say that this is the first time I entered such bar. I went home by foot. Something which I noticed when I was in the toilet was that in the pocket of ‗Pti Paul‘ there was a small black bag with a black rope. This was in his right back pocket. In his left back pocket there was also something but I do not know what it was. I believe I reached home at around 5:00hrs. I had a steam but I was not drunk. I slept and woke up at around ten to eleven in the morning. I clean the house and then went back to bed. On Thursday the 1st November I did not get out of the house. On Friday the 2nd November I went to work until close to noon. I went and met my wife at the school but I went to Maryanne to buy takeaway. From there I took a car driven by a guy by the surname of PAYET. I pick up my wife at the school and we went to the house. I noticed that the windows were open and two can of tuna file [2009] The Seychelles Law Reports 184 ______
were also open which appears that someone had come at my place. Jacqueline remains at the house until about 17:00hrs. Later on her mother came to collect her in a car and when she left I was on the bed. . After that I went to sleep until Saturday morning. On Saturday the 3rd November I woke up at around 8:00hrs. I have a shower and then I went to meet Jacqueline at Anse Royale. Arriving half way I felt in my pocket and the mobile phone was not there so I got back to the house and entered through the kitchen door. I took my mobile in the kitchen and left. I did not leave the door open and I was not aware if there was anyone at my house. I took the public bus to go at Anse Royale and arriving at Anse Royale I called Jacqueline on my mobile phone. She told me that she is still at her place. At around 30-45 minutes later I call her again and this time she told me that she on the bus stop at Aux-Cap. When she came I was waiting for her at the hairdressing saloon where the bank was at Anse Royale. Since there were a lot of people at the hairdresser we went on the beach. We remain on the beach until at around 16:00hrs when the Police arrested me. I was on my way to get a transport for Jacqueline and I was going to take the bus. Three love bites that are under my neck, Jacqueline put two on Friday and one on Saturday. All the time we have been on the beach. I would like to add that when I was drinking with Pti Paul he said that he had been foolish and that he should have set fire to the house and burn the woman.
[2009] The Seychelles Law Reports 185 ______
This is Garry‟s second statement PE28:
Yesterday I gave an evidence to the police but not everything I said was the truth. Therefore today I decided to tell what happened. There is this man whom I know as ―Pti Paul and also Papa‖ Wednesday night on the 31st of October 2007, I came from the public phone at the Social Centre at Anse Aux Pins. When I met Pti Paul at the school, at that time there were one or two children with him, whom I know only by appearance. Pti Paul called me and said: ―Garry are we going over there?‖ I told him that I will see. At the same time, while talking we were walking. Arriving near the clinic we sat down and Pti Paul opened his bag with me. A black bag and it closes with a string. In the bag there was a big knife, a small knife, a torch and two pair of gloves. The gloves resemble those used in clinics. Then he closed his bag. Pti Paul forced me by saying that he has checked his deal and he has to go. He needs the money now as Christmas is approaching. Although I accepted to go, I did it reluctantly because it was not my idea. We took the 19:30 hrs bus at Anse Aux Pins, and this was the Baie Lazare bus via Les Cannelles. I occupied the seat on the third row on the left but Pti Paul sat at the rear near the door. We alighted at the Farmer‘s Training Centre at Anse à la Mouche. We walked on the public road until the steps that leads to the beach. I was standing at the beach while Pti Paul went to the house to see if the woman is not there. At that time it was dark. I saw Pti Paul at the house and a small white dog chased him. I was able to see this when the lights from passing vehicles lit up the place. Then Pti Paul [2009] The Seychelles Law Reports 186 ______
came back and during this time his bag was on his back. Now Pti Paul told me: ―It‘s alright there is nobody.‖ I told him that I was not going, he forced me. After that I told him: ―Let‘s go.‖ We went towards the house. We both went to the right of the house. Pti Paul pulled a door to the right of the house. The door broke and opened. Pti Paul entered first and I followed suit. In the house, Pti Paul removed his torch, put on his gloves then tied a t-shirt around his face like a mask. I took a pair of socks from the house and put in my hands, I also took a t-shirt there and put around my face. When we entered the house, there were no light at all in the house. After wearing Pti Paul started search because he had a torch. Then I got an old torch near a bed. The torch was aluminum. Now I started search. After five minutes later, I heard the sound of a transport coming in. We switched off the torches. Pti Paul ran to the verandah and pulled the curtain aside. He told that a woman is coming. He is going to get hold of her. I was hiding. The woman got in through the back door which is leading at the kitchen. When the woman got inside, she switched on the light. A globe and a tube light went on. I saw her put her bag on the table. She swallowed a pill. She then went to the toilet. When she got in the toilet, Pti Paul went to the toilet too because he was closer. I saw Pti Paul grabbed the woman by the neck lifted her and pushed her down. He pulled down her short and had sex. At that time I was standing and could see what was going on. I did not say anything. When he finished Pti Paul asked me to hold the woman for him to tie her up. Frighten, I came and hold her. Pti Paul cut the string from that woman‘s short and tied her [2009] The Seychelles Law Reports 187 ______
hands. When he finished, he cut the two other bits and tied her feet. There was a smaller knife on Pti Paul‘s waist which he took and rubbed it the woman‘s vagina. Then Pti Paul squeezed her neck and she called out the name of a man three times. I don‘t remember that name. The woman struggled with Pti Paul while he was trying to have sex with her. It was Pti Paul who put on her short again. Pti Paul gloves broke and he took a pair of socks there in the house and put it in his hands. He cut a towel and gagged her. She continued to shout but quietly. He took the other piece of the towel and tied it around her face and nose. I just saw a black piece of string in Pti Paul‘s hand and he tied her feet and hand together. This time I did not hold the woman. Then we continued our search. Pti Paul got some money in a room in an envelope near the computer. But Pti Paul returned to where the woman was, grabbed her by the neck, he removed his knife and put it under neck and asked her where is the safe. She did not answer because she was gagged. Then we continued to search again. We went in another room where there is a wardrobe which has four drawers. Pti Paul broke it with the big knife. In the fourth drawer he got an envelope and in it there were a good amount of Euro. Pti Paul put it in a plastic and in his short, we went in another room, this time we got a packet such as necklaces, earrings, fashion which I kept with me and some Pti Paul kept with him. We came out to leave and Pti Paul went to feel the woman‘s chest. Pti Paul told me that the woman‘s chest and belly is not going up and down. I told him that he has killed that woman. Pti Paul said let it be ―liki son manman in mor in fini‖. Whilst going I took the [2009] The Seychelles Law Reports 188 ______
bag which was on the table, I also took a mobile phone and a car key. Pti Paul tried to make a call on the mobile but he was not able. I went with the mobile and key. I switched off the light and we left through the same way we came in, we went to the car. I opened the car and Pti Paul remained outside with his big knife. He said: ―Fouye liki ou manman‖. I searched but I could not get anything. Whilst leaving, Pti Paul told me to take the car and leave in it. I told him no. Arriving on the main road Pti Paul told me that he should have set fire in the house. I told him not to do that. We removed all our things on the beach on the other side of the road. Then we walked along the beach until the junction at Anse à la Mouche where we came onto the public road. Around forty minutes later we got a ride in a pick-up which came from the direction of Anse Boileau. I sat near the window and Pti Paul in the middle. We alighted at Anse Aux Pins near the clinic. I was not under the influence during that time. We went to sit under a ―zanblon tree‖ near the clinic. Pti Paul asked what I drink. I told him a guiness. He left and when he returned he brought three guinesses, three beers and a box of Mahe King (cigarettes). While we were talking he told me to give him the gold and perfumes which are with me and he will put it in a parking together with his bag. I did not see where he put the things. The third guiness was still there but Pti Paul had finished his beers. He forced me to go to the bar. We went to the bar and spent a good amount of time there. Pti Paul gave me forty (40) Euro. Later he gave me SR2000 on the balcony. I wish to add that Pti Paul gave me again in all ninety (90) Euro. It was two notes (2) of twenty (20) and one note [2009] The Seychelles Law Reports 189 ______
(1) of fifty (50). Then I gave him the ninety (90) Euro to change. When he came back with it, I did not count, just put it my pocket. During that time I was wearing a black short and a black jacket with red stripes. I was wearing a black pair of boots. There was the brother of Francis and Jerris Dogley whom I gave some drinks. Around 4:00 a.m. I told Pti Paul to give me my bag and perfumes because I am leaving. He gave it to me and he returned to the bar, me I went home. There could have been 4,500/- in my possession. I went on foot until home. Arriving home I hide the small bag containing the gold among some banana trees along with a perfume. I went in and slept. Thursday the 1st November 2007, which was a public holiday I woke up around 9:30 hrs and I went to Bibi‘s shop I saw a man near the shop whom I know his face, but I do not know his name. He has a car and he does some trips (pirate). His car is red. I asked him if he can drop me to Jerusalem. He accepted. I had already bought three (3) crates of beers, two (2) crates of Seybrew and one (1) Smirnoff. In the car I lent a mobile from the driver and called my girl friend Jacqueline Rose but he told me she is still at Le Niole. So I asked the driver to drop me home at Caryol. In put the three (3) crates home then went out. I wish to make a correction that early morning Thursday 1st November 2007, when I got home, I brought the gold and perfumes into the house. After I had dropped the crates I took the small bag and also put the perfume among the banana trees. I went for a drive around. The remainder of the money with me was around 3000/-. I bought 6 packets of Mahe Kings, some beers, and 200/- for my father Philip Freminot who lives [2009] The Seychelles Law Reports 190 ______
at La Retraite. Living La Retraite I called my girl friend and that time she had arrived. I gave her the bag with the gold but she dropped it on the ground and told me she doesn‘t want police case. I left and then return to get the small bag and Jacqueline gave it to me. Then I went home at Caryol. Whilst alighting I took from my pocket some money and gave it to the driver. It could be around 17:00 hrs. I went to sleep at my place. Saturday the 3rd November 2007, I was arrested by the police, when I was at Anse Royale with my girl friend. Today Monday the 5th November 2007, I had accompanied the police to my place and showed them the bag which contained gold as well as perfumes. This I took in the woman‘s house at Anse à la Mouche. What happened was not intended neither my heart, I have been forced to do, therefore I am asking for an excuse for what had happened.
Garry Payet‟s third statement PE29 is hereby reproduced. It should be noted that this statement was neither retracted nor repudiated.
It was during the time I was remand at Long Island Prison but I don‘t remember the year I encountered a man whose name is Louis and don‘t remember his surname. Louis is a thin man Caucasian and he wears spectacles. We were talking some of us prisoners, until we reached a topic about stealing. There was a time when we were talking only Louis and me. Louis told me that he knows there is a safe at a woman‘s place at Anse à la Mouche. Louis explained where the house is situated to me but I did not understand where. He also told me that the woman lives alone and there are two small [2009] The Seychelles Law Reports 191 ______
dogs there. After that we did not talk about this subject again. Sometime later after leaving the prison and it was the first time that I met Louis again. I was at my lawyer‘s office, Mr. Tony Juliette and it was there that I met Louis again. We were talking Louis and me when he asked me if I had gone there. ‗I told him that he was asking me if I had gone to the woman‘s house at Anse à la Mouche.‘ I told him that I had not made up my mind if I will go or not. Before separating Louis gave his phone number but I‘ve never call him. Twice I‘ve been to Louis‘ residence at Anse Poule Bleus but never met him. Sometime later, I met a man whom I know as Pti Paul. It was during the month of October, but I don‘t remember the date, it was coming to the end of the month, I met Pti Paul. As I had some money, I invited Pti Paul for a drink at my place. Truly he accepted and came. After we had taken some drinks, Pti Paul was drunk, therefore I told him to stay and sleep. And this was the first time that he slept at my place. During that time my girl friend Jacqueline Rose has moved with her mother because we‘ve had a problem. On Monday the 29th October 2007, I met Pti Paul at Anse Aux Pins School and told him: ―Let‘s go to Anse à la Mouche at that house‖ to see how the place is. Pti Paul accepted. Later around 18:00 hrs to 18:30 hrs, we took the public bus and we went to Anse à la Mouche. I know the bus driver as Joseph. We alighted at the Farmers Training Centre, then we came to the beach opposite to the house. Our aim to come here was to see how the house is. We spent about half an hour on observation. After that we slept a bit on the beach. Upon getting up, I told Pti Paul let‘s go and sleep at [2009] The Seychelles Law Reports 192 ______
Louis‘ place. We slept under the verandah at Louis‘ house, but I don‘t know if he was there. There isn‘t any moment that I called Louis or knocked on his door. There were no light also. We got up at around half past five in the morning and returned to Anse Aux Pins in the public bus. Today Tuesday the 6th November 2007, I accompanied the police to my girl friend Jacqueline Rose at Jerusalem and I told her to return all the money, local and foreign which I have given her to the police. After that I brought the police to Anse à la Mouche and show them where we had hidden the tools. It was under some dry leaves near a bridge. The tools include knives, which were with Pti Paul; there was also an axe, a plier and a small cutter, which I took from the house. There was also a screw driver which I came with from home. Among the tools there were trousers, and a black t-shirt which belong to Pti Paul. There was a bottom tracksuit for me and a pair of socks for Pti Paul. The telephone I gave it to my girl friend to see if its work. After that my girl friend informed me that she threw away the phone because if doesn‘t work. I wish to add that when talking to Louis at Tony Juliette‘s office, Louis told me if I got a good amount of money, not to forget him bring something for him.
DEFENCE
Ladies and gentlemen of the jury that was the prosecution‘s case. Now I will summarize for you the evidence constituting the accused‘s case.
As for the defence case the accused opted each to make a statement from the dock and as the law requires, they were [2009] The Seychelles Law Reports 193 ______not cross-examined. To their aid, Garry Payet called two witnesses while Kilindo called one witness. Garry Payet briefly stated that he was arrested at Anse Royale on 3 November 2007, by PC Raymond Dubel (PW23) and seven other officers. He further states that on his arrest nothing was said to him, not even his constitutional rights being read out to him. That upon reaching the police station he was oppressed, though not beaten, and thereby induced to give a statement involuntarily which he now states was false. Further, that despite informing the police that he would only talk in the presence of his lawyer the police never heeded. It was his evidence that he even later saw the boy who was being beaten dragged outside. That he had been threatened into giving a statement (confession) failing which would result into being beaten like the boy who was screaming in the next room.
Members of the jury, you heard this evidence and also observed the demeanour of Garry Payet. You listened to the evidence of the police officers who arrested him as well as that of Inspector Francois and Inspector Jerris Dogley who took down his statements which were also read out to you. Now you are in a better position to tell whether those confessions were induced by threats or not and whether Garry Payet was telling lies in the statements. While doing this do not lose sight of the entire picture of the independent evidence by other witnesses. Inspector Francois had told the Court that Garry is a liar. Like I have said, nothing stops you from accepting his part of the statement which you think is correct and reject what you believe to be false.
As for JP Kilindo, he stated that he is 36 years old and with a 9 year old daughter. That on 5 November 2007 at around 8.30 am a group of police officers came to his home at the Chetty Flats and without informing him anything took him away to the Central Police Station. That his constitutional rights were not read to him. That while at the police station [2009] The Seychelles Law Reports 194 ______
Police Officer Jullienne slapped him on the face. That he also came in with a polythene pipe about a metre and a half long which he used to hit Kilindo. He felt a lot of pain especially at the place on the abdomen where he had been operated on. His hands were placed behind the chair he was sitting on before being handcuffed. In short, Kilindo states that the confessional statement was only induced out of him and not given voluntarily. In addition, before giving the statement the police officer opened the door for him to see a boy that was being beaten and promised to treat him the same way in case he did not co-operate and write a statement.
Ladies and gentlemen of the jury this testimony should be subjected to the same test as that of Mr Garry Payet above. Alex Moses (DW3) basically came to inform the Court that he had been beaten by police officers while in custody at the Central Police Station. His evidence could not be of much help to us as he did not tell exactly when the beatings occurred. Similarly the evidence of Denis Marie (DW4) would only be useful if indeed, you find that he had been assaulted by the police, the beating took place before, at or during the writing of the statement. You must not also forget the Court proceedings (DE2) of 9 November 2007 where Quilindo informed the Court that Denis Marie had been beaten. This I will also leave to the members of the jury to examine and decide whether the witnesses were credible and telling the truth. It is also your task to establish the probative value of the entire defence case as judges of facts. You must also note that most of the defence case was generally about the police; the manner in which it conducts its business, treat suspects in their custody and obtains statements. Contrary to the prayer by the defence counsel the prosecution has urged you to find the defence witnesses untruthful and unreliable and therefore reject their evidence.
[2009] The Seychelles Law Reports 195 ______
CORROBORATION BY INDEPENDENT EVIDENCE
Now ladies and gentlemen of the jury, you will remember that whenever a statement is retracted but admitted in evidence (as above), before you use it to convict the accused persons it must be corroborated in material particulars. In other words, it must be evidence by independent witnesses or sources which implicates the accused, confirming in some material particulars (and not in all particulars) not only the evidence that the crime has been committed but also that the accused committed it. For instance, when Kilindo states that ―Payet tied the woman‘s hands with a rope‖ that is not independent evidence that can offer corroboration. I must warn you to take extra caution while acting on these confessions since the defence has alleged impropriety during the recording of the statements by the police.
However, through the evidence of Inspector James Tirant and Superintendant Reginald Elizabeth, Garry Payet was placed at the beach opposite the house in question when his finger- prints were picked off an empty packet of biscuits. If you believe their testimonies, ladies and gentlemen of the jury, they would corroborate that part of Payet‘s first testimony (PE27) where he stated that ―arriving at the bend near the road that leads to the chalets I descended….and went on the beach‖. He again confirms this in his confession (PE29).
The retrieving of a bag (PE 26 A) from the bushes along the beach, not far from the house in question, where nobody knew it had been hidden or buried under the sand and dry leaves except Payet who led the police to the scene, may be corroborative evidence if you accept as true the testimony of Assistant Sup Ivy Leon (PW 26).
That bag did not only contain house-breaking implements, blue jeans, a black tracksuit bottom and a black cap which the accused himself refers to in his statement (PE27, 28 and 29) [2009] The Seychelles Law Reports 196 ______but also, and most importantly, a small axe which was positively identified to the police and in Court by Mrs Veronique Libanotis (PW28) as belonging to the deceased. You will now have to ask yourselves how the axe came to be in Payet‘s bag yet Mrs Libanotis had in the afternoon of 31 October 2007 placed it in the kitchen and locked the house. None of the accused persons claims ownership of the axe. Further, in his statement (PE29) which is neither retracted nor repudiated, the accused admits to having taken the axe from the house.
The jury will also be required to make a determination on whether the pieces of surgical gloves picked from the house by Inspector Tirant and Superintendant Elizabeth form part of those referred to by the accused persons in their confessions (PE 27, 28 and 25). Kilindo stated ―my glove was torn only when we were leaving‖.
You now know from the evidence of Inspector Cecile, Inspector Leon, and Inspector Jerris Dogley that Garry Payet led a police team to a banana garden near his home at Anse Aux Pins, Caryol Estate and from underneath a heap of rubbish removed a small black bag (PE 22) containing an assortment of jewellery which he stated had taken from the woman‘s house at Anse à La Mouche. You also remember that one Jacqueline Rose (PW 16), Payet‘s ex-girlfriend had identified the black bag and its contents which fell out of Payet‘s pocket on 1 November 2007. By that time Terry Laporte (PW 17) was present and though stationed a distance away clearly saw and identified that black bag. Nigel Pillay (PW13) handed over the yellowish bag (PE 17) containing jewellery to the police. What matters to this case is the fact that Kilindo came with the said bag to Anse Aux Pins and gave it to Nigel Pillay. It is immaterial whether Kilindo was giving it to him in exchange for drugs, as suggested during cross-examination. All this evidence corroborates Garry Payet‘s statements and that of Kilindo in a number of aspects. [2009] The Seychelles Law Reports 197 ______
Members of the jury, in case you believe all the above independent witnesses and their testimonies then you should ask yourselves the following questions. Where did Garry Payet and Kilindo get the black and yellowish small bags respectively? If in the woman‘s house as they both confess who gave them permission to enter the house?
Nobody, not even the police, had any idea of the said bags being under the rubbish and in the possession of Nigel Pillay respectively. The two accused have not claimed ownership of the bags nor their contents. Could the reason be found in the fact that Ms Cecile Hodoul (PW8) and sister to the deceased had not only donated some of that jewellery to the deceased but also positively identified it as belonging to her said sister. Further, Nonna Papadakis (PW9) stated that all the items in PE 22 belonging to her had been left on 31 October 2007 in the wardrobe and some on the table in the bedroom where she was staying. Who removed it from the house?
Only you members of the jury will have to answer those questions from the evidence on record and then decide whether the above pieces of evidence provide corroboration to the statements of first, Kilindo (PE 25) and second, Payet (PE 27 and 28) in some material particulars.
Ladies and gentlemen of the jury, we have evidence right before us adduced by Andrew Michel Joseph (PW25) who was an SPTC bus driver in 2007 and knows Garry Payet very well. On either 28 or 29 October 2007, at 18:55 hrs Garry Payet and about four to five other people had boarded the bus at Anse Aux Pins which was on its way to Baie Lazare via Les Canelles and disembarked at Anse à la Mouche. On 31 October 2007, Garry Payet among other people boarded the same bus being driven by the same driver at the same place and time and disembarked at Anse à la Mouche. It should be noted that from the blue jeans trouser pocket, one of the items recovered from the beach (PE 26 A) a bus pass/ticket dated [2009] The Seychelles Law Reports 198 ______
31 October 2007, 18:57 hrs for the journey Anse Aux Pins to Anse Gaulette, Baie Lazare was retrieved. Additionally, David Lai Moy (PW11) a Marine Engineer stated that on the night of 31 October 2007, at about 11:00 pm while returning from Baie Lazare via Les Cannelles road gave a lift to both accused, whom he sat with in the cabin of the pick-up truck and later positively identified in the dock, from the Anse à la Mouche road junction to Anse Aux Pins at the bus terminal. Jean Mark Dogley (PW12) arrived at the ‗Izup‘ bar, Anse Aux Pins on 31 October 2007, at about 11.00 pm. He interacted with Garry Payet at that place and also received a drink from him. Cyril Laporte (PW18) is the manager of ‗Izup‘ bar and on the same day at about 11:30 pm he was behind the counter when two gentlemen, whom he described and later identified as being the accused, came into the bar. The dark-skinned man purchased beers and cigarettes worth 50 Euros and later more purchases for another 50 Euros (PE23). That at one point in time he called the other man, of a fair complexion, who obliged and pulled out of his trouser and showed to Cyril Laporte a plastic bag containing Euros.
Members of the jury, this is very important evidence bringing out a link between the two accused persons. If you believe that these witnesses were speaking the truth then you will see that their evidence corroborates the statements of both accused in numerous material particulars. For instance, each accused talks of getting a lift at about 11:00 pm from Anse à la Mouche junction and disembarking at Anse Aux Pins around same time, 11:30 pm, and going into the ‗Izup‘ bar to buy drinks and also change the foreign currency. This driver places them together. Again they entered the bar together. What a coincidence! Members of the jury do not forget that it was at the instructions of Kilindo that Garry Payet came to pull out the money (Euros) to show to Laporte. I have not even the slightest doubt that the two accused persons were all the time not only acting together but also with a common intention and for a common purpose. [2009] The Seychelles Law Reports 199 ______
On the same subject, the author, J. P Bishop on Criminal Law, Vol 1 (3rd Ed) 439 wrote:
When two or more persons unite to accomplish a criminal object, whether through the physical volition of one, or of all, proceeding severally or collectively, each individual whose will contributed to the wrong doing is in law responsible for the whole, in the same way as though performed by himself alone.
You may have noticed by now that all through their addresses both defence counsel have not said anything regarding section 23 (supra). There is however ample evidence to establish common intention. But this is for you to finally determine as judges of facts. In addition, given the above circumstances, timing and evidence not only connecting both accused to the house in question but also placing them inside the house at the material time, and considering the manner in which the deceased was tied with ropes and strings, see photographs No. 2 to 6 (PE27), it is my considered view that this was not the work of one person but some concerted effort, and Kilindo and Payet must have been the people in that house on that fateful night. Garry has further admitted to this fact in his unretracted statement (PE29) which also shows the pre-planning and subsequent execution of the mission. Moreover, Kilindo in no uncertain terms confessed to tying the woman‘s hands. The possibility of any other person having entered that house on that night especially at the material time has been excluded. My opinion is not binding on the jury; you are entitled to form yours on these pieces of evidence unless you agree with me.
CIRCUMSTANTIAL EVIDENCE
You will recall that there is no direct evidence for instance an eyewitness placing any or both of the accused persons in the [2009] The Seychelles Law Reports 200 ______house in question. Nobody saw them commit the alleged offence of murder. However there are confessions some of which have been retracted. In such circumstances the law allows and provides for circumstantial or indirect evidence to be considered. I must however warn you that prosecution has relied upon some circumstantial evidence, which can be powerful, but you should examine it narrowly and with care to be sure that it is reliable because such evidence can easily be manufactured to cast suspicion on another.
What then is circumstantial evidence? Both prosecution and defence counsel have already addressed you on this subject. It is now my turn to offer more guidance on this very crucial part of the case. Circumstantial evidence is indirect evidence that tends to establish a conclusion of inference. It is evidence of circumstances surrounding an event or offence from which the fact in issue may be inferred.
It has been said that circumstantial evidence has to be considered as a chain and each piece of evidence is a link in the chain. But that is not so, for, if any one link broke the chain would fall. Circumstantial evidence is more like the case of a rope comprising several strands or cords. One strand of the rope might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength. Thus it may be in circumstantial evidence – there may be a combination of circumstances, no one of which would raise a reasonable conviction or more than mere suspicion. But the whole taken together may create a conclusion of guilt with as much certainty as human affairs can require or admit of. See Teper v R [1952] AC 480.
But you must also note that where a case depends exclusively on circumstantial evidence, it is necessary for the judge to direct the members of the jury, expressly, which I hereby do, that you must find, before returning a guilty verdict (and therefore before a conviction being entered), that the [2009] The Seychelles Law Reports 201 ______inculpatory facts where incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. The prosecution has to exclude any alternative possibility that might point to the innocence of the accused. Further, before drawing the inference of guilt from circumstantial evidence, the jury must also be sure that there were no other circumstances weakening or destroying the inference of guilt.
You have heard a lot of criticism of this type of evidence by the defence counsel urging you even to reject it totally. Citing the likely dangers in relying on circumstantial evidence, Mr Elizabeth related to you a number of illustrations, one of them about a man dressing and talking strangely to people whereupon he is mistaken for a homosexual. The other was about an unemployed woman who dresses well and keeps in the company of different men so much so that the people around her think she is a prostitute. Then there was the example of Ti Jean who when milking his cow had to strap the cow‘s legs and tail and eventually Ti Jean‘s wife filed for divorce because she thought that Ti Jean was going to commit the offence of buggery (anal intercourse with an animal) with the cow.
Members of the jury I must tell you that in all his examples there is one thing that was missing and which is not missing in the case before you. In Mr Elizabeth‘s examples we do not have the version of the accused, Ti Jean. Ladies and gentlemen of the jury the circumstances surrounding the death of Mary-Anne Hodoul have now been made very clear to you with the evidence adduced on record. You also have the four confessional statements of the two accused persons in addition to their testimonies made from the dock. Further, you may wish to particularly consider the following pieces of evidence: the accused visiting the vicinity of the house in question a day before the murder, being transported to the same place on the day of the murder and taking cover at the [2009] The Seychelles Law Reports 202 ______beach opposite the house, burgling the house, tying the hands and legs of the woman before ransacking and stealing various items from the house, gagging and strangling the woman and later being arrested with various items which were not only in the house of the deceased at the time of her death but also belonging to her. These are but just a few examples of the circumstantial evidence that needs to be treated or looked at collectively. I hereby therefore direct you to put together all the pieces of circumstantial evidence that there is in this case so that it only points to the irresistible guilt of the accused beyond reasonable doubt.
CONCLUSION
I shall remind you again that you are to consider whether the prosecution has proved all the three elements of murder beyond reasonable doubt. Although the prosecution and defence counsel have addressed you that there is no contention with regard to the fact that with malice aforethought Mary-Anne Hodoul was murdered by means of an act which is unlawful, you are required to satisfy yourselves as well basing on the evidence. One major contention remains for you to resolve – the question of who caused the death of Mary-Anne Hodoul. I must point out to you that if you entertain any doubts or you are not satisfied that it was the accused who killed Mary-Anne Hodoul, then you must without hesitation return a verdict of „not guilty‘ and acquit them otherwise you find them ‗guilty‘. Even where one of the elements of murder has not been proved beyond reasonable doubt you must acquit the accused.
Ladies and gentlemen of the Jury, I have come to the end of my summing-up. It remains for me only to state a few matters that you must keep in mind when you retire now to deliberate on the verdict.
I must also warn you at this point that you must not allow [2009] The Seychelles Law Reports 203 ______yourselves to be swayed by what you have read about the case, or what you must have heard about the case from the media or from the newspaper. So, you must ignore everything that you have heard from these quarters but confine yourselves to the evidence that you have heard from the witness box and to the directions on the law given by me. You must free yourself of all these things. That is why when one puts on the mantle of the judge and sits on judgment over his fellow human beings, as you are doing now, one is expected to act and behave rationally. One must be guided by the mind and not by the heart. That is, one must not allow emotions, feelings and political affiliations to cloud reason when sitting on judgment. However, one is not expected to become a robot, because a robot cannot come to a rational decision. In other words as judges of facts you must base your verdict on the evidence given in Court from the witness box. You must apply the law to facts. You must not approach the task you have undertaken in order to settle a personal grudge or to satisfy a personal prejudice.
Remember that each of you has taken an oath to return a true verdict according to the evidence. No one must be false to that oath. You have a duty not only as individuals but you have to act collectively. That is the strength of the jury system. Each of you takes into the jury room with you your individual experience and wisdom. You will do that by giving your views and listening to the views of the others. There must necessarily be discussion, questions, arguments, and give and take within the scope of your oath. That is the way in which agreement is reached.
Ladies and gentlemen of the Jury, I would also like to emphasize another point. I have listened to this case just as you have. Perhaps I have done so with a more experienced ear than you have. It does not mean with a more accurate ear. I am simply more used to hearing evidence than you. It does not mean that I am more likely to get it right than you are [2009] The Seychelles Law Reports 204 ______and even if I were, that is not the way it is done in a jury trial. You are the ones to decide the case on facts, and so my views of facts are not binding on you. You should not allow my views on facts in any way to influence you to come to a conclusion which does not fully reflect your own views on it. But you are bound by my direction on the law.
In this case you are only to allow yourself to be guided on the legal points or matters which I have put to you in the course of this summing up. It is for you to decide on the whole of the evidence whether you find the charge of murder has been proved or whether you find that the accused are not guilty of murder or if you have reasonable doubts, in that case you must give the benefit of that doubt to the accused and acquit them.
Finally members of the Jury, when you retire to consider your verdict in a short while you should make an effort to come to an unanimous verdict, that is a verdict upon which you all agreed, ie a collective verdict. It is likely that there may be arguments and differences of opinion, so there must be a willingness to listen to one another. As I have just said your verdict should be unanimous. The time is now 2:00 pm, you may retire to consider your verdict. Should you require any guidance on the law or any other matters please feel free to contact me through the Court Orderly. However, any further or such guidance will be done in the open Court in the presence of the accused and their counsel as well as those for the prosecution. Like I have already told you all the exhibits and statements are available and can be accessed by yourselves through the Court Orderly.
Member of the Jury, you may proceed to consider the verdict.
Thank you.
Record: Criminal Side No 67 of 2007 [2009] The Seychelles Law Reports 205 ______
Under Water Centre (Pty) v Beau Vallon Properties
Lease – ejectment – termination
The appellant had leased premises from the respondent. The respondent wanted to renovate the premises, and lease the premises to its subsidiary company. The respondent gave the appellant three months‘ notice of termination of the lease and invited the appellant to tender new proposals for the premises. The respondents also published an invitation to tender for the property in a local newspaper. The applicant did not tender. The applicant claimed to be statutory tenants and sought to review an order of ejectment made by the Rent Board.
HELD:
(i) A lessor can only terminate a tenancy under section 9(k) of the Control of Rent and Tenancy Act if they want to use the leased premises for their own business or trade, not the business or trade of a third party;
(ii) For an order of ejectment to be valid, the lessor‘s intention to demolish, reconstruct, move or improve a property must be bona fide at the time of hearing. The intention must be genuine, firm and settled, and the landlord must be able to carry the intention out. The intention need not be the only or primary intention of the lessor. The question of existence of the necessary intention is one of fact; and
(iii) The Court must consider not whether the landlord‘s desire for possession is reasonable to make an order of [2009] The Seychelles Law Reports 206 ______
possession, for, because a wish is reasonable it does not follow that it is reasonable in a Court to gratify it.
Judgment: Order for ejectment made by the Rent Board set aside.
Legislation cited Control of Rent and Tenancy Act, ss 9 (i), (j) (k), 10, 10(2), 11(1), 11(1)(c), 12(1), 22(i), 13, 13(1)
Cases referred to Brice v Bronze (No 2) (1969) SLR 256
Foreign cases noted Cumming v Dawson [1942] 2 All ER 653
Kieran SHAH for the appellant William HERMINIE for the respondent
Judgment delivered on 2 March 2009 by:
PERERA C J: The appellant is the lessee of premises at the Coral Strand Hotel, Beau Vallon, owned by the respondent company, the lessor. In an application dated 9 April 2008 to the Rent Board, the respondent averred that the appellant was given three months‘ notice of intention to terminate the Tenancy Agreement, and invited them to ―tender new proposals‖ with regard to the premises. It was also averred that the Coral Strand Hotel will close down in May 2008 for renovation and hence the appellant should vacate the premises urgently. ―Renovation‖ which is a ground under section 11 (1), is not a ground for eviction. Once renovation was completed the former lessee had to be offered repossession before letting it to another person. Hence there was no ground for ejectment pleaded in that application.
[2009] The Seychelles Law Reports 207 ______
After notice of that application was sent to the appellant with notice of a Mention date on 25 April 2008, the respondent filed an amended application dated 10 April 2008 wherein paragraph 2 of the original application was amended to read as -
In the month of November 2007, the appellant gave three months‘ notice to the respondent of its intention to terminate the agreement as it requires the premises for renovation and thereafter for occupation/business by the applicant.
In an amended application, the respondent combined section 11(1) with a ground for ejectment under paragraph 11(1)(c). Such pleading was misconceived, as after renovation the premises had to be offered back to the former lessor. Hence ground (1)(c) ought to have been pleaded separately.
The appellant in answer to the application dated 9 April 2008 averred that as it had paid rent regularly since 1976, the purported notice to terminate the agreement did not affect its legal rights in general and protection as a statutory tenant in particular. It was further averred that it any event, even if it vacated to permit renovation works, it was entitled to be restored to possession after such work was completed.
However, upon being served with the application dated 10 April 208, the appellant filed an amended answer reiterating the earlier averments, and adding that -
The applicant is not acting reasonably and does not require the premises for its occupation/business as alleged at all. The applicant in an attempt to sabotage the respondent‘s business has disconnected the electricity supply to the premises the respondent leases, and despite many requests for the [2009] The Seychelles Law Reports 208 ______
applicant to reinstate the electricity supply, the applicant has not done so.
Admittedly, Coral Strand Hotel came under new management on 7 September 2007. Denis Verkhorubov, the Financial Director of the said hotel testified before the Rent Board that the management undertook an overall renovation of the hotel premises, and hence it was necessary that the premises occupied by the appellant as a Diving Centre had also to be renovated. On 30 November 2007, a notice of ―invitation to tender‖ was published in the Seychelles Nation newspaper, inter alia for a ―centre for diving activities‖. That notice had the usual clause that ―the management reserves the right not to accept the highest or any bids‖. Mr Verkhorubov stated that the appellant did not respond to that notice and claimed that he was a statutory tenant. He also stated that subsequently the management changed its mind and decided to use it as an office.
Mr Sergi Ergorov, the Project Manager also testified before the Rent Board that water and electricity had to be disconnected in the course of the general renovation work, and hence it affected the appellant. He also stated that the premises being occupied by the appellant is needed to be used as an office for a construction of another hotel in the same locality by Guta Group, which is a subsidiary of the Beau Vallon Properties Ltd.
The appellant had testified that the premises occupied by him was in a reasonably good condition, and that all that was required was repairs to the ceiling, and painting of the walls, which could be done while he was in occupation. He further stated that he has been doing business in underwater activities and won many national awards. He has also contributed to tourism development through ―Subios‖ and given the hotel significant business. In the year 2007, it was about 47,000 Euros.
[2009] The Seychelles Law Reports 209 ______
The Rent Board upon considering the evidence in the case, delivered its decision on 21 October 2008 ordering the appellant to vacate the premises within three months. The Board based its decision on the fact that the said hotel had changed ownership and that the new owner wanted a ―change of use‖ of the premises occupied by the appellant. The Board has not considered the proviso to section 10 which states that no order shall be made on any ground specified in paragraph (9), (i), (j) and (k) if the Board is satisfied that having regard to all the circumstances of the case, including the question whether other accommodation is available for the lessor or lessee, greater hardship would be caused by granting the order than by refusing to grant it. There was evidence on record that the respondent company first sought to terminate the agreement, and at the same time provide an opportunity to the appellant to tender for the business which he was engaged in for the past 30 years. As the appellant did not respond, the ground for ejectment was changed to the ground in section 13 (l) (k), that the premises are reasonably required by the lessor for business, trade or professional purposes or for public service. According to the evidence, the premises were needed by the lessor to use as an office when a hotel project in the vicinity commences. Paragraph (k) applied only if the requirement arose for the lessor. The Contract of Tenancy was between Beau Vallon Properties Ltd and the appellant, in respect of premises which are part and parcel of Coral Strand Hotel. Hence although the ―Guta Group‖ may be a subsidiary of Beau Vallon Properties Ltd, the appellant who has no connection with the other hotel project, was in the position of a third party. In these circumstances, the requirement of an office was for the benefit of another hotel project, which is a separate legal entity.
In the case of Brice v Bronze (No 2) (1969) SLR 256, the ground relied on for ejectment was ground (i), that the premises are bona fide required for the purpose of being demolished, reconstructed, moved or improved. That Court [2009] The Seychelles Law Reports 210 ______relied on paragraph 1717 of Halsbury (3rd Ed) wherein it is stated inter alia that -
….. the intention (to demolish etc…) must be genuine, not colourable; it must be firm and settled intention, not likely to be altered, and there must be ability on the landlord‘s part to carry it out. The intention to demolish or reconstruct need not, however be the only or primary intention.‖ The critical time when the intention must be shown to exist is the time of hearing, and it need not be shown to have existed previously. The question of existence of the necessary intention is one of act.
In that case, the lessee admitted that the house had to be demolished and sought time to vacate. However in appeal Sauzier J stated that limited admission did not amount to an admission that the landlord, bona fide required it to be demolished. Hence it was the duty of the Board to satisfy itself that the intention of the landlord was genuine, firm and settled.
In an application under paragraph (k), the same interpretation would apply. Before making an order for ejectment under any ground under section 10(2) and 13(1), the Board has to consider whether it is reasonable to make such order. The issue of reasonableness is always an objective one. Megarry on The Rent Acts (8th Ed) 238, states -
The Court must consider not whether the landlord’s desire for possession is reasonable to make an order of possession, for, because a wish is reasonable, it does not follow that it is reasonable in a Court to gratify it.
In the present case, the Project Manager Sergi Ergorov was [2009] The Seychelles Law Reports 211 ______only able to give the name of the company that proposes to build another hotel, but did not know to whom the land belonged. The Board was not provided with any proof of such construction. Hence, like in the case of Brice (supra), the Board only relied on the evidence of the respondent‘s witnesses as regards another hotel project, and the need for the premises occupied by the appellant for an office to serve that project. Further as stated earlier, the ground under paragraph (k) cannot apply to a situation where the lessor is seeking the leased premises on the ground of reasonable requirement, when the requirement arises outside the contractual nexus between the lessor and the lessee, as the lessee in those circumstances would be a third party to that ground for ejectment. Paragraph (k) is for the benefit of the lessor to obtain the leased premises for his business, trade or professional purposes, and not those of any other person or company.
The Board therefore misdirected itself when it held that the premises were reasonably required by the respondent for purposes set out in paragraph (k).
Apart from the misdirection on this aspect of mixed law and fact, the Board also misdirected itself on law when it held that the burden of establishing statutory tenancy and hardship rested with the lessee. Pursuant to section 12 (1), when the lease expires, statutory tenancy begins, and the lessee retains possession of the premises ―so long as he retains possession observe and be entitled to the benefit of all the terms, expressed or implied in the original contract of letting so far as the same are consistent with the provisions of (the) Act‖. Admittedly, the appellant had been a lessee of the respondent for about 30 years and had paid rent regularly and complied with all the conditions of the contract. Hence the Board was wrong in holding that a statutory tenant could be ejected by giving sufficient time to vacate.
[2009] The Seychelles Law Reports 212 ______
As regards the balance of hardship, the Board stated that the fact that the appellant was a lessee for 30 years and was engaged in underwater activities through Subios was not a sufficient ground to the question of hardship being decided in its favour. That was not the sole ground relied on by the appellant for that purpose. The evidence in the case was that the lessor was seeking to evict the lessee to benefit the business of a separate company, though in the same group of companies. The premises occupied by the appellant for so long was sought to be used as an office to administer the site work of the construction of a hotel by the other company. There is no reason why a temporary office could not be constructed within the building site as is the normal practice in such projects. On the other hand, the business activity of the lessee necessarily requires a beach front. As was held in Cumming v Dawson [1942] 2 All ER 653, a judge must take into consideration all relevant circumstances ―in a broad commonsense way as a man of the world‖. This, the Board failed to do.
Hence, in view of the innumerable misdirections in law and mixed facts and law, the decision of the Board cannot stand. Section 22 (i) empowers this Count to ―affirm, reverse, amend or alter the decision appealed from‖. Consequently, for the reasons stated, the appeal is allowed, and the order of ejectment made by the Rent Board is set aside.
The appellant will be entitled to costs.
Record: Court of Appeal (Civil No 18 of 2008)