Wadugodapitiya v R ((SCA CR 19/2023) [2024] (Arising in CO 29/2023) (19 August 2024)) [2024] SCCA 19 (19 August 2024)

FERNANDO, PRESIDENT (Robinson, Tibatemwa-Ekirikubinza, JJA concurring)

1. The Appellant has appealed against his conviction for murder and the sentence of life imprisonment imposed thereon on the 19^th of October 2023 in his Notice of Appeal dated 31^st October 2023. The Notice of Appeal simply states: “This appeal is against both sentence and conviction.” The Notice of Appeal, although filed within the time prescribed in rule 18(1) of The Seychelles Court of Appeal Rules 2005 (which was applicable at the time the Notice of Appeal was filed), namely within 30 days of the decision appealed against, is not in the format prescribed in rule 18(10) of the said Rules, as it does not set forth the grounds of appeal as required by rule 18(2) of The Seychelles Court of Appeal Rules 2005 which states that “Every notice of appeal shall set forth the grounds of appeal…”  The proviso to rule 18(10) of The Seychelles Court of Appeal Rules 2005 (which was applicable at the time the Notice of Appeal was filed) and to The Court of Appeal of Seychelles Rules 2023 (which is applicable since 14^th January 2024), however gives discretion to the court to entertain an appeal if satisfied, in the interest of justice and for good and sufficient cause shown that the intending appellant has exhibited a clear intention to appeal. According to rule 26 of The Court of Appeal of Seychelles Rules 2023: “The times fixed within these Rules may, on good cause shown by notice of motion supported by affidavit, be extended by the President or Court.”  There has been no application filed for extension of time before this Court as required by rule 26 of The Court of Appeal of Seychelles Rules 2023. We only find the Written Submissions of the Appellant filed on the 20^th of June 2024 stating the “Appellant’s position in this appeal in support of the grounds of appeal (supra)”. There is however, no previous mention of the grounds as stated, but the Written Submissions of the Appellant do contain two grounds of appeal. Despite the fact that the Court is not obliged to hear this appeal in view of the delay of 6 months in stating the grounds of appeal in compliance with rule 18(2) of The Seychelles Court of Appeal Rules 2005  and the failure to seek an extension of time in accordance with rule 26 of The Court of Appeal of Seychelles Rules 2023, but taking into consideration that the Appellant has been sentenced to life imprisonment, has been in prison since the date of his conviction, this is a case where he is being defended under legal aid scheme and the legal aid has been granted to the Appellant as of late; we have decided to consider the grounds of appeal as stated in his Written Submissions. This however should not be taken as a precedent to be cited in any future cases.  

 

2. The Appellant has been charged with the murder of his 34-year-old wife Romentha Wadugodapitiya on the 21^st of June 2022, at Mont Buxton, Mahe. (as per Formal Charge)

 

3. In his Written Submissions, the Appellant raises two grounds of appeal, namely:

 

1. The learned Trial Judge had ruled out categorically self-defence “which was indeed put forward by the Appellant during the trial, by giving an explicit opinion as to his views on the evidence in the case.
2. The learned Trial Judge had not left the defence of provocation to the members of the Jury for their appreciation as the law dictate.

The Appellant has correctly not raised any grounds of appeal against the sentence of life imprisonment in his Written Submissions, as it is a mandatory sentence imposed on any person convicted of the offence of murder.

 

Relevant Evidence:

 

4. The only relevant evidence in order to come to a determination in this appeal, save the uncontested medical evidence to prove death are the statement made by the Appellant to the Police which had been produced by the Prosecution as Exhibit P57, without objection by the defence, the evidence of Samuel Orphe, the only witness who was at the scene of crime moments prior to the killing and the evidence Byrna Loizeau the person from whose house, the Appellant had taken the knife to carry out the killing. It is to be noted that the Appellant at the close of the prosecution case and when called for a defence and his rights were explained to him, had opted to remain silent having earlier stated that he wished to make a dock statement and call his father-in-law as a witness to testify on his behalf. The uncontradicted medical evidence, the contents of exhibit P57 and the evidence of Samuel Orphe and Byrna Loizeau clearly establish the definitional elements of the offence of murder, namely an unlawful and an intentional act by the Appellant, which resulted in the death of a person. What remains to be considered in my view is whether there is any evidence to satisfy self-defence or the mitigatory defence of provocation that would reduce the offence of murder to one of voluntary manslaughter. According to William Wilson (Criminal Law 4^th edition) Provocation is a defence of ‘confession and avoidance’. Its essence is not a denial that the definitional elements of the offence are satisfied – these are ‘confessed’. But ‘superimposed’ onto these definitional elements is an extra element in the fault-profile of the defendant. 

 

5. Statement of the Appellant to the Police (verbatim), which had been produced by the Prosecution as Exhibit P57, without objection by the defence is as follows:

 

“I want to say that I have been in a relationship with Romentha Wadugodapitiya for approximately 12 years and we married.  For the time being we are living together at Belonie where we are renting a room with a Mr. Reynold Charles. We don’t have kids together.  When I was in the relationship with Romentha we never had any problem regarding our relation.  The only problem is that Romentha had never given me a child, four times Romentha miscarried for me and we never argue about it.  Around 2 or 3 weeks ago Romentha approached me and told me that she had affection for guy namely Samuel, but she still love me because she is my wife.  She want to save the 11 years of marriage that we have, now let’s sort out things.  We try to sort out our relationship where we continue to live with each other we communicate well, without realizing that she is seeing Samuel behind my back every day.  At a certain time I told Romentha you cannot ask for forgiveness and repeat the same thing.  I want to say that things had become messy that at night we sleep together and during the day time Romentha went to Samuel.  Today Tuesday 21^st June 2022 around 0830hrs to 0900hrs when I was at stadium carpark waiting for a casual in pick-up, a man that I know him as “zwazo” came and tell me that he saw my wife walking with Samuel at Mont Buxton.  Immediately when I heard this I went to Mont Buxton to see if I can see them.  I went at a small ghetto at Mont Buxton thinking I will see them in the ghetto, but I didn’t see them.  I went in the kitchen inside the small ghetto and there I saw a knife with brown handle and in front a piece was broken, I took it and left.  My mind told me to take the knife because Samuel work as a security officer and he walks around with all his working equipment and in case he react I will use the knife as my defence.  I came from the old ghetto, when I arrived near the road I saw a man cleaning the road and I asked him if he had not seen my wife and I describe Samuel to him and he told me that they just pass by 15 minutes ago. I continue to walk for approximately 3 minutes there I came across Romentha sitting in between Samuel legs.  I did (sign of cross) and said god had fulfill my prayer.  Romentha told me, I know you will get information and you will come here.  I asked Samuel what are you doing with my married wife, Samuel told me, you see us sitting and talking.  He even told me that later he will come to the stadium so that we could talk.  I told Samuel “You know I can sue you for moral damage, because you are forcing my wife to commit adultery”.  Samuel answer and told me “What moral damage I will get in my ass”.  Suddenly a rage came into me where the knife with brown handle was used and Romentha got injured.  I want to say that it was not my intention to injure Romentha, but she was protecting Samuel and at the same time she got injured and Samuel run away.  I try to run after Samuel but I did not meet him.  When I came back to look for Romentha, I saw a lot of blood on the stairs and I realize what I have done. There I saw Romentha 15 metres away and I told her to stop running and wait for me. Then I saw Romentha fell down.  When I reach next to where she fell I saw a lot of blood on her.  I remove a jeans short from my bag and place under her head.  Then I took a towel and I press it against the back of Romentha where I was seeing blood. While Romentha was on the ground I saw a knife blade above her left eye and I want to state that it is part of the brown handle knife that I had used. Then I seek for assistance. I stayed there with Romentha until the Police arrived. There they hand cuffed me and brought me to Central. I want to state that I know Samuel through Romentha and we used to smoke Hashish together”.

 

6. PW Samuel Orphe, testifying before the Court had said that he is 23 years old and a Security Officer with the Local Government. He had stated that he was in a relationship with the deceased Romentha, who he knew was married to the Appellant. Orphe had wanted to break up his relationship with the deceased but the deceased was not willing. The deceased had introduced him to her family and he started living at the house of her parents. The deceased was in the habit of coming to him in the mornings and going to the Appellant at night. The deceased had informed him that she would get a divorce from the Appellant. Orphe had stated that the Appellant was aware of his relationship with the deceased because the Appellant had told him about this one day. According to Orphe, the Appellant was not “entirely angry nor was he entirely calm but seemed to be frustrated.” Thereafter he had not met the Appellant. Orphe was not aware whether the Appellant had seen him with the deceased before. On the 21^st of June, the day of the incident he had gone with the deceased around 7.30 am to 8.00 am to get their medication, namely methadone, at the Stadium car park and on the way went to Mont Buxton, where they waited to meet some person, near Guito Mondon’s garage. Arriving there, they sat on the steps and the deceased sat in front of him between his legs. They were talking while waiting for the person to arrive for about 35 minutes and meanwhile the deceased started playing games on the laptop. At that stage, the Appellant had come to where they were sitting. Seeing them, he had done the sign of the cross and said, “something about he knew that God would allow this day to come”. The Appellant looked angry and frustrated. According to Orphe the Appellant had said several things all of which he could not recall, because everything happened so fast, but remembers the Appellant saying “I know you were sleeping with my wife, I knew this day would come”. When this was said, Orphe had stood up and the Appellant had told him not to stand up and not to run because he would run after him. Orphe had then sat down and told the Appellant “Okay let us talk then”. The Appellant had also said that the deceased had told him that she knew that the Appellant will get this information and that he would come there. The Appellant had also told him that he could sue Orphe for moral damages because Orphe had forced his wife to commit adultery. Orphe had not answered when the Appellant told him this. It has been suggested by the Prosecutor to Orphe that according to the statement made by the Appellant to the Police, which had been produced as exhibit P57, that when the Appellant had threatened to sue him, Orphe had told the Appellant that “moral damage he will get in your ass”. Orphe had denied that he ever said anything to that effect and further said that he did not use any swear words, because he knew that there was something wrong with the Appellant and that he was frustrated. When questioned by the Prosecutor as to whether he walks around with security equipment since he is a security officer and whether he had any security equipment with him that day, Orphe had said: “I believe there was only an ash baton on that day with me which was inside the bag.”, and that because he had just finished working at 06.00 am. Even the Appellant does not state that Orphe removed the baton from his bag. This question had been put to Orphe by the Prosecutor since according to the statement of the Appellant to the Police; the Appellant had taken a knife that day before meeting Orphe in order to defend himself. According to Orphe after the brief exchange of words, the Appellant had pulled out a knife with a brown handle from the right hand side of his waist. Both he and the deceased had not told anything to the Appellant before he pulled out the knife. Orphe had then got up and run leaving his bag and other things at the place they were sitting, taking only his phone with him because he didn’t know what would happen. While running Orphe had turned around only once and had then seen the deceased trying to block the Appellant from running after him. Orphe had not seen the Appellant stabbing the deceased. When Orphe had run up to ‘Spectra Design’ the Appellant had called him and said, “So you ran off, you ran off, Romentha is dead and you’re responsible” and hung up the phone. According to Orphe the Appellant had called him using the deceased’s phone as he had never been in contact with the Appellant before by phone. According to Orphe he had known the Appellant from where they took medication, namely methadone, but not very much. Orphe had said that long ago, he used to smoke hashish with the Appellant and that was before he had a relationship with the deceased. Orphe had later gone to the deceased’s house where he met her father and thereafter to the Police station where he made a statement. The Police had also seized his phone.

 

7. I am surprised to find that the cross-examination by Defence Counsel at the trial has been totally irrelevant in relation to the issues before the Court, despite the many warnings by the learned Trial Judge and Counsel has not done any service to his client and wasted the time of Court. Under cross-examination, Orphe had said that the baton he carried with him is used for the purpose of work only and he did not intend to use it on anyone. When asked what he would have done had the roles been vice versa, Orphe had said that he would be frustrated. In re-examination when Orphe was asked the same question he had repeated what he had said in cross examination, namely that he would be frustrated but said I would think twice before I do something like this. When asked to explain what he meant by thinking twice before doing something, Orphe had said: “There is the law, can help you sort out your issues instead of taking the knife to take action”.

 

8. PW Bryna Loizeau testifying before the Court had stated that at the time of the incident she was living at Mont Buxton.  The Police had then brought the Appellant to her house and the Appellant had told her husband in her presence that he was the one who took the knife from their house. At the time the Appellant had come to her house to remove the knife, PW Bryna was not in the house. PW Bryna on hearing this had got angry because she did not expect someone to just come into her house and take a knife and kill someone with it. The knife had been in the kitchen in a blue basket along with the spoons. She had described the knife and said that the knife had a brown handle and a small piece of the blade was broken. In Court she had identified the knife that had been shown to her but stated that the knife was not broken into two, when it was at her house. PW Byrna had clearly identified the knife as the one belonging to her. She has not been subjected to cross-examination and no further questions had been asked from her.

 

9. According to the Post Mortem Examination Report produced without objection as exhibit P65 there were 10 separate stab wounds on the deceased body of Romentha Wadugodapitiya and the cause of death is stated as hypovolemic shock resulting from massive bleeding due to multiple stab wounds.

 

Self-Defence

 

10. As regards ground one of appeal, namely self-defence, on a reading of the statement of the Appellant and the evidence of PW Samuael Orphe and PW Bryna Loizeu it is undoubtedly clear that the issue of self-defence does not arise in this case and the learned Trial Judge was right and therefore entitled to exclude it from the Jury. Certainly, the Appellant had not put forward self-defence during the trial as stated in his Written Submissions and there is not an iota of evidence to indicate that the issue of self-defence did arise from the prosecution evidence or in the circumstances of this case. The fact that PW Samuel Orphe is a security officer and it is because of that the Appellant armed himself with a knife before going to meet him, certainly does not satisfy the fact that he acted in anticipation of an attack on him by Orphe, in view of the evidence that there was no aggression on the part of Orphe or Romentha his wife, towards the Appellant, that in fact when the Appellant was getting aggressive towards Orphe, he had run away, that there had not been any previous confrontation between the Appellant and Orphe, leave aside any violent confrontation, for the Appellant to pre-empt an attack on Orphe and the fact that they had known each other before as they both were drug takers and also because he was going to meet Orphe in the presence of his wife, who according to the Appellant still loved him and was living with him. The uncontradicted evidence of Orphe that the ash baton he carried with him is used for the purpose of work only and he had no intention of using it on anyone and on that day it was inside his bag, was not challenged or contradicted by other evidence. To find justification for a person who goes armed to meet some security personnel with whom he has an issue to sort out and to use it in the absence of any aggression recalls a time of the Wild West. In this case the knife was used on his own wife, who was unarmed and who in no way was an aggressor.

 

11.  There is no obligation on a Trial Judge to put forward a defence that does not exist on evidence and to do so will amount to a misdirection. It is a well-established principle in common law that a defence should only be presented to a jury if there is evidence to support it. This rule is grounded in practical concerns namely: presenting a defence without an evidential basis could lead to verdicts unsupported by the facts; it could potentially confuse the jury and thirdly it could obstruct a fair trial and accurate verdict. In R V Cinous (2002) 2 SCR 3, 2002 SCC 29 McLachlin C.J. of the Supreme Court of Canada, confirmed the well-established ‘Air of Reality’ Test propounded in the Canadian case of Pappajohn V The Queen [1980] 2 S.C.R., which is a guidance tool on whether or not an assumed defence should be submitted to the Jury for consideration and espoused the basic tenets of this test as follows:

 

“A defence should be put to a jury if, and only if, there is an evidential foundation for it. A trial judge must thus put to the jury all defences that arise on the facts, whether or not they have been specifically raised by an accused, but he has a positive duty to keep from the jury defences lacking an evidential foundation — or air of reality. This is so even when the defence lacking an air of reality represents the accused’s only chance for an acquittal. … The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue.” (emphasis by me)

 

12. The air of reality test must be applied to each of the three elements of self‑defence …, which have both a subjective and an objective component. With regard to the first element, it would be possible for the jury reasonably to conclude that the accused believed that he was going to be attacked, and that this belief was reasonable in the circumstances. With respect to the second element of self‑defence, reasonable apprehension of death or grievous bodily harm, there should have been an air of reality to the accused’s perception that the attack would be deadly. With respect to the third element of self‑defence, namely a reasonable belief in the absence of alternatives to killing, that the accused believed that he could not preserve himself except by killing the victim. In this particular case before the court, there is absolutely no evidence from which a jury could reasonably have had an affirmative conclusion of any of the three elements established under this ‘air of reality’ test.

 

13.  In Attorney General’s Reference (No 1 of 2022) the Court of Appeal (Criminal Division) in (2022) EWCA Crim 1259 stated: “When considering whether an issue should not be left to the jury, we have well in mind two principles. First, the judge may not direct the jury to convict. But that prohibition is to be distinguished from circumstances in which a judge is entitled to withdraw an issue from the jury, or where an issue does not arise on the evidence and so no direction need be given about it to the jury (R V Wang (2005) 1 WLR 661). Secondly, a judge may withdraw an issue from the jury if no reasonable jury properly directed could reach a particular conclusion…” This was cited and affirmed in Attorney General’s Reference No.1 of 2023 by the Court of Appeal (Criminal Division) in (2024) EWCA Crim 243 decided on 18 March 2024. For the reasons enumerated above I dismiss ground (i) of appeal.

 

Mitigatory defence of Provocation

 

14. As regards ground (ii) of appeal, Provocation needs to be considered only if there is an evidential basis to it. PW Samuel Orphe has not been challenged or cross examined in relation to his evidence referred to at paragraphs 6 and 7 above repeated herein: “The Appellant had also told him that he could sue Orphe for moral damage because Orphe had forced his wife to commit adultery. Orphe had not answered when the Appellant told him this. It has been suggested by the Prosecutor to Orphe that according to the statement made by the Appellant to the Police, which had been produced as exhibit P57 that when the Appellant had threatened to sue him as stated above, Orphe had told the Appellant that “moral damage he will get in your ass”. Orphe had denied that he ever said anything to that effect and further said that he did not use any swear words, because he knew that there was something wrong with the Appellant and that he was frustrated. Both he and the deceased had not told anything to the Appellant before he pulled out the knife.” The failure of the defence to cross-examine Orphe on this matter on which the defence of provocation could have been based, amounts to tacit acceptance of Orphe’s evidence-in-chief. Adrian Keane in his Modern Law of Evidence 3^rd edition states: “A party who has failed to cross-examine a witness upon a particular matter in respect of which it is proposed to contradict his evidence-in chief or impeach his credit by calling other witnesses, will not be permitted to invite the jury or tribunal of fact to disbelieve the witness’s evidence on that matter. A cross-examiner who wishes to suggest to the jury that the witness is not speaking the truth on a particular matter must lay a proper foundation by putting that matter to the witness so that he has an opportunity of giving any explanation which is open to him.” In Browne V Dunn (1893) 6 R 67, in which certain witnesses were not cross-examined on a particular matter, it was held by the House of Lords that it was improper subsequently to invite the jury to disbelieve them. See also R V Hart (1932) 23 Cr App Rep 202 (CCA) R V Birchman (1972) Crim LR 430 (CA) and R V Fenlon (1980) 71 Cr App Rep 307 (CA). However, if the witness’s story is so incredible and that the matter upon which he is to be impeached is so manifestly incredible, it is unnecessary to waste time in putting questions to him upon it. In this case it cannot be said that Orphe’s evidence on this matter is so manifestly incredible as it is the prosecution itself that had clarified this most important issue which arises in the statement of the Appellant to the Police. The defence had not challenged Orphe’s evidence in cross-examination on this matter nor had the Appellant by giving evidence in Court contradicted Orphe. Thus the value of what the Appellant had said in his statement to the police on this matter is diminished.

  

 

The Law on the Mitigatory defence of Provocation

 

15. Sections 197 and 198 of the Penal Code of Seychelles states as follows:         

“Killing on Provocation

197. When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation as hereinafter defined, and before there is time for his passion to cool, he is guilty of manslaughter only.

Provocation defined

198. The term “provocation” means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial, or fraternal relation, or in the relation of master or servant, to deprive him of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered.

When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give the latter provocation for an assault.

A lawful act is not provocation to any person for an assault.

An act which a person does in consequence of incitement given by another person in order to induce him to do the act and thereby to furnish an excuse for committing an assault is not provocation to that other person for an assault.

An arrest which is unlawful is not provocation for assault, but it may be evidence of provocation to a person who knows of the illegality.

For the purposes of this section the expression “an ordinary person” shall mean an ordinary person of the community to which the accused belongs.”

16. The elements of the partial defence of provocation, namely, does the act which causes death in the heat of passion, caused by sudden provocation, and before there is time for his passion to cool, as per the decision of Lord Devlin in Lee Chun-Chuen V R (1963) 1 AER 73, (1963) AC 220) are not detached. The words ‘in the heat of passion’, ‘caused by sudden provocation’ and ‘before there is time for his passion to cool’ is an intensely emotional or agitated state of mind or uncontrollable rage without premeditation or deliberation. The accused must have killed because he was provoked and not merely because the provocation existed. The requirement of suddenness serves to distinguish a response taken in vengeance from one that was provoked. It necessarily is a reference to the state of mind of the accused. This seems to be in accordance with the pronouncement of Devlin J in R v Duffy (1949 1 All ER 932) which stated the position under Common law, namely “Provocation is some act, or series of acts done or words spoken by the dead man to the accused, which would cause in any reasonable person and actually causes in the accused, a sudden and temporary loss of self-control rendering the accused so subject to passion as to make him for the moment not master of his mind.” The view expressed in Duffy was toned down in Regina V Richens (1993) 4 All ER 877 decided on the basis of the provisions of the Homicide Act 1957 of England, which stated that it was not necessary for the accused to have lost ‘complete control’ as not to know what he was doing and the inability to restrain himself from what he was doing suffices. The words “in the heat of passion’ and ‘to deprive him of the power of self-control’ as set out in the Penal Code do not in my view make reference to this intensely emotional state of mind on the part of the accused as stated in R V Duffy, namely, “so subject to passion as to make him for the moment not master of his mind”, but to his deprivation of the power of self-control without specific reference to its extent.

 

17. The Penal Code does not define the wrongful act or insult or the form in which provocation may take place. Obviously the wrongful act or insult should be one that is necessarily illegal. Provocation may be in the form of words, gestures or conduct or any combination of words, gestures or conduct. As to what type of words, gestures or conduct would amount to provocation is a matter for the Court and the Jury to decide, applying the test of the ordinary person. It is therefore important to analyse the circumstances under which the Appellant had stated he came to be provoked, as set out in his statement to the Police in order to understand whether there was a wrongful act on the part of the deceased or Orphe as known to the law. The Appellant had said: “I came across Romentha sitting in between Samuel legs.  I did (sign of cross) and said God had fulfil my prayer.  Romentha told me, I know you will get information and you will come here.  I asked Samuel what are you doing with my married wife, Samuel told me, you see us sitting and talking.  He even told me that later he will come to the stadium so that we could talk.  I told Samuel ‘You know I can sue you for moral damage, because you are forcing my wife to commit adultery’.  Samuel answered and told me ‘What moral damage I will get in my ass’.  Suddenly a rage came into me where the knife with brown handle was used and Romentha got injured.  I want to say that it was not my intention to injure Romentha, but she was protecting Samuel and at the same time she got injured and Samuel run away.” The provocative words according to the Appellant is Samuel telling him “What moral damage I will get in my ass” when the Appellant told Samuel: “You know I can sue you for moral damage, because you are forcing my wife to commit adultery”. Although the Appellant had said, when he came to the scene he saw the deceased, Romentha sitting in between Samuel legs, the Appellant does not claim he got into a rage because of that. The Appellant had stated that it was not his intention to injure Romentha, but she had got injured by trying to protect Samuel Orphe who ran away. It is clear from the Appellants statement, exhibit P57, that he was aware of Romentha’s infidelities, for she had two to three weeks prior to the incident had told him that she had an “affection for guy namely Samuel” i.e. (Samuel Orphe). The Appellant had also stated that he was aware that Romentha was “seeing Samuel behind my back every day”. Orphe in his evidence had also stated that once he had met the Appellant behind the children’s playground and told him that he was aware of the relationship between him and Romentha.

18.  There is both a subjective element and an objective element to the defence of provocation in Seychelles. The objective element needs to be satisfied and this, only if the subjective element has been satisfied. If the subjective element has not been satisfied, the matter ends there. It is important not to subvert the logic of the objective inquiry. Personal circumstances may be relevant to determining whether the accused was in fact provoked — the subjective element of the defence — but they do not shift the ordinary person standard to suit the individual accused. There is an important distinction between contextualizing the objective standard, which is necessary and proper, and individualizing it, which would only serve to defeat its purpose. The “ordinary person” standard is informed by contemporary norms of behaviour, including fundamental values such as the commitment to equality provided for in the Charter of Fundamental Human Rights in our Constitution. A restrictive approach to the “ordinary person” approach ignores relevant contextual circumstances. Conversely, an individualized approach would lead to anomalous results if all the accused’s characteristics were taken into account; it would also ignore the cardinal principle that the criminal law is concerned with setting standards of human behaviour. It is for the Court and Jury to decide whether the subjective element and the objective elements are satisfied and both necessarily being questions of fact.

19.  It is to be noted that in order to ascertain the subjective element of Provocation where reasons have been given by the Appellant as to what provoked him, it is only those reasons that needs to be considered by the Court and not what the Court visualizes as to what possibly provoked the Appellant. To do so would amount to the Court seeking to read the mind of the Appellant contrary to what the Appellant himself had in mind and specifically said as to what provoked him. It may even affect the defence of provocation if what the Court visualizes, does not stand the test in relation to the objective element of provocation. The position may have been different had the Appellant not clearly expressed what actually provoked him. In such a situation, the Court could have sought to gather from the attendant circumstances what provoked the Appellant in order to ascertain the subjective element of provocation. According to the Appellant what got him into a rage is when Samuel told him “What moral damage I will get in my ass” when he told Samuel: “You know I can sue you for moral damage, because you are forcing my wife to commit adultery”. The evidence of the Appellant in this regard has lost its significance as stated earlier, because of the failure on his part to cross examine Orphe on his categorical denial that he ever told the Appellant anything to that effect. In fact, the uncontradicted evidence of Orphe on this matter is that he remained silent when the Appellant made the above mentioned allegation to him. Thus the Appellant’s behaviour is seen as a response to take revenge on Orphe and not because he was provoked at the time of the incident, by the infidelity of Romentha and seeing her in the company of Orphe as stated in the circumstances referred to at paragraph 17 above. 

20.  Further even if the Appellant’s version is to be believed and acted upon, the question arises whether what Orphe told the Appellant was of such a nature as to be likely, if said to an ordinary person of the community to which the Appellant belonged, to deprive such person of the power of self-control and to induce him to assault Orphe? If that be the case any swear words used between persons in an embittered relationship, in similar circumstances will be an excuse for a killing.

 

 

21.  In Underwood and Anor v Rep (SCA CR 21 of 2022), this court held that “Swearing is commonplace in Seychellois society, perhaps more so than in many other parts of the world. It is so prevalent that it cannot be said that, in general, there is a correlation between swearing and ensuing acts of physical violence. It is not one of those specific events calculated to rob a person of his self-control. Unless the provocation is sufficiently grave, it will not satisfy the objective test imposed by section 198.”

 

22. It is to be noted that according to the definition of provocation, “An act which a person does in consequence of incitement given by another person in order to induce him to do the act and thereby to furnish an excuse for committing an assault is not provocation to that other person for an assault.” Therefore, even if it is to be believed that Orphe in fact told the Appellant “What moral damage I (‘I’ is a referrence to the Appellant) will get in my ass”; this was in response to the allegation by the Appellant that Orphe was forcing his wife Romentha to commit adultery with him and he could sue Orphe for moral damage. It is clear from the evidence of Orphe that he had wanted to break up his relationship with Romentha but she was not willing and had informed him that she would get a divorce from the Appellant. Therefore, the statement of Orphe was in consequence of the allegation made by the Appellant and the Appellant cannot rely on that statement to furnish an excuse for the killing of Orphe. This according to the definition does not amount to provocation.  

 

23. In the case of S. J. Basset V R (SCA CR 31/19) decided by this Court in August 2021, the facts were to the effect that the deceased had intervened to stop a quarrel between the accused and his girlfriend and had asked the accused not to quarrel with his girlfriend. In consequence an argument had ensued between the accused and the deceased. The accused had then slapped the deceased and the deceased had slapped the accused in return. Thereafter the accused had slapped the deceased a second time and in response the deceased had thrown a bottle of beer that was in his hand at the accused and run away. The bottle had not struck the deceased. The accused had then given chase to the deceased and stabbed him with a knife that was with him and killed him. This Court held that: “According to section 198 of the Penal Code… “An act which a person does in consequence of incitement given by another person in order to induce him to do the act and thereby to furnish an excuse for committing an assault is not provocation to that other person for an assault” It was lawful for the deceased to have intervened to stop the quarrel between the Appellant and his girlfriend... It cannot be said that the deceased provoked the Appellant when he asked the Appellant not to quarrel with his girlfriend and also when the deceased slapped the Appellant in return when the Appellant slapped him.”  The appeal was dismissed.

 

 

24. It is clear that the Appellant had come that day in search of the deceased and Orphe having armed himself with a knife to take revenge. He had taken the knife from the house of Bryna even before the man cleaning the road had told him that both his wife and a man fitting into the description of Orphe had gone past the man. This is also borne out from his reaction on seeing the deceased and Orphe together. On seeing them according to the evidence of Orphe, the Appellant had done the sign of the cross and said “I know you were sleeping with my wife, I knew God would allow this day to come”. The Appellant too in his statement had said: “I did (sign of cross) and said god had fulfilled my prayer.” It appears he was trying to act God to punish the adulterer.

 

25. Seychelles law unlike the English or New South Wales law does not specifically exclude certain conduct, like sexual infidelity in determining loss of self-control and thus leaves it open for the determination of the Court and the Jury. However, provocation amounting to kill as a result of sexual infidelity is a matter to be given serious consideration in the modern world due to a relaxation of the conservative attitudes towards marital rights and obligations and in view of our Fundamental Rights and Freedoms enshrined and entrenched in the Constitution of a person’s right to life, liberty, security and freedom of conscience and expression. A distinction may be drawn between a situation where a spouse for the first time being, unexpectedly surprised, in finding his or her spouse in a sexually embarrassing position with another person and a situation where a spouse is already aware of the sexual infidelity of his or her spouse and seeing the person with the paramour. In the first scenario in addition to sexual infidelity there is the issue of unexpected surprise which may satisfy the element of ‘in the heat of passion caused by sudden provocation’, but not in the second scenario. In this case there was nothing sudden about the Appellant’s discovery of finding Romentha in the company of Orphe and it cannot be said that it struck upon a mind unprepared for it. I agree with the submission of the Respondent that extra-marital affairs are not something unusual in our communities and to make this a reason for the Appellant to lose his self-control and kill then our society will be ridden by such killings on a daily basis.

 

 

26. Coldrey J of the Supreme Court of Victoria in the case of Yasso (2002) 6 VR (239)   said: “In our modern society persons frequently leave relationships and form new ones. While this behaviour may cause a former partner to feel hurt, disappointment and anger, there is nothing abnormal about it. What is abnormal is the reaction to this conduct in a small percentage of instances where the former partner (almost inevitably a male) loses self-control and perpetuates fatal violence with an intention to kill or cause serious bodily harm. In my view, this will rarely, if ever, be a response which might be induced in an ordinary man in the twenty –first century. Significant additional provocative factors would normally be required before the ordinary person test could be met” This was cited and approved by the Supreme Court of Ireland in DPP V Alan Mcnmara (2020) IESC 34 -26 June 2020. In the said case it was also said: “Loss of self-control must be in response to a genuinely serious provocation, not a mere insult, by the victim. The provocative act, by action or gross insult, is required to be outside the bounds of any ordinary interaction acceptable in our society. The defence does not apply to warped notions of honour or to any unacceptable ideas as to the proper romantic or sexual conduct of males or females; nor hurt to male pride.” In Holmes V DPP (1946) AC 588, it was said “…that a confession of adultery without more is never sufficient to reduce an offence which would otherwise be murder to manslaughter and that in no case could words alone, save in circumstances of a most extreme and exceptional character so reduce the crime.” In the case of Bimlesh Prakash Dayal V the State (Criminal Appeal No AAU 0109 of 2014, decided in October 2018, the Court of Appeal of Fiji said “The Appellant’s testimony before Court that his wife Ranjiji having confessed to her infidelity had told him “forget it all and now I will live with you happily” clearly shows that these words in the circumstances of this case were not of a most extreme and exceptional character to reduce the crime to manslaughter”.

 

 

27. I am of the view, if, sexual infidelity on the part of the spouse, is not to be considered a mitigating factor dependant on the circumstances of the case to reduce the offence of murder to one of manslaughter, it cannot also be a mitigating factor for the murder of the paramour, with whom the spouse has had an adulterous relationship, for there needs to be two people for an adulterous relationship.

 

28. The words “in the heat of passion”; “sudden”; and “before there is time for his passion to cool” suggest that the principle of continued provocation arising from an exacerbated relationship, is not available under our law as in English law. Suddenness applies to both the act of provocation and the accused’s reaction to it. The use of the words “means and includes, except as hereinafter stated” in defining provocation in section 198 shows that it is an all-inclusive and exclusive definition. This Court held in this regard in the case of Julien Barra, (SCA 21/2012, 2014) that the words “acted in the heat of passion, before there is time for his passion to cool are not a matter of degree but is absolute and there is no intermediate stage between icy detachment and going berserk.” In the case of Jane Labiche V Republic (SCA (1a) 2014 – 29 November 2016) this Court held that the principle of cumulative provocation does not apply in the Seychelles. Continued provocation arising from an exacerbated relationship, may however have a relevance in determining the motive for the sudden provocation arising from the wrongful act or insult. The point being emphasized is that under our law there should have been a further and sudden wrongful act or insult from the deceased, which made the accused to snap as a result of the continued provocation experienced from the exacerbated relationship that triggers the killing. The elements of ‘in the heat of passion and before there is time for his passion to cool’ needs to be satisfied. The last incident may not be that grave but the ‘last matchstick’ to ignite the ember. In this case in view of the evidence before the Court there was no such ‘last matchstick’.

 

29. It is to be noted that a person's actions do not necessarily have to be intentional to be wrongful, to satisfy the element of provocation. Wrongful omissions, recklessness and negligence can be categorized as wrongful acts and thus suffice. Sections 229 and 233 of the Penal Code defines reckless and negligent acts. In this case it cannot be said that either the deceased or Orphe, just before the Appellant claims he got into a rage had done any wrongful or reckless or negligent acts as to warrant the killing of the deceased in view of what has been stated at paragraphs 5-7 above.

 

30. The issue of provocation is left to the determination of the Court and the Jury by adopting the standard of the “ordinary person of the community to which the accused belongs” The words “of such a nature”, connotes, that the wrongful act, omission or insult should have been of a serious kind judged by the standard of “an ordinary person” as stated in the case of Bimlesh Prakash Dayal V the State by the Court of Appeal of Fiji. Evidence as to the standard of “an ordinary person of the community to which the accused belongs” comes out clearly in this case from the uncontradicted evidence of Orphe, who when asked what he would have done had the roles been vice versa, had said that he “would be frustrated and would think twice before he did something like that for there is the law, that can help you sort out your issues instead of taking the knife to take action.”

 

31. In accordance to our law the mitigatory defence of provocation is available to an accused who assaults the person by whom the act or insult was done in view of the words: “and to induce him to assault the person by whom the act or insult is done or offered” (emphasis by me). The person who according to the statement of the Appellant who provoked him at the scene of crime was Orphe when he said: “What moral damage I will get in my ass”. The Appellant’s evidence in this regard as stated at paragraph 14 above has diminished in value. Our law of provocation, is exclusive and does not offer the partial defence to an accused, if by an act which occurs independently of the exercise of his will or by accident or mistake, the person assaulted, happens to be another person, other than the one who commits the wrongful act or insult. According to section 10 of the Penal Code “a person is not criminally responsible for an act… which occurs independently of the exercise of his will, or for an event which occurs by accident.”

 

 

32. The operation of the rule in section 10 or ‘Mistake of fact ‘in section 11 of the Penal Code appears to be excluded by the express provision in section 198 of the Penal Code by the use of the words “The term provocation means and includes, except as hereinafter stated”. There is nothing stated ‘hereinafter’ in the section dealing with provocation.

 

Section 11 of the Penal Code in defining ‘Mistake of fact’ states:

33. “A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act omission to any greater extent than if the real state of things had been such as he believed to exist.

The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.”

Section 11 does not totally absolve a person from criminal liability. It only prevents a person from being liable to any greater extent than, if the real state of things had been such, as he believed to exist. Provocation itself being a partial defence cannot therefore be further mitigated by section 11. There is no place in our law for an honest and reasonable mistaken belief of a person who assaults someone other than the one who commits the wrongful act or insult under provocation. In DPP V Alan Mcnmara (2020) IESC 34 -26 June 2020, the Supreme Court of Ireland it was said: “In general, misdirected provocation does not accord with the law. If the accused kills someone who did not provoke him or her, the defence does not lie in any context where the accused says that he or she was provoked by another individual…the law is that provocation must emanate from the deceased.”

34. The Appellant does not even claim that the stabbing of Romentha was independently of the exercise of his will or by accident or mistake. The Appellant’s statement is to the effect: “Suddenly a rage came into me where the knife with brown handle was used and Romentha got injured.  I want to say that it was not my intention to injure Romentha, but she was protecting Samuel and at the same time she got injured and Samuel run away.  I try to run after Samuel but I did not meet him.” He had also stated that he took the knife from a house at Mont Buxton “because Samuel work as a security officer and he walks around with all his working equipment and in case he reacts I will use the knife as my defence.” So he had planned out his attack on Orphe even before he met him. He had attacked the deceased intentionally because she tried to protect Orphe and 10 separate stab wounds found on the dead body of the deceased cannot certainly be by an act which occurred independently of the exercise of his will or by accident or mistake.

 

35. Further according to section 196 of the Penal Code “Malice aforethought shall be deemed to be established by evidence proving knowledge that the act or omission causing death will probably cause the death of 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.” (emphasis by me) Therefore, even if the Appellant is to be believed that he did not intend in a factual sense to injure Romentha it cannot be said that he did not have the necessary knowledge, which constitutes malice aforethought.

 

36. As stated at paragraph 3 above the (ii) ground of appeal is that the learned Trial Judge had not left the defence of provocation to the members of the Jury for their appreciation of facts as the law dictate. It is clear from the preceding paragraphs that the defence of provocation is not available to the Appellant in view of facts and circumstances of this case. There is no complaint that there has been a misdirection or non-direction by the learned Trial Judge in explaining the law in relation to the defence of provocation, the only complaint been that he overstepped his obligation to explain the law of provocation, but this had not been amplified There is also no complaint that the learned Trial Judge misdirected or misled the Jury in relation to the facts pertaining to the issue of provocation. At the very commencement of the summing-up the learned Trial Judge had at paragraphs 6 and 7, said “You the Jury, have to assess or evaluate the evidence led before you and make a decision on the facts of the case…Whilst I am the judge of the law, you the Jury, and you alone, are the judges of the facts. In that regard, if …indeed myself, appeared to have expressed a particular view or an opinion, or put emphasis on any particular matter, you the jury can adopt it if you are in agreement with it. You should however feel free to reject it if you are not in agreement with it.” The learned Trial Judge had thus clearly directed the jury on their role in accordance with section 266 (1) (a) and (c) of the Criminal Procedure Code, namely “decide which view of the facts is correct and shall then return the verdict which under such view ought, according to the direction of the Judge, to be returned; and decide all questions which, according to law, are deemed to be questions of fact;”

 

37. In the case of R V Nelson (1997) Crim. L. R. 234, CA Simon Brown LJ said: “Every defendant, we repeat, has the right to have his defence, whatever it may be, faithfully and accurately placed before the Jury. But that is not to say that he is entitled to have it rehearsed blandly and uncritically in the summing up. No defendant has the right to demand that the Judge shall conceal from the Jury such difficulties and deficiencies as are apparent in his case. Of course, the Judge must remain impartial. But if common sense and reason demonstrate that a given defence is riddled with implausibilities, inconsistencies and illogicalities …there is no reason for the judge to withhold from the jury the benefit of his own powers of logic and analysis. Why should pointing out those matters be thought to smack of partiality? To a play a case down the middle requires only that a judge gives full and fair weight to the evidence and arguments on each side. The judge is not required to top of the case for one side so as to correct any substantial imbalance. He has no duty to cloud the merits either by obscuring the strengths of one side or the weaknesses of the other. Impartiality means no more or no less than that the judge shall fairly state and analyse the case for both sides. Justice moreover requires that he assists the jury to reach a logical and reasoned conclusion on the evidence.” In Uriah Brown v The Queen [2005] UKPC 18, the Privy Council opined, that “a judge is entitled to give reasonable expression to his own views, so long as he makes it clear...that decisions on matters of fact are for the jury alone and does not so direct them as effectively to take the decision out of their hands”.

 

38. In the case of Adrian Forrester v R, SC Criminal Appeal NO 42/2016, [2020] JMCA Crim 39, the Court of Appeal of Jamaica said: “In summing up a case to the jury, the trial judge is also entitled to along with defining the issues express his opinion, and in a proper case may do so strongly, so long as the jury are informed that they are entitled to ignore them, and the issues are left to the jury for their final determination.”

 

39. The editors of Blackstone’s Criminal Practice 2002 at page 1449 paragraph D16.16 states: “Provided he emphasises that the jury are entitled to ignore his opinions, the judge may comment on the evidence in a way which indicates his own views. Convictions have been upheld notwithstanding robust comments to the detriment of the defence case (e.g., O’Donnell (1917) 12 Cr App R 219 in which it was held that the judge was within his rights to tell the jury that the accused’s story was a ‘remarkable one’ and contrary to previous statements that he had made). However, the judge must not be so critical as to effectively withdraw the issue of guilt or innocence from the jury’ (Canny (1945) 30 Cr App R 143, in which a conviction was quashed because the judge repeatedly told the jury that the defence case was absurd and that there was no foundation for defence allegations against the prosecution witnesses.) It is the judge’s duty to state matters ‘clearly, impartially and logically’, and not to indulge in inappropriate sarcasm or extravagant comment (Berrada (1989) 91 Cr App R 131).” I have scrutinized the summing up carefully and find that no complaint can be made that the summing up in this case gave rise to the situation that arose in Canny and Berrada.

 

 

40. In Mears (Byfield) V R (1993) 42 WIR 284 it was stated that a Judge’s task in a jury trial is never an easy one, for it is all too easy to criticise a Judge who has felt that he has to supplement deficiencies in the performance of the prosecution or defence, in order to maintain a proper balance between the two sides in the adversarial proceedings. Thus the summing-up must be taken as a whole and the question that needs to be asked in the words of Lord Sumner in Ibrahim V R (1914) AC 599 is whether there was “Something which…deprives the accused of the substance of a fair trial and the protection of the law, or which in general, tends to divert the due and orderly administration of the law into a new course, which may be drawn into an evil precedent in future.” In Beck V HM Advocate (2013) HCJAC 51 it was stated that if the charge when read as a whole is clear and correct, minor deviances or inexact examples on a particular topic, will not normally be regarded as productive of miscarriage of justice. It is not appropriate to scrutinise the words used in isolation. In the case of Snowden V HMA (2014) HCJAC 100 it was said: “A contention that a miscarriage of justice has occurred, which is supported only by pointing to a judge’s failure to mention a particular point or points raised by the defence, will not, of itself, suffice. The criticism must be a substantial one of imbalance going to the whole ‘tenor’ or ‘purport’ of the charge. Put simply, an appellant will require to demonstrate that, looking at the charge as a whole, its tenor was unbalanced in the sense of demonstrably favouring the Crown upon a contentious issue of fact raised during the trial.” I am of the view that the learned trial judge’s summing up was not bias, one-sided and overtly directed the jury to a finding of guilt, thus depriving the Appellant of his right to a fair and objective trial. I therefore find no merit in ground (ii) of appeal and dismiss it.

 

41. In view of what has been stated above, I have no hesitation in dismissing the appeal and affirming the conviction.

 

 

__________________

Fernando President

 

 

I concur:                                                         _________________

                                                                        F. Robinson JA

 

 

 

I concur:                                                         _________________

                                                                        Dr. L. Tibatemwa-Ekirikubinza JA

 

 

 

 

Signed, dated and delivered at Ile du Port on 19 August 2024.