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IN THE CONSTITUTIONAL COURT OF SEYCHELLES
IN THE MATTER OF A REFERRAL UNDER ARTICLE 46(7) OF THE CONSTITUTION,
IN THE CASE OF R. V. WILVEN MARIE (CR. 34 OF 2000)
Constitutional Case No 2 of 2007
BEFORE: A.R. PERERA ACTING CHIEF JUSTICE (PRESIDING), B. RENAUD J, AND D. GASWAGA J)
Mr. J. Camille for the Republic
Mr. A. Derjacques for the Accused in case No. Cr. 34 of 2000
This is a referral by the Supreme Court under Article 46(7) of the Constitution. issue for determination is whether the inability of the Counsel for the Accused to cross examine Prosecution witnesses due to the loss of exhibits in a case of trafficking in dangerous drugs, would constitute a violation of the right of the Accused under Article 19(2) (e) of the Constitution. That Sub Article provides that –
“(2) Every person who is charged with an offence –
Has a right to examine, in person or by a legal Practitioner, the witnesses called by the Prosecution before any Court, and to obtain the attendance and carry out the examination of witnesses to testify on the
person’s behalf before the Court on the same conditions as those applying to witnesses called by the Prosecution.”
That right involves the principle of equality of arms. Literally, the Prosecution and the defence should have equal opportunities to present their respective cases. This principle was considered by the Court of Appeal of New Zealand in the case of R v. Harmer (2004) 4. CHRLD 384, in respect of Article 24(d) of the Constitution of that Country, which provides that “everyone charged with an offence shall have the right to adequate time and facilities to prepare a defence”.
That Court held inter alia that –
“It is not correct to maintain that a criminal trial cannot proceed and there is a breach of Art: 24(d) merely because certain material or testimony which might possibly have contradicted the Prosecution case is unobtainable or has been contaminated. Rather there are two relevant considerations, first, whether the evidence has been lost because of acts or omissions by the Police involving bad faith, and secondly, whether it is probable 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 absence of the former, as here the particular significance of the missing evidence will need to be considered in light of all available evidence”.
In the present case, the analyst, Dr. Gobine testified on 9th February 2001 and produced his report, which was admitted without objections by Counsel for the accused. He stated that he received the following items from P.C. Belle – dark material wrapped in carbon paper, white cigarette paper, a green piece of paper and a torn cigarette packet marked “rizia”, all in a long brown envelope. He returned them to P.C. Belle after analysis, and they were produced in Court when he testified.
Once again he identified the plastic bag in which he put the brown envelope with the analysed drugs and other materials. They were produced to Court as item 1 without objections from Counsel for the Accused.
The plastic bag and the white envelope were however marked as exhibits P3 and P4 respectively, as they emanated from Dr. Gobine.
There were other materials brought for analysis by another Police Officer Danny Marie namely, two pieces of dark substance. In a similar procedure, Dr. Gobine identified the items in Court. The two pieces of dark substance were marked as item 2, a small transparent plastic bag as exhibit P7 and a white envelope as exhibit P8. The second report was admitted as exhibit P9. The third Officer, Mervyn Dufrene brought further items for analysis, they were two knives.
Dr. Gobine examined the blade surfaces and fund traces of cannabis.
The report which was marked P11 was admitted without objections by Counsel for the Accused. The two knives were marked item 3. The plastic bag which contained the knives was marked as P12 and a white
envelope was marked P13.
Dr. Gobine was cross examined by Counsel for the Accused .
On 9th February 2001, P.C. Belle, who took the first batch of items testified that when the Police arrived at the house of the Accused, he ran and threw the brown envelope to the bushes. They found the brown envelope in which there was some herbal material, white cigarette paper, a green cigarette paper and the torn cigarette packet. After the Accused was arrested and was being taken to the Police Station in a jeep, P.C. Marie asked him to remove his cap, and found two pieces of dark substance on his head. Subsequently, the Police Officers searched the house of the Accused. They recovered two knives and a box containing money.
P.C. Belle was cross examined by Counsel for the Accused as regards the Accused running and the alleged throwing of the brown envelope to the bushes.
He stated that he was not far behind when the Accused threw it.
Counsel for the Acused suggested that the Police Officers searching the area of the house of the Accused found the brown envelope in the bushes and implicated the Accused. This was denied by P.C. Belle.
He was also cross examined regarding the drugs found under the cap and the two knives found in the house.
However, consequent to a break in that occurred on the night of 23rd and 24th October 2002, at the Supreme Court Registry all the exhibits and items produced in the case were stolen. When P.C. Danny Marie testified on 13th October 2004, Counsel for the Accused moved Court to dismiss the charges on the ground that the equal right of the Accused to cross examine the Prosecution witnesses as guaranteed in Article 19(e) of the Constitution was likely to be contravened due to the inability to cross examine them on the exhibits.
The right of the person charged with an offence to cross examine Prosecution witnesses is a fundamental right under the general right to a fair hearing. In R v. Lucina Bacco (Cr. Side 56 of 2000), the drugs exhibited in the case were lost in the same break in at the Registry of the Supreme Court. The trial Judge discharged the Accused when her Counsel made an application to call Expert evidence to analyse the drugs produced in that case. However, on a referral made by the Attorney General under Section 342 A of the Criminal Procedure Code, the Court of Appeal in (S.C.A. no. 18 of 2003) held inter alia that –
“The trial Judge ought to have dismissed the application by the defence to call Expert witness on the ground that there was no real dispute that the exhibit, namely the substance forming the subject matter of the charge, was cannabis resin, and that in any event, it was irretrievably lost after it has been duly inspected and handed in as an exhibit”.
In R v. Albert Ladouceur (Cr. Side 49 of 2000), the drugs analysed by the Analyst were lost consequent to a break-in at the Central Police Station, and were therefore not available for production as exhibits in that case. Upon a submission of no case to answer on that basis, this Court cited that case of R v. Weston
Noel (1983 – 87) (2) S.C.A.R. 221, where a doubt arose as to whether the substance produced in Court was the same as that analysed, the Court of Appeal held that the case of the Prosecution could not be established without the production of the original material, or without proof of its existence by secondary
evidence, if the absence of the original was satisfactorily accounted for. The editorial note made by former Justice Sauzier states –
“The case does not establish the principle that the material found in the possession of the Accused, and subsequently analysed must be produced in Court at the trial as an exhibit. It is sufficient for the Prosecution to prove that material was so found, that it was analysed and that was a dangerous drug”.
The Constitutional issue in the present reference is not so fundamental as in those cases. The issue here is whether the inability of the defence to cross examine a Prosecution witness as regards the identity of the items he allegedly picked, constituted a contravention of Article 19(2) (e) of the Constitution.
In this respect, the Court observes that in the examination in Chief, P.C. Belle testified that he saw the brown envelope in the hands of the Accused, and when he started to run, P.C. Dufrene and P.C. Danny Marie ran after him, and he saw him throwing the envelope to the bushes. He further answered-
“Q. Now, did you proceed to recover this?
Yes, we carry out a search and then I saw the khaki paper and I opened it, I saw some herbal material, I suspect to be control drugs and a white cigarette paper and a green cigarette paper and a torn cigarette pack.
Was there any marking on that ?
So what you tell Court is that all these items were wrapped in this khaki paper.
Now, did you open this paper in front of Wilven who was present with you?
Yes, in front of Dufrene and Marie.
Were there any other persons present other than the Police Officers you mentioned at the time?
Only the four of us”.
Thereupon, P.C Belle identified all those items in Court. Mr. Derjacques Learned Counsel for the Accused cross examined him extensively as regards the distance and the direction that the Accused allegedly ran, the alleged throwing of a brown envelope, the possibility of other brown envelopes, papers and cigarette packets being present in the bushes.
He maintained that he picked up what the Accused threw.
P.C. Danny Marie also testified that it was P.C Belle who picked up the brown envelope. He testified that he received the analysed substance from the Analyst, but was unable to identify the substance or the envelope in which they were, as on 13th October 2004 when he was testifying, they were lost. It is then that Mr Derjacques made an application to discharge the Accused on the ground of a contravention of Article 19(2) (e) of the Constitution.
The Supreme Court of Canada, in the case of Pires & Or v. HM The Queen & Ors (2005)
6. C.H.R.L.D.107 dealing with an application to cross examine a Police informant in a drug related case, who had worn a wiretapping device during conversations with the Accused, and has sworn an affidavit in the case, stated inter alia that –
“There is no question that the right to cross examine is of fundamental significance to criminal trial process. However, it is neither unlimited nor absolute. The extent to which it becomes a necessary adjunct to the right to make full answer and defence depends on the context”.
In this respect, the case of R v. Harmer (supra) is of special significance. The right to cross examine not being absolute or unlimited, it would be the duty of the trial Judge to consider that right in the context of the case and not merely on the bare Constitutional Provision. In doing so, he has to determine whether the “lost evidence would have been of real assistance to the defence in creating or contributing to a reasonable doubt as to guilt”.
If that was not so, the trial Judge would be required to consider the significance of the missing evidence in the light of the evidence available in the case. These are matters of fact to be decided by the trial Judge. That procedure cannot be “short circuited” by relying solely on Article 19(2) (e) of the Constitution to obtain
a discharge of the Accused prematurely.
The Court therefore determines that the right contained in Article 19(2) (e) has been prematurely invoked. The inability of the Accused to exercise that right is due to fortuitous circumstances and not by any act or omission on the part of the State, as envisaged in Article 46(1) of the Constitution.
The case is accordingly remitted back to the trial Court for determining the guilt or innocence of the Accused under the charge, on the basis of the evidence in the case.
ACTING CHIEF JUSTICE
Dated this 3rd day of June 2008
B. RENAUD J
Dated this 3rd day of June 2008
D. GASWAGA J
Dated this 3rd day of June 2008