Republic v Marie (2/2007) (NULL) [2008] SCCC 1 (02 June 2008);


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





DETERMINATION





Perera
ACJ(Presiding)






This is a referral
by the Supreme Court under Article 46(7) of the Constitution. The
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 –








  1. 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 9
th
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 24
th
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?







  1. 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.








  1. Was there any
    marking on that ?





  1. Wristler.





  1. So what you tell
    Court is that all these items were wrapped in this khaki paper.





  1. Yes.





  1. Now, did you open
    this paper in front of Wilven who was present with you?





  1. Yes, in front of
    Dufrene and Marie.





  1. Were there any
    other persons present other than the Police Officers you mentioned
    at the time?





  1. 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 13
th
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.


……………………………


A.R.
PERERA


ACTING
CHIEF JUSTICE


Dated
this 3
rd
day of June 2008







B. RENAUD J



I concur



…………………..



B. RENAUD



JUDGE



Dated this 3rd
day of June 2008







D. GASWAGA J



I concur







……………………….



D. GASWAGA



JUDGE



Dated this 3rd
day of June 2008