Simeon v R (9 of 2003) (9 of 2003) [2005] SCCA 12 (19 May 2005);


IN THE SEYCHELLES COURT OF APPEAL



FRANKY WALTER SIMEON - Appellant


v.s


THE REPUBLIC - Respondent


SCA Criminal Appeal No. 9 of 2003

====================================

Before: RAMODIBEDI P; BWANA AND HODOUL, JJ.A


Heard on: 5 May 2005

Judgment delivered on: 20 May 2005


Mrs. A. Georges for the Appellant

Mr. A. Fernando, Attorney General, for the Respondent



JUDGMENT OF THE COURT

(Delivered by Bwana, JA)


1. This appeal has a backdrop which is out of the ordinary. This is so not only because of the seriousness of the offences facing the appellant but also because of the times it has been before this Court. The present appeal is from a decision of the Supreme Court (Juddoo, J) dated 10 November 2003 (in Criminal Side No. 9 of 2002). In an earlier judgment of this Court, in Criminal Appeal No. 7 of 2001 involving the same appellant (dated 19 April 2002), a retrial was ordered for reasons that are to be shown later herein.


  1. In another earlier trial for two counts of Murder c/s 193 of the Penal Code before the Supreme Court (Alleear, C. J.), the Appellant was acquitted but a verdict of manslaughter on account of diminished responsibility was returned by the Jury. On 20 November 2001, he was sentenced to two concurrent terms of 15 years imprisonment. The appellant appealed to this Court against both convictions and sentence (Cr. Appeal No. 7/2001). In that appeal, the Court made the following orders:-


(1) The appeal against the conviction for manslaughter on both counts is allowed and the said conviction is accordingly set aside. Consequently, the sentence falls away;


(2) There shall be a rehearing on the two counts of manslaughter and for the avoidance of doubt, the appellant shall remain in custody pending his trial.”


In arriving at the decision to order retrial, this Court stated:


Both sides agree that, in the event of the Court allowing the appeal, a retrial for manslaughter only may be ordered, although Mrs. Georges has strenuously argued that we should simply quash the conviction and make no order for a rehearing, thus leaving the decision whether or not to prosecute the appellant again in the hands of the learned Attorney General. We take the view, however, that a rehearing of the case is called for in the interests of fairness and the integrity of the criminal justice system, especially since the merits of the appellant’s defence of non-insane automatism were not properly dealt with during the trial process … “ (emphasis added).


The above observations cum order of the Court led to the retrial which is the subject matter of the present appeal no. 9 of 2003.


3. Together with appealing against both convictions and concurrent sentences of 20 years imprisonment imposed by the latter trial court, the appellant is also appealing against three Rulings in the said latter trial (per Juddoo, J) dated 8 July 2003; 14 and 20 October 2003; and 28 October 2003. All these appeals are dealt with cumulatively in this judgment.


The Facts:

4. The facts of this case are essentially not in dispute but for purposes of focusing on the relevant issues, we are of the view that the said facts be restated here and be put in their proper perspective albeit briefly.


The appellant, a duly qualified Attorney-at-Law, is said to have stabbed to death two persons, namely Pamela Pouponneau (hereinafter referred to as Pamela), his partner/concubine; and Greta Simeon, (Greta), his mother. That was in the late evening of 9 October 2000, at Bassin Bleu. The appellant had two issues with Pamela namely Tania and Kurt and they had been living together for about four years. Two eyewitnesses testified to the dastardly deeds. These are Gisele Charlette and Travor Pouponneau. The latter was a son of Pamela from another relationship.


5. From their evidence, it is not in dispute that on the fateful day, the appellant’s behaviour was completely different. He had been in that state for quite a while, ostensibly under the influence of one Raymond de Silva. On the material day – 9 October 2000 – the appellant said he was not well and asked for people around him to pray for him. He had even hinted at stopping his legal practice, to the dismay of both Pamela and Greta.


In the morning of the fateful day, Greta had taken the appellant to a local healer cum herbalist for treatment as it increasingly became apparent that the appellant was “possessed”. That herbalist gave a “prescription” which included laying at the door two knives criss-crossed and a herbal bath. What followed then is better described by Gisele in her evidence before the trial court:


“… when I arrived there (at Bassin Bleu) everybody was there. We all sat down and tried to help him in the way that we could. He was completely different. He was not well. … he said it himself that he was not well and he asked us to pray for him … I was outside … when I heard him call Pamela for the first time. I heard a cry … then I ran inside. When I went inside, I saw them trying to pin Franky down and I saw Pamela running in the bedroom. There was a knife in her back and I removed the knife. After I removed the knife from her back, she turned towards me and she looked in my face and I could see the look of fright in her face. I told her to run away. I ran after her and when I got to the veranda, I fell down. The accused jumped over me and ran after her … I got up and ran after them. I saw the accused stabbing Pamela and Pamela fell down. When Pamela fell down, the accused was a bit fainted or weak. I took the opportunity and shook him. I said Franky, you are my brother and I love you. After I told him that, he stabbed me on the forehead. After that my aunt (Greta) crossed me and took hold of Franky. After that I ran away and when I turned back, I saw the accused stabbing Pamela …”


Earlier that evening, the appellant had ordered all mirrors, TVs, to be covered. People were ordered to remove their jewellery and not to wear red coloured clothes (except Greta, his mother).


Trevor Pouponneau also testified on how the appellant had called Pamela into the bedroom; refusing to respond, the appellant had come out, grabbed her into the room; undressed her and attempted to have sex with her. The trial judge considered the demeanour of Trevour and was satisfied that despite his age of 14 years then, he was telling the truth. We do note that parts of his evidence stand alone (for example seeing the appellant undressing Pamela and attempting to have sexual intercourse with her). However, all considered together with what Gisele narrates above, we do not have reason to differ with the trial judge’s findings on the demeanour of Trevor. He was inside the house and had witnessed these events, even attempted to push the appellant away from Pamela.


6. Medical examinations carried on the bodies of the two victims established that the cause of their death was the stabbing inflicted upon them. The above facts are not controverted.


7. The defence case hinges on the defence of non-insane automatism. That all what the appellant did was not willed. He acted mechanically. He could not control the movements of his body. The acts had occurred independently of the exercise of his will. As such, he is not criminally liable. The appellant gave unsworn statement from the dock. It would appear that the defence case relies on the provisions of section 10 of the Penal Code.


The Ground of Appeal:

8. The appellant has raised the following issues in his appeals:-


    1. The trial judge erred in concluding that the appellant acted consciously, voluntarily and deliberately (in the stabbing of the deceased) even in the absence of expert testimony as to the state of non-insane automatism.


    1. The trial judge erred in concluding that the appellant had “continued on his violent course including at the moment of the arrest” – obvious lies in the evidence of Belle, Madeleine and Bristol.


    1. That the trial judge, whilst failing to address his mind to facts which could have disproved the willed nature of the appellant’s acts, sought to rely on facts and draw conclusions not supported by the evidence in order to disprove “automatism” behaviour.


    1. The reasoning adopted by the trial judge in finding the appellant guilty of manslaughter was erroneous as it amounted to a finding of guilty of murder.


As against the two sentences of twenty years imprisonment (to run concurrently) the appellant states:


    1. The two sentences are wrong in law in that they are greater than the sentences passed at the appellant’s initial trial (15 years).


    1. The two sentences were not justified by law and wrong in principle.


    1. The trial judge allowed himself to be influenced by the prosecution towards imposing a heavier sentence.


    1. The sentences are manifestly harsh and excessive.


In so far as appeals against the Rulings are concerned, the following issues are raised –


    1. That institution of proceedings against the appellant under section 192 of the Penal Code amounted to the appellant being tried again on same facts for an offence which he had been acquitted.


    1. That the prosecution had not properly exercised its discretion in not calling the investigating officer, ASP Banane.


    1. That the court should have exercised its inherent powers to discontinue or, alternatively, to adjourn the proceedings on the basis that the unavailability of the appellant’s expert witness would deprive him of the facilities to prepare a defence.


The Views of the Court

  1. We should start with issue 8.11 above, that is, whether it was proper for the trial court to proceed with the case after having been informed that the would be “expert witness” for the defence would not be available to testify. It was strenuously argued by counsel for the appellant that since it became apparent that Rev. Fr. Shaw – the alleged expert – would no longer be coming to Seychelles to testify, the trial judge had no option but either to discontinue the proceedings or, alternatively, to adjourn. Ordering continuance of the same, denied the appellant a fair hearing, hence contravening the provisions of Article 19 (2) (e) of the Constitution. Counsel’s arguments are well cemented by a number of decided cases from various jurisdictions (of which we do appreciate).


Article 19 of the Constitution lays down the basic guarantees for a fair hearing of a case. Relevant to the issue at hand is Article 19 (2) (e) which states:-


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 …” (emphasis provided).


The application and or interpretation of the above provisions is left with the court, to use its inherent powers in a judicious manner. Thus it was rightly stated in M. K. vs Honour Judge Groake (2002) 1 ESSC, 51:


“… the jurisprudence underlying such an order is judge made. The law is grounded on concepts of fairness and justice …”


The issue before the trial court - in the instant case - was whether to proceed with the trial or to adjourn and/or discontinue the proceedings based on the fact that two key witnesses namely, Rev. Fr. Shaw and ASP Banane, would not be available to testify. It was the defence case that the former witness – claimed to be an expert witness - was to unravel the “mysteries” surrounding the unusual behaviour of the appellant during the period he was in contact with Raymond de Silva (Raymond). In turn, that would support the defence of non-insane automatism.


On the part of ASP Banane, the defence expected to clear certain “inconsistencies” that had emerged in the evidence of other prosecution witnesses. However it soon became apparent that ASP Banane was too ill to come and testify in court. Requiring him to come to court would have been “inhuman,” so it was conceded by the defence. On the part of Fr. Shaw, he sent a message to counsel for the appellant to the effect that he would not come to Seychelles again (from overseas – UK) to testify in this case. That message was tendered before the trial judge. Faced with that situation, the trial judge had two options – either to adjourn/discontinue the proceedings as requested by the defence, or proceed with the trial. He opted for the latter option and it is our view that he was correct in so deciding. We say so because any adjournment of the case (thus inconclusive) would have meant further delay and the appellant would have languished in prison (as per order (2) of the Court of Appeal judgment in Cr. App. No. 7/2001 – supra). If that were to happen, Article 19 (1) of the Constitution would have been infringed. But again, to discontinue the process would have amounted to an affront to the criminal justice, as correctly observed earlier by this Court (supra). This is so because, given the seriousness of the offences alleged to have been committed by the appellant, it was in the interest of all parties involved, including the appellant himself, that adjudication of the matter is concluded. We do note the views of Denham, J. in the M. K. case (supra) that –


The test to be applied by a court in determining whether or not a trial should proceed, is whether there is a real risk of unfair trial. This test may be applied in other circumstances, seeking to protect the same Constitutional rights”. (emphasis provided).


In the circumstances of this case, as noted earlier, the trial judge’s decision to proceed with the trial was proper. The extraordinary materiality concept expressed by Yang, C.J. in the case of R v. Holgate (No. 1 (1996) 3 HKC, 317 would not apply in the present case. The two cases are distinguishable.


The above said, the trial judge was required in the circumstances and in the interest of justice, to give some indication in his judgment about the non availability of the two witnesses and its impact on a fair hearing, as propounded by Lord Lane in A.G’s Reference (No. 1 of 1990 at 644 A), cited in the R v Holgate case, supra. The trial judge in the instant case did take the necessary precaution and we are of the view that no miscarriage of justice was caused.


We are obliged to state in passing that there are clear guidelines when it comes to the giving of expert evidence. Fr. Shaw has been referred to interchangeably as “expert witness”, “defence witness”, “key witness”. At no stage his expertise is mentioned, other than (presumably) his priestly role. Why was another expert – of similar qualifications – not sought to testify on behalf of the appellant when it became apparent that Fr. Shaw would not be available to testify? We are told by counsel for the defendant that it would have involved more costs and delays. We are not satisfied with that explanation, given the seriousness of the charges the appellant was facing. The foregoing elaborate discourse, disposes off issues 8.11 and 8.10 of the grounds of appeal (supra).


  1. It has been vehemently argued that by instituting proceedings against the appellant under section 192 of the Penal Code, it amounted to the appellant being charged for an offence which he had been acquitted. Definitely, if this were so, it would contravene the provisions of Article 19 (5) of the Constitution, which state:-


A person who shows that the person has been tried by a competent court for an offence and either convicted or acquitted, shall not be tried again for that offence or for any other offence of which the person could have been convicted at the trial for that offence, save upon an order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal. (emphasis provided).


We have considered the facts of this case in relation to the appellant’s arguments. We are equally mindful of the clear and unambiguous provisions of Article 19 (5) of the Constitution. Under that Article (as stressed above) a retrial may be ordered by “a superior court in the course of an appeal …”. That is what transpired in this case where this Court ordered for “a rehearing on two counts of manslaughter …”. The appellant would have not been charged for other offences other than manslaughter. Under the Penal Code, manslaughter is an offence contrary to section 192 and punishable under section 195. There is no offence of manslaughter on the basis of diminished responsibility although a Jury can return a verdict of manslaughter on the basis of diminished responsibility.


It would appear, to be brief, that “both sides agreed for a retrial for manslaughter”. And, that could be only under section 192. The Constitution (supra) allows a retrial if so ordered in the course of an appeal. Therefore what would amount to a violation of the principles of autrefois acquit or convict is saved, in special circumstances under Article 19 (5). Given the circumstances, and bearing in mind the powers of the Attorney General when it comes to prosecution of cases (Article 76 (4) (6) and (10) of the Constitution), it is our considered view that the appellant was properly charged again under section 192 of the Penal Code. Hence the ground of appeal No. 8.9 (supra) is dismissed.

11. That brings us to the crux of the issues – did the appellant in stabbing the two victims, leading to their deaths, wilfully and voluntarily commit the offences?


The defence relies on “non-insane automatism”, which, simply understood, means that at the material time (of stabbing the two victims), the appellant was in his normal mental faculties (senses) but he did not have control over his actions. This loss of control over the body or limbs is what amounts to automatism (Archbold, 43rd Ed. Para 17 – 40); an act done by the muscles without any control by the mind (Bratty vs A.G (Northern Ireland) (1963) A C 386.


12. Black’s Law Dictionary (6th Ed.) further defines automatism as:-


“a behaviour performed in a state of mental unconsciousness or dissociation without full awareness … (it is) applied to actions or conduct of an individual apparently occurring without will, purpose or reasoned intention on his part a condition sometimes observed in persons, who, without being actually insane, suffer from an obscuration of mental faculties, loss of volition or of memory or kindred affections.”


13. This Court did (in Cr. App. No. 7/2001) consider at greater length (pp. 11 to 20 of the judgment) all the elements of automatism, including non-insane automatism. We do repeat those views. The following general principles of law and practice may therefore be gleaned from that consideration.


First, that non-insane automatism is a defence under section 10 of the Penal Code.


Second, the said defence implies that the act (or omission) done by an accused person was unwilled (Regina v Radford (1985) 42 SA SR 266).


Third, the defence of non-insane automatism will not apply where it is established that the accused was (at the material time) of unsound mind (insane).


Fourth, where non-insane automatism is raised, premised on a malfunctioning of the mind (even) of a transitory nature due to some external factors affecting the body or limbs, the use of various descriptions and terminologies should not obscure the fact that in terms of section 10 of the Penal Code, the basic issue is whether the act (or omission) occurred independently of the appellant’s will.


14. In canvassing this issue, one is reminded of the words of Lord Denning in the Bratty case (supra) thus:


“… and to prevent confusion, it is to be observed that in Criminal law, an act is not to be regarded as an involuntary act simply because the doer does not remember it … loss of memory afterwards is never a defence in itself, so long as he was conscious at the time … nor is an act to be regarded as an involuntary act simply because the doer could not control his impulse to do it …” (emphasis added).


There is no evidence suggesting that the appellant had a transitory loss of mind. He was aware of what he was doing. This is supported by the evidence that e.g. he asked people around him to pray for him; he called in Pamela and when the latter declined to go into the bedroom he came out, grabbed her in and tried to have sexual intercourse. In the meantime he had asked Pamela if she “wanted to go to Tony”; he had forcefully undressed her. It is also evident that upon failing to get what he wanted, he stabbed her at her back and according to Gisele, “Pamela cried, run out with a knife stuck in her back.” Gisele had seen those inside the house trying to “pin him down.” When he broke loose, he chased Pamela and gave her the final, fatal blows including a deep stab at her heart and vagina regions.

15. We do agree with the trial judge that such acts are not of “automatism” nature. Calling in Pamela (to have sex) cannot be attributed to an act of automatism. Stabbing her at the back cannot either as it appears that having been denied sex, he lost his impulse and decided to do what he did – to stab her, fatally.


Again one would ask – if his acts were of a non-insane automatism, why did he not attack those people who attempted to pin him down? Analysing the circumstances and the appellant’s behaviour at the material time, we do agree with the trial judge’s views that “he did not strike any one that came before him haphazardly or mechanically but was rather hot on the heels giving chase to Pamela …” Of course, Greta became a victim (as per Gisele’s undisputed evidence) consequent to her attempt to stop the appellant from further attacking Pamela.


16. In R v. Charleson (1955) 39 Cr. App. R. 37, it was noted that the court may infer the intention from the mere act itself. However before such an inference is drawn, the court should look at all circumstances and ask whether such inference can be drawn in a particular case. The trial judge, in our considered view, did warn himself accordingly and came to a proper decision that at the time the appellant committed “the acts of assault and stabbing Pamela and Greta, leading to their death” the appellant was conscious of his actions. He therefore wilfully committed the offences with which he was charged and convicted. We see no reasons to differ with the trial judge’s conclusions. Therefore we dismiss the appeal against conviction.


Appeal Against Sentence

17. We do note that the issue of a concurrent sentence of 20 years imprisonment imposed on the appellant was well canvassed by counsel for both parties. We do further note with satisfaction the Attorney General’s concession of the fact that the said sentence meted out after a retrial was severe. We do realise that the law in this respect – of what kind of sentence should be imposed to a convict after retrial – has not been finally settled in Seychelles either by way of an Act of Parliament or by this Court.


18. The practice pertaining to sentencing may safely be stated that it revolves around the provisions of Article 19 of the Constitution. The issue for determination here is whether or not the higher sentence imposed on the appellant after conviction in criminal case No. 9 of 2002 was inconsistent with established fundamental tenets of criminal jurisprudence. It is our judgment that it was so inconsistent.


In the first trial (in criminal case No. 55 of 2000) the appellant was sentenced to a concurrent sentence of 15 years imprisonment. Given the fact that our laws are silent on the powers of the court when passing sentences on a retrial, imposing a higher (and therefore more severe) sentence after a retrial needs some explanation (from the trial court) as to why he had decided so. We have not seen such satisfactory reasons to that effect, in the trial court’s “sentence” statement in this case.


19. It was eloquently stated in the case of North Caroline vs Pearce, 395 US 711 (1969) – a judgment that we quote with approval and en extenso – thus (per Justice Stewart):


“… the problem before us involves two related but analytically separate issues. One concerns the constitutional limitations upon the imposition of a more severe punishment after conviction for the same offence upon retrial… A trial judge is not constitutionally precluded, from imposing a new sentence, whether greater or less than the original sentence, in the light of events subsequent to the first trial that may have thrown new light upon the defendant’s life, health, habits, conduct, mental and moral propensities. Such information may come to the judge’s attention from evidence adduced at the second trial itself. The freedom of a sentencing judge to consider the defendant’s conduct subsequent to the first conviction in imposing a new sentence is no more than consonant with the principle (of) prevalent modern philosophy of penology that punishment should fit the offender and not merely the crime… It would (however) be a flagrant violation (of the constitution) for a trial court to follow unannounced practice of imposing a heavier sentence upon every reconvicted defendant … the very threat inherent in the existence of such punitive policy would … serve to chill the exercise of basic constitutional right (of appeal). … the imposition of a penalty upon the defendant for having successfully pursued a statutory right of appeal … would be no less a violation of a due process of law … due process of law, then, requires that vindictiveness against a defendant (for having successfully attacked his first conviction) must play no part in the sentence he receives … due process of law also requires that a defendant be freed of apprehension of such retaliatory motivation on the part of the sentencing judge …


In order to assure the absence of such motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing …” (emphasis added).


20. Although there is no evidence of vindictiveness or retaliatory motivation on the part of the trial judge in the instant case, yet we are of the firm view that the 20 years concurrent prison sentence – without justifiable reasons to some facts (concerning the appellant) emerging after his first conviction – was unnecessary. To encapsulate all the foregoing, it is our judgment that the said sentence was excessive. We therefore set it aside and substitute therefor with one of ten (10) years imprisonment.


21. Therefore, for reasons stated herein, the appeal against conviction fails and is dismissed. The appeal against sentence is allowed to the extent shown in the preceding paragraph.


……………………………………

S. J. BWANA

JUSTICE OF APPEAL



I concur: ……………………………………

M. M. RAMODIBEDI

PRESIDENT

I concur: ……………………………………

J. M. HODOUL

JUSTICE OF APPEAL





Delivered at Victoria, Mahe, this 20th May 2005