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