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Court name
Court of Appeal
Case number
Criminal Appeal CR SCA 9 of 2003
Counsel for plantiff
Mrs. A. Georges

Simeon v R (Criminal Appeal CR SCA 9 of 2003) [2005] SCCA 12 (20 May 2005);

Media neutral citation
[2005] SCCA 12
Counsel for defendant
Mr. A. Fernando
Coram
Ramodibedi, JA
Bwana, JA
Hodoul, JA

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:-



A. 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.     B. 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.

 

 

 

           C. 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.  

    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.




  2.  

 



 

 

As

against the two sentences of twenty years imprisonment (to run

concurrently) the appellant states:

 



 

 

  1.  

    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).




  2.  

 



 

 

  1.  

    1. The

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




  2.  

 



 

 

  1.  

    1. The

      trial judge allowed himself to be influenced by the prosecution

      towards imposing a heavier sentence.




  2.  

 



 

 

  1.  

    1. The

      sentences are manifestly harsh and excessive.




  2.  

 



 

 

In

so far as appeals against the Rulings are concerned, the following

issues are raised –

 



 

 

  1.  

    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.




  2.  

 



 

 

  1.  

    1. That

      the prosecution had not properly exercised its discretion in not

      calling the investigating officer, ASP Banane.




  2.  

 



 

 

  1.  

    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.




  2.  

 



 

 

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