Azemia and Others v R (4 of 2004) (4 of 2004) [2005] SCCA 8 (19 May 2005);







IN
THE SEYCHELLES COURT OF APPEAL










Criminal Appeal Nos. SCA 1
– 4 of 2004











In the matter between











ROBERT AZEMIA -First
Appellant



BEDDY PAYET -Second
Appellant



ROLLY LESPERANCE -Third
Appellant



ALLEN MARENGO -Fourth
Appellant



JULIUS LABROSSE -Fifth
Appellant







and






THE
REPUBLIC -Respondent



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



Before:
RAMODIDBEDI, P., BWANA, J. A., HODOUL, J.A.







Heard on: May 2005



Judgment delivered on: 20
May 2005






Mrs.
A. G. Antao for the First and Second Appellants


Mr.
P. Pardiwalla for the Third Appellant


Mr.
D. S. Lucas for the Fourth Appellant


No
appearance for the Fifth Appellant


Mr.
R. Govinden for the Respondent








J
U D G M E N T







RAMODIBEDI, P.






[1] The
appeals in this matter have been consolidated in terms of Rule 30 (5)
of the Seychelles Court of Appeal Rules 1978 as amended
by S. I. 49
of 2000. That Rule provides as follows:-






Where
more persons than one have been jointly tried and any two or more of
them desire to appeal, they may at their option file separate
or
joint notices of appeal. Every notice of appeal shall be deemed to
institute (sic) one appeal, but where more appeals than one
are
brought from convictions at the same trial they shall, unless the
Court otherwise orders, be deemed to have been consolidated
and shall
proceed as one appeal.”







For convenience, the
five Appellants in this matter shall herein be referred to as First
to Fifth Appellants respectively.






[2] The
matter has come before us in this way. The First, Third to Fifth
Appellants and two others were jointly indicted in the Supreme
Court
on two counts namely counts 1 and 4 couched in the following terms:-






Count
1


Statement
of Offence
:



Unlawful
possession
of turtle meat, contrary to Regulation 5(3)
of the Wild Animals (Turtles) Protection Regulations (S.I. 46 of
1994), punishable under
Section 3 of the Wild Animals and Birds
Protection Act (Cap 247), as amended by Act 9 of 2001.”







The particulars of
the charge alleged that all the accused, on 30 January 2003, at the
Providence Industrial Estate, Mahe, had in
their possession
approximately 1141 kg of turtle meat.







Count
4


Statement
of Offence


Killing
of a protected bird contrary to Regulation 4(1) of the Wild Birds
Protection Regulations of 18
th April 1966,
punishable under section 3 of the Wild Animals and Birds Protection
Act (Cap 247) as amended by Act 9 of 2001.”






It
was alleged in the particulars of the charge that all the accused, in
the month of January 2003, unlawfully killed approximately
40 boobies
being protected birds.







[3] The Second
Appellant alone faced a charge under count 6 couched in these terms:-






Count
6



Statement
of Offence



Unlawful
Possession
of turtle meat contrary to Regulation 5 (3) of
the Wild Animals (Turtles) Protection Regulations (S.I. 46 of 1994)
and punishable
under Section 3 of the Wild Animals and Birds
Protection Act (Cap 247), as amended by Act 9 of 2001.”






The
particulars of the charge alleged that the Second Appellant, on 31
January 2003, at the Providence Estate, Mahe, had in his possession
58 kg of turtle meat.







[4] It is necessary
to record at the onset that the trial in this matter commenced on 28
March 2003 when all the accused pleaded not
guilty.







[5] On 18 May 2004
the Appellants were convicted as follows:








  1. First
    Appellant: Count 1: Guilty.




Count 4: Guilty.







(2) Second
Appellant: Count 6: Guilty.







(3) Third
Appellant: Count 1: Guilty.



Count 4:
Charge withdrawn







(4) Fourth
Appellant: Count 1: Guilty



Count 4: Not
guilty.







(5) Fifth
Appellant: Count 1: Guilty.



Count 4: Not
guilty.



[6] On 19th
May 2004, the Appellants received the following sentences
respectively:-







(1) First
Appellant: Count 1: 2 years’ imprisonment.



Count 2: 1
year imprisonment.



Sentences to
run concurrently.







(2) Second
Appellant: Count 6: 2 years’ imprisonment





(3) Third
Appellant: Count 1: 2 years’ imprisonment





(4) Fourth
Appellant: Count 1: 2 years’ imprisonment







(5) Fifth
Appellant: Count 1: 2 years’ imprisonment







[7] It is a striking
and no doubt regrettable feature of this case that notwithstanding
the fact that appeals were timeously noted
early in June 2004, the
matter could not be heard until now almost a whole year down the
line. It is common cause, however, that
this inordinate delay was
due to circumstances beyond the parties’ as well as the Court’s
control.







[8] The essential
background facts relative to this appeal are briefly the following.







On 31 January 2003,
and apparently following a certain tip-off, a large contingent of
police officers from S.S.U and Adam Unit together
with members of the
Conservation Section of the Ministry of Environment converged at or
near the resident of one Souris at the Providence
Industrial Estate,
Mahe. Thereat, they found the Second Appellant standing next to the
door of his pick-up not far from the beach.
This was a place where
boats were being constructed. A bag tied with a rope was seen at the
back of the pick-up. When opened,
the police discovered that the bag
contained “meat” which subsequently formed the subject
matter of count 6. A number
of gunny bags containing what the
prosecution alleged to be turtle meat were retrieved from a boat
moored nearby and apparently belonging
to one Jean. These in turn
subsequently formed the subject matter of counts 1 and 4.






[9] At
the onset, it must be said that at the trial counsel for the
prosecution improperly put the following question to the witness,
namely, Assistant Superintendent James Matombe who led the police
contingent to the scene of crime on page 175 of the record:-







Q. Did you
form an
opinion at least to what was that (the
meat)?







A. From the smell
of it, I come (sic) to the conclusion that it was turtle meat.”
(My own emphasis).







[10] Now, it is
trite law that, as a general rule, the opinion of a witness is
irrelevant because it is the function of a court to
draw inferences
and form its opinion from facts. Exceptions to the rule are experts
in that, because of their experience and specialised
study, they have
a fixed standard and can give their evidence with certainty. I shall
return to this aspect more fully later. Suffice
it to say that the
opinion of James Matombe that the meat in question was turtle meat is
plainly inadmissible since he is not an
expert and so is the opinion
of other police witnesses in the matter more especially as they
themselves evidently relied on the evidence
of one Selby Remie, whom
they had specifically called to the scene of the alleged crime on 31
January 2003 for identifying the meat
in question. In this regard,
it is important to bear in mind the evidence of the investigating
officer himself, namely S. I. Sonny
Leggaie on pages 548-9 of the
record. Mrs. Antao for the First and Second Appellants took
him to task on his allegation that the meat in question was turtle
meat. She confronted
him with the following pertinent questions:-







“Q: Who
told you it was turtle meat?







A: Mr. Remi
(sic), the Environment Officer.







Q: Only then did
you know?







A: I suspected
it to be turtle meat.







Q: But you did
not know until Remie came?







A: Yes.”






And
finally on page 551 of the record, the witness was asked the
following question which must surely be the killer blow to the
prosecution
case:-





Q: Until
Mr. Remie appeared, nobody knew with certainty what was in the bag.





A: No
one knew if it was turtle meat. I did not know.”





[11] As
was to be expected in these circumstances, the prosecution sought to
rely on the evidence of Remie as an “expert”
witness in
its attempt to prove that the meat in question was turtle meat as
well as bird meat. I shall deal with this evidence
more fully later.





[12] Before
proceeding any further it is necessary to refer to the statute on
which the charges were based.





Section
3 of the Wild Animals and Birds Protection Act (Cap 247) reads as
follows:-





3.
(1) Any person guilty of an offence against any regulation made under
this Act shall, on conviction, be liable to the penalty prescribed
by
regulation, or where no such penalty is prescribed, to a fine not
less that R5000 and not exceeding R500,000 or the term of
imprisonment
not exceeding two years.






(2) Where a
penalty is prescribed by regulation, it shall not exceed the maximum
fine and imprisonment referred to in subsection (1).






(3) On convicting
any person for an offence against any regulation, the Court in
addition to any penalty imposed may cancel any licence
issued to that
person to operate any boat or vessel or motor vehicle or aircraft
which is proved to have been used in the commission
of the offence.”





Regulation
5 (3) of the Wild Animals (Turtles) Protection Regulations (S. I. 46
of 1994) in turn provides:-





(3) No
person shall possess, sell, expose for sale, purchase or receive any
meat or any part of the flesh or calipee of a turtle.”





Regulation
4 (1) of the Wild Birds Protection Regulations 1966 provides as
follows:-





“4. No
person shall –






  1. shoot,
    kill or take



.


.


(2) any
bird declared to be protected under regulation 3.”





The
declaration of protected birds under regulation 3 is in the following
terms:-





3
(1) All birds, except as hereafter provided, are hereby declared to
be protected throughout Seychelles during the whole year.






(2) The following
birds shall not be protected -





(a) the
Cardinal Bird or Tisserin (Foudia Madagascariensis), the African Barn
Owl or Hibou, the Mynah and the House Sparrow;





(b) the
Seychelles Bulbul or Merle (Ixocincla Crasirostris) on the islands of
Frigate, La Digue and Praslin, from the 15
th
April to the 15
th November (both dates
inclusive);





(c) the
Cattle Egret or Madame Paton (Bubulcus Ibis) and the Grey Heron or
Florentin (Ardea Cinerea) on the islands where sea birds
lay their
eggs and listed in the Schedule to the Birds’ Eggs (Collection)
Regulations;





(d) the
Turtle Dove or Tourterelle des Iles (Streptopelia Picturata Rostrata)
on all islands except Félicité, Frigate,
North Cousin
or Cousin, South Cousin or Cousine and Mary Anne or Marianne;





(e) the
nestling of the Wedge-tailed Shearwater or Fouquet (Procellaria
Pacifica Hamiltoni) from the 1
st January to
the 31
st March (both dates inclusive) on all
islands except Beacon or Ile Séche, Les Mamelles, North Cousin
or Cousin and Vache Marine.”





[13] To
return to the facts, it is the prosecution case that the First and
Fourth Appellants were found sleeping in the hold of the
boat
containing the meat in question. Concerning the other Appellants,
the Crown relied on their statements which were ruled admissible
following hotly contested voir dire proceedings.





[14] Against
the aforementioned background, the issues that primarily arise in
this appeal may be summarized as follows-





1. Was
the meat forming the subject matter of counts 1 and 6 turtle meat?





2. Was
the meat forming the subject matter of count 4 bird meat of boobies
species?





3. Was
the prosecution witness Selby Remie qualified to give evidence as an
expert?






  1. Do
    the offences charged create strict liability?







  1. Were
    statements of the Appellants properly admitted as evidence against
    them?







  1. Was
    it fair for the trial court to prevent defence counsel from
    cross-examining on matters arising from the voire dire proceedings
    simply because the court had already ruled the accused’s
    statements in question admissible?







  1. Was
    the inspection in loco carried out by the trial court on 31 October
    2003 proper?






I
should add for completeness that these issues were hotly debated in
the court below but apparently found no favour with the court
in so
far as the Appellants were concerned. As an appellate court it is
then the duty of this Court to retry the issues again.





[15] At
the outset, I should point out that in the light of the conclusion I
have reached in this matter as fully set out below, it
is strictly
unnecessary to determine all of the issues raised in paragraph [14]
above. In a nutshell, this is so because, merely
as an example, if
the evidence of the expert witness Remie is found to be inadmissible
on the issue whether the meat in question
was turtle as well as bird
meat, there is, in my view, no need to go further.





[16] As
I have indicated previously, the evidence of Selby Remie was the main
bedrock of the prosecution case. He was specifically
invited by the
police to identify the meat in question clearly because, as alluded
to in paragraph [10] above, they themselves could
not do so. In due
course he told the police that the meat in question was turtle as
well as bird meat.





[17] In
brief, the evidence of Selby Remie discloses that he is a young man
of 32 years. He has a degree in biological services having
qualified
in 1995 from the University of UK as he put it in his evidence in
chief. Since qualifying, he has been working in the
conservation
section as Conservation Officer, Senior Conservation Officer and
finally as Director of Conservation in the Ministry
of Environment.
Moreover, he testified that he has been involved in the conservation
work since 1992. He further testified that
he has had several stints
of training especially with the consultants that had been employed by
the Ministry in terms of “turtle
work and birds as well.”





[18] The
record further discloses on page 777 thereof that counsel for the
prosecution then put the following leading and clearly
suggestive
question to the witness:-





“Q: What
is the science in biology, which you are expert in?





A: I
would be more specialized in ecology but I got a lot of experience in
training in respect of biology, living health, agriculture
and other
issues as well.”





It
will be observed, however, that the witness never claimed to be an
expert and that this suggestion came from the prosecution counsel
himself. In my view this was improper and clearly prejudicial to the
defence. Indeed this might have unduly influenced the trial
court
into believing that the witness was an expert as, for example, on
page 836 of the record the learned trial judge is recorded
as having
said the following:-





Court:
You (to Mr. Pardiwalla for accused No. 3, now Third Appellant) did
not cross-examine, re-examination is on, you challenged
this
expert
when he came, now he says what is CITES in and whether it is
applicable in Seychelles, this is very relevant to the evidence.”
(Emphasis added).





[19] I
pause here to say that it is clear, as it seems to me, that the trial
court was led to unduly prejudge the issue whether Selby
Remie was an
expert and that once that was so, the court formed a hardened view of
the matter and never allowed itself to be persuaded
otherwise. With
respect, this approach cannot be right and has in my view, led to a
miscarriage of justice in the special circumstances
of this case.





[20] In
my view, the limitations of Selby Remie as a so called expert were
fully exposed under cross-examination. In this regard
the
cross-examination of the witness by Mr. Lucas for accused No.
1 and now Fourth Appellant produced the following devastating results
as gleaned from pages 788 to 805 of the record:-





It
turned out that the witness’s degree in question is only a
general “degree” and that he has no university degree
as
such. He produced no papers to prove the certificates he claimed he
had. He has no diplomas or certificates from the association
of the
consultants. Indeed he was asked:-





Q: So
you have no papers to present with regards to your qualifications?





A: No.”





Amazingly,
the witness further conceded that he had no instruments to use to
identify the meat in question. He did not even have
a ruler to
measure the lengths of the parts of the alledged turtle as well as
bird meat. He relied entirely on visual observation.





As
if these shortcomings were not enough, the witness conceded more. He
further conceded that he did not take any notes at the scene
of the
crime. Surprisingly, he did not count the birds in question yet the
accused were charged with having killed 40 birds. Accordingly,
he
conceded that he was asking the trial court to accept that the birds
in question were the protected boobies purely based on his
visual
observation. This, in circumstances where the “birds” in
question did not even have any heads or “feet”
for him to
identify them with.





[21] Because
this Court’s approach to expert evidence is obviously
diametrically different from that of the trial court, it
is no doubt
necessary to quote at length Selby Remie’s evidence under
cross-examination starting from page 797 to 799 of the
record:-





“Q: What
sort of boobies are we talking about?





A: There
are three species in Seychelles and all three of them are basically
the same size.





Q: Which
species do we have in the Seychelles?





A: We
have the mass booby red footed and brown.





Q: Which
one is bigger?





A: I
think the brown is bigger.





Q: You
are not sure?





A: The
brown is bigger.





Q: What
about the red footed?





A: It
would be slightly smaller.





Q: Slightly
or considerably smaller?





A: Slightly.





Q: Are
you sure that it is not the mass booby which was to be the biggest
booby of the genus of the species? Do you still maintain
that the
brown boobies are the biggest of the species?





A: I
do not know.





Q: And
this is typical with the answers, which you have been given us, it
would be purely speculation because you do not know. You
have been
with the consultants, you have visited all the islands, you know the
boobies by heart and then you do not know that the
mass boobies are
the biggest boobies of them all and you tell us that the brown booby
is the biggest booby.





A: (No
reply).





Q: Do
you know that there are certain chemical tests which can determine
the amount of calcium glucose and uric acid in birds which
can lead
you to identify not only their family, not only their genus but also
their species. Do you known that?





A: I
do not know.





Q: In
terms of chemical testing, do you know what WPC means?





A: No.





Q: Do
you know what PCV means?





A: No.





Q: Apart
from DNA and chemical testing are there any other kind of tests which
can be used to determine not only the family, not only
the genus but
also the species of each particular genus. Do you know of any such
test, which can be undertaken to establish the
species?





A: The
visual tests.





Q: That
is the most unreliable. You meant to say you chose the most
unreliable test because when you see green, I can see blue and
then
it would be the question of which of us has the right colour sense.
Do you agree with that?





A: Yes.”





[22] It
was specifically suggested to Selby Remie on page 804 of the record
that a puffin has the same structure as a booby. Significantly
he
had no knowledge of this. The questions were put as follows:





Q: It
is obvious that you do not know what you were looking at. You cannot
tell a mass booby from a brown booby, red booby and you
do not even
know which is the biggest booby. So how can you ask us to rely on
your observations?





A: What
I did say was, I cannot identify the species exactly but based on the
structure it was a booby.





Q: What
about puffin does it not have the same structure as the booby; it
comes from the same genus.





A: I
cannot say.





Q: You
do not know, isn’t that correct?





A: I
do not know.





Q: Do
they come from the same genus?





A: I
do not know.





Q: Now
that you have admitted that you do not know, I will tell you, they
come from the same genus. Will you accept that from me?





A: They
might but I have to check.”





He
never did.





[23] But,
what is of more concern to this Court is that in the middle of his
cross-examination of Selby Remie, Mr. Lucas was abruptly and
effectively stopped by the trial court from cross-examining the
witness in an attempt to show that he was not an
expert and that his
evidence was not credible. The record on page 805 thereof reveals
the following:





Court:
Mr. Lucas, you have to limit yourself on the exhibits before the
court.





Mr.
Lucas
: I have no further questions.”





Why
Mr. Lucas was prevented from exposing the limitations of the
“expert” witness is incomprehensible to me. Nor is it
clear to me
how in these circumstances the trial court could have
made the following remarks as recorded on page 1199 of the record:-





No
objections being raised by any of the defence counsel against him
(Selby Remie) being called as an expert for purposes of the exhibits
in the case, he proceeded to give his evidence.”





With
respect, this approach is flawed principally for two reasons. First,
it is the duty of the trial court in criminal proceedings
not to
accept the opinion of the expert without satisfying itself that the
expert is sufficiently qualified and competent in terms
of skill,
training or experience to give assistance. Secondly, the
cross-examination of Selby Remie by all counsel concerned shows
that
the defence were challenging not only his claim that he was an expert
but also his competence. Issues of credibility were also
obviously
involved. How the defence counsel were expected to challenge him
before he gave evidence in chief is once again incomprehensible
to
me. In some jurisdictions, a proposed expert witness is required to
file an affidavit indicating his expertise and special study
in the
field for which he is an expert as well as his opinion based on the
facts. But even in such cases it has never, as far as
I am aware,
been said that an “expert” is precluded from giving his
evidence in chief. The challenge has always come
during
cross-examination. This, I should add, is a procedure which this
Court is happy to adopt as indeed the question whether or
not a
person is an expert is a question of fact to be determined on the
full facts of each case. In this connection, therefore,
I consider
that the facts cannot be full if cross-examination on the issue is
precluded as happened here.





[24] As
guidance in future prosecutions, it is now necessary to stress the
trite principle that before a witness can offer his opinion
as an
expert witness, the Court must decide whether he is an expert on the
matter in question. An accused person is obviously entitled
to
cross-examine such a witness on the issue. More importantly, a trial
court should not blindly accept the evidence of an expert
evidence
simply because he is presented as such by the prosecution.





[25] Another
disturbing feature of the trial which deserves comment here is that
the record discloses on page 776 thereof that, on
4 March 2004,
Selby Remie’s evidence proceeded in the absence of the Fifth
Appellant notwithstanding his counsel’s objection.
This, as I
observe, was in contravention of s. 169 of the Criminal Procedure
Code (Cap 54) which reads:-





169.
Except as otherwise expressly provided, all evidence
taken in any inquiry or trial under this Code shall be taken in the
presence
of the accused, or, when his personal attendance has been
dispensed with, in the presence of his advocate.”





[26] In
the light of the aforegoing, I have come to the inescapable
conclusion that the trial court was wrong in accepting the evidence
of Selby Remie as expert evidence. Similarly, the court was wrong in
relying on such evidence which in my view was inadmissible.





Indeed
the word “expert” is defined as follows in Strands
Judicial Dictionary:-





An
expert witness, is one who has made the subject upon which he speaks
a matter of particular study, practice, or observation; and
he must
have a particular and special knowledge of the subject.”





[27] In
my view, the evidence of Selby Remie fell short of proving that he is
an expert. Significantly, there is no evidence on record
that he had
ever given evidence as an expert in a court of law before. As
pointed out earlier, he failed to produce any certificates
and even
though it is not a sine qua non for being an expert on the subject at
hand, he has apparently not written any publications.
He is, on his
own admission, a general “scientist” and a junior one for
that matter. His limitations were ruthlessly
exposed in
cross-examination. Furthermore, it is clear from the record that he
was not a neutral witness. He was part of the investigating
team and
clearly a “complainant” in the sense that he represented
the line Ministry of Environment. That being so, he
had personal
interest in the matter. For all of these factors it would, in my
view, be dangerous to rely on his evidence as to “opinion.”





[28] But,
because all the Appellants were, apart from Selby Remie’s
evidence, apparently convicted on the basis of their own
statements
to the police, it is necessary to determine this issue. I begin by
observing that at common law no statement by an accused
person can be
given in evidence against himself unless the prosecution proves
beyond reasonable doubt that it was freely and voluntarily
made. See
Ibrahim v Regem [1914 – 15] All E. R. 847 (PC); DPP v
Ping Lin [1975] 3 All E. R.175 (HL)
. The main reason underlying
this principle is that it is against public policy to convict a man
out of his own mouth. Indeed experience
shows that it is not
uncommon for people to admit guilt where they are innocent. Thus, to
obviate the danger of innocent people
being convicted, the English
common law evolved a principle that has stood the test of time,
namely, that it is for the prosecution,
and not the accused, to prove
its case beyond reasonable doubt.





Similarly,
the English common law has evolved a further principle that an
extra-judicial confession requires corroboration as a safeguard
against a wrong conviction. Such corroboration must obviously be
evidence independent of the statement in question and implicating
the
accused in a material respect. See D.P.P. v Kilbourne [1973] A.
C. 729 (HL)
. In Guy Robert Pool v The Republic 1974 SCAR
this Court itself held that once a confession is retracted there must
be corroboration showing the guilt of the accused.





[29] It
will be observed at the outset that all the Appellants except the
Second Appellant retracted and repudiated the statements
in question
on the ground that they were obtained either by force or, as in the
case of the Third Appellant, a promise of an early
release from
custody.





The
Second Appellant challenged the admissibility of the statement on the
ground that the Judges Rules had not been followed when
the statement
was taken from him.





[30] It
requires to be noted at this stage that the Appellant’s
respective challenges to the admissibility of the statements
in
question necessitated the holding of voir dire proceedings. At the
end of the voir dire, all the statements were, however, ruled
admissible. The correctness of that ruling is also challenged on
appeal.





[31] It
is no doubt convenient to commence the issue of the ruling in
question with reference to the approach of the Court a quo on
the
matter as this has perturbed this Court. In this regard, it is
common cause that counsel were not given the opportunity to address
the trial court at the conclusion of the voir dire. The learned
trial Judge concedes this point in his judgment and seeks to justify
his approach in the following terms:-





In
the present case, the 1
st Accused ( Fourth
Appellant) was given an opportunity to give evidence on oath, and the
Court proceeded to make an
ex tempore ruling on
being satisfied that there was no merit in any of the grounds of
objection raised. Neither the Counsel for the Prosecution
nor the
Counsel for the 1
st Accused were called upon
to address Court in those circumstances.”





With
respect, I cannot agree with this approach which clearly flies in the
face of Article 19 of the Constitution on the right to
a fair
hearing.





[32] For
convenience, the relevant parts of this Article read as follows:





19.
(1) Every person charged with an offence has the right, unless the
charge is withdrawn, to a
fair hearing within a
reasonable time by an independent and impartial court established by
law.






  1. Every
    person who is charged with an offence –








    1. is
      innocent until the person is proved or has pleaded guilty;




.


.


.



  1. has
    a right to be defended before the court in person, or, at the
    person’s own expense by a legal practitioner of the person’s
    own choice, or, where a law so provides, by a legal practitioner
    provided at public expense;







  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;






.


.


.






  1. shall
    not be compelled to testify at the trial or
    confess
    guilty
    .” (Emphasis added).









[32] It
cannot be stated strongly enough that an accused person has a
constitutional right to address the Court either personally
or
through his counsel at the conclusion of the voir dire. Since voir
dire proceedings by their very nature involve the constitutional
right of an accused person to silence, it would, with respect, be
idle to suggest that an accused person has no right to address
the
court on the issue. The fact that the Criminal Procedure Code has no
requirement for submissions of counsel at the conclusion
of the voir
dire proceedings does not relieve the trial court from observing the
accused’s right under the Constitution. This
is so principally
because the Constitution is, in terms of Article 5 thereof, the
Supreme Law. That Article provides as follows:-





5.
This Constitution is the Supreme law of Seychelles and any
other law found to be inconsistent with this Constitution is, to the
extent
of the inconsistency, void.”





[33] Indeed
it is hardly necessary to state that the right to be heard, otherwise
known as the audi principle (audi alteram partem),
is derived from
the common law. It is based on natural justice and as such has
ancient origins. It is for that matter deeply imbedded
in English
common law. That it encompasses the duty to act fairly is trite law.
See for example Ridge v Baldwin [1964] AC 40. Although that
was a civil case, the principle stated in that case applies with
equal force to a criminal case. On this approach,
therefore, the
question is not whether the Criminal Procedure Code provides for
submissions of counsel at the end of the voir dire
but whether the
Code excludes the right to be heard either expressly or by necessary
implication. At any rate, and as I repeat,
Article 19 of the
Constitution confers the right to be heard.





[34] It
is once again a matter of regret to observe that the trial court
effectively prevented defence counsel from cross-examining
prosecution witnesses on matters raised during the voir dire. The
reason for the court’s approach in this regard was that
allowing cross-examination after the court had ruled the statements
in question admissible was to allow counsel in a “bid to
[regurgitate] the issue of voluntariness in the guise of attacking
their credibility on matters relating to other evidence in the
case.”





The
following examples will serve to highlight the point:-






  1. On
    page 303 of the record Mr. Lucas was stopped from
    cross-examining the investigating officer Sonny Leggaie who had
    admittedly taken the statements in question.
    Counsel was attempting
    to show that the statement from his client namely the Fourth
    Appellant was obtained from him by the use
    of force and/or threats
    of violence by electrocution. Counsel confronted the witness with
    the following question:-






Q: And
you told him (the Fourth Appellant) that if he gave a statement, the
electrical part would be avoided and that he would go
as soon as he
gave his statement.





A: No.





Court:
I made a ruling on that. You need not put that to him.”






  1. M.
    Lucas’
    further attempt to cross-examine on the issue
    arising from the voir dire, as appears from page 362 of the record,
    was treated in
    similar fashion. Mr. Lucas was heard to
    lament:-






Q: So
my lord is saying I cannot go to the start of the oppression?





Court:
Yes. You start with the statement because we must limit the issues
to the statement.”




  1. On
    page 544 of the record, Mr. Lucas attempted to show that some
    facts in the Fourth Appellant’s statement were added up by the
    witness himself. This attempt
    met with the court’s rebuff as
    follows:-






Q: It
is true is it not that in the statement which you took from the 1
st
accused (Fourth Appellant) there are matters which were not told to
you which were inserted by you?





Court:
I have ruled on that. You cannot go back on it. Now you haave
(sic) to go on the merits.





Mr.
Lucas
: Am I not entitled to cross-examine him (Sonny
Leggaie) as to the manner? I insist that I am entitled.





Court:
The manner has been gone (sic) to in the great detail, if you have
other matters arising … I am overruling you on that.





Mr.
Lucas
: My lord, I am entitled to cross-examine SI Leggaie
as to how he took the statement from my client.





Court:
We have gone through this and it is on record. I am overruling you.





Mr.
Lucas
: Then I have no cross-examination.”






  1. The
    record further reveals on pages 573-5 thereof that Mr. Ally
    for the Third Appellant received similar treatment at the hands of
    the trial court in his attempt to confront the witness Leggaie
    with
    his “interrogation” of the Third Appellant allegedly
    resulting in the latter making a forced statement. The trial
    court
    stopped him from cross-examining on the issue and said this:-






Yes
that is so but I have already ruled upon that. I do not want you to
re-agitate (sic) again.”





On
page 575 of the record the trial court once again stopped Mr. Ally
in these terms:-





Court:
No I have made my ruling.





Mr.
Ally
: If that is the position of my lord then my hands to
cross-examine this witness are tied and I cannot proceed any further.
Thank
you my lord.”





[35] Now
Adrian Keane: The Modern Law of Evidence, 4th Edition
page 353, correctly, in my view, puts the position as follows:-





On
the resumption of the trial proper, Defence counsel is fully entitled
to adduce evidence and cross-examine prosecution witnesses
with a
view to impeaching the credibility of the person to whom the
confession was allegedly made, and showing for example, that
the
confession was a fabrication in whole or in part.”





[36]
In R v Sang [1979] 2 All ER 1222 (HL) at 1237 Lord Salmon
said this:-





I
consider that it is a clear principle of the law that a trial judge
has the power and the duty to ensure that the accused has a
fair
trial. Accordingly, amongst other things, he has a discretion to
exclude legally admissible evidence if justice so requires.
See Lord
Reid’s speech in Myers v Director of Public Prosecution”
[1964] 2 All ER 881 at 889.”





I
respectfully agree. I would myself lay it down as a general
proposition that a ruling that is made by the trial court at the
conclusion
of the voir dire is obviously provisional. The trial
court can and should be able to revisit it depending on the justice
of the
case. It would thus be unwise and certainly unfair to the
litigants for the trial court to close its mind and refuse to be
persuaded
to the contrary view before judgment on the merits is
reached.





[37] Giving
due weight to all of the aforementioned considerations cumulatively,
I have come to the conclusion that not only has the
trial court
misdirected itself in the matter but that such misdirection has
actually resulted in a substantial miscarriage of justice.
The
convictions in question are accordingly unsafe.





In
the end result, the appeals of all the Appellants are upheld. Both
convictions and sentences recorded by the trial court are set
aside
and replaced with the following order:-





The
accused are found not guilty and are acquitted on all the counts they
faced.










……………………………………….


M.
M. RAMODIBEDI


PRESIDENT








I
concur: …………………………………….


S.
J. BWANA


JUSTICE
OF APPEAL

















I
concur: …………………………………….


J.
M. HODOUL


JUSTICE
OF APPEAL








Delivered
at Victoria, Mahe this 20
th day of May 2005