Octobre v R (10 of 2005) (10 of 2005) [2006] SCCA 10 (28 November 2006);






IN
THE SEYCHELLES COURT OF APPEAL








SCA
No: 10 of 2005











PETER OCTOBRE Appellant







v.s







THE
REPUBLIC

Respondent


Before:
Bwana, Hodoul, Domah, JJA


Counsel:
Mrs.
Antao for the Appellant



Mr.
Camille for the Respondent






Date
of Hearing:

13 November 2006


Date
of Judgment
:
29 November 2006










JUDGMENT
OF THE COURT








Bwana,
AG. P.










1. The
Appellant was charged with Murder contrary to section 194 of the
Penal Code. It was alleged during trial that Peter Octobre on
the
11
th
day of August 2003, in the district of Baie Lazare, Mahe, murdered
one Wilna Dine. By a majority of 8 to 1 the jury reached a verdict
of guilty. He was sentenced to serve a life imprisonment.







2. Dissatisfied
with that finding, the Appellant has raised 5 grounds of appeal
namely:-









    1. The trial judge erred in that
      he failed to place before the jury the evidence of three defence
      witnesses (dw) that was material
      to the defence. In fact he failed
      to address his mind to any and all evidence that was favourable to
      the defence.











    1. The trial judge erred in that
      during the trial he displayed a bias in favour of the prosecution.











    1. The trial judge failed to
      address the jury on the fact that the prosecution produced no
      murder weapon … none of the two
      knives produced had the
      slightest traces of blood.











    1. By not addressing the jury on
      the above, the trial judge failed to exercise his mind to the
      possibility that there were exonerating
      facts that would have
      benefited the Appellant.











    1. The prosecution evidence was
      grounded on the statement made by the Appellant on 19 August 2003,
      despite the admission that such
      statements both outside and inside
      the court were lies.









3. The
Respondent strenuously resists this appeal. It supports the findings
of the trial court.








  1. Facts leading to this
    unfortunate incident may be summarized as follows. The Appellant
    and the victim, Wilna Dine, were apparently
    lovers for a long period
    of time. They used to meet discreetly at a spot in the Roche Copra
    area of Baie Lazare district. On
    12 August 2003, one Ezid Suzette,
    pw4, while going through a small path in the area, saw a body of a
    dead person in a hole. He
    reported it to Takamaka Police Station.
    The body was later retrieved by the police and was identified as
    being that of Wilna Dine.
    It was examined by Dr. Marija Zlatkovic,
    pw 27, a medical doctor. She established two kinds of injuries –
    bruises and haematomas.
    She described the haematomas as having been
    the fatal ones. They included two stab wounds on both the left and
    right side of
    the neck. These wounds are said to have been caused
    by a sharp object. The stab on the left side of the neck is said to
    have
    been the fatal one as it reached the trachea and upon further
    internal examination, she found an inner dissection trachealomena.

    The right side wound was deep but it has gone only through the
    muscles.








5. Investigations
carried out by the police at the scene led to the recovery of certain
articles which were positively identified as
belonging either to the
Appellant or to the deceased. A day before the discovery of the
body, that is on 11 August, one Jules Robinson,
pw5, a police officer
responsible for patrolling the Roche Copra area, had seen several
people in the area. At round 2 p.m. he had
seen the Appellant. He
described the kind of clothes he was wearing and a cap on his head
worn in such a way as to hide his identity.
Pw5 could identify the
Appellant as both live in the same area for many years. The
Appellant’s attire at the material time
is also described by
other pws, including Michel Fred, pw15, a driver of a “pirate”
taxi who was called by the Appellant
to collect him from near the
scene. The following day, it is pw15’s evidence, the Appellant
asked this witness not to tell
the police where exactly he had
collected him the previous day.







6. Subsequently
the Appellant was arrested by the police. All in all, he gave six
statements to the police; three of these were cautioned
statements.
These are statements given on 15 August, 18 August and 19 August.
The others, given on 4, 16 and 19 September may be
safely said to be
“simple statements.” It is claimed by the appellant that
his rights were not fully explained to him
prior to recording the
cautioned statements. That fact is disputed by the Respondent’s
side. We have examined the evidence
on record in respect of this
issue and are satisfied that the trial judge’s decision in
admitting the statements was proper
in law. All the necessary
prerequisites had been complied with. However, we do note, as the
Court a quo did, that the statements
contain contradictions. The
Appellant himself admits that he told lies. The effect of telling
lies by the Appellant has been described
(in the
Goodway
case
:
(1993)4 All. E. R. 894 as follows:-







Lies
told by the accused may indicate a consciousness of guilt and in
appropriate circumstances may therefore be relied upon by the
prosecution as evidence supportive of guilt.”







7. However,
the Appellant told the court that what he testified in his defence
was the truth. The trial judge did consider this issue
while
addressing the jury. We are of the considered view that his
directions to the jury in respect of this matter was proper.







8. We
will consider now the grounds of appeal. The issue of the trial
judge displaying bias (in favour of the prosecution) occupies
a
prominent position – both during trial and before this Court.
It is described by Mrs. Antao to be in the form of admission
of
statements that had been made by the Appellant but in breach of the
Appellant’s Constitutional rights; disallowing questions
the
trial judge thought were in favour of the defence case while allowing
those that tended to fence up the prosecution case even
at times when
procedure did not allow; and not placing before the jury the evidence
of three defence witnesses that was material
to the defence case.







9. We
have considered the above claims in the light of the evidence on
record and came to the conclusion that the trial judge’s
interventions at certain times of the trial did not amount to a
miscarriage of justice. He had to guide the proceedings and direct
the jury accordingly as to what were the issues and at which stage of
the proceedings. We equally find no fault in his summing to
the jury
in respect of factual issues. The evidence on record with regard to
the admission of statements manifests no irregularity.
Concerning
the evidence of the three dws – not being put before the jury,
that did not, in our view, deny the Appellant of
his material
evidence, prompting unfairness to him. The same may be said of
several pws that the trial judge did not make reference
to their
evidence in the course of summing up. Therefore, the trial judge’s
exercise of his discretionary powers by not making
reference to the
evidence of several witnesses (while summing up to the jury) was not
adverse to the interests of justice at large
and to the Appellant in
particular. Avory, J once said in the case of Sheaf (1925) 19 Cr.
App. R. 46:







When
we once arrive at the conclusion that a vital question of fact has
not been left to the jury, the only ground on which we can
affirm a
conviction is that there has been no miscarriage of justice on the
ground that if the question had been left to the jury,
they must
necessary have come to the conclusion that the appellant was guilty.”







10. In
so far as points of law are concerned, we are satisfied with the
trial judge’s directions on burden of proof, standard of
proof,
reasonable doubt, corroboration and analysis of the elements
constituting the offence of murder.







11. The
evidence on record also irresistibly point to the finding that it is
the Appellant who committed the offence. His confession
in his third
cautioned statement is corroborated by the evidence of several pws.
First there is the uncontroverted evidence that
the Appellant and the
victim were lovers for many years. Although they had other, publicly
known relationship/cohabitation, the
two used to meet secretly near
the spot where the body of Wilna Dine was found. Second, according
to pw5, the Appellant was seen
near the scene of the murder on the
fateful day. On that very day, and around the same time, the
Appellant had contacted pw15, asking
to be collected by his (pw15’s)
pirate taxi. Upon being picked up, the Appellant had the same
clothes and cap as described
by pw5. He is described by pw15 as
being absent minded and not willing to talk much. The Appellant’s
wife who was in the
same pirate taxi at the material time, also
received a similar reaction. When asked by his wife where he was
coming from, the Appellant
is on record as having replied: “bous
ou labous, nou a koze lao … - shut up we will talk at home …”
It
should be noted that the Appellant was picked up by pw15 at a
place about 5 to 10 minutes walk from the scene of the murder.
Third,
is the evidence of Gilbert Morin, pw20, an engineer with Cable
and Wireless. He told the trial court how the communication system
works. Acting upon a court order, he produced monitored calls
between mobile telephones 591958 and 577894 on 11 August 2003. The
first phone number belonged to the Appellant and the second one to
the victim. Evidence was produced which proved that the two people
made calls three times, leading to the time that pw5 testified to
have seen the Appellant. The first phone call from the Appellant
to
Wilna was recorded at 9:26:44 a.m. The second one was at 10:08:56
and the third one was at 11:20:52 a.m. Later on, telephone
591958
made a call at 12:56:45 to 768320 and again at 13:05:27 hours. A
last call in that direction was at 13:22:01 hours. Telephone
768320
belonged to pw15. Therefore this piece of evidence corroborates what
pw15 testified as having received calls from the Appellant
(around
that time) asking to be picked up. The same version is stated by the
Appellant in his cautioned statement dated 19 August.
Fourth, is the
evidence regarding the items recovered by the police at the scene of
the murder. They included inter alia, two knives,
a bracelet
identified as belonging to the Appellant which he used to wear as a
protection against “froid”. Both Dr.
Perera (pw21) and
Marija (pw27) confirmed that the cause of death was stab wounds in
the neck region, caused by a sharp object.
We are aware that the
defence case raised an issue to the effect that there were no stains
of blood seen on the two knives recovered
from the scene. Upon
consideration of this point, we are satisfied that there could be
several reasons why no blood stains were
seen from the knives. We
can only speculate. What is important, however, is the fact that the
injuries were caused by sharp objects.
We do also note the
Appellant’s version on how and when he used the knife to stab
the victim, twice in the neck region. Fifth,
is the issue of whether
the Appellant had sexual intercourse with the victim before the
stabbing incident. A medical swab from the
victim’s vagina and
rectum were negative. There was no semen. However, there is
evidence which suggests that a used condom
with semen in had been
recovered from the scene. The Appellant himself states in the
cautioned statement that they made love and
then sexual intercourse
before the fracas ensued. He says that the whole process took about
15 minutes. Thereafter, the subject
of money came up. It would
appear that it is this subject that led to the quarrel ending up with
the loss of life on the part of
Wilna.







12. All
the above analysis of the evidence on record, leads to an
irresistible conclusion, as did the majority of members of the jury,
that Wilna Dine’s death was a result of the stab wounds
inflicted on her and that it is the Appellant who inflicted those
stab
wounds.



13. We
therefore see no reason to differ with the findings of the trial
court. We uphold both the conviction and sentence imposed. The
appeal is therefore dismissed.















……………………………………



S.
J. BWNA



AG. PRESIDENT















I concur: …………………………………….



J.
M. HODOUL



JUSTICE OF APPEAL















I concur: …………………………………….



B.
DOMAH



JUSTICE OF APPEAL















Delivered on 29 November 2006,
Victoria, Seychelles