Quatre v R (2 of 2006) (2 of 2006) [2006] SCCA 13 (28 November 2006);






IN
THE SEYCHELLES COURT OF APPEAL








SCA
No: 2 of 2006











MARIE CELINE
QUATRE Appellant







v.s







THE
REPUBLIC Respondent



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


Before:
Bwana,
Hodoul, Domah, JJA


Counsel:
Mr. B. Georges for the Appellant



Mr.
D. Esparon for the Respondent






Date
of Hearing
:
14 November 2006


Date
of Judgment
:
29 November 2006










JUDGMENT
OF THE COURT









Bwana, Ag. P











1. The
Appellant was charged with two counts namely Possession of Controlled
Drugs contrary to section 6(a) of the Misuse of Drugs Act
read
together with section 26(1) (a) of the same Act and punishable under
section 29 (1) read together with Second Schedule to the
said Act.
She was also charged in the second count, under similar provisions.
The particulars of offence under the first count
show that on 27 July
2005 at Corgate Estate, Mahe, she had in her possession I gram and
149 milligrams of Cannabis Resin. With regard
to the second count,
it is alleged that the Appellant was found, on the same day and at
the same place, in possession of 55 milligrams
of heroin.







2. Under
the provisions of the said Act, cannabis resin falls under class B
drugs whereas heroin falls under class A, as listed in Part
1 of the
First Schedule. Possession of cannabis resin does not carry a
mandatory minimum sentence if the quantity does not exceed
25 grams.
However, heroin, which falls under class A, carries a mandatory
statutory prison term of five years, the quantity found
in
possession, notwithstanding.







3. Three
members of the Police Force Drug Squad, while on patrol received
information that there were transactions taking place involving
controlled drugs. The said transactions were taking place at the
Corgate Estate area. The said policemen proceeded to the area.
As
soon as those people saw the approaching police, they ran away except
the Appellant. She was apprehended.







4. The
three policemen; PC Lucas, pw2; cpl. Julie, pw3; and sgt. Dogley,
pw4; approached the Appellant and searched her. They searched
a
black jacket that she was holding in her left hand. From its left
outer pocket they retrieved a black substance, chocolate like,
and a
small folded paper inside of which there was some white powder. Both
the chocolate like substance and the white powder were
later analyzed
by Dr. Philip Gobin, a principal biochemist at the Scientific Support
Crimes Bureau. He established that the two
substances were heroin
(with a purity of 81.2%) and cannabis resin.







5. From
Corgate Estate area, the Appellant was taken to Mont Fleuri police
station where upon further search of her jacket, a sum of
Sr.950/- in
the denomination of Sr.100 (8 of them) and Sr.50 (3 in total) was
recovered.







6. Subsequently
the Appellant was charged, convicted of the two offences and
sentenced to two years imprisonment for the offence under
the first
count and the mandatory minimum sentence of five years imprisonment
for the second count. Both sentences are to run concurrently.
She
has now raised two main grounds of appeal namely:-









    1. The trial judge erred in believing
      the two police witnesses for the prosecution as witnesses of truth
      despite numerous inconsistencies
      in the evidence of each,
      discrepancies between the contents of their pre trial statements
      and their evidence in court; and discrepancies
      between their
      respective testimonies.











    1. The trial judge erred in not
      alluding to the failure of the prosecution witnesses to have seized
      as an exhibit the jacket of the
      Appellant in which the substances
      were allegedly found and in not holding that it was lightly
      improbable that they would have
      returned the jacket to the
      Appellant after the search if indeed it had been found to contain
      drugs.









Therefore the Appellant prays to this
Court to reverse the judgment and sentences and acquit her on both
charges.







7. The
appeal is strongly resisted by the Respondent.



8. This
appeal may be determined by considering the issues of inconsistencies
of evidence on the part of the key prosecution witnesses
(pws 2 and
3) and by considering the likelihood of the two police witnesses
having “planted” the drugs on to the Appellant
(in her
jacket) between her arrest at Corgate Estate area and the subsequent
search at the police station.








    9.
    As regards the said inconsistencies and contradictions between the
    evidence of the two police officers, one needs to consider
    whether
    they are such that they are material to the substance of the case.
    We have examined the alleged contradictions and inconsistencies
    and
    we are of the considered view that they do not affect the substance
    of the case. Indeed we would not expect the two witnesses
    to say
    the same thing, all the time. What is fundamental to the case is
    whether there are basic, material contradictions with
    regard to the
    main issue before the trial court. The trial judge did not find
    that such contradictions affected the substance
    of the case. We see
    no reason to differ. We are mindful of the long established
    principle that when there is no question of a
    misdirection on the
    part of a trial judge, an appellate court which is disposed to come
    to a different conclusion on the printed
    evidence, should not do so
    unless it is satisfied that any advantage enjoyed by the trial
    judge, by reason of having seen and heard
    the witnesses, could not
    be sufficient to explain or justify the trial judge’s
    conclusion
    (vide:
    Govt. of Seychelles v
    Ernestine SCAR, 374)
    .








10. The
said principle gets further credence when we consider the fact that
the trial judge had the opportunity of examining the demeanor
of the
witnesses during trial, a chance which an appellate court usually
does not have. It has been held (and rightly so) in the
case of
Benmax v Austin Motors Co.
Ltd
(1955) All ER 326 et
seq, that -







“An
appellate court, on an appeal from a case tried before a judge alone,
should not lightly differ from a finding of the trial
judge on a
question of fact but a distinction in this respect must be drawn
between the perception of facts and the evaluation of
facts. Where
there is no question of the credibility of witnesses, but the sole
question is the proper inference to be drawn from
specific facts, an
appellate court is in as good a position to evaluate the evidence as
the trial judge …”







11. Before
this Court, it is evident that the trial judge was being asked to
determine which side to the case was credible with regard
to the
issues raised as to the credibility of both the prosecution and
defence witnesses. The trial judge was better positioned
to
establish which side to believe and which side not to do so. He did
so, having taken into account the demeanour and credibility
of those
witnesses appearing before him in this case. We are hesitant to
differ with him on this fact.







12. As
to the issue of the likelihood of the two police officers having
“planted” the drugs on to the Appellant we are of
the
view that there is no evidence to lead us to that conclusion. There
is no evidence that those three police officers were at
direct or
personal conflict with the Appellant. The fact that she hated police
officers (her own perception) cannot be taken to
mean that police
officers also hated her so as to implicate her in such a serious
offence.







13. Therefore,
all the above considered, this appeal against conviction fails on
both counts.







14. In
so far as the sentences imposed are concerned, we do note that the
five years imprisonment is the minimum mandatory prescribed
by law.
The appellate court will alter a sentence imposed by a trial court
when - as was stated in the
Dingwall
v R
(1966) SLR 205 –
it is evident that -









    1. the trial court acted on a wrong
      principle;











    1. the trial court overlooked some
      material factor; or











    1. where the sentence is manifestly
      excessive in view of the circumstances.









15. None
of the three (14.1 – 14.3) factors are at issue herein. A
wrong principle would happen where a sentence imposed by a trial
court is either not provided for under the law, is ultra vires, or is
in direct conflict with existing law. This is not the situation
herein.







Overlooking material factors would
arise where evidence is disregarded or distorted by the trial court
or where some fundamental
errors have been committed by the said
trial court, leading to injustice being caused to the convict. We
have not detected such
irregularity on the record.







Harsh and excessive are words
increasingly used to describe certain sentences. But those words
cannot be applied without elaborative
specificity. In the appeal
before us, the five years prison sentence imposed is, as said
earlier, the minimum mandatory. Therefore
it cannot be said to be
excessive, in the circumstances. Therefore we see no reason to
disturb the sentences imposed.







16. In
conclusion, this appeal fails in its entirety. Both the conviction
and sentences are upheld.











…………………………………….



S.
J. BWANA



AG. PRESIDENT















I concur: …………………………………….



J.
M. HODOUL



JUSTICE OF APPEAL















I concur: …………………………………….



B.
DOMAH



JUSTICE OF APPEAL







Delivered
29 November 2006,
Victoria, Seychelles