Jules v R (11 of 2005) (11 of 2005) [2006] SCCA 8 (28 November 2006);

 

7


 

IN THE SEYCHELLES COURT OF APPEAL

 

 

SCA No: 11 of 2005

 

 

JUDE EVANS JULES Appellant

 

v.s

 

REPUBLIC Respondent

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

Before: Bwana, Hodoul, Domah, JJA

Counsel: Mrs. Antao for the Appellant

Mr. Chetty for the Respondent

Date of Hearing: 14 November 2006

Date of delivery of judgment: 29 November 2006

 

 

 

JUDGMENT OF THE COURT

 

 

Bwana, Ag. P

 

 

  1. The Appellant was charged with two offences namely: Sexual Interference with a child contrary to section 135(1) of the Penal Code (Amended) and punishable under the same section. The second count was Incest contrary to section 151 A (1) of the Penal Code (Amended) and punishable under the same section. Particulars of the two offences were given. The Appellant who was unrepresented during the trial, pleaded not guilty to both counts. It is on record that he was, on three occasions, asked by the trial judge whether he required legal representation but he declined, insisting that he would defend himself. On the third occasion, this is what transpired between the trial judge and the accused.

Q: Are you still maintaining that you will defend your case yourself?

A: Yes.

 

Q: If you need any assistance on any procedural matters, court will assist you on points of law.

A: Yes…”

 

The trial proceeded, the accused was convicted and sentenced to a prison term of eight years. He now appeals against both conviction and sentence.

 

2. In his grounds of appeal, the Appellant has raised inter alia, two important points. For purposes of clarity we reproduce them hereunder.

 

    1. The trial judge erred by convicting the Appellant for an offence that does not exist under the laws of Seychelles.

 

    1. The Appellant having been charged with a non existent offence, was therefore prejudicial in his defence as there were no particulars of offence. Instead in the particulars of offence, the prosecution recited what should have been the charge. This was especially prejudicial to an Appellant who was unrepresented and was in no position to challenge the nullity of the charge.

 

3. He is now represented by Mrs. Antao and the two points were strongly argued by her. With due respect to Mrs. Antao, we would like to make some corrections with regard to point 2.2 above. The issue of the Appellant having or likely being prejudicial as a result of being charged under a non existent provision of the law is discussed later herein. It is however, apparent that in both counts, the particulars of offence are clearly given. Concerning the first count, the particulars of offence state thus:

 

Jude Evans Jules of Cayole Estate, Anse Aux Pins, Mahe, on 29th May, 4th June and 30th June 2000, committed an act of indecency towards Annisa Jules, a girl under the age of 15 years.”

 

The particulars of offence in respect of the second count are as follows:-

 

Jude Evan Jules of Cayole Estate, Anse Aux Pins, Mahe on 29th May, 4th June and 29th June 2000 had sexual intercourse with Annisa Jules knowing that she was closely related to him by blood, namely his daughter.

 

We are satisfied with the particulars of offence (in both counts) as given.

 

4. What is of great importance for purposes of deciding this appeal is the first point – that of an appellant being charged and convicted for an offence that does not exist. It is being argued by Mrs. Antao that “sexual interference with a child” is not an offence under our laws. Those words are mere marginal notes which do not form part of a statute. The trial judge seems to concur with these views. We take the same view. Marginal notes in any statute are not inserted therein by the legislature. They are rather, inserted by drafts persons for purposes of ease of reference. As such they cannot be considered as forming or being part and parcel of the relevant provision of that particular statute. They do not form part of the law of the land. This principle is clearly and rightly stated in the case of Uddin v Associated Portland Cement Manufacturers ltd (1965)2 QB 582. A similar issue seems to have come before this Court in the case of Jude (not the present Appellant). That is, Jude Bristol v Republic. The Appellant was charged with “sexual interference.” However, the appeal was determined on other issues, not sexual interference.

 

  1. Mr. Chetty seems to take a different line in respect of this matter. While conceding that marginal notes do not form part of a provision of a statute, he submitted that the trial court could proceed to correct the error and convict an accused person if the section is correctly numbered and cited and particulars of offence are duly particularized. As regards this Court, it is Mr. Chetty’s submission that the Court of Appeal may still correct the error and proceed to hear and determine the appeal. He relies on the provisions of Art. 120(3) of the Constitution of the Republic of Seychelles; sections 114(a) (ii) and 187 (1) and (2) of the Criminal Procedure Code, Cap 54, as well as the decision of Lord Bridge in the Ayres case (1984 AC 447).

 

6. We have considered the above submissions. The words of Lord Bridge are very clear on this subject. He states at pp. 460-61, thus:

 

… “If the statement and particulars of the offence in an indictment disclose no criminal offence whatever or charge some offence which has been abolished, in which case the indictment could fairly be described that a conviction under that indictment cannot stand. But if the statement and particulars of offence can be seen fairly to relate to and to be intended to charge a known and subsisting criminal offence but plead it in terms which are inaccurate, incomplete or otherwise imperfect, then the question whether a conviction on that indictment can properly be affirmed … it can be said with confidence that the particular error in the pleading cannot in any way have prejudiced or embarrassed the defendant.”

 

7. We do prescribe to these foregoing persuasive views of Lord Bridge. The immediate issue for our determination, however, is: was the Appellant prejudiced by being convicted on an unknown offence as described in the statement of offence? In the Ayres case, the court decided that there was no such prejudice.

 

  1. Section 114 of Cap 54 spells out what should be followed when framing up charges and information. Where a defect is detected in a charge or information, then a trial court may make the necessary amendments in the interest of justice. We should not hesitate to note here that the error (in citing a non existent provision of the law) was well detected during trial but the trial judge seems to have decided to proceed with the trial and later on discuss the issue in his judgment. He writes:

 

As I see it, the offence under count 1 is referred to in the charge as “sexual interference” as it is so termed in the marginal notes inserted at the side of the section 135 (1) of the Penal Code, although no such term is used in the text of the section. It should be noted that the weight of the authorities is to the effect that marginal notes are not parts of the statute and so should not be considered …”

 

9. It is our considered view that having so rightly stated, the trial judge should have then taken appropriate steps at an appropriate stage of the trial to effect the necessary amendments to the formal charge. Failure to do so, we consider created prejudice to the Appellant – who was then unrepresented. In situations of that nature, the court is under obligation to see to it that the accused’s rights are fully protected. It is he who should understand the precise nature of the offence with which he is charged. At the start of trial, the judge had made an undertaking to assist the accused especially on matters of law. The instant issue is one such matter.

 

10. We are mindful of the fact that Art. 120(3) of the Constitution empowers this Court to invoke the powers of a trial court. That provision states:

 

“Art. 120(3) –

The Court of Appeal shall, when exercising its appellate jurisdiction, have the authority, jurisdiction and power of the Court from which the appeal is brought and such other authority, jurisdiction and power as may be conferred upon it by or under an Act.”

 

11. In the exercise of those powers conferred upon this Curt by the Constitution, we are of, the considered view that the ends of justice shall best be met by (a) amending the charge;

  1. Requiring the appellant to enter a new plea; and

  2. Proceeding to a new hearing.

Consequently, we refer this case back to the (Supreme) trial court with the following directions:

 

    1. The formal charge be amended so as to bring it in conformity with the exact working of section 135(1) of the Penal Code.

 

    1. The present Appellant be required to plead de novo to the amended formal charge.

 

    1. A trial de novo to proceed to completion on the amended formal charge.

12. In concluding this judgment, we would like the prosecution to be advised to follow the wording of the relevant law when drafting charges.

 

 

………….…………………………

S. J. BWANA

AG. PRESIDENT

 

 

 

I concur: ……….…………………………..

J. M. HODOUL

JUSTICE OF APPEAL

 

 

 

I concur: …………………………………….

B. DOMAH

JUSTICE OF APPEAL

 

 

 

Dated this 29th November 2006, Victoria, Seychelles