Labiche v R (1(a) of 2004) ( of 2004) [2006] SCCA 9 (28 November 2006);






IN
THE SEYCHELLES COURT OF APPEAL








SCA
No: 1(a) of 2004















JANE LABICHE Appellant







v.s







THE REPUBLIC Respondent



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


Before:
Bwana,
Hodoul, Domah, JJA


Counsel:
Mrs. Antao for the Appellant



Mr.
R. Govinden for the Respondent






Date
of Hearing
:
13 November 2006


Date
of Judgment
:
29 November 2006










JUDGMENT
OF THE COURT










1. The
Appellant was charged with Murder Contrary to Section 193 and
Punishable under section 194 of the Penal Code, Cap 158. The
particulars
of offence allege that on 31 October 2003 at Pointe
Larue, Mahe, the Appellant murdered one Hilary Labonte. By a
majority verdict
of 6 to 2, the Jury found her guilty. She was
sentenced to life imprisonment.







2. The
Appellant has raised five grounds of appeal which may be stated
briefly as follows:-







    1. In his summing up
      to the jury, the trial judge failed to address the said jury on the
      defence accident…;











    1. The trial judge
      displayed bias in favour of the prosecution;











    1. The trial judge
      erred in admitting the confession of the Appellant as there was
      sufficient evidence to prove that she had been
      induced into giving
      the statement …;











    1. The trial judge
      failed to sufficiently address the jury on the issue of Battered
      Woman Syndrome;











    1. The
      trial judge failed to appreciate and to fully analyse the exact
      nature of the
      unlawful
      act

      that caused the death of the victim.









3. Ten
witnesses testified on behalf of the prosecution and three witnesses
for the Appellant. Nine exhibits were tendered in support
of the
prosecution case while two were tendered in support of the defence
case. In her address before this Court however, Mrs. Antao
stressed
more on two points namely:-









    1. The issue of bias
      as displayed by the trial judge;











    1. The trial judge’s
      failure to sufficiently address the jury on the two main defences –
      accident and battered women
      syndrome.









We will soon revert
to the two grounds.








  1. To
    appreciate the facts of this rather unusual case, a summary of the
    sequence of events leading thereto need to be stated here.
    The
    Appellant was a concubine of one Andrew Sophola. We should
    emphasize at the outset that the two were
    not
    married
    .
    In the proceedings before the Court a quo, their relationship is
    interchangeably referred to as “boyfriend”, “common
    law relationship”; “cohabitees”; and the like.
    They had a son out of their relationship.









  1. No sooner than
    later, the relationship developed problems. It is not in dispute
    that Andrew Sophola constantly “battered”
    the Appellant
    especially following the latter’s discovery that her boyfriend
    was “having an affair” with another
    woman (Megan Laira)
    who lived in the neighbourhood. The Appellant’s attempts to
    win Andrew back failed. She was disturbed
    and depressed. She
    sought assistance from the probation department but she was told
    that they could intervene only if Andrew and
    the Appellant were
    married. As a consolation, she tried to get another man. But when
    Andrew found out, he made life worse to
    the Appellant. Several
    times she traced Andrew to Megan’s bedroom which was in the
    basement of an all timber built house
    belonging to Melita Philomena
    Laira, Megan’s sister. The situation became unbearable to the
    Appellant.









  1. On the fateful
    night, she traced Andrew every where to no avail. She went into
    Megan’s bedroom, tore her clothes and took
    a match box to
    light a cigarette. She put the cigarette on the table, took a piece
    of cloth to wipe her face. When leaving, she
    pushed everything that
    was on the table to the floor and left. That everything on the
    table included the cigarette that was lit.
    All the clothes and
    other things caught fire, eventually leading to the burning of that
    wooden house.









  1. Several
    witnesses testified on seeing the house burn at that time of the
    night. A number of people were in the house at the time
    including
    the victim, Hilary Labonte. She had been sleeping on the mat. When
    the fire broke out, Melita had awakened her up but
    only to discover
    that Hilary never made it out. As it transpired, she was burnt
    completely beyond recognition. According to the
    evidence of Dr.
    Maria Zladkovitch, a pathologist who examined the body of Hilary, it
    was “in a state of carbonization …
    having reached the
    last degree of burn which is the 5
    th
    degree burn, therefore badly charred.” Police investigations
    established that the fire, which burnt the house, leading to
    the
    death of Hilary, “had been set on purpose.”








8. It
is apparent from the foregoing summary of facts that, first, the
victim, Hilary died from the severe burns she suffered. Second,
the
burns were a result of the house set on fire. Third, the fire was
started by the cigarette the Appellant had left on the table
when she
was tearing apart Megan’s clothes and later on turn over the
table, leaving the torn clothes and lit cigarette on
the floor. They
caught fire.







9. As
stated earlier, the Appellant’s side seems to raise two
important defences namely – accident and battered women
syndrome.
We start with “accident”. The jury was asked
to find that the fire that subsequently gutted the material house was
accidentally lit. We do note that there are two versions with regard
to the cause of fire that destroyed the house. One such version
is
that of a match box having been used to light a cigarette. The
other, as expounded by some witnesses, is that the Appellant was
seen
at the material time with a lit candle. The Appellant herself
insists that it was the cigarette that caused the fire. Later
she
showed an investigation police officer where she had thrown the
material match box. Indeed it was recovered from there.







10. Was
the fire, therefore, accidentally set or was it deliberately? We
have considered the evidence and the trial judge’s views
on the
subject when summing up to the jury and find no fault. The fire was
not accidentally lit. The Appellant ought to have thought
of the
outcome of her action. A claim that she “forgot” the
burning cigarette on the table, is in our view immaterial.
It may be
argued that she was drunk, at the time – having taken
quantities of alcohol some hours before. The defence of drunkenness
or intoxication was not taken up: ostensibly in our view as it could
not have helped the Appellant. The trial judge’s approach
on
this subject is therefore proper. The defence of accident, which, in
our view, is intended to remove the element of “malice
aforethought”, fails.







11. The
Battered Women Syndrome, is an interesting novel defence to offences
of this kind. It is sometimes referred to as Battered Wives
Syndrome
or yet interchangeably, Battered Partners Syndrome. All the three
originate from frequent and constant suffering suffered
by a person,
caused by his/her conjugal/partner in domestic violence. The trial
court (and the jury) was asked by Mrs. Antao to
examine the evidence
in its totality and hold that the Appellant’s sufferings at the
hands of Andrew Sophola – her concubine
– led to either
cumulative provocation and/or battered women syndrome. Mrs. Antao
did attempt to convince this Court that
men and women behave
differently when it comes to provocation. That could be true but we
are of the firm view that the ingredients
of provocation are well
known and settled. The trial judge had this to say (with regard to
provocation) and in our view he was correct:







For
the accused to successfully raise a defence of provocation, he/she
must lead some evidence to show on a balance of probabilities
that
what was said or done to him or her by the deceased caused her to
suddenly and temporarily lose her self control and commit
the act of
killing. However where the killing is planned or premeditated the
defence of provocation is not available to the accused.
This is so
even if the defendant has had to endure ill-treatment, physical and
emotional abuse for a long period of time.”







In
Thornton vs R
(1993) 96 Cr. App. R, it was held (and correctly so) that provocative
acts in the course of domestic violence over a period of time
which
did not cause sudden and temporary loss of self control, did not
amount to provocation in law. We believe this to be a response
to
the evolving theory of cumulative provocation and the battered
partner’s syndrome.







12. The
Free Encyclopaedia

refers to Battered Women/Wife/Partners Syndrome as a state of any
person who -



“because
of constant and severe domestic violence usually involving physical
abuse by a partner, becomes depressed and unable
to take any
independent action that would allow him or her to escape the abuse …
there is no consensus in the medical profession
that such abuse
results in a mental condition severe enough to excuse alleged
offenders …”







In some
jurisdictions, it has been held to be a defence where the accused
uses force to defend himself/herself … for self-preservation.

It is, also agreed that battered partner’s syndrome is a
defence when –







    1. As self-defence,
      reasonable and proportionate degree of violence in response to an
      abuse is used.











    1. As self-defence
      where the battered partner is justified in acting in self-defence
      but uses excessive force.











    1. Raised in cases of
      insanity, usually within the meaning of the MNaghten Rules.











    1. There is proof of
      diminished responsibility.











    1. There is medical
      evidence in support of the view that the accused actions (or
      omissions) were a result of the syndrome.










  1. We do acknowledge
    the existence of the syndrome and its application in Seychelles in
    an appropriate case. But this is not the appropriate
    case. First
    and foremost we are not hesitant to note that the Appellant was a
    disturbed and distressed woman in the days leading
    to this fatal
    incident. But what transpired as a result of her actions was not
    the use of force to defend herself but the use
    of force to attack
    and to commit such a grave crime, resulting in the death of a victim
    who had nothing to do with her conflict
    with Andrew. Further she
    was culpably unconcerned that there were other people sleeping in
    the house at that time of the night.
    As such her actions would have
    grave consequences not only to those people but also to that wooden
    house. She should have realized
    as well that she had no right of
    access (in law) to the premises let alone at that late hour of the
    night.








14. There
is no medical evidence adduced to establish the state of mind of the
Appellant at the time of the commission of the offence.
It is on
record that a psychologist visited her, some months later when the
Appellant had already “cooled down.” The
issue was
canvassed before the jury without any medical evidence in support of
the fact that the accused was suffering from such
a state of mind so
that the court was unable to direct the jury to consider the issue at
the time the accused was committing the
offence.







15. In
our view therefore, the syndrome cannot be considered in favour of
the Appellant so as to reduce a conviction of murder to that
of
manslaughter. The evidence before the trial court proved beyond
reasonable doubt the offence of murder. The jury was correct
in so
holding.







16. In
so far as the grounds of appeal are concerned, we are firstly
satisfied that there was no display of bias on the part of the trial
judge that would have occasioned a miscarriage of justice. We
further observe that at the end of the summing up, the trial judge
informed the jury that his views were not binding to them. Secondly,
it is clear on the record that the trial judge spent considerable
time – in the course of the summing up – to review all
the necessary factual and legal points involved in this case.
In our
view, that approach was fairly balanced to both parties and in
conformity with the provisions of section 264(1) of the Criminal
Procedure Code, Cap 54. In brief, the trial judge did sufficiently
address the jury on all important and fundamental points of the
case.







17. In
conclusion, this appeal fails. It is dismissed in its entirety. The
Appellant to serve the prison term as imposed by the trial
court. It
is so ordered.











………….…………………………



S.
J. BWANA



AG.
PRESIDENT















I
concur: …………………………………….



J.
M. HODOUL



JUSTICE OF
APPEAL















I
concur: …………………………………….



S.
B. DOMAH



JUSTICE OF
APPEAL















Dated
this 29

November
2006, Victoria, Seychelles