Republic v Freminot and Another (SCA 13/14/15/16/17 of 2009 ) [2011] SCCA 16 (01 September 2011);

IN THE COURT OF APPEAL OF SEYCHELLES

1. CHRISTOPHER FREMINOT

2. MERVIN ARNEPHY

3. LEONEL DODIN

4. MARTIN ARRISOL

5. HELM SOUNADIN

APPELLANTS

vs

THE REPUBLIC ….................................RESPONDENT

 

 

SCA 13/14/15/16/17 of 2009

 

 

Counsel: Mr Basil Hoareau for Appellants 1,2,3 & 4

Mr Bernard Georges for Appellant 5

Mr David Esparon for Respondent

 

JUDGMENT

DOMAH. S.,

 

[1] This is an appeal against the decision of the Supreme Court which convicted the five appellants on charges of aiding and abetting in the importation and the trafficking of controlled drugs laid under the Misuse of Drugs Ad

 

[2] As the order in which the appellants were referred to and the order in which they have appealed is not the same, we refer to them by their names for the sake of convenience.

 

[3] Appellant Leonel Dodin and Appellant Helm Sounadin were charged under Count 1 for aiding and abetting the importation of a controlled drug contrary to section 3 as read with section 27(a) and section 26(1 ){a) of the Misuse of Drug Act (cap 133) and punishable under section 29 of the Second Schedule of the said Act in that on or about 18* of May 2008 they had aided and assisted Catherine Atieno Osawo to import into Seychelles 498.2 grams of heroin. Under Count 2, both were charged for aiding and abetting the trafficking in a controlled drug contrary to section 5 as read with section 2 and section 27(a) and sections 26(1 )(a) of the Misuse of Drug Act 1990 as amended by Act 14 of 1994 and punishable under section 29 of the Second Schedule of the said Act in that they had aided and assisted Catherine Atieno Osawo to sell, give, transport, send, deliver, distribute or offer to sell, give, transport, send, deliver, distribute or to do or offer to do any act preparatory to offer or for the purpose of selling, giving, transporting, sending, delivery or distributing 4982 grams of heroin.

 

[4] Appellant Leone! Dodin was acquitted under Count 1 and convicted under Count 2 on which he was sentenced to a term of 10 years' imprisonment Appellant Helm Sounadin, for his part, was found guilty under both counts and was sentenced to a term of 11 years' imprisonment under Count 1 and 10 years' imprisonment under count 2.

 

[5] Appellant Christopher Freminot, Martin Arrisol and Mervin Amephy were charged under Count 3 for aiding and abetting the importation of a controlled drug contrary to section 3 as read with section 27(a) and sections 26{1)(a) of the Misuse of Drug Act (cap 133) and punishable under section 29 of the Second Schedule of the said Act in that on or about 18* of May 2008 they had aided and assisted Catherine Atieno Osawo to import into Seychelles 498.2 grams of heroin. AH three were charged, under Count 4, for aiding and abetting the trafficking in a controlled drug contrary to section 5 as read with section 2 and section 27(a) and sections 26{1)(a) of the Misuse of Drug Act 1990 as amended by Act 14 of 1994 and punishable under section 29 of the Second Schedule of the said Act in that ftey had aided and assisted Catherine Atieno Osawo to sell, give, transport, send, deliver, distribute or offer to sell, give, transport, send, deliver, distribute or to do or offer to do any act preparatory to offer or for the purpose of selling, giving, transporting, sending, delivery or distributing 498.2 grams of heroin.

 

[6] AH three were acquitted under Count 3 and convicted under Count 4 on which each was sentenced to 10 years' imprisonment.

 

[7] Appellants Dodin, Amephy, Freminot and Arrisol have appealed together and their appeals contain the following grounds:

1. The learned trial Judge erred in accepting as credible and trustworthy the evidence of the main prosecution witnesses as the said testimonies were full of inconsistencies and contradictions in material particulars and as such the Learned Judge should have rejected the evidence of the said witnesses.

2. The teamed trial Judge erred in not accepting the evidence of Ronnie Alice and other evidence fed on behalf of the accused persons, as the teamed trial Judge did not property consider and weigh the said evidence property, adequately, sufficiently and fairty.

3. The learned trial Judge erred in law in holding that it was immaterial to the commission of the offence of aiding and abetting by the 2*, 3* and 4" Appellants, if the material handed over to Martin Arrisol was a mere decoy.

4. The learned trial Judge erred in law in convicting the 1st Appellant for the offence of aiding and abating the trafficking of a controlled drug as the teamed trial Judge did not properly, sufficiently and adequately, consider all the elements of the offence with which the 1st Appellant had been charged and had the learned trial Judge property done so the f* Appellant would have been acquitted of the offence for which he stands convicted.

 

[8] Appellant Helm Soonardin has appealed separately and his appeal contains the following grounds:

1. The teamed trial Judge erred in accepting the evidence of the prosecution witnesses and giving so much credit in view of the great discrepancies shown to have existed between their respective testimonies on the materials points of the case, andinviewof the lies scwe of them wem shown to have toM

2. The teamed trial Judge erred in not alluding to the tact that none of the witnesses had mentioned the pink plastic bag in their pre-trial statements and in the discrepancy in the witnesses Osawo's evidence as to where the bag had come from, and in not drawing necessary inferences therefrom.

3. The teamed trial Judge erred in not giving credit to the defence case as to the place where the exchange between the Appellant and Osawo had occurred, and as to the position of the parties as described by prosecution witnesses.

4. The teamed trial Judge erred in not alluding to the failure of the prosecution to account for the absence of payment for the illicit substance, and in not drawing appropriate inferences therefrom.

 

THE FACTS

 

[9] The main prosecution witness at the trial below was Ms Osawo, a Kenyan lady. On 18 May 2008, having alighted from the flight coming from Nairobi, she was arrested at around 14.30 hours at Seychelles International Airport with 498.2 grams of a powder later to be analyzed by the Forensic Lab as heroin. The drugs were concealed in an adult diaper discovered by the Customs Authorities in course of a body and strip search of her. The evidence shows that she was such a novice in the underworld that, on being discovered, she instantly broke down, fell on her knees, accepted it was drugs she was carrying for the purpose of delivery to persons yet to be communicated to her on her re­establishing contact with her sender in Kenya on her safe arrival.

 

[10] The evidence also shows that, as new as the courier was at her job, so new was also the National Drug Enforcement Agency (NDEA) at a controlled delivery operation, the first of its type in Seychelles. Be that as it may, Ms Osawo disclosed who the drug was from, one Mama Leila in Nairobi, who had organized the logistics and dispatched her. Those the drug was destined to were to be disclosed after Ms Osawo had renewed contact with her via a mobile phone she had been given with a SIM card. She spoke of her having been dressed in the adult diaper in a hotel room where she had been made to stay overnight: Early morning of 18* May, just before the flight Mama Leila had come with one Sony and another unnamed man. Mama Leila had carried with her a few diapers of different sizes. She tried them on her. She found one which fitted her, gave ft to the unnamed man who then secured a portion of 250 grams each on either side of the diaper. Sony then drove her to tfie airport She had also been given USD1.000 for the purposes of her mission.

 

[11] Mama Leila had suggested Manresa hotel and if that was not available a coupie of others for her stay. The prosecution evidence also shows that the NOEA officers with the assistance of the customs authorities readily chose Manresa Hotel to mount their controlled delivery operation. She was booked into a room which was occupied by a small discreet body of NDEA and other officers who had taken strategic positions in and around. When she inserted the SIM card into her mobile phone, she found she did not have credit Inspector Francoise then obliged by filling the credit in the mobile and she rang Mama Leila as she had been directed to do on arrival. Mama Leila was not too happy. Ms Osawo had taken a long time to call back. She chastised Ms Osawo and cut off. She then called back. Her number did not appear. But it was she. She instructed Ms Osawo to keep wearing the diaper and wait for subsequent calls. Calls would begin to come in, indeed. One local caller, from number 678938, posed himself as Jim. He wanted to know whether she was ready to meet Nm. She told htm she needed time to freshen up and to can in half an hour. Some three minutes later, another local caller, from number 747959, identified himself as Tony and made similar enquiries of her. She informed Tony she would call back. She then received a text message from Mama Leila which read: "Give Jim 250 and Tony250 and mate sum that Jim does not know that the total was 500."

 

[12] The time, therefore, was ripe for delivery. She contacted Jim. Jim stated to her that he would be sending his driver, a dark-skinned man, in a car of make Subaru to pick her up from the hotel parking. It was about 6.00 p.m. Tony for his part had to wait The exchanges were being followed by the NDEA Officers since Ms Osawo had switched her mobile on loudspeaker mode. Jim called about an hour later to say that the pick up had arrived and the person was waiting in the parking. He was Appellant Dodin.

 

[13] It the case of the Prosecution that Ms Osawo proceeded with the diaper intact with the drugs in her handbag and went to the car park. She took her seat in front. Dodin asked whether she had brought the stuff. She opened her bag and showed the diaper which was in a pink plastic bag. It is then ffiat the NDEA officers dosed in upon them. Appellant Dodin was arrested and detained in the room at Manresa. This part was challenged by the defence.

 

[14] For the next delivery, Ms Osawo then called back Tony from the hotel room. Tony requested her to walk across the hotel and wait at the bus stop and look for a small silver car. Ms Osawo would stroll out and prefer not to look for the bus stop on account of the obscurity of the place. She would hang around on tf>e road in the proximity of the hotel. After some 20 minutes, the mentioned small silver car would indeed stop at her feet. The driver would introduce himself as Tony and invite Ms Osawo to enter but the latter would hesitate when she would see two other people ft) the car. But Tony would reassure her that she does not need to worry. They are O.K. They are with him. Ms Osawo would then take the back seat behind the driver. The car would make a U-Tum and proceed in the direction of the town centre. At one point and after some hesitation Ms Osawo would deliver the diaper to the man in the front seat that is Martin Arrisol. NDEA officers would follow the silver car. Near Roche Caiman, one of file jeep would overtake the silver car and signal them to stop. It is then that Martin Arrisol would throw what was handed out to him out of the window of the stiver car. Inspector Francotse who would be fbtowirtg the silver car mDm oehrrxlwouW stop and pick it up. it was the diaper which was being used for the controlled delivery. Would also be picked up from file scene a run over mobile phone. The occupants, appellant Christopher Freminot Martin Arrisol and Mervyn Amephy, would attempt to escape but would be prevented to do so and arrested.

 

[15] it is the defence of these three appellants that the above version of the prosecution is a fabrication. The three appellants were only out on a ride towards tfie town centre in a hired vehicle when they found a lady crying at the bus stop. They stopped and decided to give her a lift to the airport. They found her becoming agitated on the way. When they queried her, she stated that she was being pursued by the Police because she was carrying drugs. She then threw a parcel on to Martin Arrisol seated in front who threw it out of the window. While it was being thrown, some powder spilled out in the car panel. The suggestion was that this powder looked like baby powder.

 

[16] With respect to the fifth appellant, Helm Sounadin, he would be arrested at his residence in Anse Royale in the following circumstances according to the prosecution.

 

[17] NOEA Inspector Naiken would take the wheels of the blue Subaru car in which Leonel Dodin had arrived and, with Dodin and Ms Osawo, would drive towards Anse Royale up the vicinity of Fairy Land Hotel where he would stop and ask Dodin to drive. Inspector Naiken would take his place at the back and remain in hiding. There would be a couple of calls between Dodin and Jim on the way. As the car would come to the entrance, a white man would show the way with a torch-fight and direct them to the smaller of the two houses found at the spot

 

[18] It was the case of the prosecution that Dodin and Ms Osawo alighted to be ted into the small house where the white man identified himself as Jim and asked for his package. Ms Osawo removed the package from her handbag and while she was in the process of handing it over to Jim, the NDEA officers would dose in and arrest Helm Sounadin. From a search carried out, the officers retrieved a ceH phone with the number 578938.

 

[19] It is the case of Sounadin, who made a statement from the dock and who also gave an out of court statement that he has four to five business associates in Kenya. He is in the business of diamonds, gold and emeralds. Their business activities are based in Dubai. One of them is Sony. Sony rang him one morning and informed him that a

Kenyan lady was coming to Seychelles and he enquired whether he wanted something in particular. Sounadin asked for some cashew, an accelerator cable for his vehicle and a whisky (duty free). Sony rang him on 18 May 2008 to tell him mat the lady had arrived and was putting up at Manresa Hotel and he could pick the items from her. He men contacted Leone! Dodin, his long time friend who was travelling north and who was then at Beau Vallon, requesting him to pick up the lady and to take her to his place tor a social visit He and Dodin know each other well and when he comes to Mahe, he often stays at his place. When Dodin arrived, he got out of the house with a torch. He did notice a group of people crouching near the road trying to make their way towards his house. He flashed the torch and two of them started asking him questions. A jeep then pulled up. One of them pressed his gun against his back and led him into his house and conducted a search. It is while the search was going on that the Kenyan lady wit) Ms Lindy Freminot came in and asked permission to use his toilet He had seen the lady for the first time men and the second time in court.

 

[20] The Prosecution had also produced the print-outs of the several calls made. They corroborated the events as they happened both as regards the local calls and tfie international calls. Several calls had been made between Kenya and Seychelles on 18 May 2008 from the 14.37 hours to 19.36 hours for durations ranging between 16 sees to 97 seconds: They were as follows: 4 cads between 14.37 hours to 747959 at 14,37, 16.02,16.54,18.22 and at 19.36. The cell phone 747959 was being used by Tony. The calls between that number and 795813 stared at 1826 and lasted till 1928. There were 3 of them as follows: 1826 hours, 1921 hours and 1928 hours.Calls were made by Jim from No. 578938 to Ms Osawo.

 

 

THE PROSECUTION WITNESSES

 

[21] As correctly remarked by the learned Judge, defence counsel had, not one, but a number of field days cross-examining the Prosecution witnesses. Two of them, one more than the other, made sure that he cast to the winds all the golden rules respecting cross-examination. In the process, while it may be true that the answers of file several witnesses resulted in a number of differences, the fact remained that they also tied up file loose ends in fr»e prosecution case to give it a coherence which would otherwise have been missing.

[22] We took pains at reading the transcript of the proceedings from one end to the other end. They were painful reading on account of the ad nauseum repetitions. Tt is fair to say that the cross-examination of Mr Georges was to the point and pertinent but the harm had been done by one counsel in particular who, despite objections from Prosecution counsel at certain times, and remarks from the Court, prided himself in saying that that was his style of cross-examination. The least said about that style of cross examination the better.

 

£23] Be that as it may, we subjected the evidence of ail of the witnesses to careful scrutiny as advocated by teamed counsel for the appellants. It comprised the deposition of Detective Sergeant Joachim Allisop; Dr A.K. Jackaria, the Forensic Expert who analyzed the drugs; Catherine Atieno Osawo, the main prosecution witness who was the international drug courier; Winstey Georges Francoise, inspector, attached to the National Drugs Enforcement Agency, who was handed over Ms Osawo on the discovery of the seized drugs concealed in a diaper, who cautioned and arrested Ms Osawo and mounted the controlled delivery operations at the Manresa Hotel for the alleged first delivery involving Leone! Dodin; outside Manresa Hotel for the alleged second delivery involving Christopher Freminot Mervin Amephy and Martin Arrisol; and, at Anse Royale, for the alleged third delivery involving Helm Sounadin; Marcel Naiken, one of the NDEA officers who participated in the controlled delivery exercises; Brian Nicette, a supervising officer of NDEA who participated in the controlled delivery operations; Nicole Franchette, yet another officer, who participated in the controlled delivery operations; Tessy Pouponneau, customs Officer who was involved with the search of Ms Osawo and the seizure of the drugs; Betty Luck, another customs Officer who was involved with the search of Ms Osawo's luggage and who questioned the latter at the customs and who ongo ahead to carry a body and strip search; Ms Brigitte Valentin, Supervisor who authorized the body and strip search and requested another officer, Ms Pouponneau to assist; Ms Lindy Freminot customs officer, who formed part of the team that departed from the airport for the controlled delivery operations; Ms Pauline Sedgwick, director of a Car Hire Company from whose business Christopher Freminot hired the vehicle number S16153, for the period 12 to 20 May 2008, in which he and his three friends were arrested; Georges D'Offay, Director of Sales at the Cable and Wireless, respecting the phone calls; and Maxime Morel, Administration Manager to give details with respect to me numbers 795813,763246,766244,785388 and 795993.

 

 

THE DEFENCE WITNESSES

 

[24] We also went through the defence evidence and such statements and out of court statements that had been made. On behalf of appellant Amephy, Freminot and Arrisol, one Ronnie Alice had deponed on oath. Appellant Freminot had made a statement from the dock. So had Appellant Sounadin. Appellant Leonel Dodin had also made an out of court statement as regards the incident claiming that his role was that of an innocent pick up of the lady from Manresa hotel to take her to his friend Sounadin. He did not know that his friend was involved in such transactions. Had he known, he would have desisted and that he was unfairly arrested at Manresa.

 

 

CONSIDERATION OF THE GROUNDS OF APPEAL

 

[25] The grounds of appeal of appellants 1, 2 ,3 and 4 and those of 5 may be subsumed under four heads: (a) what credibility could be attached to the prosecution witnesses in the light of the alleged discrepancies, inconsistencies and contradictions high-8ghted in the heads of arguments; (b) whether the judge gave due consideration to the respective defence versions; (c) whether the learned judge property applied the law with respect to the use of decoy; and (d) whetfier, in the circumstances, the prosecution had succeeded in proving aH the elements of the offence they were charged with as regards each of the five appellants.

 

A. CREDIBILITY OF WITNESSES: DISCREPANCIES, INCONSISTENCIES AND CONTRADICTIONS

 

[26] The appellants argue that discrepancies, inconsistencies and corrtradictions are a legion in the testimonies of the witnesses who deponed. For the reasons we nave stated above, there is bound to be. On the factual events surrounding the three controlled deliveries, as many as f 1 witnesses were called, some of whom stayed in the witness box for days on end. We were made to understand that defence counsel were unable to liaise between themselves so that they could defend their clients with a pre­determined strategy. The result was a lot of overlapping and redundancies which did no one any good. But to a large extent, the differences related to peripheral matters. Where they related to the core issues, the answers of the witnesses were as good as they got from learned defence counsel.

 

[27] The differences were not on material issues as learned counsel contend. With respect to the airport briefing and the first controlled delivery exercise, our attention was brought to specific parts of the evidence of the case. As regards what happened at the airport, answers related to who were at the airport awaiting Francoise; who handcuffed Appellant Dodin; whether Osawo spoke to the first appellant before getting into the car; whether Ms Osawo did get into the car at all; whether the package was shown to Appellant Dodin at all; whether all the officers knew of their trip to Manresa Hotel; what were their means of travel to Manresa Hotel. With respect to the controlled delivery at Anse Royale, we were referred to the number and order in which the officers entered the place where the alleged controlled delivery took place; the positions of Naiken and Francoise when they were proceeding to Anse Royale; the presence and absence of some of the prosecution witnesses such as Lindy Freminot tile colour, meaning and type of the package; the existence or non existence of the pink plastic packet alleged to contain the diaper from the very start the manner in which the delivery was made; whether there was any prior communication at all between Valentin and Francoise at Praslin; the exact place Appellant Sounadin was arrested for while most say in the small house, one says at his house.

 

[28] Were the drugs in clear paper when they were being packed? Were the drugs white or light brown? What were the exact words used when making the deliveries: the stuff, it package, luggage?

 

[29] We were referred to, and we examined, the number of differences in the testimony of the witnesses respecting the first delivery. They were: inter alia, whether Ms Osawo did go out at all, whether she went out with her hand-bag, who handcuffed Dodin, where was inspector Francoise exactly at the time of his arrest etc. We were given an impressive list of situations where, according to learned counsel, the evidence of the various witnesses do not tally.

[30] The like submission was made with similar references with respect to the second delivery. Inter alia, they relate to the existence, absence or proximity of a bus stop or bus stops in front of Manresa, the conflicting evidence with respect to who was where at the time of picking up of Ms Osawo, who exactly saw what exactly and where exactly when the drug was actually thrown out of the car around the time Appellants 2, 3 and 4 were ordered to pull up by the Police.

 

[31] The submission of the defence is that since Inspector Francoise had obviously lied on matters having to do with his family, his home, his children etc, his evidence respecting this case should be rejected. We were also directed to such parts of the evidence which showed how the NDEA officers had kept such a discretion as regards the Head of NDEA, Mr William Redmond.

 

[32] Learned counsel submitted that the (earned Judge failed to reconcile the myriad of differences in the testimony of prosecution witnesses which to them flawed the judgment It was, according to them, material that he did so. Learned counsel for Appellants 1,2,3 and 4 also questioned the sweeping manner in which me evidence of Ronnie Afice was rejected: by a comment that he was a witness not to be trusted on account of the bitterness with which he spoke of his past employee from whom Appellants 2,3 and 4 had hired the car. The employer had stated that the car had been returned intact Ronnie Alice had stated that he had found powder spilled inside and cleaned it

 

[33] The pre-trial statements were in a way juxtaposed with the evidence hi court of the following witnesses, inter alia: Osawo, Francoise, Naiken, Nicette, Franchette, Pouponneau, Valentin especially on such matters as: the nature of the packing of the heroin, the true colour of the powder, the exact words exchanged when the three deliveries were so to say made; whether or not Ms Osawo had tried to jump out of the car; whether tfie diaper was open or closed, hone stretch or folded in two; whether pink plastic bag was a reality or an invention.

 

[34] We went through the parts of the evidence we were directed to. Admittedly, the versions given by tile various witnesses catted are not all alike and contain matters on which they differ. But there are several reasons for which we would say that they scrape the peripheries of the evidence of the prosecution but fail to make a dent on the core content The substantive issues in the case were basically three. Did Ms Osawo import drugs into the country? Were the appellants the very persons for whom the drugs were meant to be delivered? Did the appellants proceed to collect their merchandise when they were told to come and collect them knowing fully what they had come to collect?

 

[35] The proceedings span over 2,633 pages of transcript but those core issues remained manifestly unruffled. Such was the focus of the case on the credibility of witnesses on peripheral matters on which contradictions were sought No one can dispute the fact that drugs were imported by Ms Osawo in the country. No one can reasonably doubt, from the evidence as adduced and from the absence of cross-examination on the matter, that the Tony was Christopher Freminot If Tony was Freminot his arrival at that time and at that place with Arrisol and Amephy could not be that of a threesome out for a joy ride and on the way having met a damsel in distress whom they gave a lift to be followed by NDEA Officers and arrested.

 

[36] Likewise, no one can reasonably doubt from the evidence as adduced and from the absence of cross-examination on the matter, that the Jim was Helm Sounadin who had been in communication with his business associates in Kenya based in Dubai, one of whom was Sorry. Whatever may have been the language spoken of what was being brought - cashew nuts, vehicle spare part or whisky - the fact remained that what was sent by Sony and Mama Leila was heroin, packed in a diaper in two small consignments of 250 grams each, one for Jim and one for Tony.

 

[37] Differences exist in the depositions of the prosecution witnesses. They are explicable to the discerning mind. The parties were here involved and deponing on a controlled delivery exercise which had been engaged impromptu. In a controlled delivery exercise, the participants zero-in their focus on the spot targeted, the person or persons targeted and the moment targeted. To expect any witness to give the exact location of who was doing what when is to expect the impossible. It is not in the nature of a police cover mission to be overt Much has been made of Inspector Francoise's lie about his personal life. It is not abnormal for someone to keep a discretion over his personal life especially when questioned in public in a court case which has nothing to do with it and where overbearing counsel ethically going beyond the bounds with barest control by anyone in the court.

 

[38] It was also clear that Ms Osawo had given his statement as a co-accused and exercised such restraint in it as was necessary. She did explain that the statements were not written with such details in mind. None the less, the first cross-examination - which was indiscriminate - gave her so many opportunities of filling in details. She explained the sticker. She explained the plastic bag. She explained the presence of Sony. She explained tie exchanges at delivery times. She tied all the loose ends. The effect was that this courier who had given the impression that she was a weakling with low morals and no principles after all was one of principles and morals who had slipped into this underworld on an impulse and was now desirous of purging herself by telling the truth about it an. The cross examination had a counter productive effect by its sheer indiscriminate nature.

 

[39] If it was the first case for the NDEA officers, so was it for learned Counsel. Their reflex in this matter has been as if the events had been taking place at an investigation stage after things have happened. In a controlled delivery exercise, it has not happened yet It is happening, and at a fast speed at that Whether the drugs were carried in a diaper, in the hand-bag of Ms Osawo or in a pink plastic bag would not after the fact that drugs were carried.

 

[40] Learned counsel for the appellants submitted that it is improbable that the NDEA would allow Ms Osawo to go out with the drugs and that the Inspector should not come with an exhibit bag. Learned counsel is reacting from a reflex when, in an investigation, drugs have already been seized not when they are being used for control deliveries. We are in a situation where the drugs are being used and have to be used for a controlled delivery exercise. Such drugs need to be carried in their original package not to arouse suspicion and frustrate the exercise. The exhibit bag logically enters the scene when the controlled deliveries are over as it did in this case.

 

[41] The argument that NDEA could not have trusted Ms Osawo and could not have allowed her to go with the drugs around town does not hold. Police was in control. The passport of Ms Osawo had been seized. Ms Osawo's flight with the drugs was the remotest of improbabilities in the circumstances, and with her decision to co-operate. The record reads that she had decided to assist from the very first.

 

[42] As regards the lies, people lie for different reasons. So long as there is a plausible reason for lying, that lie does not infect the other truths that a witness has to tell. Court testimony is not a test of memory or a labeling for lies. Obviously where witnesses have lied under oath or their memories fail, the court has a more elaborate task in sounding what the truth is. ft is in the nature of truth to stand on its own, independent of any prop or lie uttered surrounding ft.

 

[43] On the matter of credibility of witnesses, therefore, we take the view as the learned Judge did that the discrepancies, the inconsistencies and the contradictions are not material to the substance of the case. The truth of the case stands on its own.

 

 

B. THE LACK OF CONSIDERATION GIVEN TO THE DEFENCE VERSIONS

 

[44] It is also the submission of learned defence counsel that the defence cases were not property considered by the teamed Judge. We have perused the record and the judgment Despite the fact that the whole battle of the defence was launched on the credibility of witnesses, the learned Judge made sure that he considered the defences of the five appellants individually and apart from one another. The judgment is so structured as to show this consideration by reference to each appellant with his particular defence and the probative weight applicable to each. He also gave reasons for his respective conclusions. We do not think it worthwhile to cite them here. The judgment is explicit.

 

[45] If the argument is that the prosecution was unable to respond to every issue raised by the defence, all that we need to do is to cite what was stated in Bratty v. Attorney General for Northern Ireland [1961] 3 All ER. 523 which was adopted by this Court comprising Sir Michael Hogan PJA Lavoipierre, JA and Lalouette JA in the case of Joseph v The Republic SCA LR1978-182, p. 502:

 

the prosecution does not have to negative every conceivable defence which the ingenuity of counsel may seek to propound."

[46] We take the view that the five appellants had finally very flimsy defence to a case where they had actually fallen into the trap laid by the NDEA officers with the assistance of the drug courier.

 

C. THE LAW OF SEYCHELLES WITH RESPECT TO USE OF DECOY IN A CONTROLLED DELIVERY

 

[47] It is the argument of the Defence that the learned Judge erred when he aligned the Seychelles law on decoy to the Canadian decision in Beaver v The Queen (1957) Can. Lff 14 (S.C.C.) to hold that even if Miss Osawo did not deliver the drugs during the control deliveries but used a decoy, the offence still stood to be committed. Learned counsel argued that the interpretation is typical to Canadian law which was then interpreting section 4(1)(f) of the Opium and Narcotic Drug Act, R.S.C., 1952.

 

[48] We are unable to accept that argument The Canadian decision in Beaver did not find its rationale in the interpretation of the stated law but in the law of evidence. It provides persuasive authority for our own decision that so long as the actus reus exists and the mens r&a, the fact that a decoy was used to gauge the physical and the mental elements of the offence is immaterial.

 

[49] In any case, with respect to the matter in hand, the learned Judge found that no decoy was used. He gave his reasons for his conclusions and we accept them as unassailable. There is ample evidence to show that what was used to track the appellants was the diaper containing the drug which had not been removed yet Learned counsel overlooked the fact that the defence version with respect to the second controlled delivery is that the damsel in distress stated it was drugs and Police were after her for the drugs. That is the reason why she threw it on Arrisol who threw it out

 

[50] As regards whether Police would allow the drugs seized at the airport to be seen to be gallivanting around in the hands of the drug trafficker, we take the view that it was in the interest of the NDEA Officers that they get it right and not take a chance with the use of decoy. The opportunity that offered itself to them was one in a million where a courier on his or her own offers on being discovered to assist the Police in tracking down the traffickers. They could not afford to take any risk to introduce an imperfection into a situation that was perfect for them.

 

 

D. THE ELEMENTS OF THE OFFENCE REGARDING EACH APPELLANT

 

[51] Remains the last question of the knowledge of the five appellants that they were involved in a drugs transaction. This can be safely inferred from the facts in evidence which includes what Ms Osawo stated, the conduct of parties, what they stated in their out of court statement and in court and the circumstances of the case.

 

[52] With respect to Appellant Dodin, when did his defence that he had come to collect cashew, spare part and whisky come about? On the 24 of Jury 2008. The inference is irresistible that if he was only innocently collecting a parcel come from abroad from a lady at a hotel and he was arrested, he would reax^ promptly ami darrxxir for his innocence. His presence on the day in Mane from early morning to the very time when he rings up Sounadin looks too much of a co-incidence. His story that a hotel with guests around would be pitch dark on his arrival looks equally far fetched. So is his story that he was straightaway arrested on arrival in the parking. The NDEA, with all the trump cards of courier, incriminating parcel in hand and logistics organized for a controlled delivery would not miss that opportunity not to carry its maiden exercise to its logical end. Sounadin says it is he who rang Dodin. Dodin says he contacted him to say he was on his way. If a social visit it was which was being arranged for, for a jet-lagged lady who had landed that day, the impatience expressed by all from Mama Leila to each and every of the Appellants involved in the net-work is consistent with a transaction for the delivery of drugs. Scant regard has been given to the phone calls, both by the prosecution and the defence.

 

[53] The record of calls bring the question of the participation of Appellants nos. 2,3 and 4. This transaction was, on that scientific evidence, originally triggered by the local number 747959 by someone who posed himself as Tony. In the controlled delivery exercise, there is evidence that one mobile phone was thrown and it lay crushed and unusable. The number is still registered even if the mobile phone is gone.

[54] We have stated above that it is inconceivable that the NDEA would not take advantage of the opportunity offered to them in not effecting a controlled delivery operation, especially where one like Ms Osawo who by her answers given in her cross-examination emerged from a sinner to a sinned against. She was unlikely to fail the NDEA on the necessary aspect of a legitimate entrapment of the appellants. True it is that success on trapping them would result in success in her own liberation whether of conscience or otherwise. But she explained that she had already set her mind to assisting the Police from the very first.

 

[55] Her attempt to get out of the car of the three Appellants can only be understood by her realization that after her job was done, she was still in the car of the three appellants from whose grip she had to release herself. Her apprehension was that the Police would not come to succour her in time.

 

[56] A good many times, the expression was used by learned counsel for the defence that the story warped by the prosecution was a cock and bull story. This qualification fits in the defence case rather than the prosecution case on the state of the evidence.

 

[57] There is uncontestable evidence that the three Appellants knew they were involved in a transaction of drugs. The learned Judge made sure mat he particularized the reasons for which he found them guilty on their respective charges.

 

[58] As regards whether there was ordinary powder in the car. Suffice to say that the car had been lying around long after the day of the incident with a door panel loose. To infer from the word of Ronnie that some innocuous powder instead of the actual drugs was being used to trace and arrest the appellants would verge on the ridiculous. The learned Judge may have been too severe in rejecting the evidence of Ronnie. But it was evidence which was worthless for all intents and purposes.

 

[59] With respect to the knowledge of Sounadin, that is as dear as day-light It is he who stated that his friend Sony was the one who contacted him. Ms Osawo spoke of Sony having come in the room to see the drug being packed. It is Sony who took Ms Osawo to the airport Sounadin deals in diamonds, gold and emeralds. He has business associates but he only knows them by names such as Ibrahim, Osman and Bocso. One would have expected him to give more credible particulars: their business cards for example. Such high profile businesses, unless they are sham belonging to the underworld, have fixed places of addresses and do not operate with unidentifiable hawkers. The learned Judge did not accept his story. He was correct in rejecting it.

 

[60] We are of the view that the conviction of the appellants were fully justified in the circumstances.

 

 

THE ELEMENTS OF THE OFFENCE OF AIDING AND ABETTING ETC

 

[61] Appellant Leone! Dodin and Appellant Helm Sounadin were charged under Count 1 for aiding and abetting the importation of a controlled drug contrary to section 3 as read with section 27(a) and sections 26(1 )(a) of the Misuse of Drug Act (cap 133). Under Count 2 both were charged for aiding and abetting the trafficking in the controlled drug in that they had aided and assisted Catherine Atjeno Osawo to sell, give, transport, send, deliver, distribute or offer to sell, give, transport, send, deliver, distribute or to do or offer to do any act preparatory to offer or for the purpose of selling, giving, transporting, sending) delivery or distributing 498.2 grams of heroin.

 

[62] Appellant Leone! Dodin was acquitted under Count 1, aiding and abetting in the importation charge, and convicted under Count 2, aiding and abetting in the trafficking charge. Appellant Helm Sounadin was found guilty under both aiding and abetting in the importation and aiding and abetting in the trafficking.

 

[63] Appellant Christopher Freminot Martin Arrisol and Mervin Amephy were charged under Count 3 for aiding and abetting the importation of the heroin and under Count 4, for aiding and abetting the trafficking in the heroin in that they had aided and assisted Catherine Atieno Osawo to sell, give, transport, send, deliver, distribute or offer to sell, give, transport, send, deliver, distribute or to do or offer to do any act preparatory to offer or for the purpose of selling, giving, transporting, sending, delivery or distributing 498.2 grams of heroin. All three were acquitted under Count 3 and convicted under Count 4.

[64] Learned counsel for appellants 1, 2, 3 and 4 submitted that his clients were not aware of the essential matters which constituted the offence and he cited Johnson v. Youden [1950] 1 KB 544 at page 546 where Lord Goddard CJ remarked:

 

" before a person can be convicted of aiding and abetting the commission of an offence, he must at least know the essential matters which constitute that offence."

 

[65] That all of them had knowledge that they were actively involved, each at one stage or another, with people who were in the drug trafficking trade is more than obvious for the reasons given by the learned Judge and elaborated above.

 

[66] With respect to appellant Sounadin, it is he who mentions his friend Sony who, on the evidence of Ms Osawo, was present at the time the heroin was packed in the pampers and who took to the airport Ms Osawo who brought the drugs in the country. He was rightly convicted under both the counts of aiding and abetting in the importation and the trafficking.

 

[67] One last point raised by learned defence counsel has been that Ms Osawo had come to deliver but it is odd that no mention is made of any payment nor any evidence adduced on that aspect to support the charge for trafficking. Learned counsel for the respondent pointed out that in the search of the house of Sounadin, the following money was seized: Rs20,000, USD715, £70,5IR and some Dirhams.

 

[68] To link the money found in and seized from the main building, without more, to the drug transaction is an unacceptable proposition in law. But there was never any need to prove in a drug trafficking transaction that money had passed hands. Trafficking carries a technical meaning in the Misuse of Drugs Act and it should be understood in that sense. Section 2 defines traffic first before stating what trafficking means. Thus: traffic" means

(a) to sell, give, administer, transport, send, deliver or distnoute; or

(b) to offer to do anything mentioned in pargrapg (a); or

(c) to do or offer to do any act preparatory to or for the purposes mentioned in paragraph (a), and

Trafficking"has a corresponding meaning."

 

[70] Whether there was payment or not is irrelevant to the law and to the facts of the case. We uphold the conviction. This leaves us with the question of sentence.

 

 

SENTENCE

 

[71] On the matter of sentence, we are of the view that the issue of a mandatory minimum sentence prescribed by the legislature has evolved in the law of comparable jurisdictions. We understand that this issue is about to be decided upon by this Court. It is open to the appellants once the issue has decided to reconsider their positions in the light of the judgment and, in case it is to their advantage, to have their sentences reviewed on good cause shown.

 

 

[72] In the light of the above, we dismiss the appeal of all the appellants. With costs.

 

MacGREGOR

PRESIDENT


 

S. B. DOMAH

JUSTICE OF APPEAL

M. TWOMEY

JUSTICE OF APPEAL

 

Dated this 2nd September 2011, Victoria, Seychelles.