IN THE COURT OF APPEAL OF SEYCHELLES

Garry Stephen …..................................................................APPELLANT

vs

The Republic …....................................................................RESPONDENT

CR SCA No: 3/2010

BEFORE: Domah, Fernando, Twomey, JJA

Counsel: Mrs. A. Amesbury for the Appellant

Ms. A. Madeleine, Senior State Counsel, for the Respondent

Date of Hearing: 24th August 2011

Date of Judgment: 2nd September

JUDGMENT

A.F.T. FERNANDO JA

1. This is an appeal against an order of the Supreme Court dated the 30th of December 2009, denying bail to the Appellant and remanding him to custody in connection with the offence of trafficking in a controlled drug, namely 37.5 grams of heroin (diamorphine).

2. The grounds of appeal were:

i. The Learned Trial Judge erred when he ordered that the Appellant should be remanded to custody until the final 'determination of the case' as such an order is contrary to the provisions of section 179 of the CPC which only allows for Appellant to be detained for a period of fourteen (14) days at a time.

ii. The order made for the Appellant's detention until the final 'determination' of the case fetters the discretion of any other judge before whom the Appellant would be produced as it would mean that the judge would have to reverse the decision of a judge with concurrent jurisdiction, if in his view the Appellant should be remanded to bail.

iii. The order for remand made by the learned trial (sic) based only on an application and affidavit filed by the Prosecution without having made the documents available to the defence violates the rules of natural justice as no one should be deprived of his liberty before first having been heard on all issues raised by the Respondent in its Application.

3. In regard to ground 1 we find that the learned trial judge having ordered the remand of the Appellant in custody pending the final determination of the case had also stated in the last paragraph of his Order "In the circumstances, I decline to grant bail and remand the accused in custody starting with 14 days. The accused is remanded until 13th January 2010 at 1.45 p.m. when the case shall be coming up for mention. The accused person is to be produced in court accordingly" (underlining by us). This qualifies the first part of the Order by stating that the detention will be only for a period of 14 days and only until the 13th of January 2010.

4. Section 179 of the Criminal Procedure Code states:

"Before or during the hearing of any case, it shall be lawful for the court in its discretion to adjourn the hearing to a certain time and place to be then appointed and stated in the presence and hearing of the party or parties or their respective advocates then present, and in the meantime the court may suffer the accused person to go at large or may commit him to prison, or may release him upon his entering into a recognizance with or without sureties, at the discretion of the court, conditioned for his appearance at the time and place to which such hearing or further hearing shall be adjourned:

Provided that, if the accused person has been committed to prison, no such adjournment shall be for more than fifteen clear days, the day following that on which the adjournment is made being counted as the first day"(underlining by us).

5. A reading of the above provision makes it clear that the Appellant's argument is misconceived for the learned trial Judge had indeed acted in accordance with section 179 of the CPC. Section 179 empowers a court to adjourn a hearing and to commit the accused to prison during the intervening period. The only qualification being that no such adjournment shall be for more than fifteen clear days. We however wish to state that the words in the Order "remanded in custody pending the final determination of the case" is inappropriate.

6. We do not agree with the Appellant that the order made by the learned trial judge for the Appellant's detention fetters the discretion of any other judge before whom the Appellant would be produced, for when so produced the other judge has to act only in accordance with section 179 of the CPC and not by the earlier Order of the court. There is no question of a reversal of a previous order but a fresh order each time an accused is produced before the court on the expiry of the earlier order for remand.

7.  As regards ground 3 the learned trial judge had stated: "On the issue of opportunity, I believe the defendant has been given the opportunity and the counsel made her submissions before this court on the affidavit filed by the prosecution ". We therefore see no merit in this ground of appeal.

8. In view of our findings set out above we dismiss this appeal.

A.F.T. Fernando

Justice of Appeal

I agree

S. Domah

Justice of Appeal

I agree

M. Twomey

Justice of Appeal

Dated this 2nd day of September 2011, Victoria, Seychelles