Kilindo and Payet v R (SCA 11/12 of 2009 ) [2011] SCCA 19 (02 September 2011);



 

IN THE COURT OF APPEAL OF SEYCHELLES

1. JEAN PAUL KILINDO

2. GARRY PAYET..........................................................................APPELLANTS

vs

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

SCA 11/12 of 2009

Counsel: Mr N. Gabriel for Appellant 1

Mr S.A. Freminot for Appellant 2

Mr D. Esparon for Respondent

 

JUDGMENT

DOMAH, S.,

 

[1] The two appellants stood trial for murder under section 193 of the Penal Code before a Judge and a jury who returned a verdict of guilty against both. They were each sentenced to life imprisonment. They have appealed against their conviction. The appeals were heard together. We shall consider both appeals as such and deliver one judgment, a copy of which will be filed in each case.

 

 

THE APPEAL OF JEAN-PAUL KIUNDO

[2] Appellant Jean-Paul Kilindo has put up the following grounds of appeal:

1. The learned trial Judge erred in that he did not put to the jury sufficiently or at all the case of the Appellant.

2. The learned trial Judge did not put to the jury the fact that the Appellant could be convicted to a lesser charge of manslaughter.

[3] Both the grounds were taken together in course of argument of learned counsel for Appellant. The main thrust of his argument was that Appellant Kilindo had joined his confederate in crime not for the purposes of causing anybody's death but simply for the purposes of burglary: i.e. looking up for, breaking a safe and stealing therefrom. At one stage, Appellant Kilindo insisted that they should leave. He, indeed, was getting ready to leave when he saw the lights of an approaching vehicle. In the circumstances, learned counsel for Kilindo urged before us, it was the duty of the learned judge to dwell upon the limited participation of Appellant Kilindo in the actus reus of the killing as well as his lack of mens rea which fell short of the malice aforethought required by law for murder. He pointed out that in his out of court statement, the appellant had stated that he was not responsible for the death of the lady.

 

(4] We would agree with learned counsel had the facts on the evidence been as he presented it. However, the facts do not show that his client's "only role that night of 31st October 2007 was to tie the hands of the victim whilst Payet did the rest." Admittedly, the two appellants stole into the premises for burglary. But, by force of circumstances, they became engaged in the more serious offence with the requirements of actus reus and mens rea. From the moment they saw headlights in the driveway and were surprised, they could well have taken flight. Neither did so. As far as Kilindo is concerned, he had elected to leave earlier but he chose to stay with his acolyte in his assault and participate in the immobilization of the old lady. The active participation of both led to her death. In the circumstances, Kilindo cannot be heard to argue that he was a mere burglar. He became a co-author in the demise of the victim by his actions. The facts show that he Kilindo tied the 65-year old woman to a chair even while she struggled. The FSL report shows that she had been assaulted at several places. She bore fatal injuries at the head resulting in a skull fracture. She was also strangulated. The participation of both Kilindo and Payet was concomitant. The inevitable death was the result of the simultaneity of action and reciprocal assistance which Kilindo gave to his acolyte in the actual grievous bodily harm, the tying up and the abandonment of her overnight in that state with serious injuries and helplessness.

 

[5] Indeed, the above amply answers the question why the issue of alternative plea could not be raised and was not raised by the learned Judge for the determination of the jury. The facts and circutsnces did not warrant it: R v Hoareau 1975 SLR 31; The Republic v Vel & Ors 1978 SLR 124; Paniapen v R1981 MR 254 cited in Venchard, Law of Seychelles Through the Cases, Best Graphics, Mauritius, 1977.

 

[6] On the issue of co-authorship in an offence, reference may be made to the French jurisprudence which, along with English decisions, has by and large influenced the law of Seychelles as well as that of Mauritius. In D.P.P. v. Mudhoo & Anor [1986 SCI 23], this is what we read:

"there must be a common object (and this may legitimately be inferred from the separate acts of the different accused parties); there must also be "simultaneity d'action" and "assistance reciproque" (again this may legitimately be inferred from the acts of the different participants), the overall principle being the degree of participation of an accused party in the offence."

 

As was held in the case of Paniapen & Anor v The Queen [1981 MR 254]:

 

"To constitute a common purpose, it is not necessary that there should be a prearranged plan. The common purpose may be formed on the spur of the moment, and even after the offence has already commenced. Thus, if A assaults B, and C, who passes by and had no previous intention of assaulting B, rushes in to join in overpowering Bf he becomes a co-author in the assault"

In Hungsraz and R. v. Hungsraz [1970 MR 74], the Court referred to the following extract from Traftg Theorique et Pratique du Droit Penal Francais, 13, p.4 by Garraud:

 

«Une situation plus pratique est celle des dilits commis en reunion, mais sans entente prealable. La participation criminelle suppose une co-opiration de force et d'activites en vue d'un resultat commun: des individus se reunissent pour commettre un delit, un vol, un assassinat, un empoisonnement»

 

The issue of primary act from which emerged the secondary act which escalated from

the lesser crime to the greater is well illustrated in what follows the above citation:

«// ya,la plupart du temps, entre eux, une sorte de convention dissociation ou s77 est difficile de la degager, si les coparticipants ont agi sous fempire d'une inspiration subite, du moins ils ont eu I'intention commune defavoriser, par leur propre activfte, celle de leurs compagnons.»

 

Accordingly, where a party develops a common intention to enable or favoriser (fr.) another to commit the offence, it does not matter whether the more serious offence which followed stemmed out of a blue. Did the activity of one enable the other to bring the misdeed to its logical end? If that is the case, the requirements of the law as regards the mens rea and the actus reus for the later offence are satisfied.

 

[7] The question of the meaning of malice aforethought required for the offence of murder has been laid down in our law and very well exposed by Twomey J.A. in her judgment. For the sake of completion, I have already referred to the continental and Mauritian case-law above. More to add on this matter would be simply redundant. She has shown that while section 193 provides for what constitutes murder in our Penal Code which is the causing of the death of another by an unlawful act or omission with malice aforethought, section 196 defines what amounts to malice aforethought. It reads:

"Malice aforethought shall be deemed to be established by evidence proving anyone or more of the following circumstances:-

(a) an intention to cause the death of or to do grievous bodily harm to any person, whether such person is the person actually lolled or not;

(b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not or by a wish that it may not be caused." [underlining ours]

[8] In accordance with our law, there was evidence of more than indifference from the part of the two appellants. There was actual grievous bodily harm intended and inflicted on the state of the evidence.

 

[9] The position in comparable jurisdictions has been well expounded by Twomey J.A. and I subscribe to that. English law as argued by learned counsel for the respondent is not far different. English authorities establish that­'ll defendant D, could be guilty of murder on the basis of joint enterprise liability if he participated in the joint enterprise of crime X and foresaw that, in the course ofit,P whether identified or not, might commit murder, ie. act with an intention to kill or to do grievous bodily harm. In many such cases, foresight of P*s act would almost inevitably carry with it foresight of an intention to kill or to cause serious injury."R vA [2010] EWA dim 1622; [2011]2 W.L.R. 647(Crim Dht).

 

[10] As rightly pointed out by Twomey J.A., the foreign authorities need to be looked

at from the special provision of our own law and the hybrid nature of our jurisdiction on

the matter. That is found in section 23 of the Penal Code which provides:

"Where two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and m the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence. "

 

[11] As regards the issue of circumstantial evidence, it is worthy of note that, after a voire dire, the learned Judge ruled that the confessions were admissible. We have gone through the proceedings and we agree with the learned Judge that he was right in so ruling, for the reasons he gave. He stated that the myriad of omissions and accusations alleged against the police were grossly exaggerated for any court to believe in and he found no evidence of oppression or threats. Once the statements where each Appellant spoke of his participation were admitted, even if the issue of weight was yet to be considered by the jury, the question of circumstantial evidence became a redundant consideration.

 

[12] We find no merits in the grounds of appeal rased by Appellant Jean-Paul Kilindo. We dismiss his appeal.

THE APPEAL OF GARRY PAYET

 

 

[13] Appellant Garry Payet has appealed against his conviction only and put up the following grounds of appeal:

1.. The conviction of the Appeal Court (sic) was wrong in aU the circumstances of the case.

2. The learned trial Judge erred in admitting the three confessions of the Appellant. The confessions were so intertwined that it was rather unsafe for any conviction.

 

[14] The grounds of appeal as given above are certainly not models of what grounds of appeal should be. However, we were prepared to hear learned counsel who, appointed in forma pauperis in special circumstances, offered to do justice to his profession by going through the complete proceedings comprising five volumes of transcript and conjure up some ground of appeal.

 

 

[15] He submitted on both grounds together. In his Heads of Arguments, he advanced the following point: the scientific evidence showed that the victim only died around 4 a.m. long after the two appellants had left the scene which could most probably be around 10 p.m. At the moment they left, therefore, the victim had not died. The appellants could not be held guilty of murder if the victim had not actually died at the moment they left her but died many hours later. In his view, inasmuch as the learned judge failed to direct the jury to this aspect of the case, a conviction obtained with such an omission could not be safe.

 

[16] The argument is ingenuous. However, we are unable to accept it. The question to ask is whether when they were leaving the victim, they had left her as dead or indifferent to the probability that death would ensure in the light of the injuries they had inflicted upon her and the conditions in which they had left her. For death to occur in the offence of murder, there is no rule that says that death should occur on the spot or within a space of a number of hours. In fact the rule that applies at common law is the 100-day rule. So long as the actions of the perpetrator was such that death was the inevitable consequence thereof, the fact that it occurred the next day is immaterial. We have stated above that with the type of injuries they had inflicted on her - a 65-year old lady living alone in her house; and, in the condition in which the two appellants left her - tied and immobilized to a chair and gagged at 10 p.m. in the night, they knew that they had left her either for dead or for dying. Appellant Kilindo was no less to blame in the death of the victim than Appellant Payet on account of the "simultaneity d'action et assistance reciproque" in their engagement with the old victim which brought about her death.

 

[17] On the question of the intertwining nature of the confessions, we are at a loss to follow what this ground means. The heads of arguments do not expatiate on this ground either. However, if the meaning is what learned counsel for the respondent gives it, that is that the confessions contained matters related to both the appellants, he rightly referred to the decision of Lobban v R 1995 1WLR 877 and Jefferson [1994] 1 All ER 270. As the Court has no power to order the editing out of otherwise admissible evidence contained in an accused's statement, for the purpose of avoiding the risk of injustice to a co-accused, at least without the consent of the prosecution and the accused who made the statement. The only obligation of the Court is to properly direct the jury on the matter which, in the circumstances, was done. We find no merits in the grounds of appeal raised by Appellant Gary Payet. This aspect of the law has been proper analyzed and explained by Peter Murphy, Evidence, 11th Ed. Oxford University Press, p. 354 and relied on by learned counsel for the respondent.

 

 

[18] Since, in the foregoing, we have found that the appeals of both Jean-Paul Kilindo and Garry Payet have no merits, we dismiss them both.

 

MacGREGOR

JUSTICE OF APPEAL

 

S. B. DOMAH

JUSTICE OF APPEAL

 

M. TWOMEY

JUSTICE OF APPEAL

 

Dated this 2nd September 2011, Victoria, Seychelles.