Kilindo and Payet v R (SCA 4/2010 )  SCCA 20 (02 September 2011);
IN THE SEYCHELLES COURT OF APPEAL
JEAN-PAUL KILINDO ….......................................................................1st APPELLANT
GARY PAYET …...................................................................................2nd APPELLANT
THE REPUBLIC …...................................................................................RESPONDENT
[Before: MacGregor.P., Domah &Twomey, JJA]
Counsel: Mr. N. Gabriel for the 1st Appellant
Mr. S. Fremlnot for 2nd Appellant
Mr. D. Esparon for the Respondent
I have read my learned brother's judgment with which I concur. However I am minded, given the circumstances of this case and the lack of clarity of the law in the areas of foresight and common intention in Seychelles to add the following observations.
 The argument of the two appellants in this case with regard to this issue is that their only intention was to enter the home of the deceased and to steal and that if in that enterprise they did gag her, tie her up and cause her harm they should not be charged with murder as they had not intended to kill her.
 This argument finds commonality with the concept of murder as deliberate and intentional killing. This paradigm does not sit comfortably with another concept driven mostly by public opinion that ruthless risk takers should also be deemed murderers. However, in general the two concepts, namely intention and the relationship between intention and foresight of consequences are difficult to define with accuracy. In this respect I have surveyed approaches in common law jurisdictions to this issue:
 In England, the issue of whether the forseeability of one's actions can be equated with intent is still in a state of flux. The first of the series of cases on the subject was DPP v Smith  AC 290, which was eventually decided in the House of Lords; Viscount Kilmuir exponing that:
"...it matters not what the accused in fact contemplated as the probable result, or whether he ever contemplated at all, provided he was in law responsible and accountable for his actions... On the assumption that he is so accountable for his actions, the sole question is whether the unlawful and voluntary act was of such a kind that grievous bodily harm was the natural and probable result. The only test available for this is what the ordinary, responsible man would, in all the circumstances of the case, have contemplated as the natural and probable result."
 Smith was followed by a number of cases on this precise issue namely, Hyam vDPP (1975), R v Moloney  AC 905, R v Nedrick  1 WLR1025, Scalley (1995), R v Woollin  4 Ail ER103 culminating in Matthews andAlleyne (2003).
 Nedrick (1986) gave the House of Lords the opportunity to clarify the apparent confusion in law. In Nedrick the defendant poured paraffin through the letterbox of a house and set fire to it. A child died in the fire. The defendant claimed that his intention was to scare the occupants of the house, not to kill anyone. The jury was given a direction, which equated foresight of consequences with intention, and the defendant was convicted of murder. Lord Lane CJ stated that equating foresight with intention was not correct, and that Lord Bridge of Harwich (speaking in reference to Moloney had been correct in saying that foresight of consequence was part of the law of evidence, not the substantive law. Nedrick had his murder conviction quashed and substituted with a conviction for manslaughter, and the "Nedrick direction" was written as follows:
"Where the charge is murder and the simple direction is not enough, the jury should be directed that they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty as a result of the defendants actions, and that the defendant appreciated that such was the case".
 In the final case on this issue, Matthews and Alleyne /20037 2 CrApp R 30 (461) the Court of Appeal upheld convictions for murder despite the direction given by the trial judge equating foresight of consequences with intent. The defendants had pushed a man off a bridge into a river and he drowned; the defendants knew that he could not swim but nonetheless claimed that they had not intended to kill him. The judge directed the jury that if "drowning was a virtual certainty and they [the defendants] appreciated that then they must have had the intention of killing him."
 The Irish Law Reform Commission in 2001 whilst surveying the law around the world on the subject summarized the position thus:
"the mens rea of murder has varied with the underlying conceptions and objectives of the criminal justice system. In early law, when the objective of the criminal justice system was to restrict and supplant the bloodfeud, the mental element was of relative unimportance. As malice aforethought came to represent the mens rea of murder it was given a technical meaning by the courts in order to circumvent clerical exemption, and . ensure that defendants who deserved to be punished as murderers were so punished. Thus, the phrase was interpreted (and reinterpreted) in order to fit the exigencies of the time, and to conform with what was felt to be the proper scope of the mental element of murder."
The present Irish position is less stringent than that in England and is set out in People v Douglas & Hayes  ILRM 25: Foresight of death as a natural and probable consequence of one's actions does not amount to intention per se, although it may be evidence from which intention can be inferred.
 Recent proposals in Australia and New Zealand have defined intention in terms of knowledge of the probability of a result occurring, similar to the Irish position.
 In Canada, in the case of R. v Buzzanga and Durocher  25OR (2d) 705, the Ontario Court of Appeal held that nothing less than foresight of a result as substantially certain could constitute intent.
 The common law of the United States provides that the mens rea for murder comprises (a) intention to kill, (b) intention to cause grievous bodily harm and (c) unintentional killing under circumstances evincing a depraved mind. With regard to the third element, 'the essential concept was one of extreme recklessness regarding homicidal risk'. [American Law Institute, Model Penal Code and Commentaries (Official Draft and Revised Comments), 1980,2nded.f Part II, Vol.1, at p. 15. ]
 Hence, if there was a classification of foresight necessary for murder to be established, in those jurisdictions the approaches are dissimilar:
a. moral certainty is necessary to constitute intent ( the English and Canadian
b. probability of consequence or natural consequence is enough to constitute
intent the Irish, Australian ,New Zealand and the United States positions)
 In Seychelles the approach to foresight and intent is even less stringent Malice aforethought is defined in the Seychelles Penal Code, as:
"(a) an intention to cause the death of or to do grievous bodily harm to any person, whether such person is the person actually killed 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." (my emphasis)
 Hence, in Seychelles there is no uncertainty in relation to foresight and intent. The law categorically states that if one is indifferent as to whether death is caused by one's actions, then that indifference is sufficient to prove intent.
 In Denis Barra v R (2001) SCA 4, an attempted murder charge, the Court of Appeal held in attempted murder cases the intention must be to cause the death of another. In that case the remoteness of the consequence of the defendant's action was enormous. The respondent and the complainant did not know each other. The Appellant, a soldier who was trained to fire with precision had been firing at some bushes and trees and was also under the influence of alcohol at the time he shot the complainant. His conviction was therefore quashed.
 In the present case the two Appellant's intent can be inferred from the evidence adduced to conclude whether they either intended or were indifferent to the death of the victim. Hence when the second Appellant states inculpatorily in his second statement
"... I came and hold her..."
and when the first Appellant in his statement, also inculpatorily states
"I tied both her legs and hands. I tied her at the bathroom...we tied her some more, both legs and hands... the lady struggled with us... there is a possibility that she has hit (sic) her head on the floor when she was struggling..."
that is evidence of intent. At the very least, the fact that both were conscious of the fact but careless of the consequences that there was some serious risk posed by the victim being left gagged and tied proves further intent. (See also the first Appellant's statement in his confession:
"... I also told him (the second Appellant) that we should release the lady...").
These incriminatory statements are corroborated by the circumstantial evidence adduced in this case -namely: the medical report and evidence of Drs. Xiang Lei and Brewer, and the Burkes concerning the way they found the victim and the injuries she had sustained.
 Mr. Gabriel for the 1st Appellant also advances the argument that the trial judge did not address this issue with the jury in his summing up and in so doing did not allow them the option of convicting on the lesser charge of manslaughter as opposed to murder. I do not believe this argument has any merit in view of the fact that in his summing up the learned trial judge devoted much time to addressing precisely the issue of malice aforethought and quoted section 196 of the Penal Code in its entirety and then commented by again paraphrasing the provision:
"It therefore follows that the prosecution must adduce evidence to prove that the accused persons had intended or foreseen the death or grievous bodily harm as the possible or probable result of this act or omission or had the knowledge that the act or omission causing death of Mary Anne (sic) Hodoul even though such knowledge was accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused..."
He expounds further giving examples of the "indifference." He also addresses the issue of manslaughter stating that none of the counsels "has suggested the slightest basis of manslaughter as opposed to murder..."
For these reasons I see no merit in that ground of appeal. Common Intention
 It is the submission of both Appellants that the learned trial judge did not address the issue of common intention in his summing up. His failure to do so they argue caused a miscarriage of justice since both accused were charged with murder as read with Section 23 of the Penal Code. It is their contention that the evidence does not evince such a common intention between the parties to murder the victim and that at the very most their only common purpose was the robbery of a safe inside her home.
 Section 23 of the Penal Code states:
"When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another and in the prosecution of such purpose an offence is committed of such nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed an offence."
The question to be asked in relation to the circumstances of this case and the initial intention of the two appellants (purely to rob the victim) is whether it was a probable consequence that in their act to rob the home of the victim they may have found her on the premises or whether she could have arrived there subsequently. If that question is answered in the affirmative, which I contend it must, and their resulting act of tying her up, gagging her and injuring her and leaving her to die is the probable consequence of the robbery, each of them are deemed to have committed her murder.
 The two authorities cited by Mr. Esparon, Counsel for the Respondent are to point. In Benstrong (1976) SLR 1 Sauzier J, quoting the case of Merriman (1972) 3 All ER 6 rightly stated the law when he said that Merriman was stating the law as it existed already under the Seychelles Penal code, so that
"whenever two or more defendants are charged in the same count of an indictment with any offence which men help one another to commit it is sufficient to support a conviction against any and each of them to prove either that he himself did a physical act which is an essential ingredient of the offence charged or that he helped another defendant to do such act, and, that in doing the act or in helping the other defendant to do it, he himself had the necessary intent."
In Mein (1995) SCAR the Court of Appeal stated that it was erroneous to argue that common purpose entails a pre-arranged plan. It may be formed on the spur of the moment and even after the offence has commenced. Hence, although both accused claim that there is no evidence that either of them caused the death of the victim all the jury had to find was whether both appellants or either of them caused her death in their endeavour to carry out the robbery. It is sufficient that evidence was adduced that either or both of them admit some part in their engaging and struggling with the victim, that both share the ultimate responsibility for her death.
 In this respect the trial judge cannot in any way be faulted. He extensively dealt with the issue of common intention in his summing up vide:
"Common intention does not necessarily, and in all cases, imply an express agreement and pre-arranged plan before the act. The act may be tacit and common design conceived immediately before it is executed on the spur of the moment. There need not be proof of direct meeting or combination nor need the parties be brought into each other's presence; the agreement may be inferred from circumstances raising a presumption of a common plan to carry out the unlawful design."
 Mr. Gabriel, for the 1st Appellant, has cited RvA 2 W.LR. 647 (Crim Div). The English law on the issue of common intention or design involves the establishment of a further elevated intent as opposed to the agreed intent. It appears that in England, in cases involving joint enterprise it is not sufficient to show that a secondary act took place as a result of the agreed first act. It must also be shown that the co-accused who committed the secondary act had intended the secondary act. RvA comes as a result of the attempt by the House of Lords in the case of R v Rahman  AC129'to clarify the law relating to joint enterprise or common intention.
 As I have pointed out this distinction does not arise in Seychelles because of the wording of section 23 of our Penal Code. If we are to use the same terminology as the English cases quoted above, then to put it simply the law in Seychelles is that it suffices to show that a secondary act took place as a probable consequence of the agreed first act intended. In this jurisdiction we do not need to look for the intention of the perpetrator to carry out the secondary act. All that is necessary is that the secondary act took place as a probable consequence of the first act to which they had agreed upon.
 In my view this disposes of all the substantial grounds of appeal. In the circumstances these appeals are dismissed.
 I wish to thank all Counsel concerned both in undertaking the case before the Supreme Court and before this Court. I know that this crime was particularly heinous and resulted in much difficulty for members of the Bar especially in defending the appellants against the murder of the deceased, the sister of an esteemed member of the Bench. I commend the duty you carry out above all as officers of the Court.
Justice of Appeal
President, Court of Appeal
Justice of Appeal
Delivered at Victoria, Mahe on this 2nd day of September, 2011.