JUDGMENT

Twomey JA

[1] I have read the written submissions of Counsel for the Appellant and Respondent and meticulously perused all the court proceedings including those relating to the remand of the accused prior to his trial. I have also listened to arguments of Counsel. I have read the judgment of Fernando JA. I am unable to come to the same conclusions as my learned brethren.

[2] A number of doubts linger in my mind as regards the charge as framed as well as the procedure undertaken in the analysis of the drugs in this case. It is regrettable that in serious offences of this kind the officers in question cannot ensure the degree of credibility required for the integrity of the chain of evidence and in the framing of the charges.

[3] The Appellant was convicted of the offence of trafficking in a controlled drug contrary to section 5 of the Misuse of Drugs Act as read with section 14 (c) of the same Act. That conviction relates to 10. lg of diamorphine (heroin). However, an examination of the formal charge before the Supreme Court reads differently. He is therein charged with trafficking in a controlled drug contrary to section 5 of the Misuse of Drugs Act as read with section 14(d). The latter charge relates to cannabis or cannabis resin. This irregularity contravenes section 114 (a) (ii) of the Criminal Procedure Code:

"the statement of offence shall describe the offence shortly in ordinary language...and if the offence charged is one created by enactment, shall contain a reference to the section of the enactment creating the offence;"

[4] The particulars of offence states the Appellant was in possession of 10. lg of heroin giving rise to the rebuttable presumption of having possessed the same for the purpose of trafficking. The trial proceeded based on these particulars as no one seems to have noticed this aberration. Up until the close of the prosecution case and even at judgment stage this mistake was not corrected. The judgment, however states categorically that the accused is charged with a section 14(c) offence. The warrant of commitment after sentence has 14(d) crossed out and (c) inserted above. Nobody initialised this correction and one is left with the impression that this court document was amended as if it was a rough draft and a typographical error corrected administratively rather than following due process. Tampering with official documents is serious and inexcusable.

[5] The second error in the charge relates to the quantity of drugs with which the Appellant was charged. He was charged with 10.lg of heroin, although an analysis of the drug sample revealed that it only contained 6.25 g of the drug. I do take on board the argument of learned Counsel for the Republic that this case took place between the Terrence Alphonse case (SCA 4* December 2008) and the Aaron Simeon case (SCA if* August 2010). In the former this court had decided that in drug cases it sufficed to charge the accused with the weight of the whole mixture but in the latter the court departed from its own decision, rightly I might add, to state that it is the actual weight of the specified drugs referred to that brings the possession of them under the presumption of trafficking and not the total weight of the mixture in which the controlled drug is found.

[6] In this case, since the possession of 2g of heroin is enough to attract the presumption of trafficking it is immaterial whether the Appellant was charged with 10. lg or 6.25g apart from the fact that the law requires for reasons of certainty that the exact weight is specified.

[7] Both the above raise doubts in my mind as regards the credibility I should attach to court proceedings despite the fact that the defects are curable by virtue of the application of section 187 of the Criminal Procedure Code and the powers invested by

Article 120(3) of the Constitution). It is true that the decision of Jules SCA 2006 and the leading authority on this matter, R v Ayres [1984] AC 447 confirm the view as that expressed in the latter case that:

"...if the statement and particulars of offence can be seen fairly to relate to and to be intended to charge a known and subsisting criminal offence but plead it in terms which are inaccurate, incomplete or otherwise imperfect, then that question whether a conviction on that indictment properly be affirmed under the proviso must depend on whether in all the circumstances, it can be said with confidence that the particular error in the pleading cannot in any way have prejudiced or embarrassed the defendant."

Similarly, in Nelson (1977) 65 Cr. App R 119, the charge failed to specify the statute breached but was cured. It is not however unlikely that there might be circumstances where this may not be possible. The Prosecution should ensure integrity in procedure as merits and doubts raised on such integrity of process cannot be resolved against an accused but against the prosecution.

[8] Unfortunately the catalogue of errors in relation to this case does not seem to end there. Two other defects are noticeable in the documentary evidence produced by the prosecution in support of its case and both relate to the analysis of the drug. The first of these concern the serial number entered on the evidence envelope. The Respondent contends that this reads 305/05 whereas the forensic laboratory report lists the serial number as 305/08. I have examined the original document contained in the court file and although the handwritten serial number on the evidence envelope does indeed look like a 5 it is not convincingly so, resembling more an S. However, the certainty that the drug inside the envelope is that recovered in 2008 from the Appellant is further put in doubt in view of the fact of a second defect contained in a letter addressed to the analyst, Mr. Jackaria states:

"Could you please re-analyze the following:..." (emphasis mine)

The use of the term re-analyse is disturbing when added to the doubt already raised by the disparity in the serial numbers discussed and in my view raises a further doubt in the integrity of the chain of evidence linking the exhibit produced to the package recovered from the scene of the incident at Beau-Vallon.

[9] Further, although the Appellant gave a confessional statement this was retracted by him in court. In such cases I am of the view that corroboration is required [vide Guy Pool vR SCAR (1974) 100).

[10] However in a sworn affidavit of the 16 July, the day after the accused was arrested a fellow police officer, Terence Dixie avers:

"On the 15^th July 2008 at around 11.30 hrs some police officers from ADAMS namely LCPL Samson, LCPL Dookley, PC Freminot and PC Camille, were mobile patrolling in a police vehicle namely a jeep, in the vicinity of Beau-Vallon, whilst patrolling they came across one green vehicle driven by Garry Jean Baptist namely S 14629. The driver was alarmed (sic) by the police officers to stop their vehicle by stopping in front of the green vehicle, the driver managed to stop his vehicle, but whilst ordering the driver to stop his vehicle police officers was able to see as the passenger threw a wrapped piece of red plastic bag from the front passenger window...both suspect was arrested...Both suspect was arrested at 12.20 hrs." (sic) (my emphasis).

[11] There is to my mind a grave doubt as to what took place on that date especially so in terms of the material inconsistencies emanating from the evidence. I cannot be sure that the evidence adduced by the prosecution was sufficient for the trial judge to come to the conclusion he did in view of the fact that one version before this Court describes the patrol as being in Beau-Vallon and another as coming from Mont Fleuri. I am also not convinced that the patrol car could have been at Mont Fleuri, Victoria and Beau-Vallon in the space of 30 minutes whilst there was heavy traffic at Victoria as alleged by the police officer. There is a further inconsistency in the fact that according to the averments of Dixie the arrest took place at 12.20pm when the evidence shows that the patrol was Beau Vallon at 11 am and another version that it was at 11.30am in Victoria. Added to this is the fact that Lance Corporal Dixie inexplicably states:

"It is only now that we are realizing that he was already guilty before he was charged."

[12] It is my view that the inconsistencies in this case are basic, material and significant and in this respect quite distinguishable from cases (viz Suleman v R,CA 1995, Quatre vRCA, 2006, R vSpiroSC2008) where the ability of individuals differ in the degree of observation, retention and recollection of events. Added to this fact is a statement by one of the main prosecution witnesses that goes completely contrary to a basic tenet of our criminal law, that one is presumed innocent until proven guilty by a court of law.

[13] I am acutely conscious of the scale of the drug problem in Seychelles and its scourge on society. I do not come to my decision in this case lightly. In this particular case, there are a number of factors which combine to Impair the Integrity of due process - from the charge sheet, the procedure, the evidence in such material particulars as to the weight of the drugs, its analysis and the particular circumstances of the alleged offence. In the circumstances I would allow the appeal and set aside the conviction and sentence passed on the Appellant.

Mathilda Twomey

Justice of Appeal

Delivered at Victoria, Mahe, Seychelles 2^nd September 2011