IN THE SEYCHELLES COURT OF APPEAL

Serge R. Esparon …................................................................................................Appellant

AND

The Republic …...................................................................................................Respondent

CR SCA No.29 of 2009

[Before: Hodoul, Domah & Fernando, JJA]

Mr. B. Hoareau for the Appellant

Mr. B. Vipin for the Respondent

JUDGMENT

Hodoul, JA

[1] Serge Esparon, now appellant, was charged with the offence of trafficking in controlled drugs contrary to Section 5 as read with Section 14 and 26(1) (a) of the Misuse of Drugs Act 1990 as amended by Act 14 of 1994 and punishable under Section 29 and the Second

Schedule referred thereto in the Misuse of Drugs Act 1990 as amended by Act 14 of 1994.

[2] The particulars of offence are that Serge Esparon of Baie Ste Anne, Praslin, on the 9^th

September 2008 was found in possession of a controlled drug, namely, 714.6 grammes of cannabis resin, which gives rise to the rebuttable presumption of having possessed the said controlled drug for the purpose of trafficking.

[3] He was tried in the Supreme Court and Burhan J, found him guilty as charged and sentenced him to imprisonment for 10 years.

[4] Aggrieved by the decision, the appellant has appealed against conviction only on a number of grounds:

1. The learned trial judge erred in accepting as being credible and trustworthy the evidence of the main prosecution witnesses, as the said testimonies were full of

inconsistencies and contradictions in material particulars and in respect of certain facts that should have been obvious and as such the learned trial judge should have rejected the evidence of the said witnesses.

2. The learned trial judge erred on the evidence, in failing to properly and sufficiently

consider the following facts:

(i) the place where P. C. Pillay was seated in the vehicle;

(ii) the failure by the police officers to stop the vehicle when the wife

and children of the appellant were still in the vehicle;

(iii) the fact that the police officer failed to stop the vehicle at the first opportune time after the appellant had dropped off his wife and children;

(iv) the failure by the police officers to effect the search in the car park of Bale Ste Anne Hospital, when it was practical for them to do so; and

5.  the Assistant Superintendent Agnes Mondon, who was the officer in charge on Praslin at the relevant time, had a motive to frame the appellant and had indeed
   
   threatened the appellant in that respect.

3) The learned trial judge erred on the evidence in that:

(i) the learned trial judge without any factual basis came to the conclusion

that "it is very unlikely that the police would have access to such a quality (of drugs) in order to frame the accused"; and

(ii) in attaching too much weight to the fact that the appellant had not

complained to higher authorities, especially since no evidence was

led on that issue.

4. The learned trial judge erred in law and on the evidence in holding that the presumption raised by section 18 of the Misuse of Drugs Act had not been rebutted

and as such that section 18 was , applicable to the case.

5. The learned trial judge erred in law and on the evidence in convincing the appellant of the offence, as the prosecution had failed to prove beyond a reasonable

doubt that appellant had exclusive possession of the drug.

[5] When he addressed us in open Court, learned advocate for the appellant, stated that we should pay particular attention to the notion of "a lurking doubt" as to whether an injustice has been done and as such the conviction is unsafe and unsatisfactory. The notion of "lurking doubt" is not offending as such, provided it is not intended to and does not have any bearing whatsoever on the standard of proof in criminal cases.

[6] For sometime, we noticed significant improvement but regrettably, it would seem that "old" ways are creeping back surreptitiously. For instance, we find no substance in ground one which is hereby dismissed. Ground two in fact contains five grounds and ground three contains two grounds. In any event, we have carefully read those grounds and found nothing of substance therein.

They are hereby dismissed. The attorney drafting the grounds has succeeded in lumping together a number of grounds, to be read as one.

In Mervin Benoit vs The Republic (CR SCA No. 5/06) we stated: "... as is too often the case, the list of grounds is unnecessarily long and diffuse, at the expense of clarity and precision. "Surplusage "

does not serve the cause of an appellant and, in most cases, a few concise grounds would be more effective. In this regard, an appeal is launched to all advocates who appear before this Court. To do justice to the appellant, we will hereinafter deal with the essential issues

raised. "

[7] One of the main grounds of challenge to the Prosecution case was that the evidence of the main Prosecution witnesses were full of inconsistencies in respect of material particulars that they should have been rejected. The inconsistencies relied upon are.

1.  PW3, PW4 and PW5 referring to a call received by PW3 the driver of the police vehicle, while they were on routine patrol informing them of a man in a white Terios dealing in drugs and PW2, who was seated next to PW3, denying the receipt of such a call.That
   
   the four police officers have not been consistent in their evidence as to when and where they spotted the white jeep driven by the appellant for the first time.Inconsistency between PW3 and Prosecution witnesses 4 and 5, as to where PW4 and % who escorted the appellant in his white jeep to the Baie Ste Anne Police Station from the hospital sat in the jeep of the appellant.

[8] We are of the view that none of these inconsistencies are so material as to cast doubt on the Prosecution case. It is too much to expect that four police officers testifying in respect of an incident several months after the incident to remember in detail and all four of them to

be consistent as to whether they received a phone call when they spotted for the first time a white jeep driven by the appellant.

Consistency amongst some of the Prosecution witnesses on these matters should be sufficient. We are all human and erare humanum est. Sometimes it is inconsistencies that render credible the case for the Prosecution. In the present case, inconsistencies exist but we find that they do not cast doubt on the case for the Prosecution.

[9] Grounds 4 and 5 of the appeal are based on the inability of the prosecution to prove

exclusive possession and the failure of the learned trial Judge to appreciate that the presumption under section 18 had been rebutted in view of the major inconsistencies

in the evidence before the Court indicative of a set up and the uncontroverted evidence that

immediately prior to the appellant being arrested by the police, the wife of the appellant was in the vehicle.

[10] It is to be noted from the defence evidence and the cross-examination of the prosecution witnesses that the appellant had clearly taken up the position that he had been framed. The appellant had stated from the dock: "It is typically that I have been framed by the police under the orders of Agnes Mondon for her to be able to venge her anger on me

and my family because we sued her before Court DW2 and DW3 had said that one of the police officers who was involved in the arrest of the appellant had admitted to them that the drugs were planted by him.

[10] We are conscious of the fact that it is possible for an accussed to raise several defences and sometimes conflicting defences, but when an accussed categorically raises the defence of a set up, adducing evidence in substantiation; his other defence that his

wife had access to the vehicle and therefore the opportunity to place drugs in the vehicle looses its evidential value. The resultant position is that both defences loose their evidential value.

[11] In conclusion, the appeal is dismissed and the judgment of the learned trial Judge upheld.

J.M. HODOUL

Justice of Appeal

I concur:

S. B. DOMAH

Justice of Appeal

I concur:

A. FERNARDO

Justice of Appeal

Delivered

at Victoria, Mahe on this 29^th

April, 2011