Livette Assary vs The Republic (SCA CR No.18 of 2010) [2012] SCCA 33 (07 December 2012);

 

JUDGMENT

 

MSOFFE. J.A,

    

    

          The appellant was convicted of two counts of conspiracy to commit the offence of importation of a controlled drug and conspiracy to commit the offence of trafficking in a controlled drug. Henceforth, she was sentenced to terms of 10 years imprisonment in the respective counts with an order for the sentences to run concurrently. Aggrieved, she has lodged this appeal against both the conviction and sentence.

 

          In the notice of appeal dated 27/7/2010 and lodged in the Court on 28/7/2010 the main ground of appeal reads:-

 The conviction is unsafe and unsatisfactory for the learned judge failed to sufficiently consider the defences as raised by the Appellant in the light of the evidence on record and more particularly noting the discrepancies in the evidence of the accomplice Mr. Larue and his ulterior motive to implicate the Appellant in connivance with the other prosecution witnesses. Considering the above failure the learned judge as a direct consequence whilst delivering his judgment in this case failed to properly consider and appreciate the law in the light of all the evidence before him.

 

The sentence is unsafe and is harsh and excessive having regard to all the circumstances surrounding the commission of the offence convicted of.

 

          The evidence as it unfolded at the trial is fairly long. Briefly, Nelson Larue testified that through his friendship with one Wayne he came to know Tony Durand the brother of Brigitte Durand a lady residing with Mrs. Assary. Tony told him that he was going to send a parcel containing heroin addressed to the Director of SIBA which had to be cleared. That parcel actually came and he delivered it to Tony. Then Tony contacted him again and informed him that he was going to send another consignment. It is this second consignment which is relevant for purposes of this case. Tony told him that as he was having problems with Wayne another person was to represent him and that he was to give the consignment to Mrs. Assary. Mrs. Assary told Mr. Larue that Tony had spoken to her that he was to deliver the parcel straight to her. Later the parcel actually came through the address of Mr. Steve Fanny, Director of SIBA, and was to be collected from FedEx in Seychelles. Mr. Steve Fanny became suspicious of the consignment and accordingly informed Mr. Govinden, the Attorney General, who set the investigation machinery into motion. It was agreed that Mr. Larue would collect the consignment from FedEx. Sergeant Seward testified that he himself and Inspector François and Nicette went to the airport to observe Mr. Larue. After collecting it Mr. Larue came out with a box in his hand and he was stopped by Sergeant Seward and the other officers outside the SIBA building. Mr.Larue indicated to Sergeant Seward that the box contained a cartridge and substances suspected to be drugs. The box was opened in their presence. Mr. Larue said that he had collected the parcel for him to deliver to somebody later. Mr. Larue called the person to whom the parcel was to be delivered and informed the person, who happened to be a lady, that he had already collected the parcel and asked when he could deliver it to her. The person told him that they would talk the day after. The phone had its speaker on so Sergeant Seward heard the conversation. Eventually, it is in evidence that when the parcel was received Mr. Larue met with Mrs. Assary at a car park opposite Independence House. Mrs. Assary told him to come to Anse Aux Pins and deliver the parcel to her. In the meantime, Ms. Anne William an NDEA agent testified that she was on surveillance at the car park opposite Independence Avenue to monitor the meeting between Mr. Larue and Mrs. Assary and that she witnessed the meeting between the two persons. On the next day, Mr. Larue went in his car with the parcel to deliver it to the person he had spoken to on the phone the previous day. Sergeant Seward and the other officers followed Mr. Larue to a house where a lady opened the door and let him in and then closed the gate. Sergeant Seward and the other officers forced the door of the house to open and went inside where they saw Mrs. Assary and inside the bedroom there was a table where two persons were sitting namely Mr. Larue and Mr. Freddy Nibourette. On being asked about the cartridge, Mrs. Assary admitted that it belonged to her. The police officers from NDEA opened the parcel in the presence of Mrs. Assary Larue and Freddy and found three plastic packets of heroin substances concealed inside the cartridge. Sergeant Seward sent the exhibit to Dr. Zakaria for chemical analysis. Dr. Zakaria analyzed the exhibit and concluded that it was illicit heroin with total weight 148.5 grammes. He made a report to that effect and eventually gave the exhibit back to Sergeant Seward who acknowledged that it was the same exhibit he had earlier given to Dr. Zakaria. The exhibit and the report were eventually produced and admitted in evidence without objection by the defence.

 

           The appellant’s defence was a general denial of guilt. She denied any involvement in the alleged crime(s). She admitted knowing Mr. Larue but only in relation to a business involving the sale of baby’s clothes. She also admitted meeting Mr. Larue at the car park but that the meeting had only to do with the baby’s clothes referred to earlier. In her evidence she also contended that Mr. Larue came to her house on the mentioned date but the visit had something to do with the baby’s clothes only. According to her, she also saw the box containing the alleged drugs at her home but that it was not the same consignment that was eventually produced in Court.

 

          Admittedly the prosecution case was to stand or fall on the evidence of Mr. Larue. This was the key witness in the case. Once he was believed the rest of the prosecution case was to flow from there. He was no doubt an accomplice but the trial court believed him. Certainly in believing him the trial court had the advantage of watching his demenour in court; an advantage which this appellate court does not have. In the premise, there must be very strong reasons for this appellate Court to disagree with the findings and conclusions reached by the trial court on the evidence of this witness. Indeed, as a matter of principle an appellate court will not interfere with findings of fact by a trial court unless they are manifestly unreasonable; or there were misdirections or non-directions on the evidence; or where the court misapprehended the evidence, etc. In this case, it is difficult to believe that Mr. Larue could have decided just for the sake of it to frame up this serious case against the appellant, a person he never knew of before. Certainly there is some truth somewhere in the evidence of Mr. Larue in relation to the offences the appellant was charged with and convicted of.       

 

          In a case of this nature before a conviction can lie it is important to ensure that the evidence on the “chain of custody” in the handling of the exhibit is cogent and thorough and leaves no room for doubt. It is necessary to ensure that exhibits are handled carefully. Needless to say, exhibits are vital evidence in any trial. Their preservation, loss or tampering will depend on how they are handled. It is no wonder therefore, that in some Commonwealth jurisdictions there are police guidelines on how to handle exhibits. For example, Directive No. 31 of Police General Orders No. 229 of Tanzania underscores this same point thus:-

31. It is important that a complete record of every person who handles an exhibit is maintained. This evidence may be required to prove in court that there has been no interference with the exhibit from the time it comes into the hands of the police until it is produced in evidence in court.  This record shall be made on the exhibit label (PF 145). Each officer who takes over an exhibit shall also make a note in his note book of the date, time and place, and the person from whom he took it over. He shall obtain a receipt in his notebook for the exhibit when he hands it over.

 

          In this case, the “chain of custody” in the sequence of the events from the time Mr. Larue collected the exhibit at the airport to the time it was given back to him by Dr. Zakaria and eventually produced in evidence in court needs close scrutiny. As a matter of principle, analysis and scrutiny of such evidence is necessary in ensuring that an accused person is not charged with and convicted of some substance or material that is different from the one recovered from his or her possession. In the instant case, “the chain of custody” in the handling of the exhibit is clear and leaves no room for doubt. The evidence established that the drugs were imported through FedEx in the name of Steve Fanny and the same was picked up by Mr. Larue. These were the same drugs that were seized from the appellant’s house whereupon she is said to have admitted that they belonged to her. To complete the chain, yet again these were the same drugs that were sent to Dr. Zakaria for analysis and then given back to Sergeant Seward and eventually produced in court without objection by the defence. There is no strong suggestion backed up by concrete evidence anywhere in the case that someone could have possibly tampered with the exhibit in the whole process. Indeed, no strong evidence was forthcoming from the defence to suggest that the consignment could have possibly contained something else other than the drugs in question. In the absence of such evidence, it will be fair to say that the doctor’s certificate/report, which as stated above was produced in evidence without objection by the defence, is prima facie evidence of the contents.

 

          Section 28 of the Misuse of Drugs Act, CAP 133, reads in part as follows:-

28. A person who agrees with another person or persons that a course of conduct shall be pursued which, if pursued –

(a) will necessarily amount to or involve the commission of an offence……..

         (Emphasis supplied.)

 

Under the above section there are two main elements of the offence: - The agreement and the course of conduct. So, first and foremost, the evidence must show that a person agreed with another. Hence the actus reus is the agreement which requires knowledge as of the facts or circumstances. Indeed, as observed by Lord Woolf in the case of Roger John Alexander Bolton (1992) 94 Cr. App. R. 74 at page 80 “…In the case of conspiracy as opposed to the substantive offence, it was what was agreed to be done not what was in fact done which was all important”. The second element of the offence is the course of conduct. The course of conduct relates to the acts the parties intended to carry out. In this case, the evidence is clear that Mr. Larue and the appellant agreed to pursue the course of conduct relating to the importation of drugs. This is borne out clearly by the evidence of Mr. Larue referred to above. It will therefore, be fair to say that there is enough material upon which the learned judge could very well infer that there was an agreement for the appellant to deal in drugs. The discussion of the baby’s clothes is nothing but a facade for the day’s dealing. In fact, it was quite possible that the fact that the appellant was providing for a terminally ill relation was the added reason for which she skipped into the task of making easy money.      

 

          As stated above, in the first count the appellant was charged with the offence of conspiracy to commit the offence of importation of a controlled drug. This aspect of the case begs for one question i.e. What is importation? Fortunately the law in Seychelles on this aspect is settled. In Clarisse vs. Republic(1982) SLR 75 it was held that:-

(2) Importation means to bring or cause to be brought into Seychelles.

(3) Where a parcel arrives by post from abroad, it constitutes importation.

In this case, the evidence of Mr. Larue clearly established that the appellant was involved in the importation from abroad of the drugs in issue.

 

          There is yet another dimension of the case which needs discussion here. This is in relation to the evidence of the witnesses that the appellant possessed the drugs by virtue of the fact that she knew about their importation and actually possessed them when they were seized at her house where she was said to have admitted that they belonged to her. In Republic vs. Albert SSC No.45/97 it was held that in the case of possession of a controlled drug:-

 

(1)        The court must be satisfied that the accused possessed the controlled drug and has knowledge of it.

(2)        Possession of a controlled drug may be established through a continuous act that involves either physical custody or the exercise of control.

(Emphasis supplied.)

 

Yet again, in this case the evidence established not only that the appellant had physical control of the drugs, specifically at her house at the material time, but she actually had the exercise of control in the importation process as borne out by the evidence of Mr. Larue. After all, in its ordinary use the word “possession” means that one has in possession whatever is to their own knowledge physically in their custody or under their physical control- See Republic vs. Marengo SSC 11/2003 delivered on 22nd March 2004.

 

          As correctly observed by the trial judge, Mr. Larue was an accomplice. In law, an accomplice is a person who helps another person or other persons to commit a crime. In this regard, it follows that an accomplice may be a person with an interest to serve in a case. Inspite of this, the course of justice would fail if the evidence of an accomplice were to be disregarded or ignored completely simply because one is an accomplice. After all, an accomplice is a competent witness as he deposes on what he knows about a particular case after taking an oath. It is however, in the general context of the foregoing that in law there is always a safeguard in dealing with the evidence of an accomplice. On this point therefore, the law in Seychelles is settled that it is dangerous to act on the uncorroborated evidence of an accomplice although the court may convict on such evidence after warning itself of the dangers of doing so. In practice however, the court does not act on such evidence without corroboration - See Republic vs. Marie (1981) SLR 74.

 

          In this case, the trial judge found that the evidence of Mr. Larue was corroborated. With respect, there is nothing to fault him on his findings and conclusions on the point. One says so because in an appeal such as this one, an appellate court does not rehear the case on record. It will accept findings of fact that are supported by the trial court, unless the trial judge’s finding of credibility is perverse - See Akbar vs. Republic- SCA No. 5 of 1998.

 

          In the instant case, the evidence of Mr. Larue was corroborated in many aspects which are well outlined in the judgment of the trial court. If one may repeat, his evidence that he collected the parcel from the airport was corroborated by the NDEA agents and the officers of FedEX. That the parcel contained heroin was corroborated by the police officers and Dr. Zakaria. His conversation with the appellant on the parcel and their meeting at the car park prior to the delivery of the parcel at her house were incidents which were corroborated by the witnesses, etc.   

 

          Under the Second Schedule to the Misuse of Drugs Act (supra) the punishment in respect of Class A drug is:-

maximum 30 years and R500,000; minimum 10 years jail for first offence and 15 years for second or subsequent offence.

(Emphasis supplied.)

Under the above provision, a judge has a discretion of some sort. In this case, the trial judge exercised his discretion and imposed the concurrent terms of ten years imprisonment. He did so after taking into account the mitigating factors put forward by the defence and the fact that the offence “is of a very serious nature.” The issue is whether there is basis for this Court to fault the judge in the exercise of his discretion.

 

          In Seychelles the law on sentencing is clear. In sentencing, a number of factors are taken into account. One relevant factor is the seriousness of the offence –See Labiche vs. Republic SCA 1(a) 2004, LC 2004. As was stated by this Court in Mathiot vs. Republic SCA 12/2000, as a matter of general principle an appellate court will not interfere with the discretion of a court of first instance merely on the ground that the appellate court would have a different decision. The court will typically intervene where:-

         (a)        The sentence was harsh, oppressive or manifestly excessive;

         (b)        The sentence was wrong in principle;

         (c)        The sentence was far outside the discretionary limits;

         (d)        A matter had been improperly taken into consideration, or a matter that should have been taken into consideration was not; or

         (e)        The sentence was not justified in law.

 

          On the basis of this Court’s decisions in Labiche and Mathiot (supra) there is nothing in the instant case to suggest that the judge wrongly exercised his discretion. Likewise, there is nothing serious to suggest that the sentence is manifestly excessive or wrong in principle, etc. Thus, there is no basis for this Court to fault the trial judge in the exercise of his discretion in the sentence(s) meted to the appellant.

 

         

          For the foregoing reasons, this appeal has no merit. It is hereby dismissed in its entirety. 

 

 

                                                     ……………………………….

                                                     J. MSOFFE

                                                     JUSTICE OF APPEAL  

     

I concur:                                        …………………………….

                                                     S.B. DOMAH     

                                                     JUSTICE OF APPEAL

 

I concur:                                        …………………………

                                                     A. FERNANDO   

                                                     JUSTICE OF APPEAL

 

Dated this 7th December 2012, Victoria, Seychelles