IN THE SEYCHELLES COURT OF APPEAL

[Coram: M. Twomey (J.A), A. Fernando (J.A), J. Msoffe (J.A)]

Criminal Appeal SCA 22/2012

Appeal from Supreme Court Decision CR 08/2012

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Mohamed Hassan Ali                                                                                                 1^st Appellant

Abdaziz Dahir Heyd                                                                                                   2^nd Appellant

Bashir Nur Mohammed                                                                                              3^rd Appellant

Abdul Aziz Mohamed (aka) Abdul Ahmed Mohamed                                                4^th Appellant          

Versus

The Republic                                                                                                               Respondent

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Heard:              01^st  December 2014

Counsel:          Mr. Nichol Gabriel for Appellants

                        Mrs. Shenaz Muzzafer for Republic

Delivered:        12^th December 2014

JUDGMENT

A.F.T.FERNANDO J.A.

1. The four Appellants have appealed against their conviction for piracy contrary to section 65(1) of the Penal Code and the sentences imposed on them. Although initially two charges had been filed against the Appellants and the case has proceeded to trial on this basis, on the 2^nd of November 2012, after the close of the case for the prosecution, the Republic had informed Court that it “would not seek to proceed upon count 1 on the charge sheet and would be inviting the Court to consider the matter only on count 2 ….” The particulars of the offence in count 1 was to the effect that the Appellants “on a day unknown in or about November 2011, on the high seas, being the crew or passengers of a private vessel, committed for private ends an illegal act of violence or detention or depredation against the fishing vessel Tahiri.” In explaining the reason for that decision the Learned Prosecutor had submitted that “in order to proceed on count 1, the Republic would have had to have shown that the Defendants were part of the passengers or crew of a private ship, another private ship other than Tahiri when they performed or committed the act of depredation, detention, etc, upon the vessel and crew of Tahiri”; and this they were unable to show in the absence of the witnesses from Pakistan and Iran who were the crew of ‘Tahiri’ when it is alleged to have been attacked.

2. We have been informed by the Counsel for the Respondent that on the 9^th of April 2013 and that is after the filing of the Notice of Appeal, Bashir Nur Mohamed signed a Notice of Abandonment, abandoning his appeal and was subsequently transferred to Puntland in October 2013, to serve the remainder of his sentence there.

3. The second count under which the Appellants stand convicted is as follows:

Statement of offence

Piracy, contrary to section 65(1) of the Penal Code as amended by section 2 of the Penal Code (Amendment) Act 2010.

Particulars of Offence

Abdul Aziz Heyd, Mohamed Hassan, Bashir Nur Mohamed and Abdul Ahamed Mohamed, between the 5^th and the 8^th days of January 2012 on the high seas, voluntarily participated in the operation of a ship with knowledge of the facts making the same to be a pirate ship.

4. The relevant provisions of the Penal Code are cited below:

“65. (1) Any person who commits any act of piracy within Seychelles or elsewhere is guilty of an offence and liable to imprisonment for 30 years and a fine of R1 million.

(2) Notwithstanding the provisions of section 6 and any other written law, the courts of Seychelles shall have jurisdiction to try an offence of piracy or an offence referred to under subsection (3) whether the offence is committed within the territory of Seychelles or outside the territory of Seychelles.

(3)……………………………………………

(4) For the purposes of this section “piracy” includes-

(a) any illegal act of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft and directed-

1. on the high seas, against another ship or aircraft, or against persons or property on board such a ship or aircraft;
2.  against a ship, an aircraft, a person or property in a place outside the jurisdiction of any State;

(b) any act of voluntary participation in the operation of a ship or an aircraft with knowledge of facts making it a pirate ship or a pirate aircraft; or

(c)…………………………………………….

(5) A ship or aircraft shall be considered a pirate ship or a pirate aircraft if-

1. it has been used to commit any of the acts referred to in subsection (4) and remains under the control of the persons who committed those acts; or
2. it is intended by the person in dominant control of it to be used for the purpose of committing any of the acts referred to in subsection (4).”

5. The Appellants have raised the following grounds of appeal on the conviction:

1. The learned trial Judge erred in convicting the Appellants on a defective charge which did not state the element of common intention as per section 23 of the Penal Code.

2. The learned trial Judge erred in law and in fact in concluding that the four Appellants had participated in an act of piracy on the high seas.

3. The learned trial Judge erred in law and in fact by finding that the four Appellants had knowledge of the fact that the ship they were using was a pirate ship.

4. The conviction of the Fourth Appellant was unsafe and unsatisfactory as the learned trial Judge failed to ensure that sanction of the Attorney General had been granted before prosecuting the Fourth Appellant who was a child at the time the offences were committed.

5. In all the circumstances of the case, the conviction of the Appellants was unsafe and unsatisfactory.

6. The main witness for the prosecution had been Carsten Fjord-Larsen, commanding officer of the Danish ship ‘Absalon’. He had stated that he along with his crew were engaged in anti piracy duties as part of the Nato Operation ‘Ocean Shield’ during the months of December and January 2011, and had been tasked to observe and monitor in the area near Camp Grisby in the coast of Somalia, which he had described, was a known pirate camp. They had been tasked especially to observe the movements of “2 suspected mother ships with the native name Jelbut 40 and Jelbut 37”, which were anchored at camp Grisby. According to Larsen the proper name of Jelbut 40 is ‘Tahiri’ and according to him “it is a fishing vessel.” ‘Tahiri’ had been tied to an Italian ship named ‘Savina Caylyn’ that was later released on payment of ransom.  When questioned as regards his observations during this period Larsen had said “Tahiri was anchored close to a known suspected pirate camp and she did not make any movements other than the current or the anchor drifting a bit, but she was more or less in the same position.”

7. On the evening of 6th January 2012 ‘Tahiri’ had weighed anchor at around 11PM in GMT plus 4 hours, and steamed along very close to the Somalian coast line south bound. During the night ‘Tahiri’ had changed course and headed for the Indian Ocean. It has been Larsen’s position that Camp Grisby is not an area where fishing activities takes place as there is no place to offload fishing cargo. Further it has been his position that the course followed by ‘Tahiri’ setting off at night hugging the coast and later turning to the Indian Ocean was not the course normally followed by fishing vessels, as this would cost them more time and fuel. According to him fishermen go directly to the fishing ground. These are undoubtedly assumptions made by Larsen.

8. On receipt of orders they had decided to follow and intecept the ‘Tahiri’ at daylight. On return of the helicopter of the ‘Absalon’ that was dispatched to observe ‘Tahiri’, there was confirmation of their previous assessment of ‘Tahiri’ as a suspected mother ship due to the number of persons on board, weapons, large equipment with fuel for long deployment, hooked ladders, skiffs and outboard engines. They had then engaged Rules of Engagement. After the helicopter had approached ‘Tahiri’ around 8.20 in the morning, ‘Tahiri’ had altered course and started going back in the direction of Camp Grisby. At this stage ‘Tahiri’ was about 40 nautical miles from the Somali coast line. Larsen had then ordered to start the approach to intercept ‘Tahiri’. First they had circled around the ‘Tahiri’, then used a long ranged acoustic devise to order ‘Tahiri’ to stop, follow instructions, put down their weapons and facilitate boarding. There were two Somail interpreters on board the ‘Absalon’ to air out these orders.  Their orders had not been complied with. When circling around ‘Tahiri’ he had observed persons of Somali origin carrying rocket propel grenades and AK 47 automatic rifles.

9. On the video that was displayed in Court only one could be seen carrying a weapon. Since Larsen’s orders to ‘Tahiri’ to stop were not complied with, warning shots were fired. He had also seen some people, who appeared to be of Arabic and Pakistani origin, on the main deck who he believed to be the original crew of ‘Tahiri’ now been held as hostages. Larsen alleges that the Somali’s on several occasions were pointing the guns at the persons whom Larsen believed were hostages. The hostages had arrived shortly after ‘Absalon’ began firing warning shots.  Larsen had gone on to state that “It was my impression from watching on the bridge and from watching on our ships camera that they were under high stress, high pressure and very nervous or afraid….Many of them were praying and if you had seen them in the face you could see that they were very concerned looking up to the sky and they were very afraid.” He had claimed that some of these images were recorded in camera. Since the warning shots  were ineffective they had to fire at the forward section of the ship, the dhow and use marksmen or snipers to fire at water tanks, gas tanks, chimney and engines of the skiffs. These too had no effect in making the ‘Tahiri’ stop. It was then decided to use tear gas and flash bang grenades at the wheel house and the deck area. This had its desired effect and according to Larsen “The ‘Tahiri’ went dead in the water…..and at a certain point I could see the port side of the ‘Tahiry’ and we saw a relatively large number of weapons being thrown overboard.” When questioned about the weapons, he had said he had seen a AK47, what appeared to be ammunition bags, several more automatic rifles and RPG’s. These images according to Larsen had been caught in camera.

10. Thereafter personnel from ‘Absalon’ had boarded ‘Tahiri’ and brought the suspected pirates and the hostages on board the ‘Absalon’. They had also brought 2 hooked ladders, 3 large outboard engines and two skiffs. The hostages had been interviewed and returned to their vessel ‘Tahiri’, to continue their journey. There had been 9 Pakistanis and 5 Iranians. Larsen nor any of the prosecution witnesses state that the hostages had told them that they were subject to an attack of piracy. This is only an assumption made by officers of ‘Absalon’ from their looks and conduct of looking up to the sky and praying.   

11. There were 25 suspected pirates and to facilitate dealings with them they had been given a number. Seychelles had agreed to accept 4 of the suspected pirates and Kenya 4, for prosecution. At the trial the Prosecutor had informed Court that the balance 17 had been released as there was no jurisdiction that was prepared to accept them. Suspects numbered 20-23 were the ones who were brought to Seychelles. Larsen does not offer any reason for the basis or choice for the selection of the 8 suspected pirates for prosecution in the Seychelles and Kenya. There is no evidence whatsoever as to what the Appellants were doing or in which part of ‘Tahiri’ they were, prior to or during their arrest. The hooked ladders, outboard engines and a skiff had been handed over to Kenyan authorities.

12. Larsen had admitted that in the video that was screened in Court none of the 4 Appellants could be identified, leave aside seen them carrying weapons. He had also admitted that both pirate vessels and fishing vessels use skiffs but qualified his statement saying that skiffs in pirate vessels have large out board engines.

13. Prosecution witness Lasse Hansen, who was a sniper in the helicopter that flew on missions from the vessel ‘Absalon’ had stated that he had flown over Camp Grisby every day during the period December and January and had been specifically detailed to observe Jelbult 40 (‘Tahiri’). His observations had revealed that on some days there were hostages, apparently of Iranian nationality on the deck of ‘Tahiri’ and he had concluded that they were hostages because they were put in one place and there were armed guards around them. While circling on top of ‘Tahiri’ after it had left anchor he had observed on board the ‘Tahiri’ 2 skiffs covered with fishing net, some motors for the skiffs and about 24 Somali pirates. One or two of them had RPG’s and about 3 were armed with AK 47s. He too had failed to identify the pirates.

14. As to the amount of weapons seen on board the ‘Tahiri’ the versions of the prosecution witnesses are at variance. Larsen in saying several automatic rifles and RPG’s were seen had not been specific. Hansen had said one or two of them had RPG’s and about 3 were armed with AK 47s. The number of AK 47s seen by the other witnesses range between 2 to 14 and the maximum number of RPG’s seen on board the ‘Tahiri’ are 2. None of these weapons were produced before the Court, and as per the prosecution evidence they had been thrown overboard by the pirates before the arrest of ‘Tahiri’. There is no evidence that any one of the Appellants had been seen carrying any weapons, or guarding the hostages or for that matter recognized as seen doing anything in particular prior to their arrest on board the ‘Tahiri’ by the crew of ‘Absalon’. It is only when the 25 Somalis on board the ‘Tahiri’ were rounded up and brought over to the ‘Absalon’ that the Appellants came to be identified by the numbers 20 to 23.

15. Larsen’s evidence that there were two identifiable groups on board the ‘Tahiri’, 14 hostages and 25 pirates, has been corroborated by most of the prosecution witnesses. The argument of the prosecution that ‘Tahiri’ was not a fishing vessel in view of the numbers of pirates on board, namely 25, is put into doubt when one asks oneself the question that if in fact the 14 non-Somalis found on board were mere hostages, why were they there? and would not the Somalis be running the risk of taking all of them on board, especially knowing that they were the ones who were familiar with operating the “Tahiri’  and there was the risk of them taking control of ‘Tahiri’ while on the high seas. According to the prosecution ‘Tahiri’ was been used as a pirate vessel to attack other ships and bring them to Somalia to seek ransom. If that be the case what was the need for the 14 hostages when there were already 25 Somalis on board? There was no evidence before us from the Iranians or Pakistanis that they were forced at gun point to operate the ‘Tahiri’. For that matter there is no evidence before us as to who really ‘operated’ the ‘Tahiri’, casting a serious doubt on the most important element of the charge upon which the Appellants were convicted, namely operation of a pirate ship.

16. There are two fundamental questions that have to be decided in this case as correctly posed by the Prosecuting Counsel before the Supreme Court in his closing address, the Learned Trial Judge in his judgment and the Counsel for the Appellant in her Skeleton Heads of Argument on behalf of the Respondent. The wording of each one of them is almost identical and I state here below the two questions raised as found in the Skeleton Heads of Argument on behalf of the Respondent.

1. Was the ‘Tahiri’ operating as a pirate ship, in the time before it was stopped by the Absalon, and when it was stopped? In other words was it intended by the person/s in dominant control of it to be used for the purpose of committing any illegal act of violence, detention, or depredation, for private ends, directed against another ship, or against persons or property onboard another ship, on the high seas?

2. Were the accused each voluntarily participating, in any way, in the operation of the ship with knowledge of those facts making it a pirate ship? (emphasis by me)

17. Grounds 2 and 3 of appeal on the conviction are also based on these two questions. In answer to these two questions learned Counsel for the Respondent has made the following submissions in her Skeleton Heads of Argument on behalf of the Respondent and I quote her in extenso:

            “16. It is submitted that the intention of those who were in dominant control of the ship can be clearly inferred from the evidence.  It is submitted that there was ample evidence from which the learned trial judge could properly conclude that the Tahiri/Jelbut 40 was operating as a pirate ship, in particular:

1. On 3^rd December 2012, the Tahiri was observed to be tied to a ship that was being held for ransom, namely the MV Savina Caylyn (transcript pg 69).  Between 10^th December 2012 and 6^th January 2013, the Tahiri was observed to be anchored in close proximity to Camp Grisby, a known pirate camp (transcript pg 32).  It appeared that it was being loaded with supplies to go to sea for a long period (transcript pg 74).  Whilst at anchor, hostages were seen onboard the Tahiri, with armed guards watching them (transcript pg 90).

2. When anchored, the Tahiri was not in the vicinity of a recognised fishing port, and nor in the vicinity of an area to offload any fishing cargo (transcript pg 34).

3. At approximately 2.40am local time, Tahiri travelled along the Somali coastline for a number of hours, before changing course and heading out into the Indian Ocean (transcript pg 33).  This would not be the normal course followed by a legitimate fishing vessel (transcript pg 35, 79).  Instead, it is submitted, it is evidence of a vessel trying to slip away from the vicinity of Camp Grisby unnoticed.

4. Once the helicopter was sighted on 7^th January 2013, the Tahiri turned around, and altered course to head back to Camp Grisby – again, not the actions of a legitimate fishing vessel (transcript pg 37).

5. When intercepted, the Tahiri refused to stop in accordance with the orders that were being given via the long-range acoustic device (transcript pg 39, 40).  In such situations, legitimate fishermen would normally stop immediately.  People on the Tahiri attempted to warn the Absalon away by brandishing weapons towards them (transcript pg 39).

6. The Somali crew was armed with a quantity and type of weaponry far beyond anything that would legitimately be carried for self-defence, and typical of the sort of weaponry carried by pirates in order to attack larger merchant vessels.  In particular, they had RPG’s, AK47’s, and automatic rifles (transcript pg 39).  Up to 14 AK47’s were seen, with at least two RPG’s (transcript pg 148).

7. People onboard the Tahiri were split into two groups – the Somalis, and the Iranian and Pakistanis.  Only the Somalis were armed.  When the Absalon approached the Tahiri, the Somalis started to threaten the other group with weapons (transcript pg 40 onwards). On several occasions, the Somalis pointed AK47’s at the Iranian and Pakistani men, who were clearly very afraid (transcript pg 42).  It is submitted that the conduct of the two groups showed that they were not business partners, but hostages and captors.  A number of weapons were also pointed at the Absalon.

8. The Tahiri failed to stop when warning shots were fired from the Absalon (transcript pg 43), and only stopped once grenades were used (transcript pg 46).

1. A large number of weapons were thrown overboard, including AK47’s, ammunition bags, automatic rifles, and RPG’s (transcript pg 46).

10. Other items that are consistent with piratical equipment were recovered from the Tahiri, including two hooked ladders, two skiffs which had been concealed on deck, and three outboard engines (transcript pg 49, 69).

11. In total, 39 people were onboard the Tahiri – considerably more than would be required if the vessel was engaged in legitimate fishing activities (transcript pg 49, 86).  The number of Somalis onboard would have been sufficient to allow for a number of merchant ships to be controlled and taken back to the Somali coast, in addition to retaining control of the Tahiri.
12. Booster charges for RPG’s were found on the Tahiri (transcript pg 74).

13. A large amount of food and provisions was found on board, suggesting that a lengthy stay at sea was planned (transcript pg 118).

            17.    It is therefore respectfully submitted that there was ample evidence for the learned trial judge to conclude that the vessel was equipped for piracy, and was operating as a pirate ship.  The Tahiri had none of the characteristics of a fishing vessel.  To the contrary, all of the evidence points to the Tahiri being a pirate ship.

          18. Given the vast number of indicators as to the purpose of the Tahiri’s voyage, it is submitted that the appellants cannot have been ignorant of those factors that made it a pirate ship.  For example, they must have been aware that hostages were being held, that weapons were on board, and that the purpose of the trip was not simply for fishing.  There were two clear groups on the Tahiri – the Somalis, and the Iranians, who were evidently hostages.

            19. No distinction was made at trial between the 25 Somalis who were on board the Tahiri.  They all played a part in setting out to capture merchant vessels, to take them back to Somalia to hold for ransom.  The Learned Judge was therefore entitled to conclude, on the basis of the evidence that the charge pursuant to section 65 of the Penal Code was made out.”

18. The answer to the second question posed by Counsel for the Respondent is to be found only at paragraphs 18 and 19 of the Skeleton Heads of Argument on behalf of the Respondent quoted above. At paragraph 18 Counsel for the Respondent uses such words as: “appellants cannot have been ignorant of those factors”, and “they must have been aware”. This certainly is not proof beyond reasonable doubt of “the accused each voluntarily participating, in any way, in the operation of the ship with knowledge of those facts making it a pirate ship”. This is merely an assumption that the Counsel for the Respondent is asking the Court to make. There is no evidence as to when the 4 Appellants came on board the ‘Tahiri’; that on the 3^rd December 2011 they saw ‘Tahiri’ tied to ‘MV Savina Caylyn’, a ship that was being held for ransom; that they saw supplies been loaded on to the ‘Tahiri’; that they saw the hostages on board the ‘Tahiri’ been watched by armed guards whilst the ‘Tahiri’ was anchored at Camp Grisby and before they came on board the ‘Tahiri’; that they were in any way involved in the operation of the ship when ‘Tahiri’ weighed anchor and set sail on the evening of the 6^th of January 2012 or when ‘Tahiri’ turned around and altered its course to head back to Camp Grisby. None of the 4 Appellants have been identified as being among those who brandished weapons towards the crew of ‘Absalon’ or who were carrying arms or throwing them overboard when approached by ‘Absalon’. There is no evidence whatsoever that the four Appellants were involved in the seizure of ‘Tahiri’ in November 2011, which was the basis of the first count that the Prosecution had decided not to proceed with, as stated at paragraph one above. Since there is no laid down course to be followed by fishing vessels we cannot come to the conclusion that ‘Tahiri’ did not follow the normal course followed by a fishing vessel as stated by witness Larsen.

19. At paragraph 19 of the Skeleton Heads of Argument of the Respondent quoted at paragraph 17 above it is stated that the 25 Somalis “all played a part in setting out to capture merchant vessels, to take them back to Somalia to hold for ransom”. This is merely an assumption the Respondent is making so far as the 4 Appellants are concerned. Even if this is to be assumed, the charge does not specify that the four Appellants voluntarily participated in the operation of a ship ‘with others’.

20. A person can be made liable for the offence of piracy for committing any illegal act of violence or detention, or any act of depredation committed for private ends being the crew or the passengers of a private ship and against another ship; or; for any act of voluntary participation in the operation of a ship with knowledge of facts making it a pirate ship. In both these instances there must be evidence of the individual act or role played by the person accused of piracy whether by himself or jointly with others. This is made clear by the use of the words in section 65 “Any person who commits any act of piracy”, “any illegal act” and “any act of voluntary participation”. In this case there is no evidence of the individual act or role played by any one of the ‘Appellants’ by himself or jointly with others. The position may have been different if there was evidence that all 25 Somalis on board were armed and were brandishing their weapons when ‘Absalon’ approached ‘Tahiri’ or that they were either individually or jointly participating in the operation of the ‘Tahiri’, in some way, with knowledge that it was a pirate ship.

21. In joint enterprise liability all actors should have played an active role in the commission of the offence of piracy while sharing a common purpose. Each of them should have willfully and intentionally assisted or encouraged the commission of the offence of piracy. Each of them should have been a willing rather than a reluctant participant. It is an essential requirement of imposition of liability that the common intention entertained by the accused persons should be manifested by an overt act committed by each of them. Mere presence on board a vessel does not in my view constitute sufficient evidence of ‘participation in the operation of a ship’. Thus what is required is evidence of participation in the operation of a ship by each accused. We cannot conclude that all persons merely found on a pirate ship are essentially pirates and convict them en bloc, save in a case where there is evidence that all of them had been doing something like carrying a gun, navigating the ship, maneuvering the skiffs, etc.

22. Section 65 creates two distinct categories of offenders, namely those involved in committing the illegal acts of violence, detention or depredation and those involved in the ‘operation’ of the pirate ship. Undoubtedly the creation of the latter category of offenders has been to bring home liability to the crew of a ship. The crew of a ship would normally consist of the captain or master of the ship and those working on the deck, those involved in navigating, engineering and electrical work.  Count 1 which was against the Appellants for committing “an illegal act of violence or detention or depredation against the fishing vessel ‘Tahiri’ had been withdrawn as stated at paragraph 1 above. The Appellants had been convicted of voluntarily participation in the operation of a ship with knowledge of the facts making the same to be a pirate ship.” It is my view that there is no evidence whatsoever of the Appellants been involved in any way with the operation of a ship, or that the hostages were ordered to operate the ship at gunpoint by the Somalis. There is no evidence that the four Appellants had any knowledge of who was in ‘dominant control’ of the ‘Tahiri’ at the time of its interception by ‘Absalon’ and of his intentions.  

23. Section 65 does not make provision for a presumption of piracy against persons found on the high seas while being in possession of piratical implements or those found cruising in skiffs in suspicious circumstances on the high seas plagued by pirate attacks. Under the Misuse of Drugs Act the following presumptions apply:

 “A person found in or escaping from any place or premises on which it is found that plants referred to in section 8 are being cultivated shall be presumed, until he proves the contrary, to have been cultivating the plants.” [Section 16(3) of the Misuse of Drugs Act – Cap 133]

“A person found in or escaping from any place or premises which is proved or presumed to be used for the purpose of smoking, consumption or administration of a controlled drug shall, until he proves the contrary, be presumed to have been smoking, consuming or administering a controlled drug in the place or premises.”[Section 16(2) of the Misuse of Drugs Act – Cap 133]

“A person found in or escaping from any place or premises on which it is found that a controlled drug is being manufactured shall be presumed, until he proves the contrary, to have been manufacturing the controlled drug.” [Section 16(4) of the Misuse of Drugs Act – Cap 133]

Section 293(c) of the Penal Code states: “Any person who is found having in his possession by night without lawful excuse, the proof of which lies on him, an instrument of housebreaking is guilty of a felony…..”

Section 174(d) of the Penal Code states: “Every person found in or upon or near any premises or in any road or highway or any place adjacent thereto or in any public place at such time and under such circumstances as to lead to the conclusion that such person is there for an illegal or disorderly purpose shall be deemed to be a rogue and vagabond….”.

It has been said “It is doubtful whether persons cruising in armed vessels with the intention of committing piracies are liable to be treated as pirates before they have committed a single act of violence” – Oppenheim’s International Law, 9^th ed, Volume 1,page 753.

Thus it is my view that in the absence of a presumption of piracy against persons found in the high seas while being in possession of piratical implements and in view of the absence of any evidence as to where the 4 Appellants were or what they were doing when ‘Absalon’ arrested the ‘Tahiri’, a conviction on the basis of voluntarily participating in the operation of a ship with knowledge of the facts making the same to be a ‘pirate ship’ cannot be sustained. We have also to be conscious of the fact that there are armed personnel found on ships cruising the high seas who are involved in illegal activities other than piracy, such as human trafficking, trafficking in arms, dangerous drugs and contraband.  

24. I am of the view that it is time for the relevant authorities in Seychelles to amend the piracy law to create an offence of piracy on the basis of a presumption by criminalizing cruising on the high seas while in possession of piracy equipments and cruising in skiffs in suspicious circumstances on the high seas plagued by pirate attacks, similar to the rebuttable presumptions that have been created in the Misuse of Drugs Act. The creation of such a presumption will not be in violation of article 19(2)(a) of the Constitution which states: “Every person who is charged with an offence is innocent until the person is proved or has pleaded guilty”, in view of the derogation to such right provided in article 19(10)(b) of the Constitution. Article 19(10)(b) provides: “Anything contained in or done under the authority of any law necessary in a democratic society shall not be held to be inconsistent with or in contravention of clause (2)(a), to the extent that the law in question imposes upon any person charged with an offence the burden of proving particular facts or declares that the proof of certain facts shall be prima facie proof of the offence or any element thereof.” 

25. The charge, as set out at paragraph 3 above, under which the Appellants were convicted in this case is defective as it does not comply with article 19(2)(b) of the Constitution which requires that a person charged with an offence “shall be informed…..in detail, of the nature of the offence”. The charge should necessarily have stated that the accused were being charged under section 65(1) read with 65(4)(b) and 65(5) as the Prosecution had finally relied on a conviction of the accused under 65(4)(b). The charge only makes reference to section 65(1). As stated earlier the offence of piracy can be committed by one of two ways, namely by committing an illegal act of violence, detention or depredation under 65(4)(a); or by being involved in the ‘operation’ of a pirate ship under section 65(4)(b). Further the charge merely states “on the high seas” and does not specify in which part of the high seas. With the prosecution deciding not to proceed with count one, the name of the ship ‘Tahiri’ was removed from the particulars of offence. Count two under which the Appellants were convicted does not state the name of the ship which the Appellants were charged of having voluntarily participated in operating. In the particulars of the charge under which the Appellants were convicted reference is made to an Abdul Aziz Heyd but the judgment and the Skeleton Heads of Argument of both the Appellants and the Republic makes reference to an Abdiaziz Dahir Heyd. At the hearing of the appeal we sought clarification of this matter and was informed by Abdul Aziz Heyd that he is also known as Abdiaziz Dahir Heyd.  

26. I am of the view that the Appellants succeed in grounds two and three.  Although this is sufficient to dispose of this appeal, I have decided to deal with grounds one and two in view of their jurisprudential importance.

27. Ground two is to the effect that the learned trial Judge erred in convicting the Appellants on a defective charge which did not state the element of common intention as per section 23 of the Penal Code. Section 23 of the Penal Code reads as follows: “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 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.” The reference to section 23 which I have seen in many of the piracy cases filed before the Supreme Court, is in my view a misconception, for section 23 would come into application when an offence other than the one that was conceived by the perpetrators of a crime is committed. Piracy is generally not an offence that would come to be committed in the prosecution of another crime. It is an act and an offence by itself. When reference is made to section 23 it gives the impression that the offence of piracy had been committed, while two or more persons had formed a common intention to commit an offence other than piracy, for example illegal fishing. The relevant section of the Penal Code under which joint liability can be attached in cases of this nature is section 22(a) of the Penal Code which reads: “When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and be guilty of the offence, and may be charged with actually committing it, that is to say – every person who actually does the act or makes the omission which constitutes the offence.”(emphasis added by me) The way section 22 has been drafted, it is not necessary to specify whether a person is being charged as principal or secondary party since the secondary party can be indicted for the substantive offence rather than on the basis of his participation in it.  However this provision has now to be read subject to the Constitution which provides at article 19(2)(b): “Every person who is charged with an offence shall be informed at the time the person is charged or as soon as is practicable, in, as far as is practicable, a language that the person understands and in detail, of the nature of the offence.”

28. Ground 4 is to the effect that the conviction of the Fourth Appellant was unsafe and unsatisfactory as the learned trial Judge failed to ensure that sanction of the Attorney General had been granted before prosecuting the Fourth Appellant who was a child at the time the offences were committed. This is because the Children Act of 1982 at section 92(b) provides: “No child shall be prosecuted for any offence except………on the instructions of the Attorney General.” (emphasis added by me) In the case of Mohamed Sayid V Republic, SCA 2 of 2012, Sayid claimed, he was below eighteen years of age. This Court held in allowing his appeal that the authorization of the Attorney General is required to show that the Attorney General is aware that a child is being indicted and that his instructions have been sought for such prosecution and granted. I now have misgivings about this decision, for in that case, just like in this, the prosecution was conducted by a State Counsel of the Attorney General’s Department and article 76(6) of the Constitution provides that “The powers of the Attorney-General….may be exercised…by subordinate officers acting in accordance with the general or special instructions of the Attorney-General.” It has also been provided in sections 63 and 64  the Criminal Procedure Code that “Every public prosecutor shall be subject to the express directions of the Attorney-General” and that “a public prosecutor may appear and plead without any written authority before any court in which any case of which he has charge is under inquiry, trial or appeal…”(emphasis added)  I am therefore now of the view that when a State Counsel appears before a court to conduct a prosecution, he does so with the instructions of the Attorney-General unless there is a challenge at the trial to the contrary. Further it cannot be said that the Attorney General was not aware of the age of Abdul Ahmed Mohamed for it is set down in the Application for Further Holding of Suspect and the Affidavit in Support to such application, both dated 30^th January 2012, filed before the Supreme Court. Counsel for the Appellant tried to rely on section 47 of the Interpretation and General Provisions Act (Cap 103) in support of his argument. Section 47 states: “Where the consent of an authority is necessary before any proceedings, whether civil or criminal, are commenced, a document or instrument giving the consent and purporting to be signed by the authority is evidence that the consent has been given, without proof that the signature to the document or instrument is that of the authority.” In my view this section has no application to a prosecution at the instance of the Attorney General in view of the Constitutional provision and the provisions of the Criminal Procedure Code cited above. This is also because “the Attorney-General……….shall have power, in any case in which the Attorney General considers it desirable so to do to institute and undertake criminal proceedings against any person before any court in respect of any offence alleged to have been committed by that person;”(vide article 76(4)(a).  However the sanction of the Attorney General is a must in the case of a private prosecution of a child launched by a person other than the Attorney General, under section 68 of the Criminal Procedure Code.

29. I therefore see no merit in grounds one and two and dismiss them.

30. In view of my holding with the Appellants on grounds two and three I allow their appeals and quash their convictions and sentences and order that the Appellants be acquitted forthwith.

A.F.T.FERNANDO

JUSTICE OF APPEAL

M. Twomey (JA)

[1]           On the 7th January 2012, the crew of a Danish warship, the HDMS Absalon, engaged in anti-piracy action off the coast of Somalia, received reports from her surveillance helicopter of “piracy indicators” by a vessel, the Tahiri.  At about 40 nautical miles off the Somali coast line, the Absalon ordered the Tahiri to stop, the order being conveyed in the Somali language and by using a long range acoustic device. She refused to do so and instead tried to evade the naval intervention with members of her crew pointing weapons at the Absalon and waving weapons at what appeared to be hostages on her deck. The Absalon closed in whilst firing warning shots and eventually with the use of flash bang grenades and tear gas was able to bring the Tahiri to a halt. She was boarded by the crew of the Absalon who discovered 9 Pakistanis and 5 Iranian hostages together with 25 suspected Somali pirates on the vessel.

[2]        The Danish crew of the Absalon observed and filmed a large number of weapons being thrown overboard (between 2 to 14 firearms according to the different witnesses) before they were able to board the Tahiri. Skiffs and powerful outboard engines, together with hook and rope ladders and booster charges for rocket propelled grenades were also recovered on board. The 25 Somalis on board were arrested for suspected piracy, numbered from 1 to 25 for identification purposes and photographed. Jurisdiction for their prosecution was sought. Seychelles accepted 4 of the detainees, Kenya another 4 and the rest were released for want of a jurisdiction to prosecute them.

[3]        The appellants before this court were identified as No 20 (the fourth appellant), No 21 (the first appellant), No.22 (the original third appellant who abandoned his appeal on 9^th April 2013 by a signed copy of Notice of Abandonment and has since been transferred from Seychelles to Somaliland) and No 23 (the second appellant). The names of the appellants have varied in the documents relating to them received from the Danish crewmen, to the charge sheet with which they were indicted and to the notice of appeal which they filed in the Court of Appeal. It was clarified in court on questions put to the appellants by the Somali translator that they are indeed the same persons and that diminutive versions of names in Arabic are commonly used. We are therefore satisfied that the appellants are the same persons detained on the Tahiri, transferred to Seychelles and tried for piracy.

[4]        In Seychelles, the four appellants all made statements which more or less repeated the same facts: they were fishermen or mechanics, the Iranians and Pakistanis were their business partners and they had set off on a fishing trip when they were intercepted. They were charged initially with two counts of piracy. It is essential at this juncture to set out the particulars of the formal charge:

“Count One

Statement of Offence

Piracy contrary to section 65(1) of the Penal Code as amended by section 2 of the Penal   Code (Amendment) Act 2010.

Particulars of Offence

Abdul Aziz Heyd, Mohamed Hassan, Bashir Nur Mohamed and Abdul Ahmed Mohamed, on a day unknown in or about November 2011, on the high seas, being the crew or passengers of a private vessel, committed for private ends an illegal act of violence or detention or depredation against the fishing vessel Tahiri.

Count Two

Piracy contrary to section 65(1) of the Penal Code as amended by section 2 of the Penal Code (Amendment) Act 2010.

Particulars of Offence

Abdul Aziz Heyd, Mohamed Hassan, Bashir Nur Mohamed and Abdul Ahmed Mohamed, between the 5th and 8th days of January 2012 on the high seas, voluntarily participated in   the operation of a ship with knowledge of the facts making the same to be a pirate ship.

[5]        At trial, the first charge was dropped, since according to Prosecuting Counsel, Charles Brown, the released hostages could not be produced to support the charge. The appellants were tried and convicted on 26th November 2012 on the second charge. Abdul Ahmed Mohamed was sentenced to 14 years imprisonment and the other convicts to 21 years imprisonment.

[6]        They have now appealed against their conviction and sentence on the following grounds:

            1. The learned trial judge erred in convicting the appellants on a defective charge               which did not state the element of common intention as per section 23 of the Penal Code.

            2. The learned trial judge erred, in law and in fact, in concluding that the four Appellants had participated in the act of piracy in the high seas.

            3. The learned trial judge erred in law and in fact in concluding that the four Appellants had knowledge of the fact that the ship that they were using was a pirate ship.

            4. The conviction of the second appellant was unsafe and unsatisfactory as the learned trial judge failed to ensure that sanction of the attorney General had been granted before prosecuting the first appellant who was a child at the time the offences were committed.

            5. In all the circumstances of the case, the conviction of the four appellants was unsafe and unsatisfactory.

            6. The sentences of twenty one year’s imposed on the first appellant, third appellant And fourth appellant were manifestly harsh and excessive and wrong in principle.

            7. The sentences of twenty one year’s imposed on the first appellant, third appellant and fourth appellant were manifestly harsh and excessive and wrong in law as the second appellant was a child at the time of the commission of the offence and other sentencing options were available to him under the Children Act.

[7]        The main thrust of this appeal lies in the consideration of whether there is sufficient evidence underpinning the conviction of the appellants and whether in a joint enterprise crime under Seychellois law, the failure to invoke section 23 of the Penal Code will render the substantive charge against the appellants defective. It may be useful at this stage to bring the relevant legal provisions to light. The offence of piracy is contained in section 65 of the Penal Code which provides:

“65. (1) Any person who commits any act of piracy within Seychelles or elsewhere is guilty of an offence and liable to imprisonment for 30 years and a fine of R1 million.

(2) Notwithstanding the provisions of section 6 and any other written law, the courts of Seychelles shall have jurisdiction to try an offence of piracy or an offence referred to under subsection (3) whether the offence is committed within the territory of Seychelles or outside the territory of Seychelles.

(3) Any person who attempts or conspires to commit, or incites, aids and abets, counsels or procures the commission of, an offence contrary to section 65(1) within Seychelles or elsewhere commits an offence and shall be liable to imprisonment for 30 years and a fine of R1 million.

(4) For the purposes of this section “piracy” includes-

1. any illegal act of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft and directed-

1. on the high seas, against another ship or aircraft, or against persons or property on board such a ship or aircraft;

2. against a ship, an aircraft, a person or property in a place outside the jurisdiction of any State;

2. any act of voluntary participation in the operation of a ship or an aircraft with knowledge of facts making it a pirate ship or a pirate aircraft; or

3. any act described in paragraph (a) or (b) which, except for the fact that it was committed within a maritime zone of Seychelles, would have been an act of piracy under either of those paragraphs.

(5) A ship or aircraft shall be considered a pirate ship or a pirate aircraft if-

1. it has been used to commit any of the acts referred to in subsection (4) and remains under the control of the persons who committed those acts; or

2. it is intended by the person in dominant control of it to be used for the purpose of committing any of the acts referred to in subsection (4).

(6) A ship or aircraft may retain its nationality although it has become a pirate ship or a pirate aircraft. The retention or loss of nationality shall be determined by the law of the State from which such nationality was derived.

(7) Members of the Police and Defence Forces of Seychelles shall on the high seas, or may in any other place outside the jurisdiction of any State, seize a pirate ship or a pirate aircraft, or a ship or an aircraft taken by piracy and in the control of pirates, and arrest the persons and      seize the property on board. The Seychelles Court shall hear and determine the case against such persons and order the action to be taken as regards the ships, aircraft or property seized, accordingly to the law.”

[8]        Section 23 of the Penal Code provides:

Joint offenders

“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 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.”

[9]        It is the submission of the appellants’ Counsel, Mr. Nichol Gabriel, that the charge is defective as there is no reference in the statement of offence to section 23 of the Penal Code. In his submission such a reference is essential as the appellants in this case were joint offenders in the act of operating the pirate ship. In his view, such reference would obviate the need for the prosecution to prove the individual criminal liability of each of the appellants. He submits that as it has been alleged that the offence in this case was committed by a group of 25 persons and it is impossible to point out whose hand exactly did what, the deeming provisions of section 23 would result in each and every member of the group being jointly criminally responsible. Failure to read the piracy charge with section 23 of the Penal Code would mean that the prosecution would have to prove each and every element of the offence against each and every accused person. He further submitted that no such evidence was adduced in this case in respect of each appellant. In his view this failure is fatal to the conviction.

[10]      We have meticulously perused the record of proceedings in this case. We agree with Mr. Gabriel that none of the appellants were ever individually identified as overtly doing anything piratical, for example, none of them are mentioned as being in possession of weapons or being in charge of or operating the Tahiri. In fact, the only evidence against the appellants is that they were part of the group of 25 alleged pirates found on board the Tahiri when she was boarded and that their photographs were taken.

[11]      There was however, strong corroborated evidence that the original crew of the Tahiri - 9 Pakistanis and 5 Iranians - were hostages on board the vessel and that they were subsequently released by personnel working with the Absalom. The appellants have not denied that these persons were on board; they only state that they were not hostages but business partners on a fishing trip. Prosecution witnesses, Carsten Fjord Larsen, Lasse Hansen, Jan Kragl and Jon Daniel Jacobsen all testified as to the terrified state of the hostages, massed in the middle of the deck of the Tahiri. They stated that the hostages were praying with the Koran, while guns were being waved at them by the Somalis. However, none of the witnesses could identify all or any of the appellants as the suspected pirates with the guns and ammunition as described. Moreover, none of the hostages, who presumably would have been with the suspected pirates for a period of time, testified. They could have led evidence on the circumstances of their capture and detention. They could have identified those in command and control of the Tahiri. No evidence was adduced of who were the owners of the Tahiri and how she happened to be in the hands of the Somalis. This was a serious flaw in the prosecution case as we cannot reasonably infer or conclude ( at least beyond reasonable doubt) that the vessel had been pirated, was involved in piratical activity or that the 14 Iranians and Palestinians were in fact hostages.

[12]      This case concerns an offence of maritime piracy with no nexus whatsoever to Seychelles. In the circumstances, Seychelles is exercising universal jurisdiction to prosecute. Given the provisions of section 65(4) (b) and (c) of the Penal Code, the domestic jurisdiction of Seychelles is authorised for the prosecution of foreign pirates operating a pirate ship on the high seas. However, in order to obtain a conviction for piracy based on the operation of a pirate ship under s 65 (5) with which the four appellants were charged, three crucial elements of the mens rea have to be proved under section 65(5). Firstly, it must be established that the ship is a pirate ship. This is done in several ways: either by proving the acts of depredation or violence for private ends against another ship and that the ship remains under the control of the persons who committed those acts; or by proving that it is the intention of the person in dominant control the ship to use it for the purpose of committing acts of piracy. It is not clear from the conduct of the case and the evidence adduced whether it was the first or second limb of section 65(5) that the appellants were charged with.

[13]      The second element that has to be proven by the prosecution for the offence of operating a pirate ship is the control of the ship by the accused persons. The prosecution has a choice, as has already been pointed out, to prove that those who committed the acts of piracy remain in control of the vessel or that the person or persons in dominant control of the pirate ship has the intention of committing acts of piracy.

[14]      The third element requiring proof beyond reasonable doubt is to show that those who voluntarily participated in the operation of the ship had knowledge of facts making it a pirate ship.

[15]      These essential ingredients (highlighted by our underlining) are contained in the amended provisions of section 65 of our Penal Code which replicate and domesticate article 101(b) of the United Nations Convention on the Law of the Sea (UNCLOS).Article 101(b) of UNCLOS defines piracy as any of the following acts:

“(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;

(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).

[16]      It defines a pirate ship as follows:

“A ship or aircraft is considered a pirate ship or aircraft if it is intended by the persons in dominant control to be used for the purpose of committing one of the acts referred to in article 101. The same applies if the ship or aircraft has been used to commit any such act, so long as it remains under the control of the persons guilty of that act.”

[17]      Counsel for the State, Ms Shenaz Muzaffer concedes that UNCLOS reflects the customary international law on piracy and that the exercise of universal jurisdiction necessitates a basis in norms firmly grounded in international law (see for example United States v. Ali, 718 F.3d. 929 (D.C. Cir. 2013).

[18]      Further, section 12 of the Interpretation and General Provisions Act also states:

“A construction of an Act which is consistent with the internal obligations of Seychelles is to be preferred to a construction which is not.”

[19]      In the circumstances we cannot and will not extend the meaning of concepts contained in section 65 of the Penal Code beyond international norms in cases where the offence of piracy was committed outside the jurisdiction of Seychelles. We are therefore guided but also limited both by our domestic laws and international norms in construing the meaning of piracy, pirate ship, knowledge and control.

[20]      We agree with Ms. Muzaffer that knowledge has to be inferred from the facts of the case. Neither article 101 of UNCLOS nor section 65 of the Penal Code specifies how one draws an inference of requisite knowledge.  Whilst we do not think it is necessary that a ship fly The Jolly Roger for it to be inferred that it is a pirate ship, we must still find evidence that the three appellants had knowledge that the ship they were on board was operating as a pirate ship. In our view the evidence of the Danish able ratings might have been enough for the court to draw an inference that the crew of the Tahiri including the three appellants had knowledge that the vessel was being operated as a pirate ship within the meaning of section 65 (5) and article 101(b) of UNCLOS had the hostages confirmed their testimony. Arms were found with some of the crew of the Tahiri and they were filmed throwing them overboard when intercepted. As we have pointed out above, there were various other piracy paraphernalia on board. It may well be that some or all the Somalis on board the Tahiri carrying AK 47s and RPGS, approvisioned with large quantities of rice, fuel and water for a long trip had knowledge that it was a ship cruising with intent as envisaged in the UNCLOS provisions and our Penal Code.

[21]      The difficulty lies in the failure of the prosecution to tie the three appellants with the whole group of Somalis in control of the Tahiri. It is certain that evidence from the hostages could have provided that link. In both R v Mohammed Abdi Jama (The Alankrantxu) (unreported)SC 15/2012 and R v Liban Mohamed Dahir and others(The Happy Bird) SC 6/2012, Gaswaga J used the analogy of “equipment articles” in offences of slavery to infer a presumption of knowledge and therefore guilt on the part of the defendants in operating a pirate ship. Equipment articles are defined as rules that create a judicial presumption of guilt on piracy charges for the crews of civilian vessels possessing certain specified equipment within a specified area of the high seas plagued by pirate attacks. (See Eugene Kontorovich "Equipment Articles for the Prosecution of Maritime Piracy"2010 – http://www.oceansbeyondpiracy.org/sites/default/files/attachments/equipment_articles_for_the_prosecutionof_maritime_piracy.pdf). It would therefore have been Gaswaga J’s view that the discovery of such equipment articles on board the Tahiri would have corroborated the evidence of the Danish witnesses that the vessel was being used as a pirate ship. We, however, are unable to agree with him in this respect and find it impossible to adopt this approach. The presumption of equipment articles are not contained in the customary international law of piracy, nor in UNCLOS or our domestic legislation. We cannot import such a concept in construing the law of piracy in Seychelles. In the circumstances we are unable to find that the appellants had knowledge that the ship was operating as a pirate ship.

[22]      We have further difficulty in relation to the element of retention of control or dominant control and we have struggled for a definition of these concepts. In order to secure a conviction for the operation of pirate ship by the retention of control after acts of piracy have been committed under section 65 (5) (a) of the Penal Code, the prosecution would have had to prove such control by  the three appellants individually or by common design. To secure a conviction under section 65 (5) (b) of the Penal Code the prosecution would have had to prove appellants individually or by common design had dominant control of the ship with the intention of committing acts of piracy.

[23]      Ms Muzaffer has submitted that there was ample evidence both of those who were in dominant control of the ship and the fact that the Tahiri was a pirate ship. These she submitted ranged from its suspicious activities near ‘Camp Grisby’, about 52 nautical miles south of the Somali village of Hobyo, the Tahiri’s refusal to halt when intercepted by the Danish navy, the weaponry observed being offloaded and other piratical equipment found on board. She further submitted that the presence of the three appellants on board the Tahiri is enough to infer knowledge that the ship was a pirate ship and that there was voluntary participation by the appellants in its operation.

[24]      The learned trial judge Dodin J does not elaborate on whether the evidence showed that the appellants joined in committing a single crime and in the circumstances were joint principals in operating a pirate ship. He only states:

“I have considered the circumstantial evidence relevant to this case and when the same is considered alongside the direct evidence adduced by the prosecution, I am led to the only possible conclusion and left in no doubt that the persons who were actually in control of the Tahiri were the Somalis including the 4 accused persons present in court today”

[25]      With respect to the learned trial judge there are other possible conclusions as far as the three appellants are concerned. Consider for example the case of the 16 year old second appellant. Is it inconceivable that he was drafted as a crew member for a fishing expedition as he claims? There was no evidence adduced that he or any of the other appellants were members of the original crew who took over the Tahiri and continued to be in control of it. There is in fact no evidence that the Tahiri was not owned by the Somalis. Nor was there any evidence that any of the three appellants were in dominant control of the pirate ship. No evidence was adduced as to their respective roles on the ship. It appears that a "guilt by association" interpretation may have been applied in this case to render liable all the crew apprehended even in the absence of clear guilt being established of any principal offenders in this case.

[26]      In both the Alankrantxu and the Happy Bird (supra paragraph), this hurdle was overcome by Gaswaga J in the reference in the charge sheet to (the joint offenders) section 23 of our Penal Code.  Hence, in the latter case he found that

"…the accused were all voluntary participants in a common scheme, with common intention to use private vessels, over which they maintained dominant control at all material times, to attack peaceful shipping."[43]

[27]      We are of the view that the reference to section 23 of the Penal Code is misconceived in such cases. In Cinan v R (2013) 2 SLR 279 we explained the common law on common intention. We stated:

“Common law jurisdictions generally recognise three main possibilities where common intention or joint criminal enterprise may arise: first, where the two defendants joined in committing a single crime; in these circumstances they are in effect joint principals in what is sometimes referred to as the “plain vanilla joint enterprise,” (Lord Hoffmann in Brown and Isaac v The State [2003] UKPC 10 at para 13); second, where D2 aids and abets D1 to commit a single crime, for example where D2 provides D1 with a weapon to commit a murder; third where D1 and D2 participate together in one crime and in the course of it D1 commits a second crime which D2 may or may not have foreseen.”(P 284 para 5).

[28]      It is our view that section 23 of the Penal Code enacts the third variety of joint enterprise crime set out above, that is, where there is a consequential act to the primary act. In the present case, the accused persons were not being charged with a consequential act and so a reference to section 23 would be inappropriate. It is the prosecution’s contention that all 25 Somalis aboard the Tahiri set out on a cruise with piratical intent, in other words, the offence under section 65 (1) within the meaning of section 65(5) (b): such act having been committed with knowledge of facts showing that it was a pirate ship and the persons in control of the ship intended to use the ship to commit an act of piracy. They were in this sense all principal offenders in the sense of “plain vanilla joint enterprise” as described by Lord Brown (supra).

[29]      In our view the “read with” provision in this case should therefore have been section 22 (a) of the Penal Code which provides:

“Principal offenders

“When an offence is committed, each of the following person is deemed to have taken part in committing the offence and be guilty of the offence, and may be charged with actually committing it, that is to say-

1. every person who actually does the act or makes the omission which constitutes the offence;”

[30]      The deeming provision could have ensured that a finding of control might have been inferred for each of the members of the crew of the Tahiri by the fact that they all contributed in some way to the operation of the vessel as a pirate ship. Some evidence of their participation in the acts would still however have been necessary as mere presence and knowledge that a crime is being committed is not equivalent to participation in the event. (viz R v Borthwick (1779) 1 Doug 207, Hale Pleas of the Crown, 1 Hale 439 : “for even if a man is present whilst an offence is committed, if he takes no part in it and does not act in concert with those who commit it, he does not become an aider and abettor merely because he does not endeavour to prevent the offence, or fails to apprehend the offender;” recently R v Clarkson (David George) and ors[1971] 3 All ER 344, R v Bland (1987) 151 JP 857 and R v Alamin Miah. Maruf Uddin [2004] EWCA Crim 63. To hold otherwise would be tantamount to precluding any association with known criminals even for lawful purposes.

[31]      We also have to consider whether the failure to add section 22 of the Penal Code to the charge sheet is fatal. Ms Muzaffer has submitted that the fact that the charge did not expressly refer to section 22 of the Penal Code does not render it defective nor does it offend section 111 of the Criminal Procedure Code. Section 111 of the Criminal Procedure Code states

“Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”

[32]      We would agree with her that the omission of section 22 or section 23 from a charge sheet does not render the charge faulty or bad in law. Both section 22 and section 23 are evidentiary provisions. They are however also procedural provisions that specify the exact offence with which the accused persons are charged and it is highly advisable that they be included in particulars of offences with more than one accused person. It would certainly make for better clarity.

[33]      We are however of the view that the evidential burden for the offence of piracy in terms an act of voluntary participation in the operation of pirate ship has not been met by the prosecution in this case. We cannot agree with Ms. Muzaffer’s submission that knowledge and control could be inferred by the evidence adduced, at least not by the three appellants given the paucity of evidence in relation to them personally. We cannot and will not uphold a conviction which in our view is grounded purely on guilt by association.

[34]      Mr. Gabriel has also submitted that since the appellant Abdul Ahmed Mohamed was 16 years old at the time of commission of the offence with which he was charged, the fiat of the Attorney General was required under section 92(1) of the Children Act 1982 (as amended). He relied on the cases of Javon William v R (unreported) SC 86/2013 and Sayid v R (unreported) SCA 2/2011. Ms. Muzaffer has disagreed, reiterating the view she adopted in Sayid that since article 76(4) (a) of the Constitution empowers the Attorney General to undertake criminal proceedings  and since sections 63 and 64 of the Criminal Procedure Code provide that no public authority is necessary for a public prosecutor who is appointed by the Attorney General to prosecute cases; and since such prosecutors are subject to his express directions an inference may be drawn that no special authority by him is required in cases involving children as well. It is a persuasive argument but it still runs afoul the rules of statutory interpretation. It is not submitted that a public prosecutor appointed by the Attorney General cannot prosecute children. That is not the import of section 92(1) of the Children Act. The legislation seeks to impose a duty to have the Attorney General expressly acquiesce to the prosecution of child for a criminal offence. It is a specific provision only found in the Children Act and only concerns children. Hence, the latin maxim and the widely accepted rule of interpretation that generalia specialibus non derogant (the provisions of a general statute must yield to those of a special one) must apply. There are many reasons for this, not least the recognition of the special circumstances and vulnerability of  a child in view of a specific constitutional provision protecting his/her rights (viz article 31 “The State recognizes the right of children and young persons to special protection in view of their immaturity and vulnerability …”).

[35]      As we pointed out in Sayid, a similar issue was raised before this court in the case of Re Section 342A of Criminal Procedure Code (SCA 1/2000) which concerned the trial of a child of sixteen years in a Juvenile Court for murder and section 225 of the Criminal Procedure Code. In that case, the Court of Appeal decided that

“[B]oth provisions of law should be read together. When so read, it is our view that the application of the general provision contained in section 223 of the Criminal Procedure Code is restricted, inasmuch, as it does not extend to the trial of a “child” within the meaning of the Children Act…In other words, section 93(1) and (2) of the Children Act limits the applicability of the general words of wide import in section 225 of the Criminal Procedure Code.”

[36]      Ms. Muzaffer has however urged us to apply section 344 of the Criminal Procedure Code to overlook the irregularity as according to her, no failure of justice has been occasioned and the matter was not raised at an earlier stage of the trial. We are not persuaded by this argument and reiterate what we said in Sayid. The provisions of the Constitution should be interpreted to give them “their fair and liberal meaning” (viz section 8 (a) of Schedule 2 of the Constitution). An interpretation of Article 76 of the Constitution coupled with the application of section 344 to deprive children of the most basic protection in relation to criminal proceedings would neither be liberal nor fair.

[37]      In view of our decision in relation to the substantive arguments contained in grounds 2, 3, 4 and 5 of this appeal, it would be purely academic to consider the other grounds of appeal on conviction and sentence. The appeal is therefore allowed and the appellants’ conviction is hereby quashed. They should be set free and repatriated to their country.

M. Twomey (JA)

I concur:                                 ………………….                                           J. Msoffe (J.A)

Signed, dated and delivered at Palais de Justice, Ile du Port on 12 December 2014