Lebon v R (SCA 23/2012) [2014] SCCA 38 (12 December 2014);

 

IN THE SEYCHELLES COURT OF APPEAL

 

[Coram: Fernando J.A, Twomey J.A, Msoffe J.A]

 

Criminal Appeal SCA 23/2012

Appeal against Supreme Court decision CR 45/2011

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Barnesley Lebon                                           APPELLANT

VS

The Republic                                                RESPONDENT

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Heard:            01st December 2014

Counsel:         Mr. B. Georges and Mr. N. Gabriel for the Appellant

                       Mr. A. Subramaniam., Assistant Principal State Counsel, for the Respondent

Delivered:      12th December 2014

 

JUDGMENT

 

A. F. T. FERNANDO JA

  1. The Appellant appeals against his conviction and sentence by the Supreme Court for trafficking in 78.1 grams of cannabis herbal material on the basis of the presumption in section 14(d) and possession of 0.24 grams of cannabis herbal material, offences under the Misuse of Drugs Act. The Appellant had been sentenced to the mandatory minimum term of 8 years in respect of trafficking and 6 months for possession of drugs, with both sentences to run concurrently.

  2. According to the prosecution evidence on the 27th of September 2011 a police party from the NDEA had gone on a raid to Les Mamelles around 11.00 am in two vehicles. They had stopped their vehicles at a certain place and proceeded in the direction of where the Appellant lived in two separate routes. It had been the evidence of PWS. Marie that while he and his party consisting of two other NDEA officers were approaching the flats in which the Appellant lived they had heard people shouting “it is the police, block”. They had continued on their way and on reaching the house of the Appellant, he had seen PW K. Joseph, a member of the police party which had taken the other route had apprehended the Appellant. Two other persons had also been apprehended by two other members of that police party that took the other route. Under cross examination PW Marie had said that in his estimation that he got to the house of the Appellant about one to two minutes after PW Joseph had got there. PW Joseph had informed PW Marie that the Appellant had thrown 3 white coloured packets on to a nearby rock which was at a higher elevation. PW Marie had walked up to the rock from the rear and picked up three white coloured packets. He had then opened the packets in the presence of the Appellant. All three packets had been wrapped in cling film giving them a whitish appearance, one of which was in a square shape and the other two in a triangular shape. All three packets had contained compressed herbal material. The Appellant on being questioned by PW Marie as to whether he knew what is in those packets and to whom they belonged had replied that he did not know. The testimony of PW Marie had been corroborated by PW Joseph in relation to these matters. Thereafter the Appellant had been arrested after explaining to him his constitutional rights. Thereafter a search of the Appellant’s house had been conducted by the other members of the NDEA.  On coming back to the police PW Marie had placed the 3 packets that were seized after giving them a number in his locker until they were taken to the Government Analyst for purposes of analysis on the 29th of September 2011 around 1.10 pm, and after carrying out the usual procedures associated with taking items for purposes of analysis. The Government Analyst had handed over the herbal material to PW Marie on the 30th of September with his Analysis Report which was produced in Court at the trial.

  3. PW A. Moumou had corroborated PW Marie as regards seeing PW K. Joseph, holding on to the Appellant when he reached the house of the Appellant in the company of PW Marie. He had not testified to having witnessed the recovery of the herbal material by PW Marie from the rock. According to Moumou he had been detailed to conduct a search of the house of the Appellant. While conducting a search of the room of the Appellant in the presence of the Appellant they had found a pair of black trousers on a mattress that was on the floor and inside its pocket some herbal material wrapped in a newspaper and some local currency notes. In answer to a question in cross-examination as to how the witness knew as to whom the trouser belonged the witness had replied that it was the Appellant who had told him so. He had kept the herbal material seized in his custody until it was taken to the Government Analyst for purposes of analysis on the 29th of September 2011 in the company of PW Marie. The Government Analyst had handed over the herbal material to PW Marie on the 30th of September with his Analysis Report which was produced in Court at the trial. They had also recovered a total sum of SR 66,655 and 10 Euro from the house of the Appellant concealed in the ceiling in two plastic bottles, inside a mattress, inside a bag that was in the verandah and in the trouser pocket of the Appellant. Moumou’s evidence had been corroborated by PW A. William as regards the recovery of the herbal material from the trouser pocket of the Appellant and the money from the house of the Appellant.

  4. According to PW K. Joseph he took the other route to get to the house of the Appellant, and the Appellant who was in the company of two others seated under a shed had taken to their heals when somebody shouted “police block”. He had run after the Appellant and apprehended him but before he had been caught the Appellant had thrown 3 white packets wrapped in cling film on to a nearby rock. PW K. Joseph had corroborated PW Marie in stating that soon after he had arrested the Appellant PW Marie had come on the scene and retrieved the packets that were thrown by the Appellant on to the rock.  In carrying out a body search he had found SR 1700 in the trouser pocket worn by the Appellant. Joseph was involved in the recovery of money from the mattress and the ceiling. Evidence of Joseph had been corroborated by PW A. William and PW D. Delcy. Joseph had been subjected to rigorous cross examination as to why he had not gone up the rock to recover the packets thrown by the Appellant instead of asking PW Marie to do so and suggesting that there was never an issue of the Appellant throwing any packets on the rock. This was after having earlier suggested to the witness that he in fact looked for the packets but could not find them.

  1. There is no challenge to the chain of evidence in regard to the exhibits from the time of detection to the time of analysis and production in court. There is also no challenge as to the analysis of the drugs.

  2. The Appellant in testifying under oath had denied the version given by the prosecution witnesses and stated that he was arrested by the police at the rear of his house when he was planting a banana plant. This part of his evidence has been corroborated by his brother DW 2 R. Lebon. The Appellant had admitted seeing the police officers search on top of the rock. In answer to the question in examination-in-chief by his Counsel in relation to the drugs found in his trouser that was on the two mattresses in his bed room:

  1. “They mentioned that they found in trouser a small quantity of cannabis, do you know anything about that?”

       The Appellant had said: “I am not sure if I have left that in my pocket”.

        In cross-examination the following had transpired:

        “Q. And during the search they recovered herbal material from your trouser pocket and some money in your house?

  1. There were money but the herbal materials I don’t know, I just saw them remove it, I am not sure if I had put that in my pocket.”

He had also admitted that the trouser was on the two mattresses that were in his bed room and that moneys recovered from his house belonged to him. According to the Appellant he had obtained the money from an “adjustment loan from the Plaisance MNA to do some renovation on the house”. The Appellant had not adduced any documentary or other evidence as regards proof of having obtained the loan. As regards for the money found in the ceiling inside two plastic bottles he had said that he was saving them for his two children one of whom was going to do holy communion in December 2011 and the other going to do his S5 exam. The brother of the Appellant, R. Lebon has corroborated the evidence of the Appellant as regards the arrest of the Appellant by the police at the rear of his house when he was planting a banana plant and his testimony amounts to a denial of the version of the prosecution.

  1. The Appellant has raised the following grounds of appeal:
  1. The Learned trial Judge erred in fact and in law by not attaching great weight to the inconsistencies of the Prosecution witnesses.
  2. The Learned Trial Judge failed to objectively evaluate the evidence and failed to exercise his mind to the possibility that the drugs were not in the custody of the Appellant or under his control.
  3. The Learned Trial Judge erred by not considering the lesser sentence than the eight years imposed.
  1. The defence version is that the prosecution version of drugs being found on the rock is a fabrication. It had been argued by the defence at the trial that the prosecution version of having seen the Appellant under a shed is false as he would have run away on seeing the police party approaching. But this is in fact what happened as per the evidence of PW Joseph, William and Delcy. The Appellant had taken to his heals no sooner someone shouted “police block”. Again the defence argument that the Appellant would have shown more astuteness in throwing the packets as there was a wooded area at the back of the house is in the opinion of this Court a weak argument. Another argument that was put forward by the defense had been to the effect the PW K. Joseph’s evidence cannot be believed as he had not personally gone to pick up the three white parcels containing the drugs that was thrown by the Appellant on to a rock on his apprehension and instead requested PW S. Marie to do so. On this matter we are in agreement with the Trial Judge who had stated “ Agent Joseph not once but several times stated in his evidence that the reason he did not go in search of the packets was because he was having the accused who it appears had already attempted to flee in custody. It is apparent that once the packets were thrown there was no chance of the packets “running away” and therefore quite obviously the priority would have been to ensure that the accused he had caught would not escape.”

  2. Counsel for the Appellant at the trial pleading in mitigation had said: “I have nothing to say my lord except in the circumstances plead for the minimum mandatory sentence.” He had failed to specify the circumstances nor did Counsel before us urge any reasons for a reduction of the mandatory sentence that had been imposed. We do not find that the circumstances imposed by the Trial Judge breaches the proportionality principle as expounded in the case of Jean Fredrick POONOO VS The Attorney General SCA 38/2010.

  3. We therefore dismiss the appeal against conviction and sentence.

 

A.F. T. Fernando

Justice of Appeal

 

I agree

M. Twomey 

Justice of Appeal

 

I agree

J. Msoffe

Justice of Appeal

 

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