Victor v R (SCA 18/2013)  SCCA 40 (12 December 2014);
IN THE SEYCHELLES COURT OF APPEAL
[Coram: F. MacGregor (PCA), A. Fernando (J.A) , M. Twomey (J.A) ]
Criminal Appeal SCA 18/2013
(Appeal from Supreme Court Decision CR 643/2011)
France Amedée Victor
The Republic Respondent
Heard: 01 December 2014
Counsel: Mr. Bernard Georges for Appellant
Mrs. Lansinglu Rongmei Vipin for Respondent
Delivered: 12 December 2014
F. MacGregor (PCA)
 The appellant was convicted in the Magistrates court of one count of possession of 18 milligrams of heroin contrary to section 6 (a) read with section 26 (1) (a) and punishable under section 29 (1) OF THE Misuse of Drugs Act and one count of possession of 0.1 gram of cannabis resin contrary to section 29 (1) of the Misuse of Drugs Act. He was sentenced to 5 years imprisonment on the 1st count and 6 months imprisonment on the 2nd count with both sentences running concurrently.
 He appealed to the Supreme Court on the grounds that the trial had taken place without his Counsel being present and that the learned magistrate when sentencing him had not informed him of the fact that he faced a mandatory minimum sentence and had not asked him if there were any exceptional circumstances as to why the sentence should not be imposed.
 The learned appeal judge Dodin J acknowledged that the appellant had not been represented through no fault of his own. He referred to authorities, recognizing that there is a duty in such circumstances for the presiding judge to assist the accused. He noted that no hard and fast rules can be laid down to the extent that a court should intervene on behalf of accused persons. He however concluded that it was proper for the learned Magistrate to proceed with the trial in the unwarranted absence of the appellant’s counsel. Insofar as the ground relating to the mandatory sentence was concerned, he decided that the appellant had been properly advised on the minimum sentence set by the law.
 The appellant has now appealed to this court on the following ground:
“Having correctly set out the law applicable to defendants inops consilii, the learned Judge erred in his failure to consider whether the trial magistrate had given the appellant sufficient direction with regard to properly presenting his defence and in particular, after conviction, as to the right to put forward exceptional circumstances which may have had a veering on the sentence.”
 There was some argument at the beginning of the hearing of the appeal in relation to whether counsel for the appellant had dropped his ground in relation to conviction but it was clarified that the ground of appeal consisted of two different elements (conviction and sentence) but both linked to the constitutional right to a fair trial.
 Mr. Bernard Georges for the Appellant referred to the Seychellois case of Pillay v R CrA 12/2011, the Australian case of Dietrich v The Queen 91992) 177 CLR and the Botswanian case of Rabonko v The State 2 B.L.R. 166. He submitted that although the learned appeal judge properly assessed the law he failed to apply it to a defendant inops consilii. He further submitted that that the approach taken meant that the standard applied was below that required to guarantee a fair trial. It is also his submission that as the appellant was inops consilii, the court failed in its duty to offer him a certain amount of guidance.
 Mrs. Lansinglu Rongmei for the Respondent has submitted on the other hand that the learned magistrate did not fail to meet the requirements of the appellant’s right a fair trial. She submitted that he had advised the appellant of his rights, that the charge had been explained in creole, that he was given the opportunity to look for his counsel in the court premises. In any case she argued, the right to legal representation is a qualified right and not enforceable against the interest of justice. She relied on the case of Finesse v R SCrA 1/1988 and Benoit v R SCrA 5/2006.
 We have meticulously perused the court proceedings and have examined whether in the circumstances the appellant’s right to a fair trial. We disagree with Mrs. Rongmei for the respondent that the right to legal representation contained within the right to a fair trial as enshrined in article 19(d) is a qualified right per se. It was clearly stated by the Court of Appeal in Benoit (supra) that
“… since the adoption of the constitution in 1993, the rights in article 19 (2) (c) and (d) stand as “fundamental rights” which may not be restricted or qualified by any law.”
 The only qualification is that such rights may not be abused. The Court also established that Finesse (supra) which imposed on the appellant the burden of proving and actual failure of justice was wrongly decided or was not applicable as it had been decided before the 1993 Constitution came into force. The Court reiterated that the right to legal representation is only
“a qualified right in the sense that it is not enforceable against the interest of justice.”
 In Benoit, the court found that the appellant had had sufficient time and facilities to prepare his defence after taking into account all the relevant considerations. In Moise and Jacques v R (1975) SCAR 122, an appeal all the way from the Magistrates’ Court, then to the Supreme Court and finally to the Seychelles Court of Appeal then sitting in the UK, a case factually similar to the present the court found that the appellants were not at fault and had been taken by surprise at the non-appearance of defence counsel. In the circumstances a retrial was ordered.
 In the present case the following excerpt of the court proceedings is important:
“Court notes that when case was fixed for trial Mrs. Amesbury was present. She is not present today. In fact I have followed the accused to look for her counsel at the Supreme Court building, but she was not found. It is very sad that accused facing a serious offence for which if convicted may be sent to prison for a minimum of 5 years is not represented by the person who has been granted legal aid. It is the court’s recommendation that in the future no further legal aid be granted to Mrs. Amesbury. Assistant Registrar to bring forward my concern to the Acting Registrar of the Supreme Court.”
 The next entry on the court proceedings is the sworn evidence of the Forensic Analyst. With respect to the learned Magistrate, although we commend him for dealing with counsel, we fail to see why the appellant was then penalized for her dereliction of Counsel’s duties. He had a constitutional right to legal representation and through no fault of his own, she failed to turn up. Common sense would dictate he should have at least been given the opportunity either to prepare his defence or to seek alternative Counsel.
 The fact that the appellant only put two questions to the first prosecution witness, one to the second witness and none to the third shows how ill prepared he was to conduct his own defence. There was also no direction or help from the bench in assisting him in the conduct of his case.
 Taking into account these relevant considerations we are of the view that the convictions should not stand and since there were several matters where the appellant could have benefited by professional assistance and there was a serious failure of justice, we are not satisfied that it would be appropriate to use section 344 of the Criminal Procedure Code to uphold the convictions.
 We have given anxious consideration to the question whether a re-trial should be ordered in view of the fact that appellant has served about half of his sentence. We feel that it would not be in the interest of justice to do so and consider that the ordeal of the trial and two appeals and the past served sentence is sufficient punishment in the circumstances.
 Accordingly this appeal is allowed and the appellant’s convictions quashed.
F. MacGregor (PCA)
I concur:. …………………. A. Fernando (J.A)
I concur:. …………………. M. Twomey (J.A)
Signed, dated and delivered at Palais de Justice, Ile du Port on 12 December 2014