Ernesta & Ors v R (SCA 27 of 2018) [2019] SCCA 39 (16 December 2019)

Jurisdiction
Seychelles
Citation
Ernesta & Ors v R (SCA 27 of 2018) [2019] SCCA 39 (16 December 2019)
Media Neutral Citation
[2019] SCCA 39
Court
Court of Appeal
Case number
SCA 27 of 2018
Judges
Robinson, JA, Twomey, JA, Fernando, JA
Judgment date
16 December 2019
Language
English
Type
Judgment
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Dissenting
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Dissenting
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Flynote

Criminal law

Case summary

The appeal is dismissed in its entirety. The convictions are upheld.

Majority judgment delivered by Twomey CJ (Robinson JA concurring). Minority judgment delivered by Fernando JA.

IN THE SEYCHELLES COURT OF APPEAL

 

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

Criminal Appeal SCA 27/2018

(Appeal from Supreme Court Decision CR 22/2016)

 

Francis Ernesta

Brian Mothe

Kevin Quatre

Danny Sultan

 

1st Appellant

2nd Appellant

3rd Appellant

4th Appellant

 

 

Versus

 

The Republic

Respondent

 

Heard: 02 December 2019

Counsel: Mr. Clifford Andre for the Appellants

 

Mr. Jayaraj Chinnasamy for the Respondent

Delivered: 17 December 2019

 

JUDGMENT

 

M. Twomey (J.A)

  1. The four Appellants were charged under the former Misuse of Drugs Act 1990 with the offences of importation, conspiracy to commit the offence of importation, trafficking in a controlled drug, and conspiracy to commit the offence of trafficking in a controlled drug. They were found guilty of the above offences following trial and convicted accordingly. They are appealing against conviction.

  2. The facts reveal that the vessel Canapone entered into Seychelles waters on or about 25 March 2016; this was not disputed by the Appellants on appeal as a ground. The related but unchallenged issue of importation of controlled drugs was raised suo sponte by my brother Fernando, an issue which I shall address later in my decision.

  3. The material facts in this case are summarised in my brother Fernando’s Judgment and I do not see a reason for rehearsing them.

The grounds of appeal

  1. The Appellants are appealing against their conviction and have raised several grounds, many of which are intrinsically linked. The crux of the issues arising therefrom are as follows:

        1. If an accused is not found in physical possession of a controlled drug, can they be convicted for the offence of trafficking?

        2. Do the inconsistencies in the prosecution witnesses’ evidence amount to a reasonable doubt in the prosecution case?

        3. Does the alleged lack of identification evidence by the witnesses amount to a reasonable doubt in the prosecution case?

  1. The Appellants further contend that the learned trial Judge erred in concluding that the Appellants trafficked in 746.9g of substance on 26 March 2016, when the substance was only seized on 28 March 2016. Furthermore, they contend that the court erred in law and fact in not considering that both Jeannia and Xavier Pool did not identify any gunny bags against pictures or video, and in not considering that the drugs were found at the residence of Delores Mounac, and not on the beach. They also contend that Witness Michael Hissen could not identify the drugs as he never saw any heroin on the date in question, so this amounts to a relevant consideration that was also overlooked by the learned trial Judge.

  2. It is trite that the burden is on the Appellants to show that the findings of the trial court were unreasonable or could not be supported having regard to the evidence (Naiken v R (1981) SLR 19).

Issue 1: If an accused is not found in physical possession of a controlled drug, can they be convicted for the offence of trafficking?

  1. The answer in short is yes. Section 2 of the Misuse of Drugs Act 1990 as amended by Act No 3 of 2014, provides that "traffic" means:

“(a) to sell, give, administer, transport, send, deliver or distribute, or

(b) to offer to do anything mentioned in paragraph (a) or;

(c) to do or offer to do any act preparatory to or for the purposes mentioned in paragraph (a); or

(d) to possess, whether lawfully or not, with intent to supply to another person contrary to this Act;

"trafficking" has a corresponding meaning.”

 

  1. With the words “does or offers to do any act preparatory to, or for the purpose of [drug trafficking]”, the Legislature extended the range of culpability beyond those who sell, give, administer, transport, send, distribute or transfer the drug. The offence has been widened to include those who merely prepare to do such acts. Therefore the court has to determine on the evidence produced whether the accused did an act that was preparatory to trafficking (R v Francois (2000) SLR 103).

  2. Possession of drugs implies custody of or control over drugs (Florine v R [2008-2009] SCAR 79). Possession of a controlled drug may be established through a continuous act that involves either physical custody or the exercise of control (R v Albert (1997) SLR 27). It was further emphasized in R v Victor (2014) SLR 55 that a person has possession if they have the power and intent to control the disposition and use of the drugs. Joint possession is sufficient to prove possession; exclusive possession is not required (Florine v R [supra]). For these purposes, there can be joint possession or possession by one on behalf of another (R v Dias [1985] SLR 66).

 

  1. There is ample evidence on record to prove beyond reasonable doubt that the Appellants jointly orchestrated and participated in this drug operation; from the obtaining of the drugs from ‘Indians’ in a ‘multi-coloured’ boat, to the carting of it into Seychelles waters on the Canapone, to the shifting of the drugs onto a speedboat and transporting them to Praslin, where they were again relocated by one of the Appellants. There are sufficient witness accounts to highlight each Appellant’s direct involvement in the operation, and their knowledge of, and control over, the controlled drugs at various points in time. An operation of this complexity required significant forward-planning and collective effort, and it is evident from the facts that the Appellants carried out acts preparatory to, and for the purpose of, drug trafficking

 

  1. Ultimately, when considering a charge of drug trafficking, once it has been established that the accused had both possession of the controlled drug and knowledge of that possession, circumstantial evidence may be admitted from which a reasonable inference may be drawn that the possession of the controlled drug was for the purposes of trafficking (R v Albert (1997) SLR 27).

 

  1. The statutory requirement for a presumption of trafficking under section 14 of the Act requires possession of more than 2 grams of heroin in its pure form (Simeon v Republic (2010) SLR 195). The Government Analyst gave evidence that there was a total heroin weight of 746.9 grams, with a purity of 64%. An accused may raise a legal doubt in the prosecution’s argument concerning the accused’s state of mind in that the accused did not have knowledge of the drugs or their illicit nature, or that he or she had no reason to suspect illicit drugs (Florine v R, [supra]).

 

  1. As Lord Slyn of Hadley stated in Regina v Lambert [2001] UKHL 37 (where the accused claimed he did not know what was contained in a duffle bag he was carrying):

 

“The mental element involves proof of knowledge that the thing exists and that it is in his possession. Proof of knowledge that the thing is an article of a particular kind, quality or description is not required. It is not necessary for the prosecution to prove that the defendant knew that the thing was a controlled drug which the law makes it an offence to possess” (at 61).

  1. In Clare v R [1994] 2 Qd R 619, Davies JA concluded (at 645):

 

“…I do not think that the element of knowledge which undoubtedly exists in that concept in its ordinary meaning, extends beyond knowledge, by the accused, of the existence and presence within his physical control of the object; it does not extend to knowledge of the nature of that object. There is nothing in the construction of the Drugs Misuse Act which would suggest that ‘possession; is being used in other than its ordinary meaning.”

 

  1. In He Kaw Teh v The Queen (1985) 157 CLR 523 at 536, the Court held:

 

“…if the suspicions of an incoming traveller are aroused, and he deliberately refrains from making any inquiries for fear that he may learn the truth, his wilful blindness may be treated as equivalent to knowledge. If he is given a bag or parcel to carry into Australia in suspicious circumstances, or if there is something suspicious about the appearance, feel or weight of his own baggage, and he deliberately fails to inquire further, the jury may well be satisfied that he wilfully shut his eyes to the probability that he was carrying narcotics and for that reason should be treated as having the necessary guilty knowledge.”


 

  1. There is therefore no merit in the Appellants’ ground that the learned Trial Judge erred in concluding that the Appellants were guilty of trafficking on the date as per the charge sheet when the drugs were only seized on 28 March 2016. The evidence adduced at trial leaves this Court in no doubt that the gunny bags transported by the Appellants contained the same drugs which were later seized by the Authorities. The evidence of the Pools and the similar descriptions they provided of the drug packets they had retrieved from the gunny bags on the beach in comparison to the drug packets seized by the Authorities is compelling.

  2. In Republic v Liwasa [2016] SCSC 94, Dodin J held that:

“A general rule concerning all criminal cases is that a person has to have a ‘guilty mind’ if he is to be convicted...In order to determine whether the accused had knowledge or not ... the Court must look at the circumstances surrounding the action of the accused and his demeanour and conduct as observed and testified to in Court”.

  1. In the case of Nedy Micock & Anor v R [2019] SCCA 12 at [68] it was held that, “The element of “knowledge” may likewise be inferred from the facts of the case…”

  2. In this regard, the 1st Appellant’s attempt to ram the Canapone into the reef following his arrest is indicative of a ‘guilty mind’, and further that he had knowledge of the illicit nature of his cargo. Similarly, the 2nd Appellant informed the NDEA agents on the Canapone that he wanted protection, and that he would be killed by a man named Danny if he talked. He further stated that Danny had come on the Canapone with him and the 1st Appellant, and that they had taken drugs from Indians in a multi-colored boat. The 3rd Appellant informed Witness Michael Hissen while the gunny bags were being loaded on his boat that he must not be scared and that everything would be okay, a curious thing to say in any other context.

  3. When an accused is convicted of simple possession but found to be in possession of a substantial quantity of drugs, there is always a latent risk factor. This reflects the risk to society of the drugs finding their way into other hands apart from an offender’s. The latent risk will be determined from all the circumstances of the particular case, including the quantity of drugs involved and the circumstances of the offender (R v Anacoura (2014) SLR 67)

  4. I therefore find no merit in the ground of appeal.

Issue 2: Do the inconsistencies in the prosecution witnesses’ evidence amount to a reasonable doubt in the prosecution case?

  1. With regard to inconsistencies in the evidence of witnesses generally, this Court stated in Beeharry v R (2012) SLR 71:

 

“In all criminal cases discrepancies in the evidence of witnesses are bound to occur. The lapse of memory over time coloured by experiences of witnesses may lead to inconsistencies, contradictions or embellishments. The Court however on many occasions is called upon to assess whether such discrepancies affect the very core of the prosecution case; whether they create a doubt as to the truthfulness of the witnesses and amount to a failure by the prosecution to discharge its legal burden.”

 

  1. The Appellants contend that the evidence of Jeannia and Xavier Pool were contradicted by that of Defence Witness Ryan Accouche, who stated that he never saw the Pools on the date in question, nor did he see the 4th Appellant. They further contend that the Pools were lying in their testimony as their claims were unsupported by the evidence adduced at trial. To this end, the Trial Judge held as follows:

 

“[29] …Further, understandably Witness Ryan Accouche denied any knowledge of being in possession of Class A controlled drugs or any involvement in any of the incidents referred to by Witness Xavier Pool for fear of being prosecuted for same.”

 

  1. It is trite that the court accepts findings of facts that are supported by the evidence believed by the trial court unless the trial Judge’s findings of credibility are perverse (Beeharry v R [supra]). This Court agrees that the testimony by Witness Accouche was entirely self-serving and aimed towards absolving himself of any ties to the crime.

  2. The Appellants in their grounds of appeal further allude to an inconsistency in terms of the date of the offence as per the charge sheet (26th March 2016 in the initial charge sheet) and the date of the offence as per the evidence adduced during the trial (predominately 25th March 2016). The particulars of the offences in the Amended Charge Sheet read “on or around the 26th March 2016”, therefore this ground has no merit. In any event, if the statement and particulars of an offence can be seen fairly to relate to a known criminal offence but have been pleaded in terms which are inaccurate, incomplete or otherwise imperfect, a conviction on that indictment can still be confirmed (Jules v R (2006-2007) SCAR 77). Further, not every defect in a charge will result in quashing a conviction; the misstatement of the offence may be acceptable where it has not misled the appellant and has not caused a miscarriage of justice (Rene v R (1998-1999) SCAR 233).

 

  1. The Appellants also contend that the court erred in law and fact in not considering that both Jeannia and Xavier Pool did not identify any gunny bags against pictures or video, and in not considering that the drugs were found at the residence of Delores Mounac, and not on the beach. In this respect, the learned Trial Judge held as follows:

 

“[32]… The controlled drugs were produced as P6 (a), and (b) and P8 (a) to (f) and the contents and wrappings were identified by Witness Xavier Pool as that taken from the gunny bags unloaded by the 4th accused Danny Sultan on the beach at Anse Boudin. Jeannia too identified the contents of P8 (a) to (f) as one of the heroin packets brought by Ryan Accouche and Xavier Pool.”

“[33] It is to be borne in mind that Xavier Pool identifies his packet as having three 5’s on it. The packet produced in Court found in the melody tin P8 which was the packet Ryan Accouche had, as identified by Jeannia Pool in her evidence also had three 5’s on it, indicating the packets taken by both Ryan and Xavier from the same gunny bag were of very similar nature with similar marking.”

 

  1. The court transcript reveals that photographs of the scarab and the drug packets were shown to Xavier Pool. The transcript further reveals that all the photographs in exhibit P8 were shown to Jeannia Pool and were identified. In light of the above, this Court does not find that much could be gained from showing these two witnesses the video and imagery of the gunny bags over and above their descriptions of the same. This would do little to strengthen the prosecution case. If the Defence was desirous of putting the video and imagery of the gunny bags to these Witnesses in furtherance of their defence strategy, they ought to have done so in cross-examination. It has also been borne sufficiently from the facts as narrated by the learned trial Judge that the drugs were initially found by Xavier Pool on the beach in white gunny bags, and he took a packet to his mother’s house to sample and hide it.

  2. The Appellants further contend that Witness Michael Hissen could not identify the drugs as he never saw any heroin on the date in question, so this amounts to a relevant consideration that was also overlooked by the learned trial Judge. This Court is satisfied that there is enough circumstantial evidence to corroborate this witness’s evidence and to prove that the gunny bags contained the same packets of heroin which were later seized by the relevant Authorities. In Onezime v R (1978) SLR 140, the Court held that for a conviction to be based on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilty. This Court is satisfied that this is the case here.

Issue 3. Does the alleged lack of identification evidence by the witnesses amount to a reasonable doubt in the prosecution case?

  1. The Appellants contend in their grounds of appeal that there was no, or an insufficiency of, identification evidence to implicate them in the commission of the crimes for which they have been charged. From the outset, it is worth noting that this Court in Labrosse v R SCA 27/2013 [2016] SCCA 35 (09 December 2016) emphasised that evidence of identification must be approached with caution, citing the case of S v Mthetwa 1972 (3) SA 766 in which Holmes JA held:

“Because of the fallibility of human observation, evidence of identification is approached by the Courts with some caution. It is not enough for the identifying witness to be honest: the reliability of his observation must also be tested. This depends on various factors, such as lighting, visibility, and eyesight; the proximity of the witness; his opportunity for observation, both as to time and situation; the extent of his prior knowledge of the accused; the mobility of the scene; corroboration; suggestibility; the accused’s face, voice, build, gait, and dress; the result of identification parades, if any; and, of course, the evidence by or on behalf of the accused. The list is not exhaustive.”

  1. With respect to the 1st Appellant, namely Francis Ernesta and the 2nd Appellant, namely Brian Mothe, it is not in dispute that these two Appellants were identified aboard the Canapone on the date in question by numerous witnesses, including Samir Ghislain and other NDEA Agents.

  2. With regard to the 3rd Appellant, namely Kevin Quatre, Witness Michael Hissen gave detailed evidence concerning the 3rd Appellant’s direct involvement in the orchestration of the offences. The two were childhood friends, and Hissen testified that the 3rd Appellant arranged for them to go on a boat trip on the date in question, that the Appellant received a phone call once they were at sea and directed Hissen to the Canapone subsequently, only to then inform Hissen to not be scared as gunny bags were loaded onto his boat and they were joined by a ‘rasta man’.

  3. In respect of the 4th Appellant, namely Danny Sultan, the identification evidence by Xavier and Jeannia Pool serve to corroborate the evidence of Brian Mothe pertaining to one Danny from Les Mamelles. The facts reveal that the 4th Appellant used to reside on Praslin, then later moved to Les Mamelles on Mahe.

  4. Although the prosecution failed to make any obvious link between the 4th Appellant and Hissen’s description of the ‘rasta man’, there is enough circumstantial evidence to prove beyond reasonable doubt that the two personas are one and the same. This is borne from the evidence of Mothe initially that one Danny had boarded the scarab with a Chinese man (Hissen) and left with all the gunny bags of drugs, from the evidence of Hissen who stated that he captained the scarab at the material time and that a rasta man had boarded the boat along with 10 or so gunny bags, and that they had gone to Anse Boudin on Praslin, and from the evidence of the Pools who recognised Danny Sultan on the beach at Anse Boudin offloading gunny bags from a blue and white speedboat. Moreover, thermal imagery evidence adduced at trial corroborated the above evidence because it showed one passenger disembarking from the scarab and heading up the beach.

  5. The learned Trial Judge considered the following corroborative evidence in this respect:

“[27] This Court is of the view that the evidence of Michael Hissen was corroborated by the evidence of several witnesses namely the airforce officers who stated the scarab drew alongside the Canapone. His evidence on the route taken by the speedboat thereafter was corroborated by the airforce officers and officers of the coast guard, the unloading of the gunny bags from the scarab also witnessed by Xavier Pool and his sister Jeannia Pool who further identif[ied] the speedboat or scarab as the Oceanwave which witness Hissen admits he used for the operation. Further the evidence of Hissen that a Rasta man unloaded the gunny bags from his speedboat, is also witnessed by Xavier Pool and Jeannia Pool who go further by identifying the Rasta man as Danny Sultan the 4th accused. In any event it is the view of this Court that the evidence of Witness Hissen though subject to lengthy cross examination withstood the rigours of cross examination as no material contradictions or omissions were noted. I therefore refer to the case of Dominique Dugasse & Ors v Republic SCA Cr 25, 26 and 30/20 and hold that on consideration of the sworn testimony given by Witness Michael Hissen, I see no reason to look for corroboration even though in actual fact it exists, as I am satisfied even though he is an accomplice, his evidence even if it stands on its own, is acceptable to Court and there is no basis or shortcomings in his evidence to look for corroboration.”

  1. In light of the above, this Court finds no merit in this ground and the grounds of appeal as raised by the Appellants.

 

  1. As I have indicated at the beginning of my decision, my brother Fernando raised issues suo sponte in the course of this appeal. I distanced myself from this approach and I now give the reasons. I am aided by a comparative study of other jurisdictions.

  2. The European Commission for Democracy Through Law (The Venice Commission) in an Amicus Curiae Brief for Georgia on this issue reported in Strasbourg on 29 June 2015 in its conclusions that the non-ultra petita rule enjoins the court to review a case within the limits of the questions of law or fact which have been raised by the parties to a dispute. It adds that courts may intervene suo sponte, but “such an intervention must be exercised sparingly and in very specific circumstances, namely, errors of fact or law allegedly made by a lower court should not be addressed unless these infringe fundamental principles.”

  3. It recognised that the American Supreme Court has power to intervene for what it termed “plain error” if the errors are “obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings” (United States v. Atkinson, 297 U.S. 157, 160 (1936).

  4. It added that :

“On the European level, in the Case of Foti and Others v. Italy (1982), in which the applicants did not assert that the criminal proceedings against them were being unduly prolonged, the European Court of Human Rights has held that the international system of protection established by the ECHR functions on the basis of applications either by governments or by individuals alleging violations. This system does not enable the Court to take up a matter irrespective of how it came to know about it, to seize on facts that have not been adduced by the applicant and to examine whether they are compatible with the ECHR.”

  1. In the the case of R v Mian [2014] 2 SCR 689, the Canadian Supreme Court attempted to strike a balance between the competing roles for the appellate court, that of neutral arbiter and of justice-doer. In its unanimous decision overturning the decision of the Court of Appeal of Alberta which had raised a new issue on appeal suo sponte it stated:

“[The courts represent an adversarial system] which relies on the parties to frame the issues on appeal, and reserves the role of neutral arbiter for the courts…” (para 1)…

[the fundamental reason for preserving this system]is to ensure that judicial decision-makers remain independent and impartial and are seen to remain independent and impartial” (para 39).

  1. The Supreme Court of Canada recognised in Mian (following R v Phillips [2003] ABCA 4) that if the court intervenes, in the very limited cases where it is permitted to do so, it must remain unbiased and refrain from “descend[ing] from the bench and becom[ing] a spectre at the accused’s counsel table, placing himself ‘in the impossible position of being both advocate and impartial arbiter’” (Phillips, para 24).

  2. Those very limited cases are set out in the test in Mian, namely, (1) the issue must be a new issue (2) failing to raise a new issue would risk an injustice; and (3) the procedure followed by the court in raising the issue must be fair.

  3. I endorse these sentiments. In civil cases, the courts in Seychelles in this regard, have applied the principles that a court may not formulate a case for a party after listening to the evidence or grant relief not sought in the pleadings, nor may a judge adjudicate on issues that have not been raised in the pleadings. (See Vel v Knowles (1998-1999) SCAR 157; Tex Charlie v Marguerite Francoise Civil Appeal No. 12 of 1994 (unreported), Marie-Claire Lesperance v Jeffrey Larue (Civil Appeal SCA15/2015) [2017] SCCA 46 (07 December 2017)).

  4. In any case, in view of the fact that the issue of importation has been raised from the Bench, I am duty bound to highlight the relevant strands of evidence supporting the finding of the learned trial Judge.

  5. Section 3 of the Misuse of Drugs Act (Cap 133) reads as follows:

“Subject to this Act, a person shall not import or export a controlled drug.”

  1. The term “import” is defined in section 22 of The Interpretation and General Provisions Act as follows:

“‘Import’ means to bring, or cause to be brought, into Seychelles.”

  1. The Court of Appeal in Nedy Micock & Anor v R [2019] SCCA 12 held that, “[t]here are necessarily components to the offence of importation of drugs: first, that there was an importation, secondly that the drugs were controlled by law, thirdly that the person committing the act of importation did so intentionally.” There is no dispute that heroin, which is a Class A drug, qualifies as a controlled drug, nor was there any dispute regarding the drugs having been imported intentionally.

  2. The Court in Nedy Micock & Anor v R [supra] at para [55] held as follows:

“It would suffice therefore that for a substance to be imported that it arrives in Seychelles and is delivered to a point where it will remain in Seychelles. In the present case it was established and not disputed that the substance arrived into Seychelles on board EK707 on 20 March 2015 and remained in Seychelles.”

  1. Similarly, in the present case before the Court, there is no dispute that the drugs arrived in Seychelles by sea and remained in Seychelles. The Government Analyst confirmed that there was a total heroin weight of 746.9 grams, with a purity of 64%. The Defence made no suggestion, nor did they lead any evidence, to indicate that the drugs were sourced locally. In the case of Beehary v Republic [2012] SCCA 1, the court held:

“Nonetheless, once the prosecution has established a prima facie case, as has been done in the present case, the defence runs a serious tactical risk in not calling evidence to rebut it, not because the defendant is called upon to prove his innocence (which would be contrary to the rule in Woolmington’s case) ....... but because the court may exercise its entitlement to accept the uncontroverted prosecution evidence. … and although the prosecution must in all cases prove the guilt of the defendant, there is no rule that the defence cannot be required to bear the burden of proof on individual issues such as whether the drugs could have been planted by the police to foist a false case against the defendant, ....… This does not require the appellant who stood charged with trafficking in drugs to prove his innocence.....”

  1. Similarly, in Australia, section 300.2 of the Criminal Code Act 1995 defines importing as including the bringing of the substance into Australia; and dealing with the substance in connection with its importation. It has been held that this covers arranging importation into Australia as well as physically bringing the drugs in (R v Handlen & Paddison [2010] QCA 371; (2010) 247 FLR 261 at [47]). In Handlen (supra), the Court held, “The act of importing is not something that occurs or ceases in a single moment.”

  2. In the same regard, in the Seychellois case of R v Dubignon (1998) SLR 52, it was held that “Import” must be taken in the broader sense of “bring” or “cause to be brought” by air or sea, and that if the prosecution succeeds in proving a preparatory act was done by the accused or through an agent, the offence of importation can be maintained.

  3. So much for the law. With regard to the evidence of importation, there is sufficient evidence on record to prove that the Appellants engaged in preparatory acts in furtherance of the offence of importation. The collective effort and forward planning required in orchestrating and carrying out an exploit such as the present one is abundantly clear from the evidence adduced during the trial.

  4. The transcript of proceedings (Vol I Pg 147) reveals the following exchange between the 2nd Appellant and former NDEA Investigator Samir Ghislain once the Canapone had been boarded:

“Q: Now can you tell the Court did Mr. Mothe talk to you?

A: Yes I went with Agent Ragain and in the presence of Agent Ragain he asked me if the NDEA can provide him protection…I responded to him asking him why he thinks he needs protection so then he told me that it is true that they were transporting drugs and he told me that he wants to talk but he is afraid of Mr. Francis Ernesta and a guy named Danny that he does not know the surname might kill him. And he said Danny that he does not know the surname was a guy from Les Mamelles…He told me that … I was asked by Francis Ernesta and Danny to come along with them they took the drugs from Indians on the sea in a boat of multicolour… a blue and white speed boat came when we were at sea and Danny was accompanied by 2 other person[s]. Danny went with 2 person[s] [who] [were] on the speed boat and they took all the drugs.”

  1. Witness Ghislain then correctly identified the 1st and 2nd Appellants in the dock.

  2. The above was also reflected in the 2nd Appellant’s Statements made to the police under caution, which were accepted into evidence following a Voir Dire. In respect of statements of an accused person being tendered into evidence, particularly when they have not given sworn evidence in court, the Court must determine whether the statements made to the police are more prejudicial than probative to the accused, in light of his right to a fair trial. Therefore:

“…the question is whether it would be unfair to the accused to use his statement against him … Unfairness, in this sense, is concerned with the accused’s right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement” [Van der Meer v R [1988] 62 ALJR 656 at 666; 82 ALR 10 at 26].

  1. I see no reason to doubt the finding of the trial Judge that the statements were properly obtained and his ruling on their admissibility. This Court notes, as an aside, that it may be worthwhile to adopt the procedure in other jurisdictions, such as Australia, where confessions and admissions must generally be recorded in order to be admissible in court, and unrecorded confessions and admissions would be inadmissible unless the prosecution establishes one of a restricted number of excuses for non-recording. In light of the corroborative evidence, which shall be discussed further below, this Court finds the probative value of the statements to outweigh any prejudice caused to the 2nd Appellant.

  2. The 2nd Appellant’s evidence, though deemed admissible, must still be treated with caution. As stated in Livette Assary v The Republic [2012] SCCA 33:

“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. In spite 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... 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.”

  1. Further, in Volcere v R [2014] SCCA 41, Domah J held that, “Judicial appreciation of evidence is a scientific rationalization of facts in their coherent whole not a forensic dissection of every detail removed from its coherent whole.” There is sufficient corroborative evidence to support the version of events as narrated by the 2nd Appellant, and to render his account reliable and trustworthy. There is evidence to show that the blue and white speed boat, which was sighted by witnesses from the Seychelles Airforce, NDEA and Coast Guard, belonged to the father of Witness Michael Hissen. Michael Hissen gave evidence that he captained the speed boat in question and collected white gunny bags from the fishing vessel. He stated that a ‘rasta man’ boarded his boat from the Canapone. Hissen gave further evidence that the gunny bags were offloaded from his boat at Anse Boudin on Praslin by the same rasta man.

  2. Further corroborative evidence was provided by Donn Zaaiman Dupreez, Operations Officer and Chief Pilot Instructor for the Seychelles Air Force, who stated that on 24th and 25th March 2016, he and his crew tracked a suspicious vessel in bound from the east approximately 200 nautical miles from Mahe (ref Vol 1 Pg 3). He stated that a warship was shadowing the vessel Canapone, namely HMAS Darwin. He testified that the Canapone was deemed to be suspicious on account of the direction from which it was coming, the distance it was from Mahe, it was not flying a flag and it was under sail, which is unusual. Lieutenant Colonel Leslie Benoiton gave evidence that “[t]he 1st location of Canapon[e] was located at 74 nautical miles East of Fregate and by the time Constan[ce] reache[d] Canapon[e] it was in 24 nautical miles.” Commander Tom Esticot from the Coast Guard confirmed that the vessel was intercepted 24 nautical miles outside Fregate Island, which is within the EEZ of Seychelles.

  3. Both the 1st and 2nd Appellants maintained that they had taken the vessel out to sea to test the engine. This is despite the 1st Appellant having informed the NDEA agents aboard the vessel that he needed to test his vessel as it was under repair, and evidence revealing that the Canapone had initially been sighted 200 nautical miles from Mahe, which is a significant distance away from the mainland, particularly for an old vessel with alleged mechanical trouble.

  4. Witness Dupreez gave further evidence that a speedboat closed in on the suspicious vessel from the stern, did a U-turn and came up behind the vessel within a distance of a meter or less than half a meter. The speedboat remained in that position for five minutes then went to Anse Boudin on Praslin, where through thermal imagery technology, “it looked like one person disembarking from the high speed boat being met by a person from the shore.” This was also corroborated by the testimony of Witness Michael Hissen.

  5. Commander Tom Esticot from the Coast Guard corroborated the version of events as narrated by Donn Dupreez. He confirmed the presence of the 1st Appellant on board the suspicious vessel, Canapone, namely Francis Ernesta, whom he was also able to correctly identify in Court. Hans Redegonde, commanding officer in the Coast Guard, also corroborated the account of Donn Dupreez, as did Lieutenant Colonel Leslie Benoiton, Lieutenant Commander Amith Kumar of the Seychelles Air Force and Samir Ghislain, former NDEA Investigator.

  6. Lieutenant Colonel Leslie Benoiton gave the following evidence in examination-in-chief (Vol 1 Pg 110):

“Q: Sir would you mind telling again to the Court who informed you that scarab had reached Anse Boudin?

A: The pilot of the SAF flight.

Q: And did he say anything about passengers on the boat at that moment?

A: Yes they informed us at that moment on the vessel the scarab stopped, the passenger jumped in the water and walked towards the beach. The pilot reported to me that the boat had stopped and someone has jumped in the water and walking towards the beach.”

  1. Lieutenant Commander Amith Kumar stated in evidence the following in reference to the scarab’s movements around Praslin (Vol I pgs 141-142):

“This was the main action initially that fast boat approached the east coast of Praslin, it came very close, turned and somebody jumped from the boat and [went] to the coast. The distance was very close, maybe 5, 6 or 10 meters or even much lesser than that.”

  1. Xavier Pool gave evidence that on 25 March 2016 he had witnessed the gunny bags being unloaded from a blue and white boat by Danny Sultan, the 4th Appellant, and kept on the shore. He recognised the 4th Appellant as he had lived in the area for some time. He correctly identified the 4th Appellant in Court.

  2. Xavier Pool gave further evidence that after Danny left, he and his friend, Ryan, approached the gunny bags, of which there were about ten or so, and found heroin packets inside. He recognised it to be heroin as he was a drug user. He brought a packet home. He stated that the drugs were packed in clear plastic with three number fives on the front. He identified the packets of drugs against the photographs exhibited, and the scarab.

  3. Jeannia Pool, his sister, corroborated his account and gave evidence that the colour of the packet was white and he had three number fives on it in blue. She stated that they sampled the contents and confirmed it to be heroin. Xavier Pool gave further evidence that the next morning, he returned to the beach and saw the 4th Appellant and one Chang Leng taking the gunny bags in a vehicle. Their mother, Delores Mounac, confirmed that Xavier and Jeannia Pool had informed her that they had witnessed the 4th Appellant unloading gunny bags onto the beach.

  4. In light of the totality of the evidence, I do not see any reason to disturb the finding of the trial Judge that it was satisfied beyond reasonable doubt that the admissions made by the 2nd Appellant are true, that the drugs were imported into Seychelles, and that the Appellants had carried out acts preparatory to and in facilitation of this importation.

  5. The appeal is dismissed in its entirety. The convictions are upheld.


 

 

 

M. Twomey (J.A)

I concur:. …………………. F. Robinson (J.A)

 

Signed, dated and delivered at Palais de Justice, Ile du Port on 17 December 2019

 

JUDGMENT

A.Fernando (J.A)

 

The Appeal:

  1. The four Appellants have appealed against their convictions in respect of all four charges preferred against them before the Supreme Court and the sentences imposed thereon.

 

The charges:

  1. The four Appellants had been charged as follows:

 

“Count 1

Statement of Offence

Trafficking in a controlled drug contrary to section 5 read with section 2 and further read with section 26 (1) (a) of the Misuse of Drugs Act (Cap133) as last amended by Act No 3 of 2014, read with section 22(a) of the Penal Code and punishable under section 29(1) read with Second Schedule of the same Misuse of Drugs Act.

Particulars of Offence

Francis Phillip Ernesta of Perseverance, 61 years old, Brian Antoine Mothe of St. Louis, 43 years old and Kevin Gerard Quatre of La Louise and Danny Sultan 43 years old male of Les Mamelles on the 26th March 2016 at Praslin, actually did the act of trafficking in a controlled drug namely a substance in the net total weight of 746.9 grams containing 477.66 grams of Heroin (Diamorphine) by transporting, giving, sending, distributing or delivering or to do or offer to do any act preparatory to or for purposes of selling, giving, transporting, sending, distributing or delivering the said substance in the net total weight of 746.9 grams containing 477.66 grams of heroin (diamorphine).

Count 2

Statement of Offence

Conspiracy to commit the offence of trafficking in a controlled drug contrary to section 28 (a) read with 5 and further read with 26 (1) (a) of the Misuse of Drugs Act (Cap 133) and punishable under section 28 read with section 29 and read with Second Schedule to the Misuse of Drugs Act.

 

Particulars of Offence

Francis Phillip Ernesta of Perseverance, 61 years old, Brian Antoine Mothe of St. Louis, 43 years old and Kevin Gerard Quatre of La Louise, and Danny Sultan, 43 years old male of Les Mamelles on or around the 26th March 2016 agreed with one another to pursue a course of conduct, that if pursued, would necessarily amount to or involve in the commission of an offence, namely the offence of trafficking of a controlled drug namely a substance in the net total weight of 747.9 grams of Heroin (Diamorphine) containing 477.66 grams of Heroin (diamorphine).

Count 3

Statement of Offence

Importation of a controlled drug contrary to Section 3 of the Misuse of Drugs Act (Cap 133) and read with 26 (1) (a) read with section 22 (a) of the Penal Code and punishable under section 29 (1) read with Second Schedule of the Misuse of Drugs Act.

Particulars of Offence

Francis Phillip Ernesta of Perseverance, 61 years old, Brian Antoine Mothe of St. Louis, 43 years old and Kevin Gerard Quatre of La Louise and Danny Sultan, 43 year old male of Les Mamelles on or around the 26th March 2016, in the Seychelles territorial waters actually did the act of importation into Seychelles a controlled drug, namely, a substance in the net total weight of 746.9 grams containing 477.66 grams of Heroin (Diamorphine) [emphasis added].

Count 4

Statement of Offence

Conspiracy to import of a controlled drug contrary to section 28 (1) (a) of Misuse of Drugs Act (Cap 133) read with Section 3 of the Misuse of Drugs Act (Cap 133) and punishable under section 29 (1) read with Second Schedule of the Misuse of Drugs Act.

 

Particulars of Offence

Francis Phillip Ernesta of Perseverance, 61 years old, Brian Antoine Mothe of St. Louis, 43 years old and Kevin Gerard Quatre of La Louise and Danny Sultan, 43 year old male of Les Mamelles on or around the 26th March 2016 agreed with one another to pursue a course of conduct, that if pursued, would necessarily amount to or involve in the commission of an offence, namely importation of a controlled drug in the Seychelles territorial waters, namely, a substance in the net total weight of 746.9 grams containing 477.66 of heroin (diamorphine).”(verbatim but emphasis added by me).

Sentence:

  1. The Appellants had been sentenced as follows:

The 1st and 4th Appellants had been “sentenced to a term of 9 years imprisonment on each of the counts 1 to 4”. It had been ordered that “the terms of 9 years imprisonment on each count run concurrently”.

The 2ndand 3rdAppellants had been “sentenced to a term of 4 years imprisonment on each of the counts 1 to 4”. It had been ordered that “the terms of 4 years imprisonment on each count run concurrently”.

Grounds of appeal:

  1. “1.     The learned Judge erred in law and fact in coming to a finding that all four Appellants were guilty even if he agreed that at the time of arrest no controlled drugs were found on the vessel Canapone being skippered by the 1st Appellant.

2.      The learned Judge was wrong in law and fact in not considering the defence that at the time the said drugs were seized it was not with any of the Appellants nor was it given to the person it was seized from by any of them.

3.      The learned Judge erred in both law and fact in not considering the fact that the dates in the charges, the 1st and 4th Appellant were already in the custody of the NDEA therefore could not have been trafficking on Praslin with the other Appellants.

4.      The learned Judge erred both in law and fact in not considering that no one had identified the 1st Appellant and therefore he could not be present at the scene of the alleged trafficking.

5.      The learned Judge erred both in law and fact in not considering that both Jennia and Xavier Pool said they saw Ryan Accouche (Kayou) with the 4th Appellant, but the said Ryan Accouche stated in court that he was not with the 4th Appellant on that day and he never saw the 4th Appellant on that particular day.

6.      The learned judge erred both in law and fact in not considering that the 4th Appellant was on Mahe at the time of the charge and was nowhere with any of the other Appellants.

7.      The learned Judge erred both in law and fact in not considering that at the time Jennia Pool, Xavier Pool and their mother Delores Mounaque were arrested on the 28th March 2016, when all the said Appellants were in custody, therefore could not have been trafficking in the said drugs on the charge sheet.

8.      The learned Judge erred both in law and fact in coming to a conclusion that the 4 Appellants were trafficking in 746.9g of substance on the 26th March 2016, when the said substance was only seized on the 28th March 2016.

9.      The learned Judge erred both in law and fact in not considering that both Jennia and Xavier Pool did not identify any gunny bags that they saw against any pictures or video.

10.    The learned Judge erred both in law and fact in not considering that both Jennia and Xavier Pool did not see the Appellant together and could not identify all of them as they never saw any of them.

11.    The learned Judge erred both in law and fact in not considering that the said drug was found at the residence of Delories Mounaque and not on the beach.

12.    The learned Judge erred both in law and fact in not considering that the said drugs was not even identified by Michael Hissen who stated in open court that he never saw any heroin on that particular day, hence could not have at any cost identified 746.9g which is on the charge sheet.

13.    The learned Judge erred both in law and fact in not considering that the documents presented by the Seychelles Air Force (Pilot) displayed a number of inconsistencies in the number of documents he admitted making the said documents doubtful to which it could have been manipulated.” (verbatim)

By way of relief, the Appellants have sought:

                 “(a) That the conviction for the 3rd and 4th Appellants be set aside and the 2 accused be acquitted and be released henceforth.

  1. That the conviction and sentence for the 1st and 2nd Appellants be set aside and the 2 accused be acquitted and be released henceforth.” (verbatim)

Prosecution case:

  1. On the 25th of March 2016 the Seychelles Coast Guard and the Air Force on a tip off was monitoring the movements of a suspicious vessel believed to be involved in transhipment of dangerous drugs. Prosecution Witness (hereafter referred to as PW), D. Z. Dupreez, an operations officer for the Seychelles Air force, doing a surveillance flight on the 25th of March 2016, to track down and monitor the suspicious vessel had stated that he had located the vessel ‘Canapone’ heading towards Mahe from a height of 10,000 feet with their sophisticated equipment. He had also seen a high speed boat, aka a scarab coming close to the Canapone, and getting as close to it as less than half a meter. The scarab was near the Canapone for about five minutes and then gone in the direction of Praslin and La Digue. From thermal imagery he had observed the scarab going to Anse Boudin and a person alight from the scarab and meeting someone on land. He had identified the Canapone and the scarab on photographs subsequently taken of the two vessels. PW Lieutenant Commander A. Kumar who was with PW Dupreez on that flight had captured images of the two vessels from cameras and radar from the infra-red sensor, aboard the plane. He had identified the Canapone and the scarab from the photographs shown to him as those detected by them during their surveillance operations. These photographs were from pictures taken by the aircraft equipment.
  2. Officers from the Seychelles Coast Guard PW Major T. Estico, Corporal R. Rigodon, and PW S. Ghislain of the National Drug Enforcement Agency (NDEA) testifying before the Court had stated that the vessel ‘Canapone’ was intercepted and boarded 24 nautical miles from Fregate Island. According Rigodon, on first sighting it, they had called on their PA system for the vessel to stop, but it had not. The 1st and 2nd Appellants were on board the vessel. They had informed Rigodon that they had left Mahe that morning on a trial run. The officers from the NDEA and Coast Guard had searched the vessel and found nothing suspicious except some empty gunny bags. No controlled drugs had been found on the vessel ‘Canapone’.
  3. It is to be noted that the Airforce, Coastguard or NDEA officers had not witnessed the transhipment of the gunny bags from the ‘Canapone’ to the speed boat.
  4. PW Ghislain had arrested the 1st and 2nd Appellants on board the Canapone’. Ghislain had said that when the 1stAppellant was steering the ‘Canapone’ back to Mahe the 1st Appellant had tried to crash the boat onto the reef at Fregate island and the steering wheel had to be wrestled away from him. According to Ghislain, while on the ‘Canapone’ the 2nd Appellant had approached him and told him that they had taken drugs from Indians in a multi-coloured boat and that a blue and white speed boat with two persons on it had come when they were at sea and one of the persons on the ‘Canapone’ had gone with them taking all the drugs with him. Ghislain had recorded a written confession of the 2nd Appellant on the 26th of March 2016 which was produced as P2 and its English translation as P2(a). A second statement of the 2nd Appellant had been recorded later by NDEA Agent E. Payet, which was produced asP3 and its English translation as P3(a).  
  5. PW Xavier Pool testifying before the Court had stated that on the 25th of March 2016 around 6 o’clock in the evening he had been near the church at Anse Boudin, Praslin, with his sister Jeania Pool and mother, when he saw a white and blue boat near the sea shore and two men whom he could not recognize on the boat and the 4th Appellant on the shore. He had known the 4thAppellant for quite some time as he had lived at Anse Boudin for a long time. They used to call him Danny boy. His full name is Danny Sultan. Xavier had pointed out to the 4thAppellant in Court. He had said that he could not recognize the two men “because it was a bit far away.” Later on witness had changed his version and said he was “standing not too far from where the boat was”. The 4thAppellant had been “transporting gunny bags closer to the seaside going towards the upper area near the takamaka trees. He had taken them from the boat.” One of the person’s on the boat was handing over the gunny bags to the 4thAppellant. He had witnessed this for about 15 minutes. The boat had left thereafter while the 4thAppellant stayed behind on the shore. Witness had thereafter gone to meet a friend of his, Jimmy Lesperance. While he was with Jimmy he had met Ryan Accouche. While he was with Jimmy he had seen the 4thAppellant coming from the direction of the “upper house”. Prosecution had not sought to clarify from the witness where the upper house is in relation to where the witness had last seen the 4thAppellant on the beach. Xavier had thereafter gone with Accouche to the place where he saw the gunny bags been unloaded from the boat. He had gone there around 7.30 to 8. He had thought “those were coco de mer”. In answer to the question what he saw on the beach, Xavier had said: “There were about 10 gunny bags on the shore. There was a gunny bag that was open, there were packets inside.” Xavier and Accouche had taken a packet each. Prosecution had not sought to get any description of the place where the gunny bags were, namely whether they were in the open or hidden away amongst rocks, shrubs or some type of a canopy. The packets had been of the size of a sugar or rice packet about 18 centimetres and was of clear plastic and the number 555 written on it. Xavier had then gone to his grandmother’s house. At his grandmother’s house he and his sister had examined the contents of the packet he had picked up from the gunny bag and found that it was heroin. He had known it was heroin because they use it. He had thereafter gone and sold his packet of heroin to a lady, by the name of Miriam Dunienveil, on the following day, namely the 26th of March. Prior to that, he had taken some for himself. On the morning of the 26thhe had gone back to the beach to see whether the gunny bags were still there. At that time he had seen the 4thAppellant with Chang Leng loading the gunny bags into a vehicle. The vehicle had then gone in the direction of Baie Ste. Anne. He had thereafter been arrested by the NDEA on the night of the 27thof March, and remanded for a period of 14 days. Later he had been taken to the Attorney General’s Office on the 5thof April where an agreement was made to remove the charges against him if he told the truth. Later under cross-examination Xavier had repeatedly and continuously denied that that there was no question of the charges being removed and the agreement was merely to speak the truth. This affects his credibility as a witness. His evidence is contrary to section 61A (1) of the Seychelles Code of Criminal Procedure which sets out the purpose of making a conditional offer by the Attorney General.

 

  1. Section 61(A) of the Criminal Procedure Code of Seychelles which deals with conditional offer by Attorney-General reads as follows:

 

“61A.(1)The Attorney-General may, at any time with the view of obtaining the evidence of any person believed to have been directly or indirectly concerned in or privy to an offence, notify an offer to the person to the effect that the person-

 

(a) would be tried for any other offence of which the person appears to have been guilty; or

 (b) would not be tried in connection with the same matter, on condition of the person making a full and true disclosure of the whole of the circumstances within the person’s knowledge relative to such offence and to every other person concerned whether as principal or abettor in the commission of the offence.

 

 (2) Every person accepting an offer notified under this section shall be examined as a witness in the case.

 

 (3) Such person if not on bail may be detained in custody until the termination of the trial.

 

(4) Where an offer has been notified under this section and the person who has accepted the offer has, either by wilfully concealing anything material or by giving false evidence, not complied with the condition of the offer, the person may be tried for the offence in respect of which the offer was so notified or for any other offence of which the person appears to have been guilty in connection with the same matter.

(5) The statement under caution made by a person who has accepted an offer under this section may be given in evidence against the person when the person is tried as stated in subsection (4)”.

 

  1. Charges had been removed from him thereafter. Xavier had identified the boat to the NDEA officers when it was berthed at Eden Island. He had in Court identified the boat in a photograph which was produced to court.

 

  1. PW Jenia Pool, has corroborated the evidence of Xavier about seeing the blue and white boat near the beach with two men on it, the removing of the gunny bags by the 4th Appellant, whom she knew well and taking them towards a takamaka tree on the beach. She also corroborates Xavier’s evidence, about him coming back at night with Ryan Accouche with two white coloured packets and testing them and finding them to contain heroin. The length and width of a packet was about 25 centimetres and had the numbers 555 written on them. Both of them had given her a small amount from the packets. After the 25thof March, she had seen Accouche again only on the 28thof March when he had come home and asked for a plastic bag and a tin, early in the morning. He had thereafter hidden the tin under a pile of santoline behind the house of Jenia Pool. Jenia Pool has not stated as to what Ryan Accouche placed inside the tin.In the afternoon around 4 pm when the NDEA officers came to do a search of their premises she had shown them the tin which was hidden by Ryan Accouche under the pile of santoline behind her house. Both her and her mother had been arrested and later brought down to Mahe. She too had identified the boat she had seen on the 25th of March at Anse Boudin, Praslin berthed at Eden Island. She had admitted under cross-examination that she did not see the packets that Xavier brought with any of the four Appellants or what was inside the gunny bags.

 

  1. PW Michael Hissan, had stated that he was the one who took care of his father’s boat which was an open hull, a ‘scarab’. It was normally moored at Eden Island. The 3rdAppellant, Kevin Quatre was the one who did maintenance of the boat. On the 25th of March 2016 the 3rdAppellant, had called him and suggested that that they do a test run on the boat which was having a heating problem in the engine and had been repaired by the 3rdAppellant. They had to travel for some duration to see whether the engine would start heating up. So, the two of them had met at Eden Island mooring point in the early afternoon after 12 noon. The two of them had decided to go towards Fregate Island where Hissan’s father goes with Hissan fishing. Even before they could reach Fregate the heating problem in the engine developed. The 3rd Appellant had then stopped the engine and had tried to sort out the problem when he got a phone call from one of his friends’ who were at sea and who were encountering problems with their engine. He had then sought Hissan’s permission to go and help them. They had then proceeded towards La Digue when they encountered the boat which was pointed out by the 3rdAppellant. They had gone round to the back of the boat and got about one meter close to it. It had looked like a fishing boat with a bluish colour. When Hissan had pulled alongside of the boat, the crew on that boat had thrown a rope onto Hissan’s boat and a Rasta man had jumped onto his boat. There had been two other people on that boat. Hissan had heard the crew of that boat asking whether to throw over the bags. Hissan had then questioned the 3rd Appellant as to what were these bags and the 3rd Appellant had told him not to be scared and that everything will be OK. About ten bags had then been loaded onto his boat. They were normal white coloured gunny bags and there was nothing distinctive about them. He had not seen what was inside the bags as they were not opened, but seemed to contain something. After that they had departed and navigated towards La Digue island. The time then was around 4 or 5 pm. The 3rdAppellant had then got a call and had requested Hissan to navigate to Praslin. The 3rdAppellant had asked him to go in the direction of Curieuse Island, which was behind Praslin and stopped near a beach. Hissan has said he does not know the name of the beach, but it was close to Raffles hotel. The prosecution has not led any evidence to establish that the place from where Xavier and Jenia claimed to have witnessed the unloading of the gunny bags was in fact close to Raffles hotel. When at the beach the 3rdAppellant and the Rasta had thrown the gunny bags into the water. Thereafter the 3rdAppellant and the Rasta had got of his boat and Hissan had left. It was about sunset and getting a little bit dark. Thereafter Hissan had come to Eden island and moored his boat and gone home. Two days later he had been arrested by the NDEA. Three days after his arrest Hissan had gone to the Attorney General’s office “to sign a deal to give evidence in the case”. The deal was that if he accepts to give evidence he will not be charged or tried with any offence under the Misuse of Drugs Act.

 

Improbabilities and contradictions in the Prosecution Case and total lack of evidence as    regards the Chain of Custody:

 

  1. Before I proceed to examine the defence case I wish to comment about the evidence of Xavier Pool, the protagonist of the Prosecution case, in pointing out, that the probability of the truthfulness of Xavier’s evidence comes into serious question. I state that he is the protagonist, for if not for him the drugs that were seized from behind the house of Jenia Pool cannot be linked to the bags that were allegedly unloaded at the beach in Anse Boudin.  Is it possible that 10 gunny bags, allegedly containing heroin would be left on an open beach after the trouble that had been taken by whoever was involved in the transhipment by off-loading them from a boat in the mid ocean and bringing them ashore? Is it possible that the packets containing heroin, the size of a sugar or rice packet about 18 centimetres and was of clear plastic, were left exposed in a gunny bag for passers-by to pick them up? Is it possible that the said 10 gunny bags, allegedly containing heroin were picked up from the beach only after a span of almost 12 hours and loaded on to a vehicle by the 4th Appellant? The gunny bags according to Xavier had been unloaded around 6 pm and only picked up the following morning.

 

  1.  According to the Prosecution version this was a drug transaction that was been closely monitored by the Seychelles Air force, the Coastguard and the NDEA; commencing from the moment when they were on the lookout for a suspicious vessel, the transhipment in the mid ocean from the ‘Canapone’ to the speed boat, the movements of which were also closely watched, namely by following the route the speed boat took and watching a person alight from the scarab and meeting someone on land at Anse Boudin, Praslin. In fact the evidence of Lt Colonel L. Benoiton had been to the effect that on receipt of the information from the Seychelles Air Force that the speed boat had stopped at a beach in Anse Boudin and a person from the boat had jumped in the water and walked towards the beach “that information had been quickly related to NDEA command”. The Prosecution had not sought to explain why the NDEA or Praslin Police was not alerted or had not turned up to check the gunny bags that were unloaded at the Anse Boudin beach.

 

  1. It is also a strange co-incidence that Xavier Pool happened to see both the unloading of the gunny bags from a boat at 6pm on the 25thof March and the loading of the said gunny bags on to a vehicle the following morning around 7 am. It is noted that Xavier Pool according to his own evidence is a drug user and a trafficker. Jenia Pool, his sister is also a drug user. Can it be believed that Xavier Pool, a person used to drugs and a trafficker picked up a packet from the gunny bags and had to go to Jenia Pool’s house to test what it was? Xavier Pool does not explain why he picked it up in the first instance. Did he think it was sugar or rice and if that be the case why did he bother to test it that night itself? Is it possible that knowing the street value of heroin, that he picked up only one plastic bag from the gunny bag that was open? In my view the version of Xavier Pool is so improbable that no reasonable court should have placed reliance on the entirety of his evidence.

 

  1. The only drugs produced in this case had been recovered behind the house of Jenia Pool is a small quantity of 746.9 grams containing 477.66 grams of heroin and that, three days after the gunny bags were unloaded on the beach. These are the very drugs, which Jenia Pool assumes that Ryan Accouche brought and hid under a pile of santoline on the morning of the 28th of March. Accouche had vehemently denied that he did so. There is certainly no proof that they were drugs from the 10 gunny bags, the ones that were allegedly brought to shore in Hissan’s speed boat, except the evidence of Xavier Pool. Even if one were to place reliance on the evidence of Jenia Pool, that Ryan Accouche came to her house and asked for a tin which was hidden under a pile of santoline, and drugs were found in it by the NDEA, the chain of evidence between the alleged drugs from the gunny bags and the drugs found inside the tin cannot be established. The fact that they were in a plastic packet which had the marking 555 does not suffice to prove that the substance in it which was analysed by the Government Analyst and found to be heroin was the same heroin that was in the gunny bag dropped off at the Anse Boudin beach. There is no evidence where Accouche, who according to the prosecution evidence is a dealer in drugs, kept the drugs after taking them away on the night of the 25th of March until the morning of the 28th of March or whether he placed the same drugs that he picked up from the gunny bag in the tin. This is a fatal to the Prosecution case.

 

  1. In the cases of Josianne Vital V The Republic CR Appeal No. 3 of 1997 and Vincent Allainson Gabriel V The Republic CR SAC 22/09, the appeals were allowed simply because there was a break in the chain of evidence to link the drugs analysed by the Government Analyst to the appellant. Both were cases where the chain of evidence was broken after its seizure from the appellant and while the drugs were in police custody, i.e. the failure of the prosecution to prove that it was the same drugs that were seized by the police from the appellant that were taken to the Government Analyst for purposes of analysis. The facts in this case are much more complicated because here, the drugs that are alleged to have been in the gunny bags, later analysed, and found to be heroin were alleged to have been in the custody of one Ryan Accouche, a dealer in drugs, for three days after he is alleged to have stolen them from the gunny bags. Ryan Accouche did not to testify in Court to state that he stole the drugs, that it was with him from the night of the 25th to the morning of the 27thand that he hid it under a pile of santoline behind Jenia Pool’s house. This Court in the case of Vincent Allainson Gabriel said that the failure to prove the chain of custody “was a fatal irregularity” and went on to state: “Maintaining the chain of evidence…is absolutely vital in dealing with a drug case. Investigators and Prosecutors should consider the severe nature of punishments provided by the Act and thus leave no room for doubt in the mind of the court that there could have been any possibility whatsoever that the substance seized could have been tampered with before it reached the Government Analyst…There must always be a balancing of the two interests, namely the public interest of combating drug related crime and the right of an accused person to a fair trial enshrined and entrenched in the Constitution.” In the case of Valsala V State of Kerala, AIR 1994 SC 117 it was held that when the link evidence relating to the safe custody is missing, the missing link is fatal for the prosecution. Similar views have been expressed in the cases of Prafulla Kumar Prharaj V State of Orissa 78 91994) CLT 366, Balaji Sahu V State, 84 (1997) CLT 357 and Ram Phal V State of Haryana, 1997 (1) SFR 151.

 

  1. The powers of the Court on appeal have been set out in the Court of Appeal Rules 2005, rule 31. Rule 31(1) states: “Appeals to the Court shall be by way of re-hearing and the Court shall have all the powers of the Supreme Court…”  Rule 31(3) states: “The Court may draw inferences of fact…” Rule 31(4) states: “The aforesaid powers may be exercised notwithstanding that the notice of appeal relates only to part of the decision, and such powers may also be exercised in favour of all or any of the respondents or parties, who have not appealed from or complained of the decision.” This goes to show that this Court when hearing an appeal is not restricted to the grounds of appeal raised by an Appellant and I am of the view that to deny an appellant the benefit of a fatal flaw in the prosecution case, merely because his Counsel had failed to raise it as an appeal ground will amount to a grave miscarriage of justice, especially in a criminal case and by the final appellate court. The rule of ‘ultra petita’, which applies in civil cases against granting relief which has not been prayed for in the plaint or petition, in my view should not apply in criminal cases.

 

  1. Hissan’s evidence completely cuts across the evidence of Xavier and Jenia Pool, who implicates the 4th Appellant. According to Hissan there was no one from the beach who came to unload the gunny bags from his boat and it was the 3rd Appellant and the Rasta, who has not been identified, who had thrown the gunny bags from the boat into the water and then gone a shore at Anse Boudin. According to Hissan there were three of them on his boat, namely himself, the 3rd Appellant and the Rasta when the boat came near the Anse Bouden beach, whereas according to both Xavier and Jenia there were only two men. Hissan was alone on the boat when he left the beach, whereas according to Xavier and Jenia there were two of them. Xavier and Jenia Pool have not been questioned by the Prosecution to ascertain whether there was in fact a Rasta in the boat or on the beach when the alleged unloading of the 10 gunny bags took place or the 4th Appellant whom they knew very well was a Rasta. They have not been asked to describe the 4th Appellant.

 

  1. I have no doubt that some gunny bags had been transported from the vessel ‘Canapone’ to the speed boat owned by Hissan’s father, and off loaded in a beach at Praslin. There is however a serious doubt arising from the evidence that the heroin recovered behind the house of Jenia Pool came from the said gunny bags. The only evidence to state that it came from the bags comes from the tall story of Xavier Pool on which a reasonable court should not rely upon due to its improbabilities and material contradictions. The learned Trial Judge had not in his judgment, considered and dealt with the improbability of the version of Xavier Pool and the material contradictions between his evidence and that of Hiissan. An appellate court is generally very slow to interfere with the findings of fact by the Trial Judge, but where the version of the prosecution on which the accused have been convicted is so improbable to be true and there is nothing to indicate that the Trial Judge had in his judgment taken them into consideration and dealt with them, an appellate court cannot ignore it. The fundamental flaw in this case is that the chain of evidence had not been established and the learned Trial Judge’s failure to appreciate it. This, as stated earlier is a fatal flaw in the prosecution case that cannot be cured.

 

  1. In my view there is insufficient evidence so far as the 2nd, 3rd and 4th Appellants; to link them to the drugs that were produced before the Trial Court. It is noted that the 4th Appellant was made an accused in this case by an Amended Indictment filed four months after the original indictment. I am therefore unable to confirm the decision of the learned Trial Judge to convict the 4th Appellant and come to a finding against the 4th Appellant.

 

Defence Case:

 

  1. It is only the 4th Appellant, out of the rest of the appellants, who had testified in this case. He had denied been at Praslin on the 25th and 26th of March 2016 and had stated he was at Les Mamelles on both dates. He had denied that he had on these days conspired with the 1st, 2nd and 3rd Appellants to import drugs into Seychelles. He had said that on the 25th of March around 6 pm he had been at the house of his niece. A. Japhet, the niece of the 4th Appellant had corroborated the evidence of the 4th Appellant that he was at her house on the 25th March around 7.15 pm. J. Adeline had also testified to the fact that he had seen the 4th Appellant at Les Mamelles on the 25th March around 6 pm.

 

  1. Ryan Accouche had denied that he was with Xavier Pool on the 25th of March, that he went to the beach with Xavier Poool and each of them took a packet from a gunny bag that was on the beach, or came back with the drugs to Jenia Pool’s house. He had said  that  he had gone to the NDEA when he heard that they were looking for him, that he was questioned by the NDEA, but that they had not charged him in respect of drugs. This evidence had not been contradicted by the prosecution. There is a serious doubt cast on the prosecution case as to why Accouche was not charged, for according to Jenia Pool, it is the drugs that he is alleged to have brought and hidden under a pile of santoline behind the house of Jenia Pool, that was produced in this case.

 

  1. The learned Trial Judge had simply brushed off the alibi evidence of the 4th Appellant by stating that all the witnesses called by him to establish his alibi were close relatives without seeking to examine that evidence in the light of the improbability and material contradictions in the evidence of Xavier Pool and the evidence of Ryan Accouche.

 

  1. It is clear from the evidence of Hissan that the 3rd Appellant was involved in an illegal transaction at sea which was very well orchestrated. He had enticed Hissan to go to sea on the 25th of March, in the mid ocean near Fregate island after receipt of a telephone call, requested Hissan to steer the boat to help some friends of his who he claimed were in distress, was instrumental in the loading the gunny bags from the boat belonging to the 1st Appellant, had requested Hissan to steer the boat towards La Digue after loading of the gunny bags, then half way on receipt of another call requested Hissan to steer the boat to Anse Boudin and at Anse Boudin unloaded the gunny bags and got off Hissan’s boat. In proving a case of drugs one needs to prove control over the drugs and knowledge, especially when the drugs have not been found in the possession of the accused. In view of the serious doubt as to whether the drugs that were produced before the Trial Court did in fact come from the gunny bags that were unloaded at a beach in Anse Boudin, it is not possible to state with certainty that the 3rd Appellant had control of the drugs. The statement made to Hissan by the 3rd Appellant when he questioned him as to what was in the bags, not to be scared and that everything will be OK, does not suffice by itself to establish that the 3rd Appellant knew what was inside the bags was heroin. It is to be noted that several illegal transaction take place at sea, namely contraband, arms, turtle meat, or Coco der mer as Xavier Pool originally thought they were. Therefore the case against the 3rdAppellant is highly suspicious but does not come up to the level of proof beyond reasonable doubt.
 
  1. The evidence against the 2nd Appellant is having been found on a boat in the mid ocean in the company of the 1st Appellant, and from which boat 10 gunny bags were loaded on to the speed boat belonging to Hissan’s father. The 1st Appellant had confessed to the commission of the offences. Other than the confessional statement of the 1st Appellant, which cannot be made use of against any of the appellants, there is no evidence to establish that the contents in the gunny bags were heroin. The other evidence against the 2nd Appellant is P2, P2 (a), P3 and P3(a) referred to at paragraph 8 above.
  2.  The learned Trial Judge at paragraph 37 of his judgment had said in relation to the written confession made by the 2nd Appellant: “In addition ...the prosecution further produced as P2(a) and (b) and P3(a) and (b) and P10 and P11, the statements under caution of the 2nd accused and the 1st accused respectively. I have already ruled that the statements were voluntarily obtained. I observe that the statement given by 2nd accused Brian Mothe is of very little use to the prosecution...” The admissibility of a confession is dependent on two important determinations made by the Trier of Fact in the trial court. They are voluntariness of the confession and its truthfulness. It is only when the Trier of Fact has been satisfied on both these elements; a confession becomes admissible and can be relied upon to convict an accused. He and he alone can make this determination and all that an appellate court can do is to examine whether the rules pertaining to admissibility have been followed. Truthfulness of a witness can best be measured by watching his/her demeanour which an appellate court would not have the privilege of. An appellate court may only be able to go into the question of the probability or improbability of the version as stated in a confession or the inferences to be drawn from the facts as stated in the confession. In view of the pronouncement made by the Trial Judge that “that the statement given by 2nd accused Brian Mothe is of very little use to the prosecution” and the Trial Judge’s decision not to place any reliance on the oral statement made by the 2nd Appellant to PW Ghislain in his judgment, I am of the view; that we as an appellate court cannot rely on them. I believe that the Trial Judge’s statement that the 2nd Appellant’s statement “is of very little use to the prosecution” stems from the contradictory nature between the written statements made by the 2nd Appellant to Ghislain and E. Payet. In the statement made to Ghislain he refers to 4 white gunny bags containing cannabis and in the statement to E. Payet, 7 white gunny bags containing heroin. I am therefore of the view that the case against the 2nd Appellant may be treated as one of suspicion but does not come up to the level of proof beyond reasonable doubt.
  3. It is noted that the 2nd, 3rd, and 4th Appellants had been convicted of the offences of importation and trafficking on the 26th of March 2016 on the basis of heroin allegedly stolen by Xavier Pool and Ryan Accouche from gunny bags on the beach at Anse Boudin and recovered behind the house of Jenia Pool on the 28th of March. Except the evidence of Xavier Pool there is nothing to connect the packet of heroin recovered behind the house of Jenia Pool to the gunny bags. Ryan Accouche as stated earlier has denied that he stole the heroin packets from any gunny bag.
  4. The Appellants had been charged in count 1for “actually doing on the 26th March 2016 at Praslin the act of trafficking in Heroin (Diamorphine)”, the net total weight of which was 746.9 grams containing 477.66 grams, “by transporting, giving, sending, distributing or delivering or to do or offer to do any act preparatory to or for purposes of selling, giving, transporting, sending, distributing or delivering the said substance”. In count 2 by “agreeing with one another to pursue a course of conduct, that if pursued, would necessarily amount to or involve in the commission of the offence of drug trafficking”. It is my view to traffic in a drug one should have possession or custody or control over it on the date specified in the charge. It is difficult to conceive how the Appellants could be said to have possession, custody or control of a drug that had been stolen from their possession on the 25th of March 2016 and seized behind the house of Jenia Pool on the 28th of March 2016. Certainly, the Appellants were not on the 26th of March 2016, having the heroin in their custody or possession or under their control. Section 5 of the Penal Code defines ‘Possession’ as follows: -

“possession”, be in possession of” or “have in possession” (a) includes not only having in one’s own personal possession, but also knowingly having anything in the actual possession or custody of any other person, or having anything in any place (whether belonging to, or occupied by oneself or not) for the use or benefit of oneself or of any other person; (b) if there are two or more persons and any one or more of them with the knowledge and consent of the rest has or have anything in his or their custody or possession, it shall be deemed and taken to be in the custody or possession of each and all of them;”

  1. I am of the view that the conviction of the 2nd, 3rd, and 4th Appellants in respect of drugs allegedly stolen from the gunny bags and recovered behind the house of Jenia Pool on the 28th of March 2016 and based solely on the evidence of Xavier Pool, was bad in law and was an error on the part of the learned Trial Judge.
  2. The 1st Appellant had made two statements on the 10th of May 2016. They have been admitted as P10 and P11 and their English translations as P10(a) and P 11(a), as having been made voluntarily and after a voire dire. The contents of P10 and P10(a), which is a confession clearly shows that the 1st Appellant was well aware of the contents in the gunny bags. There is no challenge to the confession made by the 1st Appellant in the grounds of appeal on the basis of its voluntariness or truthfulness. The 1st Appellant had stated in his confessional statement that he had been working as a seaman for about 40 years and the vessel ‘Canapone’ is jointly owned by him and another person. The relevant part of his confession as stated at P10(a) is stated below, deleting the names of others who he implicates as being involved in the commission of the offences of which he was charged with. In place of the said names, the letter ‘X’ and ‘Y’ have been inserted.

 

“About two weeks ago (i.e. two weeks prior to the recording of the confession, which was on the 26th of March 2016) in the year 2016 Y told me that there are some drugs to be collected for him and for Andy and Mervyn Onezime (not accused in the case). He gave me a position at sea in the east and he wrote it on a piece of paper. Last Friday 18th March 2016, Y gave me 800 liters of fuel and told me to get ready for the mission. During the time I spoke about the trip to Andy Onezime and Y. When I was at the boat Andy came to the boat and talked to me about the trip to go and collect the drugs. Andy Onezime told me there were drugs to be collected at sea on the given position that Y had already given to me and he said let’s do the work and that we will be happy and we will get our money. Andy then told me that it’s Y who knows all the arrangements regarding the money. It was Friday 25th March 2016 at 0700 hrs, we left Mahe in my boat by the name of Canapone.  On board there was me as skipper, Sire (At the trial the name Sire does not transpire as a reference to one of the Appellants) and another rasta man that I know him as X.  My instruction was to go to the coordinate in the east that was on a piece of paper. The instructions that I had received from Y was that when I reached at the said coordinate is to wait there and that a boat will come and will give us the merchandise meaning the drugs for me to take back to Mahe. Y explained to me that I will be receiving heroin drugs.  Arriving on that position we waited for 5 to 6 hours.  At around 1300 hrs, I saw a boat approaching our boat.  The boat was made up of woods and was painted in different colours and it was a dhav.  On board the boat there were seamen of Indian origin.  When the boat approached us we greeted each other and Indian guys asked me where the cash was and I told them there was no money and that I had not received any cash. They spoke with each other in their own language. And they told me to come onboard their boat and there X also came with me on board the boat. While we were on the boat, those Indian guys removed ten white gunny bags. They put it on the deck and they emptied all the contents of the gunny bag on the deck of the boat. Inside the gunny bags there were packets made of plastics. They then told me that there were 50 kg of heroin. One of the Indian guys spoke in English. There they picked up the plastic packets and they placed it back in the gunny bags. X transferred the gunny bags to my boat together with Sire. I was talking to the owner of the boat and he was talking in English and there he told me to have a nice trip. For the it does not matter and that he will talk to Y. I then boarded my boat along with the drugs and I headed towards Mahe. I want to point out that these transactions took place in the territorial water of Seychelles.  I also wish to point out that when we reached the said position, I called Y to tell him that I was on position. I called him on a satellite phone. During that time X was frequently using the satellite phone to contact Y.  Arriving near Fregate Island on our way back to Mahe, I saw Y coming in a speed boat.  There was a man of Chinese origin who was the skipper of the boat and Y was with him.  The speed boat was blue and white in color and the deck is white and its outside is blue all around and the bottom part is white.  I gave Y the ten gunny bags that contained the heroin drugs. He took the drugs and he told me that we will meet afterwards and that he had already dealt with the money issue and that everything was okay. He then left in the boat. I want to point out that I delivered the drugs to Y at around 1700hrs. There were no conditions on how to get paid. At around 1900hrs I saw the army boat Andromache coming towards the direction of our boat and they told us to slow down. I stopped the boat and the officers boarded our boat. I then noticed that they were military and NDEA officers. They identified themselves and they conducted a search on my boat and they did not find anything illegal. I noticed two military boats. They did other formalities and they came down to Mahe with us. I was skippering the boat to Mahe. Arriving at Mahe I was taken to NDEA station for other formalities.” (verbatim except for the edited words and the underlining)

 

  1. The 1st Appellant’s confession is corroborated by the other evidence led at the trial, namely, that the vessel ‘Canapone’ was approached by a speed boat in the mid ocean after he had called someone on the phone, that at that stage there were three persons on  his vessel Canapone and two persons on the speed boat, that 10 white coloured gunny bags were loaded on to the speed boat, that thereafter a coastguard vessel had approached Canapone, and that Coastguard and NDEA officers had boarded his boat and conducted a search of his vessel and nothing illegal had been found.

 

  1. The question does arise that in the absence of physical evidence that the contents of the 10 gunny bags that were unloaded from the ‘Canpone’ was heroin, can the 1st Appellant be convicted on the basis of his confession alone. As stated earlier the confession has been corroborated by other evidence and there has been no challenge at this appeal to its voluntariness or truthfulness. It has been held in several cases that an accused can be convicted purely based on his confession. In my view, the confession of the 1st Appellant suffices, taken together with the other evidence that corroborates the statements made in the confession. In the case of R V Onufrejczyk [1955] 2 QB 388, it was held the fact of death is also provable by circumstantial evidence, notwithstanding that neither the body nor any trace of the body has been found. In regard to proving death in the absence of body it is stated at Archbold 2012 19-9: “Evidence afforded by the accused himself is sufficient…Before the defendant can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime certain and leave no ground for reasonable doubt. The circumstantial evidence should be so cogent and compelling as to convince a jury that on no rational hypothesis other than murder can the facts become accounted.” Also see Att-Gen’s Reference (No 4 of 1980), 73 Cr. App. R. 40 C.A. In R V Kersey, 1 Cr. App R. 260, CCA that a confession suffices to prove death in the absence of the dead body. In this case in addition to the direct evidence from the 1st Appellant by his confession, the corroborative evidence referred to at paragraph 33 above goes to prove the guilt of the 1st Appellant. According to the confession of the 1st Appellant ‘Y’ had explained to him that he will be receiving heroin drugs. The Indian guys from whose boat the transhipment took place had told him, that the plastic bags he saw inside the gunny bags that were loaded on to his boat contained 50 kg of heroin. The 1st Appellant had stated that he gave Y the ten gunny bags that contained the heroin drugs. This proves possession and knowledge on his part until the gunny bags were loaded on to the speed boat.
  2. According to the confession of the 1st Appellant the transhipment took place in the territorial waters of Seychelles and his role was to go and collect the drugs from a given position at sea, which was within the territorial waters of Seychelles. Count 3 which charged the 1st Appellant with importation referred to at paragraph 2 above states “in the Seychelles territorial waters actually did the act of importation into Seychelles…” (emphasis by me). There is no evidence to indicate that the 1st Appellant was personally involved in bringing in, or had caused the heroin to be brought into Seychelles. According to the Appellant all the transactions had taken place inside the territorial waters of Seychelles. He was merely asked to go and wait at a position at sea within the territorial waters of Seychelles. He had no prior dealings with the boat that was going to bring the heroin. One cannot be convicted of importation when the act by which the person stands charged is alleged to have taken place wholly within the territory of Seychelles. So far as the actual physical act of importation of which the 1st Appellant stands charged is concerned, it was not done partly within and partly beyond the jurisdiction of Seychelles.  According to section 22 of the Interpretation and General Provisions Act, which is applicable to all enactments, ‘import’ means to “bring or cause to be brought into Seychelles”. There is no evidence that the 1st Appellant brought or caused to be brought into Seychelles the said drugs. As stated earlier the 1st Appellant had no prior dealings with the boat that was going to bring the heroin. The position may have been different if the transhipment to take place outside the territorial sea and in the high seas. In all cases of trafficking or being found in possession of heroin or cocaine it is clear that the said drugs have been imported into the country as the said drugs are not manufactured in Seychelles, but the person found trafficking or in possession of the said drugs is only charged for possession or trafficking; unless there is evidence that he was involved in bringing in or had caused to be brought into Seychelles the said drugs. 
  3. Count 4 which charged the 1stAppellant with conspiracy to import referred to at paragraph 2 above states “on or around the 26thof March 2016 agreed with one another to pursue a course of conduct, that if pursued, would necessarily amount to involve in the commission of an offence, namely importation of a controlled drug in the Seychelles territorial waters…” As regards count 4, in view of the provisions of section 7 of the Penal Code the 1st Appellant becomes liable for the offence of conspiracy to import. Section 7 of the Penal Code states:

“When an act which, if wholly done within the jurisdiction of the court, would be an offence against this Code, is done partly within and partly beyond the jurisdiction, every person who within the jurisdiction does or makes any part of such act may be tried and punished under this Code in the same manner as if such act had been done wholly within the jurisdiction.”

The 1st Appellant can be convicted for conspiracy to import, although not for the physical act of importation as stated earlier, as one does not take his boat to the mid ocean to wait to collect merchandise from another boat to bring them back to Mahe, unless he was part of a conspiracy with those who were actually involved in the importation. So far as the offence of conspiracy is concerned it can be said that the conspiracy had been hatched partly within and partly beyond the jurisdiction of Seychelles and the 1st Appellant played a part in it.

  1. It must be stated that this case has been very poorly prosecuted despite all the efforts of the Seychelles Air force and the Coast Guard to track down on import of illegal substances, which has become a serious problem in the Seychelles. The NDEA and the Police have also to take their share of blame for not acting on the information provided to them by Lt. Colonel L. Benoiton as stated at paragraph 15 above. The prosecution had not sought to explain why the NDEA or the Police failed to act on such information. I cannot understand how careless the prosecution had been even in drafting the charges, leaving aside the serious shortcomings in the leading of evidence as referred to earlier. When all evidence had been clearly to the effect that the offences set out in the four charges had been committed on the 25th of March 2016, the charges had set out the date as 26th of March 2016. No attempt had been made to amend the charge at any stage. This Court is not prepared to fill in the shortcomings and gaps of the prosecution. 
  2. In view of what I have stated above, I quash the convictions of the 2nd, 3rdand 4th Appellants in respect of all four charges due to the improbabilities in the prosecution version as given by Xavier Pool, the material contradictions in his evidence and especially the failure to establish the chain of evidence. I therefore acquit them forthwith. I quash the conviction of the 1st Appellant on count three of the charge of importation and acquit him of the said charge. I dismiss the appeal of the 1st Appellant in respect of his conviction on counts one, two and four and affirm his conviction in respect of the said charges. I affirm the sentences imposed on the 1st Appellant in relation to counts one, two and four. 

 

A.Fernando (J.A)           

Signed, dated and delivered at Palais de Justice, Ile du Port on17 December 2019

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