De Giorgio v R ((SCA1/2019) [2020] ) [2020] SCCA 10 (21 August 2020);

Flynote: 
Headnote and Holding: 

Grounds of appeal relating to the conviction of the Appellant dismissed and the convictions upheld.

ORDER

The appeal against conviction on all counts is dismissed. On sentence, the appeal is allowed with regard to count 5. The following sentences are therefore imposed on the Appellant:  

For count 2, a term of 5 years’ imprisonment and a fine of SCR25,000, in default of payment of the fine 6 months’ imprisonment.

For count 3, a term of 8 years’ imprisonment and a fine of SCR25,000, in default of payment of the fine 6 months’ imprisonment.

For count 5, a term of 2 years’ imprisonment and a fine of SCR25,000, in default of payment of fine 6 months’ imprisonment.

The sentences are to run concurrently, but the 6-month terms of imprisonment imposed for each offence for non-payment of fine is to run consecutively. Signed, dated and delivered at Ile du Port on 21 August 2020

JUDGMENT

 

TWOMEY JA

  1. Charges were brought against the Appellant, a Complaints and Communications Manager at the Anti-Corruption Commission of Seychelles (ACCS), as a result of a complaint to the police by former Minister Dolor Ernesta. Mr Ernesta complained that on 28 December 2017, he had received an anonymous letter in which he was advised that he was under investigation for acts of corruption by the ACCS and that if he gave a “little gift” (the details of which would be communicated later) the process of investigation would be delayed. Mr Ernesta claimed that he then received a telephone call on the 11 January 2018 in which a male voice with a Latino accent had spoken to him and had asked him whether he had received a second letter with the details of the “little gift.” Subsequently, he phoned his daughter who confirmed that she had indeed collected the letter; the contents of which were to the effect that US $30,000 were to be transferred by instalment into a bank account to be specified. On 15 January 2018, Mr. Ernesta received yet another phone call from a caller who had the same voice as the first caller and who identified himself as Stephen Rea who asked him whether the ‘deal’ was on or off.
  2. Subsequent to the complaint by Mr. Ernesta, the police arrested the Appellant who was convicted following trial for the following offences:
  1. Count 2 – corruptly soliciting or attempting to obtain gratification for oneself as reward for having done or forborne to do, anything in relation to any matter, actually or proposed, with which a public body is concerned, contrary to section 23 (1) read with section 23 (5) of the Anti-Corruption Act, 2016 (Act 2 of 2016) and punishable under section 44 of the said Act.

 

  1. Count 3 – causing any person to receive any writing with intent to extort or gain anything from any persons and knowing the contents of the writing, demanding anything from the person without reasonable or probable cause, and containing threats of any detriment of any kind to be caused to the person, by another person, if the demand is not complied with, contrary to and punishable under section 284 of the Penal Code (Cap 158).

 

  1. Count 5 – disclosing without the written consent of or on behalf of the Anti-Corruption Commission, otherwise than in the course of that person’s duties, to any unauthorized person, the contents of a document or information, which document or information relates to or has come to the knowledge of the person in the course of that person’s duties under the Anti-Corruption Act contrary to section 14 (1) of the Anti-Corruption Act 2016 (Act 2 of 2016) and punishable under section 14 (2) of the said Act.

 

  1. He was sentenced for count 2 to a term of five years’ imprisonment and a fine of SCR25,000, in default of payment of the fine to a term of six months’ imprisonment.
  2. For count 3, he received a term of eight years’ imprisonment and a fine of SCR25,000, in default of payment of the fine six months’ imprisonment.
  3. For count 5, he was sentenced to a term of five years’ imprisonment and a fine of SCR25,000, in default of payment of the fine to six months’ imprisonment.
  4.  From this decision, the Appellant has now filed the following grounds of appeal:

Against conviction

  1. By convicting the Appellant on the above counts the Judge failed to objectively and impartially analyse the totality of the evidence and erroneously found that the prosecution had proved all the elements of the offences to the required standard of proof beyond reasonable doubt.

 

  1. The Judge erred when he held that there are no other co-existing circumstances which would weaken or destroy the inference before drawing the inference of guilt based on circumstantial evidence.

 

  1. The Judge erred by holding that the prosecution has excluded any alternative possibility that might point to the innocence of the accused when there were such possibilities.

 

  1. The conviction of the Appellant was unreasonable and unjustified on the evidence on counts 2,3 and 5 and 'no impartial and fair minded court would have convicted; as neither the actus reus nor the mens rea of the offences was proved beyond reasonable doubt.

 

  1. The Learned Judge failed to properly analyse and evaluate the evidence of Rudy Vielle, police officer Zialor, Dolor Ernesta, the dates of access logs to the ACCS Vault, the pivotal role of Maureen Young, the testimony of forensic expert, and report of the expert on the authorship of the blackmail letters. Had the judge done so, objectively and impartially he would have concluded that the facts are far too tenuous against the Appellant to convict him as there was sufficient evidence to cast serious doubts on the prosecution case.

 

  1. The judge failed to consider or adequately consider all the points raised in the closing submissions on behalf of the Appellant on pages 802 to 830 of the Brief, ALL based on the evidence in the case.

 

Against sentence

 

  1. The Appellant was sentenced to three terms of imprisonment 8 years on count 2, 5 years on count 3 and 5 years on count 5 a total of 8 years’ imprisonment to run concurrently and another 18 months in default, if fines imposed not paid. The Appellant would serve 8 years as the sentences run concurrently, plus deduction of time spent on remand, without remission, and this rendered the sentences harsh, oppressive and manifestly excessive.

 

  1. In considering the sentence to be meted out to the Appellant, the court relied on sentencing principles that predates the Constitution and the 'classic principles of deterrence, prevention, rehabilitation" and retribution" and failed to consider the constituent elements of a fair trial under article19 (1) which right includes a right to be given a fair and proportionate sentence.

 

In paragraph 2 (p. 874 of the brief) the court erroneously holds that "A person convicted of offences set out in Counts 2 and 5 under the Anti-Corruption Act 2016 (Act 2 of 2016) is liable to a fine of SCR 300,000.00 or to imprisonment for a term not exceeding 7 years or to both such fine and imprisonment." A sentence of 5 years’ imprisonment on count 5 is illegal as the maximum permissible sentence for a conviction under count 2 is TWO YEARS. A fair and impartial court could not have committed such an error of law.

 

  1. At the appeal hearing, Counsel for the Appellant largely relied on the written submissions contained in her heads of argument. The grounds of appeal on the same issues are grouped together and considered below.

Grounds 1, 2, 3, 4 - Burden and Standard of Proof

  1. In her skeletons heads of argument and in her submissions to the Court, Counsel for the Appellant has stated that not only had the prosecution failed to prove all the elements of the offences beyond reasonable doubt, with which the Appellant was charged in the court a quo, but that the court had failed to consider alternative possibilities which would have exonerated the Appellant.  
  2. The alternative possibilities suggested by the Defence consisted of inferences that other employees of the ACCS were the perpetrators of the offences. In other words, the Defence claimed that the Appellant had been framed by other employees of the ACCS who had got away with the crimes.
  3. It is trite that in criminal cases, the burden of proof is on the prosecution to prove the guilt of the accused person beyond reasonable doubt. The burden must be discharged in respect of every issue and every element of the offence (R v Osman ([2011) SLR 344). That golden thread – the presumption of innocence - as expressed in Woolmington v. DPP [1935] 1 AC 462 is seldom cut, and if it is, as in instances of reverse burdens, the cut must not be deep. Reverse burdens as exceptions to the golden thread rule, are normally provided in statute although occasionally certain defences in common law also raise a reverse burden (e.g. the defence of insanity). In such cases once the excuse or exception has been properly raised by the Defence, the burden lies on the Prosecution to negative the existence of that excuse or exception.
  4. In this regard, the three counts with which the Appellant has been charged with and the offences under the Anti-Corruption Act 2016 generally, all involve language (“without reasonable or probable cause”, “otherwise than in the course of that person’s duties) suggesting a reverse burden and the necessity for the accused person to provide evidence of a reasonable excuse for the acts complained of. It would appear that in the present case, the Defence has chosen the “excuse” of frame-up as a type of ‘reasonable excuse” defence. This necessitates a consideration of the legal and evidential burdens of the Prosecution and the Defence. 
  5. With regard to these burdens and specifically the evidentiary burden, Lord Hope in R v DPP; Ex parte Kebilene [2000] 2 AC 326, 378-379 explained:

 “…An ‘evidential’ burden requires only that the accused must adduce sufficient evidence to raise an issue before it has to be determined as one of the facts in the case. The prosecution does not need to lead any evidence about it, so the accused needs to do this if he wishes to put the point in issue. But if it is put in issue, the burden of proof remains with the prosecution. The accused need only raise a reasonable doubt about his guilt.”

 

  1. In such circumstances therefore, the only evidential onus on the Defence is merely to show a prima facie case of the issues he raises.
  2. In Beehary v R (2012) SLR 71, in a case of possession and trafficking of controlled drugs where the Appellant in rebutting the presumption of trafficking as the drugs were found in his house, raised a defence of the “planting” of the drugs, the Court of Appeal explained the standard of proof in such circumstances. It stated:

 The recent cases of Lambert [2002] 2 AC 545, Johnstone [2003] 1 WLR 1736 and Sheldrake [2005] 1 AC 264 decided in relation to English legislation incompatible with article 6 of the Human Rights Convention (which contains a near identical provision to our article 19), point to the now accepted view that although legislation may impose a burden of proof on the accused where there is incompatibility with article 6 of the Convention (in our case, article 19 of the Constitution), the proper balance would be achieved by reading down the provisions as imposing an evidential burden only. Hence, to succeed in a defence of “planting” the accused must adduce some evidence that the drugs were planted but he does not have the duty of proving it…. The prosecution must prove that the accused’s assertion of the “planting” is ill-founded, and prove it beyond reasonable doubt. A court cannot magnify the weakness of an accused’s defence and overlook the failure of the prosecution to discharge its onus of proof…”

 

  1. With regard to the standard of ‘beyond reasonable doubt’ imposed on the Prosecution it cannot be underscored that this is to a standard of certainty rather than likelihood. However, this means virtual or practical certainty rather than absolute certainty (see Goncalves v R [1997] 99 A Crim R 193 at 2.17C), for there can rarely be absolute certainty about anything in life.
  2. It is with this legal backdrop in mind that this court reviews the approach of the trial judge to the evidence as raised by the Appellant in his first four grounds of appeal.
  3. The evidence that served as the basis for the Appellant’s conviction on the charges centred predominately on circumstantial evidence. Where a case depends exclusively on circumstantial evidence, the prosecution has to exclude any alternative possibility that might point to the innocence of the accused (R v Emmanuel [2006] SLR 52). Moreover, a guilty verdict can be reached only where the inculpatory facts are incompatible with the innocence of the accused, and cannot be explained by any other reasonable hypothesis than that of guilt; the court must also be sure that there are no other circumstances weakening or destroying the inference of guilt (R v Payet (2009) SLR 148).
  4. The Appellant denied having written, or caused to be written, any letters to the complainant, Dolor Ernesta and having telephoned the complainant in regard to the same. He adopted a scatter gun approach in this regard, blaming several other people in his organisation and elsewhere for the offences: Maureen Young, Nathalie Marie, David Belle, Desire Laurence.
  5. When determining the credibility of his evidence, it must be borne in mind that in the context of the present case, the Defence’s burden of proof will be discharged if there is a reasonable possibility that his evidence should be preferred to another person’s (Lai-Lam v R (2004-2005) SCAR 279).
  6. The trial judge did consider the possibility that the Appellant was framed, as alleged in his defence, but found that this was not in the least probable on the basis of the totality of evidence led at the trial. In this context, the Prosecution’s evidential burden does not mean proof beyond a shadow of a doubt; the standard is met if the evidence is so strong against a person as to leave only a remote possibility in the accused’s favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable’ (R v Anna [2007] SLR 170).
  7. Discrepancies and contradictions between the Appellant’s account and that of the Prosecution witnesses made it more likely than not that he was being dishonest, though his answers were detailed and, on the surface, entirely plausible, albeit improbable. He maintained throughout his lengthy testimony that he operated solely within the scope of his mandate as a Complaints officer, which was to receive complaints and to refer any relevant ones on to the investigating officers, who would take them further. He was adamant that he had nothing to do with the cases once they were referred on, and that he was not privy to the investigation details of the case pertaining to the complainant.
  8. However, this is contradicted by the evidence of the Prosecution witnesses, who maintained that the Appellant was aware of the details of the case and that he had shown a keen interest therein.

The Appellant’s lingering interest in the case

  1. The Appellant explained the nature of his job as follows at page 635 of the court bundle, vol III:

“…my job was to manage the unit if there was someone to manage back then. To draft up the procedure for complaints and to take complaints. Besides taking complaints my other role was to a[ss]ess, I was like a filter system before any case goes to the investigation, it comes to complaints first, I assess it. I usually take ten to fourteen days to assess it. What I am assessing is to see if the complaint is related to corruption. If it has anything to do with our Anti-Corruption Act, for example if ... I see that …there is any type of evidence that proves that it could lead to corruption, I sign it off, I stamp it and I send it off to the investigation. Once it is sent to the investigation, I am not aware of what happens after that.”

 

  1. The Appellant further maintained in his testimony that his role, while deputising for the CEO during the raid at the Land Registry:

 “would be to conduct the raid and lead the team …coordinate the logistics meaning the time we arrived, the transportation, the food, liaising with the management of the Registrar, … deal with the press if and when they show[ed] up…”

 

  1. When questioned as to whether he was aware that the ACCS or any other agency was investigating the complainant, he replied at page 674 of the court bundle, vol III:

“I would not even know what my own agency is investigating. So, I do not know if there is any other agency investigating this man …because I am not investigations. Only the department of investigations ACCS would know what they are investigating, what they are looking for and what relation.”

 

  1. However, the note (exhibit P27) found on the Appellant’s desk detailing parcels of land belonging to the complainant, the files on which were specified to be ‘missing from vault’, indicates his lingering interest in the case against the complainant. The CEO confirmed that the relevant files were kept in her office, not in the vault, and that she and Maureen Young had decided which files were to be separated from the rest (page 308 court bundle, vol II). Moreover, evidence adduced showing that the Appellant photographed a document at the land registry containing names and properties registered by the complainant. The same was later found on a pen drive in his possession.
  2. The fact therefore remains that the Appellant knew more about the development of the case than he cared to admit during his testimony in court.

The Appellant’s mission to the airport on 15 January 2018

  1. The Appellant in his lengthy testimony detailed his scrupulous approach to his work, his dedication to his job, his insistence of following the rules, always diligently filling out the office log, staying late after working hours, and never straying from his mandate. He then gave an account of having received an anonymous phone call from a lady who wanted to meet with him on the date in question at the airport prior to her flight to give a complaint about someone allegedly within the Anti-Corruption Commission. According to him she gave him her phone number and details of what she would be wearing, and a time to meet was arranged.
  2. This account as to why he was at the airport on the material date and time is at odds with his previous narrative: he stated that his ‘journalistic curiosity’ prompted him to leave the office without advising anyone of the anonymous caller. He did not inform the CEO of the subject-matter of the call either prior to, or subsequent to, his trip to the airport. Moreover, he left behind the piece of paper with the lady’s phone number on his desk before leaving the office, and he failed to mark his work-related absence in the office log. These details are at odds with his earlier depiction of himself as a meticulous employee, particularly one with self-professed obsessive-compulsive tendencies.
  3. The CEO of ACCS confirmed that the Appellant never informed her about any official business at the airport on 15 January 2018, and the same was admitted by the Appellant. The CEO further stated that the Appellant did not inform her of his mission to the airport subsequent to that date (page 341 court bundle, vol II). This is despite the Appellant’s account that he had brought a similar scenario to the CEO’s attention previously, where a complaint had been made to the Appellant by a gentleman who preferred to remain anonymous outside of the ACCS office; the complaint was also against an ACCS officer.  It is also despite the fact that the alleged female complainant, who prompted his trip to the airport, had telephoned him twice before (on 1 January 2018 and again a few days prior to their scheduled meeting at the airport) to flag a possible complaint of a sensitive nature, and the same was never brought to the CEO’s attention.
  4. The Appellant stated the following in regard to his failure of seeking direction from the CEO before succumbing to his ‘journalistic curiosity’ and going to the airport on a work-related mission (at page 678 court bundle, vol III):

“…I was going to [inform] my CEO because every time I tried to go out to take a complaint out [of] office I always try to let her know or consult with her. If there is something I am not 100% sure about I consult with my CEO and usually she always guides me and [advises] me the right way. Now, I cannot recall, she was either out of office or she was in a meeting, but I could not reach her that day. I cannot recall the date. So, I waited for 1 o’clock, she did not come back yet, it was already 1:15pm, I was going to run late, I left.”

 

  1. Phania Dorasamy, an independent eye witness, detailed her account of the Appellant making a call using her telephone from the Cable and Wireless kiosk at the airport, where she worked, on a date unknown in January 2018, in the afternoon. This evidence is corroborated by the footage of him at the airport on 15 January 2018, at the same time the incriminating phone call was proven to be made from the Cable and Wireless kiosk number to the complainant, Dolor Ernesta. She stated that she recognized the Appellant as she knew who he was.
  2. Initially, Counsel for the Defence challenged the Prosecution witnesses that the Appellant was at the airport at all on the said date, but the Appellant later accepted that he was and that he was featured in the video footage from the airport cameras. He also accepted that he knew Phania, but denied having interacted with her on the date in question, or that he had used her telephone at the kiosk. During cross-examination, the Appellant’s attorney did not put any suggestion to the witness that the Appellant did not interact with her at all; instead she suggested to Phania that the Appellant had made other requests from her, including inquiries about purchasing a SIM card.
  3. Video footage of the Appellant walking through the airport terminal around the time a phone call was made to the complainant from the Cable and Wireless kiosk number was put to Phania. At page 221 of the court bundle (vol I), the following evidence was given during her testimony:

Q: Now, do you recognize this person Madam?

A: Yes.

Q: Can you tell us?

A: It is Mr Abison.

Q: …can you tell us which direction he was going?

A: Yes, it is direction of my booth but there is no other place to go apart the bench, sitting on the bench. There are only 2 booths there, Airtel and mine.

 

  1. While the above is not on its own compelling to prove guilt, it does, however, place the Appellant at the airport at the time an incriminating phone call was made to the complainant.
  2. In Antoine v The Republic (1978 -1982) SCAR 459, the accused had in in his statement and evidence denied any participation in the murder, but the strength of the prosecution case lay in the combination of the fact that he was found on the deceased's yacht drifting on the open sea; his statement and evidence put him at the scene when the deceased was attacked in circumstances from which the jury could properly infer his participation in the murder.
  3. These strands of evidence were all referred to by the trial judge together with a consideration of the burden and standard of proof in the particular circumstances of the case. I am therefore not of the view that the trial judge did not objectively and impartially consider all the relevant elements of the offence and the alternative possibilities pointing to the innocence of Appellant and proceed to dismiss these grounds of appeal.

Ground 5 -The evidence of Maureen Young, Rudy Vielle, Police Officer Zialor, Dolor Ernesta, the dates of access logs to the ACCS Vault, the testimony and report of the forensic expert

  1. Counsel for the Defence has submitted that if the evidence above mentioned had been examined objectively and impartially by the trial court it would have concluded that the evidence was far too tenuous against the Appellant to convict him as there was sufficient evidence to cast serious doubts on the prosecution case.

 Maureen Young

  1. The Appellant tried hard to cast suspicion on his co-workers at the Anti-Corruption Commission, particularly one Maureen Young. During her testimony, Ms Young’s responses were brief, and her English vocabulary simple. Having checked the audio recordings of the trial it appears that she answered in Creole.
  2. Her vocabulary is clearly at odds with the articulate hand-written letters sent to the complainant, which used higher-order phraseology than this witness did in her testimony and written statement to the police. The turn of phrase ‘a friend in need is a friend indeed’ is perhaps more suited to someone with a flair for writing, such as a former journalist. Though this observation was not raised by the Prosecution in response to the Appellant’s suggestion that Maureen Young is the culprit, it is one additional factor that makes her an unlikely contender for the role of extortionist.
  3. Ms. Young denied having posted any letter on 22 December 2017. May De Silva, the CEO of the ACCS, confirmed, in reference to exhibit P23, that the first blackmail letter was posted from the Seychelles post office on 22 December, and that the Appellant was out of the office on frequent short bursts on the said date.
  4. The CEO gave further evidence that on 15 January 2018, the date one of the phone calls was made to the complainant, Ms Young had logged her absence from the Occurrence Book from 1420 hours to 1530 hours, marking herself as going to State Law. There was no other absence logged by Maureen on that date in the said records. Conversely, no absence was marked at all on the same date by the Appellant, despite him maintaining that he was going to the airport to meet with a potential client.
  5. The learned Trial Judge found it relevant that the Appellant had contact with the case file on the complainant at the ACCS on several instances, including having the keys to the vault where they were kept, having access to the room where the files were left unattended for the duration of his meeting with a client, and having sight of documents during the raid at the Land Registry. Furthermore, land title numbers were found written on a note on his desk, which files were specified to be missing from the vault. The CEO gave evidence that the files pertaining to these parcel numbers were in relation to the complainant, and they were stored in her office, not the vault. The CEO confirmed in her evidence that the Appellant was aware of the decision to freeze the complainant’s bank accounts, but she later decided with Maureen Young alone not to do so. The decision not to go ahead with the freezing was not known to the Appellant.
  6. It is not in dispute by either of the parties that the documents attached to the incriminating letters originated from the ACCS. Maureen Young gave evidence that the Appellant had access to the documents on her computer because they shared a folder.  Her preliminary report of the investigation relating to Mr. Ernesta was in that same folder. In January, she realised that the Appellant also had access to her email account, since he replied to one of her emails without her knowledge or consent, so she requested that Paul Savy, the IT Manager, change her password. This account is corroborated by the evidence of the CEO of ACCS and Paul Savy. She further stated that she had left the files pertaining to Mr. Ernesta’s case in the interview room on one day, and that the Appellant was left in the room with the files at some stage while he was meeting with someone to take a complaint.  Furthermore, Ms. Young, who had carriage of the investigation on Mr. Ernesta along with the CEO herself, gave evidence that the Appellant had borrowed a pen drive from her and failed to return it. The pen drive had information pertaining to the active investigation against Mr. Ernesta. However, when the same pen drive was later recovered, the contents thereon seem to have been deleted.

Rudy Vielle

  1. The relevance of Rudy Vielle’s evidence in exonerating the Appellant is not clear to the court. Mr. Vielle testified that he had accompanied the Appellant to a meeting in which the Appellant was to make a presentation on 9 January 2018. The presentation was on a pen drive belonging to the Appellant. After the presentation he had gone home and realised that the Appellant’s pen drive was still in his laptop. He had not had the chance to return it to Appellant when the police called to his house to retrieve it on 9 February 2018 He confirmed that the preliminary report prepared by Maureen Young was not on the pen drive and that he had not deleted it.
  2. It is Defence Counsel’s submission that the deletion must have therefore happened before the 9 January 2018 and as this was not done by the Appellant it indicates that the relevant documents (which had been placed on the pen drive by Ms Young) received by Mr Ernesta on 28 December 2017 had been sent by someone other than the Appellant. This reasoning is contrived and implausible and does not exclude the possibility that the Appellant had deleted existing folders on pen drive before using in for his presentation on the 9 January 2018 or had accessed the report on Maureen Young’s computer prior to 27 December 2018 as he had access to her computer as her manager.

Police Officer Bill Zialor

  1. It is also the Defence’s contention that the trial judge did not impartially analyse the testimony of Police Officer Zialor. Again the court has difficulty following Counsel’s submissions on that point. Mr. Zialor stated that the connection between the Appellant and Mr. Ernesta was proven by the fact that the Appellant had photographed a document (P7) on the Land Registrar’s desk and sent it to Mr. Ernesta. These same documents (P 30) were on one of the five pen drives he had seized from the Appellant’s house. Counsel submitted that the pen drive was clean. It appears that Counsel is confusing that pen drive with the one retrieved from Rudy Vielle.

Mr. Ernesta’s evidence

  1. Again, Defence Counsel submits that Mr. Ernesta’s evidence ought to have been considered unreliable. I disagree. It must be noted that the Appellant served the letter of restriction of Mr. Ernesta’s properties on him at his office and spoke to him. It was also not disputed that by the time the Appellant met with Mr. Ernesta, he had knowledge of his work address, and had in his possession his telephone number as well.
  2. The extortion letters and phone calls to Mr. Ernesta were made subsequently to this meeting; Mr. Ernesta described the voice as male, “sounded foreign”, with “more of a Latino accent” (page 154 court bundle, vol I). Furthermore, when Mr. Ernesta asked the caller if they could meet up, the caller replied, “we can meet up but you have to promise me that you will not reveal my identity”, which is indicative, though not determinative, that the caller was someone whom he would recognise (page 125 court bundle, vol I).
  3. Mr. Ernesta gave evidence that the person who called him on both occasions was one and the same as the person who came to his office to serve the notice. He stated as follows at page 161 of the court bundle (vol I):

A: My Lord, I stated, that the caller speaking English with the Latino voice is the same caller who came to my office to deliver the notices on the 13th of October. It is the same voice that phone[d] me thereafter.

Q: It is the same voice that refers to th[ese] letters?

A: Yes.

  1. In order to prove that he could not have a Latnio accent, the Appellant was asked to speak Maltese by his Counsel in court and did so after explaining that Maltese is Arabic based and therefore has no Latin connections. This is patently untrue. The court takes judicial knowledge of the fact that Maltese is descended from Siculo-Arabic with Sicilian and Italian influences. It is also a fact that over 65% of the Maltese population speak Italian.

Access to the Office vault

  1. The Appellant denied having access to the exhibit room in the vault (pages 647-648 court bundle, vol III). However, the personal assistant to the CEO of ACCS, namely Lucy Domingue, gave evidence that, to her knowledge, the Appellant had, at the material time, all the spare keys for all the offices, including the spare key to the exhibit room in the vault.  Her account is corroborated by that of the CEO, who gave the following evidence in this regard at page 289 of the court bundle, vol II:

“At some point we changed the locks of the whole building, because once we had moved in July, we had received some keys from the landlord and some didn’t have duplicates so we thought the best thing to do was to get all the keys changed. Now, the accused because he was deputizing and also in charge of the security aspects, he oversaw the person who came in to change all the locks and [the] exhibits room key was kept in the first section of the vault in the second drawer of the investigations locker. So that’s where the spare key was. Now, while the exhibits room door also the lock had been changed and the accused had all the spare sets with him because it was all the office doors and he hadn’t gone through them to sort them out and I believe that at some point in January he had sorted them out the labels and handed them over to Lucy, the PA, because by then he had labelled them. But they were in his possession for a few months before.”

 

  1. Furthermore, Paul Savy, the IT Manager at ACCS, gave evidence that on 31 January 2018 the Appellant accessed the vault without noting this in the relevant log. In this respect, the Appellant in his testimony admitted that security cameras would not capture what transpired inside the vault.

Handwriting expert

  1. Counsel for the Appellant also put it to him that one of his obsessions, by virtue of him having self-diagnosed himself with Obsessive Compulsive Disorder, is writing everything in his own hand. This is a strange piece of evidence to put before the Court, in light of the fact that the extortion letters were hand-written and not typed. It is particularly at odds with the accused/appellant’s explanation as to why he photographed a document at the land registry containing names and properties registered by the complainant, instead of writing the details down.
  2. The extortion letters sent to the complainant were considered by a handwriting expert. The expert concluded that both letters were executed by the same person, but appeared to indicate conscious writing, which confirmed proof of disguise. This finding does not exclude the possibility that the letter emanated from the Appellant.
  3. Having scrutinised the decision of the learned trial judge in respect of my examination of the matters raised by Defence Counsel in these grounds of appeal, I cannot find fault with his finding that the Appellant could not be believed in the light of the Prosecution witnesses corroborating each other on the material elements of the offences. This ground of appeal is therefore also dismissed.

Ground 6- failing to consider or adequately consider all the points raised in the closing submissions on behalf of the Appellant based on all the evidence in the case.

  1. Defence counsel submitted extensive closing submissions in writing. These consisted mostly of a reiteration of the evidence which she chose to highlight to bolster the Defence case. Much of these submissions are reproduced in the skeletons heads of argument submitted to this Court and have been addressed above.
  2. There is no indication that the trial Judge’s findings of credibility of the witnesses were perverse. It is my view that this ground of appeal and all the grounds of appeal relating to the conviction of the Appellant should be dismissed and the convictions upheld.

Ground 7,8,9 on sentence

  1. As already stated the Appellant was sentenced as follows:

For count 2, a term of 5 years’ imprisonment and a fine of SCR25,000, in default of payment of the fine 6 months’ imprisonment.

For count 3, a term of 8 years’ imprisonment and a fine of SCR25,000, in default of payment of the fine 6 months’ imprisonment.

For count 5, a term of 5 years’ imprisonment and a fine of SCR25,000, in default of payment of fine 6 months’ imprisonment.

 

  1. The sentences were made to run concurrently, but the 6-month terms of imprisonment imposed for each offence for non-payment of fine was to run consecutively. Therefore, should the Appellant fail to pay the SR75,000 fine, he would have to serve a total term of 18 months’ imprisonment, which would run consecutively to his 8-year concurrent prison sentence specified above.
  2. For count 2, the Appellant was liable to a fine of SCR300,000 or to imprisonment for a term not exceeding 7 years or to both such fine and imprisonment. Furthermore, a person on conviction of an offence under section 284 of the Penal Code as set out in Count 3 is liable to a term of 18 years’ imprisonment. Therefore, it cannot be said that this sentence was ‘harsh’, as alleged. In any event, the contention that a sentence is harsh is not a ground of appeal; it is an area in which the trial judge reigns supreme (Florine v R (2008-2009) SCAR 79). The sentences imposed are fair and reasonable in light of the serious aggravating factors in this case, including that the Appellant abused his position of authority in the Anti-Corruption Commission to engage in corrupt practices. He has also shown no remorse for his actions.
  3. With respect to count 5 the Appellant was liable to a fine of SCR200,000 or to imprisonment for a period not exceeding 2 years, or to both such fine and imprisonment.
  4. Sentencing is a matter of discretion for the trial judge; an appellate court will not interfere unless the trial judge’s decision was wrong in principle or took into account irrelevant considerations (Banane v R (1998-1999) SCAR 237). As the trial judge was wrong to impose a term of imprisonment exceeding that prescribed by the statutory provision this ground of appeal succeeds. I substitute a term of imprisonment of one year but maintain the fine of SCR 25,000 and in default of payment of the fine a term of 6 months’ imprisonment.
  5. In the circumstances, the grounds of appeal on sentence partly succeeds. I therefore substitute the following order for that part of the orders by the trial judge:

In respect of count 5, a term of 2 years’ imprisonment and a fine of SCR25,000, in default of payment of the fine, 6 months’ imprisonment.

 

  1. For the avoidance of doubt the sentences handed down to the Appellant are as follows:

For count 2, a term of 5 years’ imprisonment and a fine of SCR25,000, in default of payment of the fine 6 months’ imprisonment.

For count 3, a term of 8 years’ imprisonment and a fine of SCR25,000, in default of payment of the fine 6 months’ imprisonment.

For count 5, a term of 2 years’ imprisonment and a fine of SCR25,000, in default of payment of fine 6 months’ imprisonment.

The sentences are to run concurrently, but the 6-month terms of imprisonment imposed for each offence for non-payment of fine is to run consecutively. Signed, dated and delivered at Ile du Port on 21 August 2020

 

Twomey JA

                                                  

I concur                                               Robinson JA

I concur                                               Tibatemwa- Ekirikubinza