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R v Aden & Ors [judgment] (CO 75 of 2010)  SCSC 100 (28 February 2011);
REPUBLIC v ADEN
(2011) SLR 30
M Mulkerrins for the Republic
N Gabriel for the accused
Judgment delivered on 28 February 2011 by
GASWAGA J: The ten accused persons stand charged on two counts.
Statement of offence
Piracy, contrary to section 65 of the Penal Code read with section 23 of the Penal Code and punishable under section 65 of the Penal Code.
Particulars of Offence
Nur Mohamed Aden (Al), All Mohamed All (A2), Abdi Ahmed Farah (A3), FarhanYousuf All (A4), Jamal Mohamed All (A5), Bashir KhalifHashi (A6) also known as 'Atomic', Mohamed Ahmed All (A7) also known as ‘Lugadeere', Abdullahi Mohamed Hassan (A8), Abdifatah Ahmed Hassan (A9) and Abdi Rizak Mohamed All (A10) between the 15th November, 2010 and the 20th November, 2010 on the high seas with common intention, committed an illegal act of violence or detention or an act of depredation committed for private ends against persons on board another ship namely the Faith by unlawfully taking control of the ship whilst armed with firearms.
Statement of Offence
Piracy contrary to section 65 of the Penal Code read with section 23 of the Penal Code and punishable under section 65 of the Penal Code.
Particulars of Offence
Nur Mohamed Aden (Al), Ali Mohamed Ali (A2), Abdi Ahmed Farah (A3), Farhan Yousuf All (A4), Jamal Mohamed All (A5), Bashir Khalif Hashi (A6) also known as 'Atomic', Mohamed Ahmed Ali (A7) also known as ‘Lugadeere', Abdullahi Mohamed Hassan (A8), Abdifatah Ahmed Hassan (A9) and Abdi Rizak Mohamed Ali (A10) between the 15 November, 2010 and the 21 November, 2010 on the high seas with common intention, committed an illegal act of violence committed for private ends against persons on board another ship namely the crew of the Faith by unlawfully discharging a firearm whilst on board the vessel.
The prosecution is under duty to prove its case beyond reasonable doubt since all the accused have denied these charges. In a bid to discharge this burden, evidence from nineteen witnesses has been adduced.
It was the prosecution's case that William Pool (PW2), employed by CAE aviation as a systems (sensor) operator in a Maritime Patrol Aircraft (MPA) — the Seagull — went on a surveillance mission over the Indian Ocean on 19 November 2010. The aircraft had taken off at about 07.30 hours and the weather condition was very good. Their instructions were to speak to the vessels in the area and confirm that they are safe. While operating the surveillance systems to closely examine certain objects of interest, he sighted a piracy action group (PAG) consisting of four boats moving in the northerly direction 200 miles from Mahe Island. He got closer visual contact with the boats and the aircraft circled over the area several times.
The observation lasted about five hours. The definition of his camera was sufficient to enable him see and record good and clear images from above without being detected. The witness had seen and recorded one mother ship, the Faith, with a flat white roof bearing number SZ1146 and pulling three smaller vessels in a row. One person holding a gun could be seen seated on the roof. Next to the mother ship was a mother skiff carrying seven barrels of fuel of different colours. Yellow cans of fuel were seen on the two attack skiffs which were smaller in size than the mother skiff. Each of the attack skiffs had an outboard Yamaha engine while one of them carried a grappling ladder. There were no persons seen on board (POB) the three skiffs. Due to low fuel status the aircraft returned to Mahe. Upon arrival, the hard drive from the aircraft containing the recordings was handed over to Christophe Rossignol (PW3), an imagery analyst with the CAE Aviation who was at the time based on Eden Island.
On 20November 2010 the said aircraft had again set off for the same area of interest. This time however, DeIfsYven (PW1) was on board as the sensor operator. After detecting the images of the piracy action group slightly away from their position on the previous day, he used a high specification camera to take pictures and recordings of the four vessels and the people on board from various angles. Following the same procedure, the hard disk of the recordings of this mission had also been handed over to Christophe Rossignol at Eden Island. Christophe Rossignol is an expert with eighteen years experience in analyzing video pictures. His duties include receiving data from hard disk, finding images using a sensor and taking pictures of targets and putting them in electronic and paper reports. From the hard disks received from DeIfsYven and William Pool, Rossignol had created a paper report (PE3) and video footage (PE2) comprising a summary of both missions.
At the time of the second detection on 20 November, all four vessels were dead in the water and the configuration had changed. The mother skiff had been pulled closer to and alongside the mother ship while the two attack skiffs were tied behind the mother ship but facing a different direction. Barrels of fuel could be seen being moved between the mother skiff and the mother ship. As they started moving northwards towards Somalia, the mother ship was seen pulling the two attack skiffs while the mother skiff was being maneuvered independently in the same direction by a steer man. There were two people seated at the bow of the mother skiff. Meanwhile, nine persons on board the mother ship could be seen standing and weapons including an RPG and two light assault rifles (M16) were detected. The weapons even became more visible when the aircraft flew closer to the piracy action group at a low altitude and the persons on board started pointing the RPG and assault rifles at it. At that time, most of them were standing and moving about on the deck.
Asked by defence counsel whether the weapons he had allegedly seen in the video footage were not pieces of wood, MrRossignol stated that he had a military background and was familiar with the different types of weapons like the light assault rifles (M16) from the USA which he recently used in Afghanistan, in Port De Prince in Haiti and in the military forces in France for nineteen years. That suggestion was refuted. He also stated during cross-examination that it is impossible to alter video images on the hard disk. And further, that he had analysed images of about twenty similar missions in Seychelles and approximately one hundred and twenty for his company. While comparing the number, colour, size and contents of the skiffs MrRossignol had opined that the three skiffs and the mother ship detected on 19 November by William Pool were similar to those sighted on 20 November by DeIfsYven. From his experience in piracy related activities, it was therefore his conclusion that this was a piracy attack group, and the same group that was operating in that area on 19 and 20 November 2010.
Stephan Barbe (PW4) is a Seychellois skipper and the captain of the vessel Faith bearing registration number SZ1146. He testified that on 9 November 2010 he had gone fishing in the outer islands with six other Seychellois namely Jeff Balgobin (PW5), Sonny Alcindor (PW6), Dominic Malvina (PW7), Pascal Lionel (PW8), Dominic Celestine (PW10) and Delbylsnard (PW9), the cook. It was their evidence that on 16 November 2010 between 7 pm and 8 pm, while looking for sea cucumbers at some point about 41 to 42 nautical miles from Mahe Island, Sonny Alcindor heard the noise of outboard engines and before he could go out to see who was coming. Ameedee started shouting "pirates, pirates, pirates". At the same time, the crew heard the men who had arrived in two small boats banging the ship and shouting "stop, stop, stop". By that time, four intruders armed with AK 47 guns had already boarded the Faithand started harassing the fishermen and asking for money and other items.
They pointed guns at them and most of the time on the head and threatened to kill them. They ordered the witnesses to take them to Somalia and threatened to cut their necks if the Seychelles Government did not pay them three billion US dollars for their release. It was their evidence that the assailants spoke to them in broken English while others used sign language or gestures. The two small boats had gone back and fetched more men. That another boat, bigger than the two small ones was later signaled to join the three vessels. All the eleven men from the three vessels had boarded the Faithwith rifles and rocket propelled grenades (RPG) and ordered Sonny Alcindor to go and tie all the three boats (skiffs) with a rope onto the Faith.
That the men were so aggressive, shouting all the time and locked some of the fishermen in the sleeping quarters. Mohamed Ahmed Ali (A7) also known as 'Lugadeere' was the captain of the group and most of the orders came from him. He slapped Dominic Malvina in the face. The assailants also made Sonny Alcindor carry seven heavy barrels of fuel from the bigger vessel (mother skiff) to the Faith. Two of them however assisted him. That during all that time Abdi Ahamed Farah (A3) was seated on the roof of the Faitharmed with a rifle while others took different positions on the vessel. The crew was most of the time locked up in the front cabin.
When Stephan Barbe came out of the wheel house he was told to stop the boat and turn off the engine and all the equipment. He was ordered to steer the boat to Somalia. At some point in time the two attack skiffs with four men on board each tried to attack a passing cargo ship. They were unsuccessful and returned to the Faithto join the three armed men who had remained guarding the Seychellois crew. Stephan Barbe then had opportunity to tamper with the engine of the Faithbut it was fixed after one day. He had cried when they threatened to kill him in case he failed to fix the engine.
It was the evidence of the crew that on the fourth day when a Navy ship came to rescue them, their assailants became more aggressive and restless. That they held their arms ready and took different positions on the Faith. Stephan Barbe was taken to the wheel house and ordered not to stop. They never responded to the Navy ship even when asked to switch on the communication system. Farahan Yousuf Ali (A4) pointed a gun at Delbylsnard as Abdi Ahamed Farah (A3) and Abdi Rizak Mohamed All (A10) tied his legs and hands behind his back with a rope and placed him on the deck near the cabin.
That everybody on board was panicking and the fishermen started wearing life jackets. They were locked up in the front sleeping quarters. At that moment Bashir KhalifHashi Farah (A6) also known as 'Atomic',was standing close to Delbylsnard. He fired one shot through the canopy of the Faithfrom the AK 47 rifle he was holding. Stephan Barbe and DelbyIsnard saw him. Meanwhile, the Navy ship had started firing at the Faith. Bashir Khalif (Atomic)switched on the radio and ordered Stephan Barbe to ask them to go away. However, when two of the men got injured by the fire from the Navy ship and fell on the deck while screaming loudly, the rest threw all their weapons overboard into the sea, ordered the Faith to stop and surrendered.
Information from the marine patrol aircraft had been passed on to the Coast Guard at Mahe, and Major Simon Laurencin (PW12), the Captain of Topaz, cast off on the night of 19 November 2010 and headed for the area of interest. On board the Topaz,a Coast Guard vessel belonging to the Seychelles Government, there were twenty-seven crew members and ten security personnel, all armed with various types of weapons including AK 47, a sniper rifle with a telescope and pistols. On 20 November 2010 at 1300 hours, following further information from the maritime patrol aircraft, the Topazdetected the said piracy action group on its radar. This was upon the high seas at a position 300 nautical miles North West of Mahe Island and it was moving at 6 knots.
The Topazclosed in upon the Faithbut maintained a safe distance of 0.3 nautical miles and called out to the crew on a public address (PA) system and Very High Frequency (VHF) radio in English and Kreol to stop, but such communication was never heeded. Following the rules of engagement at sea, the Topazfired warning shots across the bow. The Faithhowever just continued to move. Since the Captain of Topazhad ordered combat action and the crew taken positions, live rounds were fired at the waterline level into the engine room with the intention of disabling the Faith.There was also random fire from the 12.7 mm calibre gun mounted at the bridge wing on the portside.
Eventually, the Captain of Faith stopped and came on radio. All non-Seychellois on board the Faithwere ordered to get onto the mother skiff with their hands raised up in the air. It was then maneuvered closer and alongside the Topaz. Nine (9) men, now arraigned before this Court as A2 to A10, were assisted to board Topaz and conveyed to Mahe. Two men, also of Somali nationality, who had been injured, were left on the Faith and one of them died (see post-mortem report dated 7 December 2010 and photographs PE7). The other, Nur Mohamed Ali, lost his left arm and is cited as Al in these proceedings. Captain Fernand Laporte (PW17) of the Andromache, a sister Coast Guard ship to Topaz, which had arrived in the area of interest at the time, testified that he placed one of the attack skiffs on board Andromacheand towed the mother skiff to Mahe. The second attack skiff had been loaded on board the Topaz which also towed the Faith.
Upon closing the prosecution case, the accused were invited to make their defence but none of them did. They opted to remain silent and no adverse inference was drawn by the Court. See article 19(2)(h) of the Constitution. No witnesses were called to their aid. The gist of their defence however appears in the statements they made while at the police station (PE8 - PE17) which are almost similar and in the final submissions by their counsel.
One would say that apart from merely alleging in the submissions no evidence was led to support those assertions. It was their evidence that they are Somali fishermen. That their engine had broken down and when they saw the Faith, they approached it for assistance and its crew obliged to take them to Somalia on condition that the accused provided them with sufficient fuel for the return journey. They denied having boarded that vessel without the permission of the crew. The accused also denied having been in possession of or used weapons at any time while on the Faith. Further, that they neither harassed nor assaulted or threatened any of the crew of the Faith. Instead, they had a cordial relationship with the crew, played dominoes and cards with them and also shared the sleeping quarters with them. Some accused had stated that they were using the mother skiff for the deep sea fishing and the skiffs for carrying the money obtained from the fish sales. Others claimed not to know where the Faithwas going and the person who was steering or commandeering it. That the Navy ship suddenly started shooting at them and they never returned any fire.
In his submissions, defence counsel had stated that there was no direct evidence of piracy activities and further, that the AK 47 magazine exhibited could have originated from the Topaz.He also raised issues regarding lack of jurisdiction, which he never pursued any further, and absence of fear in the crew of the Faithas well as finger print evidence as being very fatal to the prosecution case. The other was a violation of the constitutional rights of the accused during their arrest.
The constitutional queries raised will be dealt with first. To this end, article 18(3) and (4) are worth quoting:
(3)A person who is arrested or detained has a right to be informed at the time of arrest or detention or as soon as is reasonably practicable thereafter in, as far as is practicable, a language that the person understands of the reason for the arrest or detention, a right to remain silent, a right to be defended by a legal practitioner of the person's choice and, in the case of a minor, a right to communicate to a parent or guardian.
(4)A person who is arrested or detained shall be informed at the time of arrest or detention or as soon as is reasonably practicable thereafter of the rights under clause (3).
In my view, given the distance, place and circumstances under which the accused were apprehended, it would be unfair to the prosecution if the Court were to agree with defence counsel that the accused persons’ constitutional rights were violated without detailed inquiry into the actual state of affairs. First of all, the accused claimed not to understand or speak the English language although they had conversed with the crew for four days in broken English. They had neither travel nor identification documents on them at all which would definitely make it difficult for the authorities to obtain the necessary information regarding their respective ages, nationality, address and other particulars such as their parents or guardians in case of minors, which information would guide the police, court and prisons in making decisions on the kind of services to offer them.
Police Constable Dave Jean (PW18) from the Criminal Investigations Department testified that upon their arrival at the jetty, he had read out the constitutional rights to the accused persons in English before formerly arresting them. Mindful of the constitutional requirements, in particular the above provisions, the police had as soon as was reasonably practicable thereafter secured the services of Somali/English interpreters from overseas whereupon the rights were re-read to all the accused and social workers invited to attend the interrogation of those accused who stated they were minors. The Court however takes note that most of the minors looked far older than the ages stated, with well developed bodies and voices like adults. Defence counsel on legal aid certificate was also provided. The Court is satisfied that this was the most prudent thing to do in such circumstances where suspects are apprehended upon the high seas, far away from the police and courts, and the police cannot be faulted. See Rep v Mohamed Dahir&Ten OthersCr No 51 of 2009 (Supreme Court of Seychelles) at  . See also R v Abdi All &OthersSSC Cr Side No 14 of 2010 at  (per Burhan J).
Section 65 (1), (4), (5), (7) of the Penal Code, Cap 158 as amended by Act no 2 of 2010 reads:
(1) Any person who commits any act of piracy within Seychelles or elsewhere is guilty of an offence and liable to imprisonment for 30 years and a fine of R1. Million.
(4) For the purposes of this section "piracy" includes –
(a) any illegal act of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or private aircraft and directed —
(i) on the high seas, against another ship or aircraft, or against persons or property on board such a ship or aircraft;
(ii) against a ship, an aircraft, a person or property in a place outside the jurisdiction of any State
(b) any act of voluntary participation in the operation of a ship or an aircraft with knowledge of facts making it a pirate ship or a pirate aircraft; or
(c) any act described in paragraph (a) or (b) which, except for the fact that it was committed within a maritime zone of Seychelles, would have been an act of piracy under either of those paragraphs.
(5) A ship or aircraft shall be considered a pirate ship or a pirate aircraft if?
(a) it has been used to commit any of the acts referred to in subsection (4) and remains under the control of the persons who committed those acts; or
(b) it is intended by the person in dominant control of it to be used for the purpose of committing any of the acts referred to in subsection (4).
(7) Members of the Police and Defence Forces of Seychelles shall on the high seas, or may in any other place outside the jurisdiction of any State, seize a pirate ship or a pirate aircraft, or a ship or an aircraft taken by piracy and in the control of pirates, and arrest the persons and seize the property on board. The Seychelles Court shall hear and determine the case against such persons and order the action to be taken as regards the ships, aircraft or property seized accordingly to the law.
In the famous case of In re Piracy Jure Gentium at 586the Privy Council stated that a person guilty of piracy at the high seas places himself beyond the protection of any State and is considered to be hostishumaniqeneris(enemy of humanity). Therefore, under customary international law, a pirate is subject to universal jurisdiction or justiciable by any State anywhere since the crime of piracy jure gentiumis taken to be a contravention of jus cogens (compelling law). Seychelles has since 17 March 2010 amended the relevant law incorporating a detailed definition of piracy, as laid out in the United Nations Convention on the Law of the Sea 1982(UNCLOS), and properly prescribing the jurisdiction of its courts as seen from the above provisions. In short, this Court has jurisdiction to try any piracy crime committed on the high seas, like the one on hand, or anywhere else, but outside the jurisdiction of any other State. Therefore, the objection by defence counsel regarding lack of jurisdiction to hear this case is dismissed.
Looking at the evidence in its entirety, it is not in dispute that the ten accused persons were found and apprehended on the Faith by the crew of the Topaz. What is in dispute is that they were not carrying out piratical activities; they were neither armed nor commandeering the Faithand its crew.
The analysis of the evidence herein above clearly shows that the testimonies of the crew of the Faith were corroborated almost on each material aspect by very independent pieces of evidence adduced by credible witnesses namely DeIfsYven, William Pool Matley and Christophe Rossignol. Further corroboration was provided by Major Laurencin, CatpainLindonLablache and Michel Hollanda of the Topaz as well as from the statements of the accused.
Contrary to the submissions of the accused, the crew of the Faithwas very consistent on the fact that the accused got on board their vessel without permission. The allegations by Mohamed Ahanned All (A7) that they had agreed with the crew to take them to Somalia are fanciful. Taking note of the current piracy situation in the Indian Ocean no fisherman could risk entering into that kind of venture. Such assertions cannot stand and are accordingly rejected. If there had been such agreement why would the crew then complain? How could each one of them come up with a credible and cogent story of this nature about their ordeal?
I am convinced beyond doubt that upon boarding the Faiththe accused harassed and assaulted the crew, shouted and threatened them with guns until they were subdued. They instilled fear in the crew, took complete control of the Faithand commandeered it. There is ample evidence to show that during the four days only the accused determined the direction and destination of the Faith, when to let the crew walk around the vessel, have meals, go to the bathroom and when to lock them up in the sleeping quarters. All this was against the witnesses' will. They were not free men at all. Not even Stephan Barbe who was maneuvering the Faith.
Again this Court is convinced beyond doubt that the accused were armed with various types of weapons while on board the Faith. The crew of the Faithsaw the weapons. Stephan Barbe and DelbyIsnard saw Farah Yousuf Ali (A4) fire a shot through the roof when Topaz approached. MichealHollanda (PW14) who was on the Topaz testified that from his experience as a captain in the army he saw fire from the mouth of a gun from the Faith.Further corroboration is found in the testimony of Sub- Inspector Aubrey Quatre (PW11), the exhibit officer, who received and examined the skiffs and the Faithat the Coast Guard. Sub Inspector Quatre had observed the damage caused by the single shot on the roof of the Faithand also the AK 47 magazine with 26 rounds (PE5) and a spent cartridge (PE6) picked from the Faith.Sub-Inspector Jane Barbe (PW15) photographed the damage on the roof and the two exhibits. The ballistics expert RodleyMonchery (PW16) concluded that the cartridge is of the same calibre as the 7.2 mm bullets in the AK 47 magazine which, when fired, was capable of causing such damage as is seen in the roof of the Faith.
RodleyMonchery and S IQuatre had stated during cross-examination that when firing, the bullet casings will fall a metre or two away from the gun, thereby rejecting the suggestion that the spent cartridge and magazine were just 'planted' on the Faith by the Topazcrew. The Court endorses this opinion which in a sense confirms that the firing of the single shot was done on board the Faith,yet its crew did not have any weapons or ammunitions.
There is good reason for me to believe the crew's evidence that the weapons were thrown overboard as a way of destroying evidence. The recordings by DeIfsYven and William Matley and the corresponding video footage and pictures in the reports by Christophe Rossignol corroborate the witnesses' evidence that an armed person, later identified as Abdi Ahamed Farah (A3), was seated on the roof of the Faith and further, that barrels of fuel were transferred from the mother skiff to the Faith before changing the configuration and the mother ship motoring independently of the other three vessels, though in the same direction. The evidence also shows other weapons used to point to the European Union Naval Forces (EU NAVFOR) spotter plane (the Seagull) which I believe, as stated by Delbylsnard, were later thrown overboard. Confronted with photographs 13 and 14 of the Faith from the second Imagery Intelligence (IMINT) Report (PE3), Nur Mohamed Aden (Al), admitted in his statement (PE8) that he could see the guns but could not make out the persons. Accordingly, the witnesses could not have been mistaken in any way but only told the truth.
The defence's case that they were experiencing engine problems is false and cannot be sustained. The only evidence of a broken engine adduced was in respect of the Faith. Besides, the video footage shows the mother skiff with a fully functioning engine and motoring independently of any other vessel. Even the skiffs were working well. They had ferried the accused to the Faithand also attempted an attack on a cargo ship. Apart from a very tiny fishing net there was no bait, sticks allegedly used for fishing and salt for salting their catch or any other fishing gear that was recovered from the skiffs. The money allegedly being transported in the two attack skiffs was not seen. However, what was clearly seen were paraphernalia akin to piracy activities. I reject Abdi Rizak's (A10) allegation that the Seychellois Captain stole the accused's money and telephones. In fact, there is overwhelming evidence that the accused forcefully took various items (money, ipod, watches, cigarettes and phones) from the Seychellois crew which were later found and recovered. There is also ample oral and good quality technical evidence as well as expert opinion to prove that the accused were a piracy action group and not fishermen as they claim and want the Court to believe.
For purposes of having all the accused persons charged together on each of the counts, section 23 of the Penal Code has been added and it provides:
When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of that purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.
It is incumbent upon the prosecution to establish and show that all the ten accused persons acted together in the commission of the offence with a common intention (joint enterprise). See Archbold (2011 ed) at [18-15] Ratanlal and Dhirajral’s Law of Crimes (23rded) at 336 and J P Bishop on Criminal Lawvol 1 (3rded) at 439. Guidance can be sought from, among other things, the manner in which the accused arrived at the scene and the way in which they executed the alleged crime, whether severally or collectively, since the presence of an accomplice gives encouragement, support and protection to the person actually committing the act.
The prosecution has led evidence which clearly shows that this attack was well planned and coordinated. The accused struck at once and started shouting and roughing up the crew. They had come in the two small attack skiffs with the mother skiff holding off at a safe distance until the Faith was overpowered. This is the same style that had been adopted when the two skiffs with four armed men on each unsuccessfully tried attacking a passing cargo ship. The accused positioned themselves strategically on the Faith, each with a role to play and taking instructions from their leader, Mohamed Ahamed Ali (A7) who also spoke English. Some were guarding the crew while others were in the wheel-house with Stephan Barbe. As three of the accused were tying Delbylsnard others stood guard pointing a gun at him. All the accused were willing participants in this whole enterprise as has been demonstrated and none of them even raised any aspect of involuntary participation. This was a concerted effort by all the accused from which common intention can positively be inferred.
All the prosecution witnesses were credible, honest and reliable, with no motive to lie. Their evidence was not shaken at all in cross-examination. The exhibits were well handled and the chain remained unbroken. The existence or absence of finger prints lifted off the magazine (PE5) would not have been decisive one way or the other. Besides, apart from the magazine there is on the record sufficient and independent incriminating evidence to rely on. Finally, the Court is satisfied that all the above illegal acts of violence, detention and depredation were committed for private ends by the accused.
Accordingly, I find the prosecution to have proved all the ingredients of the offences charged herein beyond a reasonable doubt. Each one of the ten accused persons is hereby found guilty and convicted as charged on counts one and two.