Rose v Republic (CN 42/2013) [2015] SCSC 515 (05 November 2015);

Counsel for Plaintiff: Alexia Amesbury Counsel for Defendant/Respondent: Brigitte Confait,

     

     

 

IN THE SUPREME COURT OF SEYCHELLES

Criminal Side: CN 42/2013

Appeal from Magistrates Court decision 751/2011

 

       [2015] SCSC 515

 

 

DANNY ROSE

Appellant

 

 versus

 

 

Heard:                         26th January 2012

Counsel:                      Mrs. Alexia Amesbury Attorney at Law for Appellant

   

 

                                    Ms. Brigitte Confait, State Counsel  for the Respondent

 

Delivered:                   05th   November 2015

 

JUDGMENT

 

 

Burhan, J

 

[1]               The Appellant was charged in the Magistrates’ Court for the following offence:

Count 1

Possession of Controlled Drugs Contrary to Section 6 (a) as read with Section 26 (1) (a) and Punishable under Section 29 (1) of the Misuse of Drugs Act Cap 133.

The particulars of offence are that, Danny Rose, on the 5th of April 2010, at La Louise, Basin Bleue, Mahe, had in his possession 34milligrams of heroin (diamorphine) a controlled drug.

[2]               The learned Senior Magistrate after trial found the Appellant guilty as charged and proceeded to sentence the Appellant to a term of 5 years imprisonment.

[3]               Learned counsel for the Appellant has appealed from the said conviction and sentence on the following grounds-

1“The appellant’s conviction is unsafe and unsatisfactory in that being unrepresented and not versed in the practice of law he did not get a fair trial as the learned Senior Magistrate failed to issue summons for his witness and he was given less than 24 hours to bring his witness to court”.

In regard to sentence:

1A sentence of 5 years imprisonment for possession of 34 mg of heroin is harsh and excessive in all the circumstances of the case in that:

(i)                 The Appellant having been convicted in 2013 after the amendment to the Misuse of Drugs Act that came into force in August 2012 whereby there is no minimum mandatory term of imprisonment or possession of a controlled drug.

(ii)               Under Article 15 of the UNCCPR which Seychelles acceded to in 1992 and Constitutional effect given to, under Article 48(a) stipulates that the court shall Not interpret Chapter III of the Seychellois Charter in such a way as to be inconsistent with Seychelles international obligations, contained in;

Article 15 No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be impose than the one that was applicable at the time when the criminal offence was committed.  If, subsequent to thecommission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.

(iii)             Based on the above the Learned Magistrate erred by imposing a sentence that breached the above provision of the Constitution thus rendering the sentence imposed, a contravention of the Appellant’s right to a fair trial and illegal”.

[4]               The background facts of the case are that on the 05th day of April 2010 around 4.45 p.m. while agent Ricky Charles of the NDEA (National Drug Enforcement Agency)and agents Siguy Marie, Allah Nil and Raminoson were on mobile patrol at Basin Bleu, they had noticed the Appellantcoming towards the main road. The agents had disembarked from the jeep and approached the person identified as the Appellant who on seeing them had thrown a piece of carton on the grass. Witness Ricky Charles had gone and picked up what was thrown and observed it to be three pieces of carton paper wrapped together,each containing some powder which they suspected to be controlled drug. The Appellant was arrested and subsequently charged.

[5]               On perusal of the record it is apparent that the evidence of agent Ricky Charles stands corroborated by the evidence of agent Siguy Marie while the Government analyst Mr. Bouzin identified the powder taken into custody as that analysed by him and identified as Heroin (Diamorphine).

[6]                In defence the Appellant gave evidence under oath and stated, on the said day he was having an argument with his girlfriend when the officers of the NDEA had arrived and arrested him. He had seen agent Ricky Charles jump over a fence and recover a packet on the ground of a private property. He denied he had thrown anything.

[7]               The Appellant had thereafter informed court he would be calling a witness Clara Waye- Hive and an opportunity to call his witness was given by court and the case adjourned to the next day. When the case came up the next day the Appellant had informed court as follows,“My witness is not coming I’m closing my case”.

[8]               It is the contention of learned counsel for the Appellant that the learned Senior Magistrate had failed to issue summons on the witness of the Appellant and therefore the Appellant had been denied his right to a fair trial. However it is apparent from the record before court that an opportunity was given to the Appellant to bring his witness and the case was adjourned to the next day to facilitate the opportunity.  On the next day, the Appellant himself informed court that his witness was not coming and went one step further, by stating he is closing his case. This clearly indicates the Appellant had no intention of calling any other witness. It is apparent he had not moved court that further time be given to him to call his witness or consult his lawyer.As a result of the Appellant informing court that he is closing his case, the learned Senior Magistrate cannot be faulted for thereafter fixing the case for submissions which is the next procedural requirement in law.

[9]               The record further indicates that there was no request on the part of the Appellant to court, to summon any witness or a request that further time be given for his defence. In the light of all these facts, the contention of learned counsel for the Appellant thatthe Appellant’s conviction is unsafe and unsatisfactory as he did not get a fair trial as the learned Senior Magistrate failed to issue summons on his witness is unsustainable.I see no merit in the argument of learned counsel for the Appellant and dismiss same.

[10]           The learned Senior Magistrate having analysed the prosecution evidence in detail and being satisfied that though the witnesses were subject to cross examination, there were no material contradictions has come to the conclusion that the evidence of the prosecution witnesses was acceptable and proceeded to convict the Appellant. I observe the learned Senior Magistrate has analysed in great detail both the evidence of the prosecution and the defence and come to the above finding.

[11]           Further the learned Senior Magistrate has thereafter analysed the evidence in respect of the chain of custody of the exhibits namely the controlled drug Heroin taken into custody. It is apparent that after careful consideration of the evidence before her she has satisfied herself that the controlled drug taken into custody from the Appellant was the same that was analysed by the Government Analyst Mr. Bouzin and found to be Heroin ‘Diamorphine’ and produced in court as an exhibit. Further the evidence of the Government Analyst and prosecution witnesses clearly establish the chain of custody and the fact that the said powder taken into custody from the Appellant was confirmed to be Heroin “Diamorphine’.

[12]           In regard to the findings on facts made by the learned Magistrate on in the case of Akbar vs R (SCA 5/1998), the Seychelles Court of Appeal held that in appeal:

“The accepted approach to findings of fact which turn largely on the credibility of witnesses is to uphold such findings if they are supported by the evidence believed by the trial court and if there is nothing perverse in the trial ascribing credibility to such evidence”.

[13]            Having considered the evidence led at the trial, the learned Senior Magistrate’s findings of credibility and facts are acceptable as the findings are supported by the evidence led at the trial and there is nothing to show any disregard to any material factsthat benefit the defence. I see no reason to disturb her findings.

[14]           In regard to sentence,I draw reference to the recent case of the Seychelles Court of Appeal namely Kelson Alcindor v The Republic SCA 28/2013 which having considered Article 15 of theInternational Covenant on Civil and Political Rightsheld as follows:

“We cannot shy away from Article 48 of the Constitution, and neither can the court ignore the International Covenant on Civil and Political Rights 1966 whenever it is applicable. Both are applicable in the instant case”.

[15]           In the said case which was in respect of similar charge i.e. possession of 42 milligrams of Heroin, the Seychelles Court of Appeal proceeded to reduce the sentence of 5 years imprisonment to 3 years on the basis it was harsh and excessive. As the circumstances of this case are similar, I proceed to set aside the sentence of 5 (five) years imprisonment on the same basis andimpose a term of 3 (three) years imprisonment.

[16]           The appeal against sentence is allowed accordingly while the appeal against conviction is dismissed and the conviction upheld.

 

Signed, dated and delivered at Ile du Port on 05 November 2015

 

 

M. Burhan

Judge of the Supreme Court