IN THE SUPREME COURT OF SEYCHELLES

Criminal Side:  41/2013

 [2016] SCSC 102    

THE REPUBLIC

versus

JOEL LAURENCINE
First accused

CHRISTOPHER DENOUSSE
Second accused

Heard:                         28 January 2016

Counsel:                     Mrs. Langsinglu Rongmei, for the Republic

                                   Mr. Anthony Juliette Attorney at Law for the first and second                                                                           accused                                      

Delivered:                   24 February 2016

RULING

Burhan J

1. I have considered the submissions made by learned counsel for the accused at the close of the prosecution case, in regard to his contention that the 2^nd accused Christopher Denousse has no case to answer and the learned counsel for the prosecution’s reply in respect of same.
2. Both accused have been charged jointly under the National Drug Enforcement (NDEA) Act for assault and attempted assault, uttering threats, intimidating an NDEA officer and attempt to cause injury with an offensive weapon under section 219 (b) of the Penal Code read with section 23 of the Penal Code.
3. In the case of R vs. Stiven 1971 SLR 137, it was held what court has to consider at this stage is whether:

there is no evidence to prove the essential elements of the offence charged.

whether the evidence for the prosecution has been so discredited or is so manifestly unreliable that no reasonable tribunal could safely convict on it.

1. Archbold in Criminal Pleadings Evidence and Practice 2012 Edition 4-363 sets out the principle in a no case to answer application.

“A submission of no case should be allowed where there is no evidence upon which, if the evidence adduced were accepted, a reasonable jury, properly directed, could convict”

1. The main contention of learned counsel on behalf of the 2^nd accused is that:

the evidence to implicate the 2^nd accused is insufficient, in that the essential elements of the charge against him that he acted with common intention, has not been established by the evidence of the prosecution.

1. The evidence of the main prosecution witness Meddy Come is that on the 30^th of June 2013 around 6.00 p.m, when he was off duty, he had parked his vehicle at Cote Dor and his girlfriend had got down to buy an ice cream. While he was in his car, the 1^st accused had come in a vehicle. a pick up with 3 others, including the 2^nd accused and stopped next to his vehicle. The 1^st accused had got down from the vehicle and come up to him and sworn at him and threatened him with a knife. Witness himself stated that the other 3 occupants of the vehicle who were with the 1^st accused, including the 2^nd accused, did not threaten him nor do anything to him. The only thing they had done was to alight from their vehicle and watch the 1^st accused threatening him. 
2. Having considered the evidence before court, it cannot be said that the 3 other occupants of the vehicle who were with the 1^st accused had actively done any act or participated in the 1^st accused act of threatening Mr. Meddy Come. It cannot be said they were acting to a plan as the meeting with the complainant Meddy Come was not arranged or preplanned but was a chance meeting.
3. It is pertinent at this stage, to discuss section 23 of the Penal Code referring to common intention It must be remembered that this section lays down a principle of joint liability in the commission of a criminal act and is not a manner of committing an offence.   Common intention envisages a sharing of similar intention entertained by the accused persons.  Common intention requires a common meeting of minds or a sharing of similar intention before the offence is committed. Common intention could be proved by showing the conduct of the accused, that the two or more accused by reason of actually participating in the crime, some overt or obvious act, active presence, pre plan and preparation as well as immediate conduct after the offence was committed. Thus the preceding, prevailing and succeeding conduct of the accused could be analysed to determine whether they acted with common intention.
4. When one considers the evidence in this case, no illegal acts were committed by the other 3 persons who accompanied the 1^st accused other than to look on. They were not armed or acting to a prearranged plan and in a concerted manner. There is no evidence to indicate any concerted conduct on the part of 2^nd   accused to show he was acting with common intention with the 1^st accused. The evidence of the complainant is that the 2^nd accused was not jointly participating with the 1^st accused when the 1^st accused was committing the illegal acts on the victim. Further it is to be observed, only the 2^nd accused has been charged and not any of the others who were also doing the same act of standing and looking on at what was happening.
5. In the light of all this evidence, this court is satisfied that there is no evidence before court to establish that the 2^nd accused acted with common intention with the 1^st accused to assault, threaten or intimidate or cause injury to the victim, neither does the evidence of the prosecution establish that the 2^nd accused himself committed any illegal act against the victim in this case.  In the absence of such evidence the prosecution has failed to establish a prima facie case against the 2^nd accused. The 2^nd accused Christopher Denousse is acquitted of all charges against him.
6. However as the prosecution has established a prima facie case against the 1^st accused Joel Laurencine in respect of all charges against him, a defence is called from him.

Signed, dated and delivered at Ile du Port on 24 February 2016

M Burhan

Judge of the Supreme Court