IN THE SUPREME COURT OF SEYCHELLES

Criminal  Side: CN 23/2016

Appeal from Magistrates Court decision FH. No 36/2016

[2016] SCSC 277

FRANCIS  ERNESTA

First Appellant

BRIAN MOTHE

Second Appellant

KEVIN  QUATRE

Third Appellant

versus

THE REPUBLIC

Heard:       8 April 2016

Counsel:    Mr. Clifford Andre Attorney at Law for Appellants

                  Mr. David Esparon, Principal State Counsel for the Republic

Delivered: 13 April 2016

JUDGMENT

Burhan  J

[1]       The aforementioned three Appellants were produced before the learned Magistrate as suspects under section 101 (1) (a) of the Criminal Procedure Code (CPC) read with section 100 and an application was made by the prosecution, for further holding in police custody under section 101 (1) (b) of the CPC.

[2]       The application was made in accordance with section 101 (2) of the CPC and the learned Magistrate after hearing the submissions made on behalf of all parties, made order that the three suspects be detained in police custody until the 11 of April  2016.

[3]       The Appellants seek to appeal on the following grounds:

a.        the said order violated the constitutional rights of the Appellants.

b.         the facts as set out in the affidavit did not support the allegation of Conspiracy to import controlled drugs as no controlled drug was taken into custody.

c.          there was no evidence to substantiate a further holding of the Appellants in police custody.

[4]       In regard to the submission of learned counsel for the Appellants that the constitutional rights of the suspect have been violated, learned counsel for the Appellants' submitted that the affidavit dated 28th March 2016 states that when the rights of the Appellants were explained to them, they had chosen their right to remain  silent. Despite this, the affidavit further states that the Appellants were interviewed and certain information obtained. Learned counsel for the Republic submitted that at the time of arrest, the constitutional rights were explained to them as this was the usual procedure but this did not preclude the Appellants from being subsequently interviewed.

[5]       Based on the argument of learned counsel for the Appellants, it is admitted by him in his own  submission that the Appellants were made aware of their constitutional rights and cautioned. Thus it cannot be said that their constitutional rights were never explained to them. The evidential value of any subsequent statement made by them is a matter for a trial court to decide. It would be too premature to decide this issue at this stage.

[6]       The next ground urged by learned counsel for the Appellants was that the offence of Conspiracy was not made out as the controlled drug was not recovered. Learned counsel for the Republic submitted that subsequent to the application the said controlled drugs were in fact taken into custody. It is the view  of this court that learned counsel for the Republic should bring such important information to the notice of the relevant court by way of a subsequent affidavit at the earliest opportunity.

[7]        In regard to the submission of learned counsel for the Appellants that as no controlled drug was found, the offence of Conspiracy cannot be maintained, it is apparent from case law that the offence of Conspiracy is completed when two or more persons agree to do an unlawful act or to do a lawful act by unlawful means, Archbold Pleading Evidence and Practice in Criminal Cases 42"d edition 28-4. The overt  act (actus reus) is the stage of parties agreeing (emphasis added) to carry their criminal scheme into effect. The essence of Conspiracy is the agreement. Archbold 2012 Criminal Pleading Evidence  and Practice 33-5.

[8]        The very plot  is the criminal  act itself: Mulcahy v. R. (1868) L.R. 3 B.L. 306 at 317;; R. v. Meyrick and Ribuffi,  21 Cr.App.R. 94, CCA. Nothing need to be done in pursuit of the agreement: O'Connell  v. R. (1844) 5 St. Tr. (N.S.) 1,.repentance, lack of opportunity and failure are all  immaterial: R.  v. Aspinall  (1876)   2  Q.B.D.  48. As the essence of Conspiracy is agreement, withdrawal therefrom goes to mitigation only: R. v. Gortat and Pirog [1973J Crim.L.R. 648, Crown Court (Cusack J.).

[9]        Therefore, case law  clearly reveals that it is not necessary in order to complete the offence of  Conspiracy that anyone thing should  be done beyond the agreement. The conspirators may repent and stop, or may have no opportunity, or may be prevented, or may fail. Nevertheless the crime is complete:   it was completed when they agreed Archbold 2102 (supra).

[10]      In regard to the intention (mens rea) in the offence of Conspiracy, I would draw attention to the case of R v Anderson [1986J AC at para E (followed in the case of Republic v Livette Assary  SC (Criminal Side) 19 of 2009) where Lord Bridge held as follows:

"But beyond the mere fact of agreement, the necessary mens rea of the crime, in my opinion, established if, and only if, it is shown that the accused, when he entered into the agreement, intended to play some part in the agreed course of conduct in furtherance of the criminal purpose which agreed course of conduct was intended to achieve. Nothing less; nothing more is required".

[11]    In the light of the aforementioned case law and readings, based on the definition of the offence of Conspiracy, I am inclined to disagree with learned counsel and hold that learned counsel's contention, that as the controlled drugs has not been found, the offence of Conspiracy cannot be maintained, bears no merit. It is my view that section 28 of the Misuse of Drugs Act in relation to Conspiracy must be interpreted in accordance with the aforementioned case law.

[12]    Learned counsel further submitted, there was no evidence to substantiate a further holding of the suspects  in police custody. I have considered the facts set out in the affidavit dated 28th March 2016. I am satisfied that the learned Magistrate too, has considered carefully the facts stated therein and the submissions of learned counsel for the Appellants, prior to making order that the Appellants be further  detained. It is apparent that it was not only the seriousness of the offence that the learned Magistrate considered but other relevant factors i.e. the fact that the investigations were not complete, the difficulties in investigating such serious offences which requires analysis of equipment and data and also the possibility of potential witnesses being interfered with, thereby obstructing the course of justice.

[13]     I am satisfied the learned Magistrate (Mr. B. Adeline) cannot be faulted on his finding in respect of the facts as set out in the affidavit dated 28th March 2016 which in my view too, suffices, to establish reasonable grounds for believing that the holding of the Appellants beyond the period  of 24 hours as specified in section 100 of the CPC is necessary.

[14]      The appeal stands dismissed.

Signed, dated and delivered at He du Port on 13 April 2016

M Burhan

Judge of the Supreme Court