R v Cedras (CO 67/2012)  SCSC 326 (13 May 2016);
IN THE SUPREME COURT OF SEYCHELLES Criminal Side: CO 67/2012
 SCSC 326
Heard: Counsel: 1St, 2nd, is" and 21st April, 14 September, 2015, 25th January, 2016.
B. Confait, State Counsel for the Republic
A Derjacques for the accused
Delivered: 13 May, 2016
 The accused Wins1ey Cedras, stands charged with the following counts: Count 1
Statement oj offence
Robbery with Violence contrary with Section 280 and punishable under Section 281 oj the Penal Code Cap 158 read with Section 23 oj the Penal Code.
Particulars of offence
Winsley Cedras on the 1ih day of November 2012 at Anse Royale. Mahe, with common intention with Fred Emmanuel, whilst being armed with a knife, stole SR1000/- being the property of Roch Richard Low and at the time of the robbery or immediately before. or immediately after the time of the robbery, used actual violence on and injured one Jean Claude Low.
Statement of offence
Aiding and abetting the offence of Robbery with Violence contrary to
Section 22 (b) punishable under Section 281 of the Penal Code Cap 158
Particulars of offence
Winsley Cedras on the 17/17day of November 2012 at Anse Royale. Mahe, aided and abetted Fred Emmanuel to commit the offence of robbery with violence against Jean Claude Low.
Statement of offence
Conspiracy to commit a Felony contrary 10 and punishable under Section
381 of the Penal Code Cap 158
Particulars of offence
Winsley Cedras on the 1ih day of November 2012, at Anse Royale, Mahe, conspired with Fred Emmanuel to commit a felony namely the offence of robbery with violence of the sum ofSR1,000.
 The prosecution witnesses testified as follows. Dr B V K Rao testified that on the 17th November, 2012, he examined the victim Jean-Claude Low at Anse Royale Hospital. The victim had a small wound below the left eye, another above the right eye and a further wound on the scalp. He was treated, the scalp wound sutured, then released.
 Mikaaeel Alibhaye testified that he installed the cctv cameras and recording facilities at Richard Low's shop and Jenita Barra produced copies of recordings made of the incident showing the scene inside and outside the shop. Dorothy Edmond testified that vehicle registration number S9474 was registered as owned by the accused Winsley Cedras.
 ASP Christelle Marie testified that on the 17th November, 2012, at Anse Royale police station she arrested the accused who agreed to give a statement after he had been duly cautioned. The accused had also declared that his car had been stolen on that day. On the same day she accompanied the accused to his residence at Anse Boileau where several items were taken and produced as exhibits These included a black cap, a pair of sunglasses, a car key with tag S9474, 2 mobile phones, 2 Airtel starter packs and 2 Airtel SIM cards.
 On the is" November, 2012, she also accompanied Jenita Barra to Sweet Escot to download the cctv footage. She also issued warrants to Cable and Wireless to produce call logs for telephones 2548050 and 2548658, which were produced by Mr. Georges
 Inspector Octobre and ASP Justin Dogley testified that they accompanied the accused and ASP Marie to search the accused's house at Anse Boileau where the items were seized. Inspector Octobre also took a statement from the accused. Inspector Dogley also testified that on the 17th November, 2012, he witnessed the accused driving car S9474 going in the direction of Anse Royale around 10.55am.
 Jean-Claude Low testified that on the 17th November, 2012, he was attending to customers in the shop at Sweet Escot when a man now identified as Fred Emmanuel, jumped over the counter and assaulted him and took some money, approximately RsI000/- from the till before making his escape when another man, Unfred Sedgwick entered the shop and raised the alarm. He suffered injuries to the face and head and was taken to Anse Royale Hospital for treatment. He maintained that it was not the accused who attacked him and he did not see the accused in or outside the shop on that day.
 Guyto Valmont who was a customer at the shop identified the attacker who was loitering near the shop from the cctv footage and was certain that it was not the Accused. He did not see the accused in or outside the shop that day either.
 Unfred Sedgwick testified that on the 1ih November, 2012, at about 11 am he rode his bicycle to Richard Low's shop at Sweet Escot. As he reached the shop, he heard a scream and when he went inside the shop he saw a man hitting Jean-Claude Low behind the counter. He shouted at the man and the man jumped over the counter in his direction and ran out to a car that was parked on the Sweet Escot Road facing Anse Royale. The car
left as soon as the man got inside. The car was driven by a man wearing sunglasses. He advised Jean-Claude Low to seek medical help and to call the police.
 Phillip Larue testified that on the day in question he recovered a small blade from the floor behind the counter of Jean-Claude Low's shop and the same was kept as exhibit.
 Phillip Esparon testified that on the 17th November, 2012, he was offered a ride in a Daihatsu Charade by Fred Emmanuel who was sitting in the front passenger seat. He did not know the driver at the time but he now knows him to be the accused. They stopped at some shops along the way to Anse Royale and at each stop it was Fred Emmanuel who went to the shop while he and the accused remained in the car. Whilst he was in the car he did not hear the accused and Fred Emmanuel speak about committing any robbery. He testified that when Fred Emmanuel had gone into a shop at Sweet Escot he had a small kitchen knife with him but when he returned he only had the handle and he also had a towel which Fred Emmanuel opened later and it contained money in notes of 25 and 50 rupees.
 The witness testified that Fred Emmanuel rushed into the car after a man who came on a bicycle had entered the shop and when Fred Emmanuel got in the car Fred Emmanuel told the accused to drive off quickly as he was being attacked. The accused drove off quickly towards Anse Royale and he heard Fred Emmanuel tell the accused to hide his car and himself for 2 weeks. During the time that Fred Emmanuel had gone to the shop the accused was observed typing a message on his phone but otherwise he appeared
normal. The witness got off at the Anse Royale junction leaving Fred Emmanuel and the accused in the car.
 In his defence, the accused testified that he joined the police force at the age of 22 years and had a long carrier with the police without any disciplinary issues although he admitted that at the time of this incident he was on suspension with ~ salary for a matter totally unrelated to the present case. During the time he was on suspension, he used his vehicle as an unlicensed taxi (taxi pirate).
 He testified that on the day of the incident, he had gone for a haircut and on the way back he had a carton box to deliver when he met Philip Esparon and gave him a lift. Later on he met Fred Emmanuel and also picked him up. Both passengers were on the back seat. He testified that Fred and Philip were chatting in low voices until they reached Jean Claude Low's shop when Philip told him to stop and Fred got out and went into the shop. There were other people in the area walking about or playing dominos.
 He testified that suddenly he saw Fred run and got into the car and told him to drive away as people were fighting and somebody wanted to harm him. He drove towards Anse Royale Catholic Church then towards Takamaka hoping to get to Baie Lazare as the fuel was low but the car ran out of fuel. He then took a bus to Anse Boileau and then he went to Anse Royale Police Station where he was interviewed by 5 police officers. He gave a statement in which he reported his car had been stolen but he maintained that he only stated that because he was in a panic and confused.
 Later, his place at Anse Boileau was searched and the items admitted as exhibits were seized. He denied that he took part in the robbery or that he conspired to do so. In cross examination he maintained that he did not know Fred Emmanuel before that incident and maintained that the statement he made was totally untrue.
 Philip Uzice testified that he knew the accused and helped him with fuel in return for services conveying water and other items.
 Vincent Payet testified that he was the manager of Baie Lazare Petrol Station and that the accused was a client who was supplied with fuel for his vehicle and paid at the end of the month.
 Andre Valmont testified that during his time as a long service police officer, he had known the accused to have been a very respectful, loyal and motivated police officer but the witness was no longer in the force at the time of the incident and only became aware that the accused was on suspension when he heard the news of the incident.
 Dan Bonte testified that he had known the accused during the time the accused was a serving police officer on Praslin and also when the accused returned to Mahe they had remained on good terms. He had known him to be a good person but was aware that he had been suspended from the police.
 Fred Emmanuel who had been charged and convicted for the same offences on his own guilty pleas, testified that he did not know the accused until the day of the incident and that he never discussed anything with the accused whom he believed to be a taxi driver. He admitted in cross-examination that in his statement under caution it is stated that he had known the accused and that they had spoken on the phone before the incident. He maintained that the content of his statement was not true and that he had been tricked by Inspector Octobre to give a statement implicating the accused and that at the time he was a heroin addict and had been promised that if he signed the statement he would be released.
 The Court also conducted a locus in quo at the instance of the accused and the prosecution and the accused and two prosecution witnesses showed the Court various spots at the scene which they believe to be pertinent in supporting their respective testimonies.
 In her fmal submission, learned counsel for the prosecution submitted that the offence was committed on Jean Claude Low in a shop at Sweet Escot, Anse Royale and that at the time of the robbery one of the perpetrators, Fred Emmanuel used a knife to hit and injure Jean Claude Low and then made off with a sum of approximately Rsl000/-. She
submitted that the testimony of Jean Claude Low was corroborated by the testimonies of Unfred Sedgwick and Guy to Valmont and video footage which were admitted. Further, the defence witness Fred Emmanuel admitted to and was convicted of the offence of robbery with violence. The only outstanding issue is whether the accused acted with common intention with Fred Emmanuel.
 Learned counsel submitted that common intention can be inferred from the acts of the accused immediately before, during and after the commission of the offence. Learned counsel submitted that the elements of the offences with which the accused has been charged have been established by the evidence of the prosecution to the satisfaction of the Court. She submitted that the criminal intent of the accused has been proved by the fact that the accused drove his vehicle registration number S9474 to the shop of Richard Low where Fred Emmanuel committed the robbery but even if he stayed in the vehicle as soon as Fred Emmanuel returned he drove off very fast and when he was advised to hide his car he made a false complaint to the police that his car had been stolen. She submitted that this showed that the accused had knowledge of the act that was committed by Fred Emmanuel and not only is he an accomplice but also properly charged for the offence of robbery with violence read with section 23 (common intention) of the Penal Code.
 Learned counsel submitted that the offence of aiding and abetting the offence of robbery with violence has also been established beyond reasonable doubt. She submitted that the accused assisted Fred Emmanuel by way of providing transport to take him to the scene of the crime and to take Fred Emmanuel away from the scene of the crime after the commission of the crime .. She submitted that the accused performed the material act of illegally facilitating the commission of the offence.
 With regards to the offence of conspiracy, learned counsel submitted that the prosecution has proved all the elements of the offence beyond reasonable doubt. She submitted that the evidence showed that there was an agreement between Fred Emmanuel and the accused to carry out an unlawful act and the unlawful act was robbery with violence. Learned counsel submitted that the testimony of Phillip Esparon and the exchange of telephone calls between Fred Emmanuel and the accused during the month leading up to
the commission of the offence are strong evidence supporting the fact that the accused and Fred Emmanuel had agreed that the offence was to be committed.
 Learned counsel hence moved the Court to find the accused guilty of all three counts as charged and to convict him accordingly.
 Learned counsel for the accused submitted that the prosecution has not proved the counts against the accused beyond reasonable doubt and that the 2nd and 3rd charges against the accused are defective. Learned counsel submitted that the only person who witnessed the accused in the vehicle was Phillip Esparon who testified in favour of the accused. Learned counsel submitted that all the witnesses who testified did not at all implicate the accused in the robbery carried out by Fred Emmanuel. The accused was an innocent driver who was placed in this unfortunate situation.
 Learned counsel submitted that the accused was a high ranking police officer who was on suspension and was receiving a mere percentage of his salary. He therefore used his vehicle S9474 as an illegal taxi to supplement his salary. He only gave a ride to Philip Esparon because Fred Emmanuel who was a fare-paying passenger asked him to. He had no knowledge that Fred Enunanuel was going to commit a robbery and he only drove off after Fred Emmanuel got into the car and shouted at him to drive off. He only realised that something was wrong when Fred Emmanuel dropped some money in the vehicle and told him to hide his vehicle. The accused made a false declaration that his vehicle had been stolen because he was in a panic but he reported himself to the police station.
 Learned counsel moved the Court to find that the Republic has failed to discharge its burden of proof to the required degree and acquit the accused accordingly.
 It is not in dispute that the accused was the driver of vehicle S9474 and that he remained in the vehicle throughout the whole incident and that the physical act of robbery was made by Fred Emmanuel. The accused is charged with having common intention with Fred Emmanuel in the commission of the crime as well as being an accessory to the crime.
 Common intention would exist where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and anyone of them, in carrying out the common purpose, commits an offence which each of them knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose. The prosecution must prove beyond reasonable doubt that the accused was a participant in the commission of the crime even if the accused only drove the vehicle and never left the vehicle to assist the principal offender.
 However, to establish common intention, the prosecution must prove that the accused actually assisted in the actus reus which consists the crime. If two or more people are directly responsible for the actus reus, they can be charged as joint principals. Otherwise, the accused becomes a mere accomplice and can only be charged with aiding and abetting or conspiracy. The test to distinguish a joint principal from an accessory is whether the accused independently contributed to causing the actus reus rather than merely giving generalised and/or limited help and encouragement. In other words an active presence on the part of the accused is required.
 In this case I find that the prosecution has at the most managed to establish that the accused gave assistance by driving the vehicle to the location where the robbery took place and then drove the principal away from the scene of the crime but did nothing more. Consequently, I find that the lSI count of robbery with violence has not been proved to the satisfaction of the Court. The accused is therefore acquitted of the Ist count accordingly.
 With regard to the 2nd and 3rd counts, I do not subscribe to the contention of learned counsel for the accused that the charges are defective. Article 111 of the Criminal Procedure Code states:
111. Every charge or iriformationshall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessaryfor giving reasonable information as to the nature of the offence charged.
I find both counts to have met the requirements of the law and contains sufficient particulars to allow the accused to mount his defence.
 Aiding and abetting is defined as assisting in the commission of a crime or to be an accomplice in the commission of a crime. It involves a plan to commit a crime or to commit acts, the probable consequences of which are criminal. An accomplice may assist or encourage the main offender with the same intent to have the crime committed but need not be present when the crime is actually committed. However, it is important to note that without sharing the criminal intent, a person who is merely present when a crime occurs and stands by silently is not an accomplice and cannot be said to have aided and abetted the commission of the crime by his mere presence. Aiding and abetting must involve knowledge of the crime in addition to advice or assistance to the criminal.
 Mere presence at the scene of a crime is not enough, even where the accused remains at the scene to watch the crime being committed. In R v Coney (1882) 8 OBD 534, where a crowd watched an illegal prize fight, it was held that there must be active, not mere passive, encouragement. Hence, even though the fight would not have taken place without spectators prepared to bet on the outcome, the spectators were acquitted because their presence was accidental.
 The accused must intend to do the acts which he knows will assist or encourage the principal to commit a crime of a certain type. In the case of R v Bainbridge (1960) I QB
129 the accused supplied cutting equipment not knowing exactly what crime was going
to be committed, but he was convicted because the equipment supplied was used in the ordinary way but for a criminal purpose. The accomplice must also know all the essential matters that make the act a crime, but need not know that the act would amount to a crime because of the principle of ignorantia juris non excusat.
 In this case the evidence shows that there were telephone communications between the accused and Fred Emmanuel before the commission of the offence. Although the accused denied the same, Fred Emmanuel admitted that the telephone number in question was his.
The accused was therefore not being truthful. There is evidence that Fred Emmanuel was in the car with the accused prior to Philip Esparon being given a lift. Again, the accused was not truthful when he maintained that it was Philip Esparon who asked him the give Fred Emmanuel a lift. There is evidence that after the robbery, the accused drove the car away from the scene at speed although he maintained that he only did that because he was asked to do so by Fred Emmanuel. There is evidence that the accused falsely declared that his vehicle had been stolen although the accused maintained that he made the declaration in a panic. Even at the locus in quo, the accused showed the position of his vehicle in a markedly different place to that showed by Unfred Sedgwick and Jean Claude Low.
 I am satisfied that the actions of the accused before and after the robbery shows beyond doubt that he had knowledge of the fact that Fred Emmanuel was embarked on a criminal venture and that he willingly assisted by driving him to and away from the scene. I reject entirely the evidence of the accused as being too inconsistent and indeed not at all credible. I am therefore satisfied that the prosecution has established all the elements of the offence of aiding and abetting the commission of the offence of robbery as charged and I convict the accused on that count accordingly.
 On the 3rd count of conspiracy, the prosecution must prove that there was agreement between the accused and Fred Emmanuel to commit the offence in question. Conspiracy is an offence the elements of lie in the agreement that is reached, rather than what is actually done to carry out the agreement itself. When the parties to the conspiracy enter into the agreement the offence of conspiracy is complete. It is not necessary for any action to be performed in pursuance of it. If no agreement is reached or can be proved then a charge of conspiracy must fail. However once the agreement is made it is no defence to a charge of conspiracy that the accused did not take an active part in the actus reus of the crime..
58. As stated in the case of R v Anderson (William Ronald) [19861 AC 27, (Lord Bridge) the prosecution must prove an intention by the parties to enter into the agreement to do an unlawful act, with an intention by the parties
"of playing some part in the agreed course of conduct in furtherance of the criminal purpose which the agreed course of conduct was intended to achieve. Nothing less will suffice; nothing more is required".
 From the evidence as rehearsed above, I am satisfied that the accused and Fred Emmanuel had agreed well in advance before Phillip Esparon got in the vehicle on what they were about to do and their respective roles. I reject the accused's contention that he was a simple driver of an illegal taxi and was following the directions of Fred Emmanuel. After all the accused is a very experienced police officer and I do not subscribe to the contention that he was foolishly led by Fred Emmanuel. As I found above his testimony is too inconsistent and unbelievable.
 I am therefore satisfied that the prosecution has proved all the elements of the 3rd count of conspiracy to commit a felony as charged. I find the accused guilty of that count and I convict him accordingly of that count as charged.
 Signed, dated and delivered at lie du Port on 13th May, 2016.
Judge of the Supreme Court