R v Ernesta & Ors (CO 22/2016) [2016] SCSC 358 (27 May 2016);

IN THE SUPREME COURT OF SEYCHELLES

Criminal Side:  22/2016

[2016] SCSC 358    

 

 

THE REPUBLIC

versus

FRANCIS ERNESTA

First accused

BRIAN MOTHE

Second Accused

KEVIN QUATRE

Third Accused

 

 

Heard:             13 May 2016  

Counsel:          Mr. David Esparon, Principal State Counsel  for the Republic along with

                       Mr. Chinnasamy Jayaraj Assistant Principle State Counsel

                       Mr. Clifford Andre Attorney at Law for the  accused Persons

Delivered:       27 May 2016  

 

ORDER

Burhan J

 

[1] I have considered the submissions made by learned counsel for the prosecution in seeking a remand into custody of the three aforementioned accused and the objections of learned counsel for all three accused in respect of the remand application.

[2] Learned counsel for the  prosecution relies on the  following grounds:

  1. the seriousness of the charges against the three accused.
  2. that substantial grounds exist that the accused may absconding and interfere with the witnesses.
  3. there are other suspects to be arrested.

[3] On perusal of the charges framed against the three accused, it is apparent the three accused have been charged with Trafficking in a controlled drug, Conspiracy to traffic in a controlled drug and Importation of a controlled drug. The controlled drug concerned is a Class A drug Heroin and the net total weight of the controlled drug is 746.9 grams containing 477.66 grams of pure Heroin. The charges attract a mandatory term of life imprisonment. This in itself illustrates the seriousness of the charges with which the three accused have been charged with.

[4] Learned counsel for the three accused, contended that the controlled drugs were never found on any of the accused. But on perusal of paragraphs 7 to 11 of the affidavit filed by the prosecution dated 22nd April 2016, it is apparent the prosecution relies on the evidence of an accomplice and other lay witnesses and statements made under caution, to establish the charges against the three accused and that they were in possession of the said quantity of Heroin at a certain stage, though not at the time of the arrest.

[5] Although learned counsel has denied the averments contained in the said affidavit filed by the prosecution by a counter affidavit, it is too premature at this stage, to decide on issues in relation to the facts of the case as mentioned in the affidavit filed on behalf of the accused, including issues raised in his submissions pertaining to the facts of this case. 

[6] It is apparent that the prosecution has also brought to the notice of court the possibility of the accused interfering with the witnesses. On perusal of paragraphs 7 to 11 of the affidavit filed by the prosecution, it is apparent that the prosecution intends to rely on the evidence of an accomplice one Danny who has worked with the accused in this operation and who therefore is well known to all the three accused. Further the prosecution relies on the evidence of several lay witnesses as well, including the evidence of witnesses who saw the unloading of the suspect gunny bags and the hiding of them under a Takamaka tree.

[7] Considering the seriousness of the charge faced by the accused and the fact that the main prosecution witness is well known to the accused, there are substantial grounds to believe that the accused would interfere with the principal witnesses in this case. Learned counsel submission that there are no substantial grounds to believe that any witness could be interfered with, therefore bear no merit.  

[8] Further I am of the view that considering the seriousness of the charge as borne out by the severity of the penalty prescribed by law, there is a strong possibility of the accused absconding if released on bail, in the face of such a serious charge.

[9] In the case of Roy Patrick Brioche v The Republic SCA MA 6 of 2013  it was held by AFT Fernando JA at page 6-

“It is to be emphasized that the right to be released at the pre-trial stage under article 18 (7) of the Constitution and once a person has been charged under section 179 of the Criminal Procedure Code are qualified rights ((emphasis mine) to be determined judiciously by the courts on whom the drafters of the Constitution have vested the judicial power of Seychelles. The only difference being that once a charge has been laid out it becomes the duty of the court to ensure that the accused is afforded a fair hearing within a reasonable time.”

[10] It follows therefore that the right to be released at the pre- trial stage and after being charged is not an absolute right but a qualified right.

[11] The courts must act judiciously and not arbitrarily and in this instant case, having given ample opportunity for both parties to be heard, this court, based on the reasons contained herein, is satisfied that substantial grounds exist to remand all three accused into custody.

[12] All three accused are accordingly further remanded into custody.

 

 

Signed, dated and delivered at Ile du Port on 27 May 2016

 

M Burhan

Judge of the Supreme Court