Estrale v R (CR 72/2014) [2016] SCSC 393 (04 April 2016);

IN THE SUPREME COURT OF SEYCHELLES
Criminal Side: CR  72/2014

[2016] SCSC 393


RANDY ESTRALE

versus

THE REPUBLIC

 

Heard:            8th February 2016

Counsel:Mrs. Burian for the Accused
            Ms. Ste. Ange for the Republic
            
Delivered:        4th April 2016

JUDGMENT
Akiiki-Kiiza J

 


[1] The appellant was tried and convicted on two counts. The first one was of being a Rogue and vagabond contra section 174 (d)  of the Penal Code and the second count was threatening violence contra section 89 (a) of the same code.
[2] Both offences are misdemeanours. The maximum sentence for the 1st count was 3 months for a first offender and 1 year for each time the offence is committed for a subsequent offence.
[3] The learned trail Magistrate sentenced the appellant to 6 months imprisonment on the 1st count and 18 months on the second count. At a glance, the sentence of 6 months on the first count was illegal as it was beyond the maximum sentence under section 174 (d) of the Penal code. It appears this was missed by the appellants learned counsel. It is according quashed and set aside for being illegal. There was a prosecutors list on the lower court record but the offences the accused was convicted of were of different nature from that of being a rogue and vagabond. They were all related to stealing and house breaking. Section 174 (d) talks of the following:
“ and shall be liable for the first offence to imprisonment for three months and for every subsequently offence to imprisonment for one year”  ( emphasis supplied) the words “ for every subsequent offence to imprisonment” must refer to offences of being  a rogue and vagabond and not any other type of offence. Secondly, such similar offences must have been committed afterwards ie. after the first conviction . Hence the prosecutors list in this case is of no consequence as the offences therin were committed before the appellant was convicted of being a rogue and vagabond as per section 174 (d) of the Penal code.
[4] In the premises therefore the sentence of 6 months imprisonment is illegal and it is accordingly quashed and set aside.
[5] In the memorandum of appeal 2 grounds were raised. The 1st ground is in regard to the failure of the learned trial Magistrate to adequately explain the option of legal representation throughout the trial and during mitigation. This failure according to the appellant’s Counsel deprived the appellant of a fair trial. Secondly the counsel was of a view that the sentence imposed by the learned trial Magistrate was harsh, oppressive and manifestly excessive in the circumstances of the case.
[6] In the circumstances therefore counsel prayed for the quashing of the conviction in his alternative he reduce the sentence.
[7] Ms. Burian represented the appellant at the hearing of the appeal and Ms. Ste. Ange appeared for the Respondent / Attorney General.
[8] For convenience I will reproduce part of the lower court to proceedings relevant to this appeal.
“20/04/2015
Republic : Ms. Dubinguon
Accused present in person
1st time case

Court: Constitutional right explain to the accused person.
Accused:  I will defend myself.”
Thereafter the appellant took plea and pleaded not guilty and the case was fixed for hearing and the accused was released on bond.
[9] Then on the 30/06/15 , the appellant expressed a desire to get the services of a lawyer. It appears the prosecutor protested and sought to have the matter to proceed, in that the accused has not been diligent in securing the services of a lawyer. Then there appears the following entry:
“Court: The case will proceed for trial”.
Thereafter the prosecutor opened the case and called witnesses. Thereafter the record shows that the appellant never conducted any cross - examination of the prosecution witness and actually admitted that the knife in question was his. His defence was in the following words:
“Accused: I did not have any bad intention to attack him. The person was not even (be) in uniform. I thought he was going to attack me. The only thing I did is run away and left them. That is all I have.”
[10] After his conviction, the appellant stated in mitigation as follows: “ I will not repeat again what I did”.
[11] It is clear from the forgoing that the appellant never conducted his case properly, as a counsel would have done. Clearly he required legal assistance. So as to conduct his case properly.
[12] In the case of France Amedee Victor vs. The Republic , SCA Criminal Appeal 18/13, it was held that “ since the adoption of the Constitutional in 1993, the rights in article 19 (2) and (c) and (d) stands as “ fundamental rights” which may not be restricted or qualified by any law.”
[13] This court had in the case of JEAN PAUL BARRA VS THE REPUBLIC CN 53/13 and RONNY LAPORTE CN 40/14) held the same thing. The learned trial Magistrate should have outlined the types of legal representation as options open the appellant at the beginning of the case, indicating the availability of Legal Aid, which must appear on the record. (See case ANDRE MICHEL VS THE REPUBLIC Case number 44/2014.)
[14] In the Victor case above, the appellant’s counsel never turned up on the day fixed for hearing and the court ordered the case to proceed without her. The Court of Appeal overturned the verdict and quashed the conviction. Their Lordships had the following say regarding the cross- examination by the accused:
“ the fact that the appellant only put two question to the first prosecution witness one to the second and none to the third, shows how unprepared he was to conduct his own defence. There was also no direction or help from the bench in assisting him to conduct of his case.” The Court of Appeal consequently found that there was a serious failure of justice which could not be cured under section 344 of the CPC.
[15] Given the circumstances of the present case, apart from the learned trial Magistrate not adequately explaining the Constitutional provisions of Article 19 (2) (d) to the appellant. She did not give an opportunity to him to get legal representation despite his express request for it. Given the way how he conducted his case, there was a clear failure of justice. As it was the case in Victor case the conviction cannot be allowed to stand and is quashed accordingly and sentence set aside.
[16] I make no order regarding a re-trial given that the accused has already served an illegal sentence of 6 months on the first count and also a substantial part of the second count. He should be set free forthwith.

Order accordingly.
Judgment read in open Court.


           Signed, dated and delivered at Ile du Port on 4th April 2016.

 

 

D Akiiki-Kiiza
Judge of the Supreme Court