R v Hussein & Ors (COCR6/2014) [2016] SCSC 400 (10 June 2016);

IN THE SUPREME COURT OF SEYCHELLES

CriminalSide: CR6/2014

[2016] SCSC400


THE REPUBLIC


versus


MOHAMMED ALI HUSSEIN
ABDULKADER MOHAMED HASSAN
ABDUL ALI ABDULLAHI
ALI  DAHIR HASSAN
SALAD DAHJIR JIMALE

 


Heard:    19, 20, 21, 22, 23, 24, January, 1, 2,3,10, 11, 12, June, 7, 8, 9 September,  2015, 2,  23 March, 4th May, 3rd June,2016.
    
Counsel: S Muzaffer, State Counsel, D Esparon, Principal State Counsel for the Republic
              M.A. Vidot for the accused
           

Delivered:        10 June 2016

JUDGMENT
Dodin J

 


[1] This case emanates from the incidents which occurred on the high seas in the Indian Ocean in January, 2014 which resulted in the 5 accused persons being taken to Seychelles where they have been charged and tried for offences relating to piracy. This is a brief synopsis of the events as they developed:
On the 17th January 2014, the Nave Atropos, a cargo vessel is attacked on the high seas at the entry to the Gulf of Eden. The attack is suspected to be by pirates.
The attack is repelled by security personnel who were on board the Nave Atropos who returned fire and the attackers fled. Distress signals were simultaneously broadcasted from the Nave Atropos.
The distress calls were picked up by the Japanese naval vessel, the Samidare and retransmitted and were also picked up by the French naval vessel, the Siroco.
The Samidare sent a helicopter to investigate and take pictures and video recordings of the incident;
The French vessel the Siroco also sent helicopters to relieve the Japanese and continue the operation of keeping watch and recording through pictures and video;
Both the Japanese and French identified the Nave Atropos and located in the vicinity, was a dhow; the Shane Hind. They suspected that the attack had been conducted from the Shane Hind using the skiff that they found being pulled along by the Shane Hind.
The Japanese and French concluded that there were no other vessels in the area that would have been able to mount the attack;
The French send boarding teams to intercept and board the Shane Hind under the command of Romain Lacoste;
The boarding teams found 11 persons of Indian origin and 5 persons of Somalis origin on board the Shane Hind in two separate groups. They also searched the Shane Hind and items that could have been used for acts of piracy were found on board the Shane Hind.
After concluding their searches and investigations, the persons of Somali origin were detained on board the French vessel and those of Indian origin were allowed to go.
The 5 persons now identified as the 5 Somalis were taken to Seychelles and handed over to the Seychelles Police were they were arrested for the offence of piracy and charged accordingly with 3 counts relating to piracy.
[2] The 5 accused persons, Mohammed Ali Hossein, Abdulkader Mohamed Hassan, Abdule Ali Abdullahi, Ali Dahir Hassan and Salad Dajhir Jimale now stand charged as follows:
Count 1
STATEMENT OF OFFENCE
PIRACY, contrary to Section 65(1) and 4(a) of the Penal Code, as read with Section 22 of the Penal Code.

PARTICULARS OF OFFENCE
MOHAMMED ALI HUSSEIN, ABDULKADER MOHAMED HASSAN, ABDULLE ALI ABDULLAHI, ALI DAHIR HASSAN, and SALAD DAJHIR JIMAALE between the 01st day of January 2014 and the 18th January 2014 on the high seas, with common intention, committed an act of piracy, by committing an illegal act of violence or detention, or an act of depredation, for private ends against the crew of another ship, namely the Shane Hind.

Count 2
STATEMENT OF OFFENCE
PIRACY, contrary to Section 65(1) and 4(b) of the Penal Code, as read with the Section 22 of the Penal Code.

PARTICULARS OF OFFENCE
MOHAMMED ALI HUSSEIN, ABDULKADER MOHAMED HASSAN, ABDULLE ALI ABDULLAHI, ALI DAHIR HASSAN, and SALAD DAJHIR JIMAALE between the 01st day of January 2014 and the 18th January 2014 on the high seas, with common intention, committed an act of piracy, by voluntarily participating in the operation of a ship, namely the Shane Hind, with knowledge of fact making it a pirate ship.

Count 3
STATEMENT OF OFFENCE
PIRACY, contrary to Section 65(1) and 4(a) of the Penal Code, as read with Section 22 of the Penal Code.

PARTICULARS OF OFFENCE
MOHAMMED ALI HUSSEIN, ABDULKADER MOHAMED HASSAN, ABDULLE ALI ABDULLAHI, ALI DAHIR HASSAN, and SALAD DAJHIR JIMAALE between the 01st day of January 2014 and the 18th January 2014 on the high seas, with common intention, committed an act of piracy, by committing an illegal act of violence or detention, or an act of depredation, for private ends against the crew of another ship, namely the M/T Nave Atropos.
[3] In this case Jean-Marc Le Quillec, the commanding officer of the French navy vessel Siroco, testified that on the 17th January 2014 at around 2100hours his vessel received information that a vessel Nave Atropos was under attack by pirates in a skiff. The next day they received information that a dhow towing a skiff had been located by Japanese helicopter and the position was given to the Siroco’s helicopter crew which also subsequently located the dhow now known to be the Shane Hind. He testified that from the time they were informed of the attack to the time the boarding team boarded the Shane Hind there were no similar vessel within a 60 nautical mile radius of the Shane Hind.
[4] A boarding team from the Siroco was sent to board the Shane Hind the next day and the boarding team did so unopposed. The Shane Hind was searched several objects were found and seized. The 5 accused persons were also detained and taken on board the Siroco and were eventually taken to Seychelles were they were handed over to the Seychelles authorities.
[5] Guillaume Marin, a crew member of the helicopter from the Siroco testified that the helicopter took off from the Siroco at around 1116 hours on the 18th January, 2014 and located the dhow Shane Hind at position 16°38N 0553° E at 1156 GMT and they observed at a distance until 1215 GMT when they approached the vessel at the same time as the boarding team. He also took photographs and filmed the activities on the Shane Hind.
[6] The witness testified that he witnessed at least 5 objects being thrown overboard but he could not identify what these item where. He also clearly identified 2 groups of people on the Shane Hind with 5 persons in one group and 10 persons in another group. The helicopter crew placed one smoke marker to mark the position where items were thrown overboard and after the boarding team was on board, the helicopter returned to the Siroco.
[7] Lieutenant Benoit Prioul testified that he was the pilot of the helicopter that carried Guillaume Marin and other crew members to recuperate the vessel Shane Hind. He maintained that even if he was aware that photographs and recordings were being made he was more focused on maintaining the helicopter’s position and piloting the same than conducting observations of the operation.
[8] Romain Lacoste testified that he was the boarding team leader from the vessel Siroco and that he led a team of 7 persons to board the dhow Shane Hind. On approaching the Shane Hind, he witnessed objects being thrown overboard. He could not identify what the objects were but he could also see the splashes. He testified that as they got closer to the Shane Hind they contacted it by radio. The Shane Hind stopped its engine and the words “help me sir” were heard over the radio.
[9] He testified that upon boarding the Shane Hind he observed one group of 10 persons of Indian origin and a separate group of 5 who were of African origin on the deck. Another man approached him and informed him that he was the master of the Shane Hind. He ordered his team to secure the vessel and then to search the vessel. The search found amongst other items, a plastic container which contained cigarettes, torches, a pouch containing 9 bullets and medicines. In a plastic bag on a bed there was a piece of a gun. All the persons were kept on board the Shane Hind until the legal officer had interviewed them and taken statements. The 5 Somalis were then taken to the Siroco and the Indians were left on the Shane Hind.
[10] Louis-Marie Leroy testified that he is a legal adviser 1st class in the French Navy and that in January 2014 he was ordered by the captain of the Siroco to go onto the Shane Hind to conduct investigations which he did with an assistant. He boarded together with the second group of the boarding team after the boat had been secured by the 1st group of the boarding team. He also noticed two distinct groups of persons on board; one group of 5 persons of African origin and one group of Indian origin and two other persons of Indian origin, one of whom later identified himself as the captain of the Shane Hind were talking to the boarding team leader.
[11] His investigation showed that the documents of the Shane Hind were all in order and the vessel was properly licensed. He was given an ammunition shell and he also found cell phones, a satellite phone and a GPS device. The satellite phone was returned to the Indian crew who claimed it was theirs and the other items were kept as exhibits. When he returned to the Siroco he was handed over other items including 2 rifle butts, 9 bullets in a red plastic. All were marked and produced as exhibits.
[12] The witness also interviewed the 5 accused persons whom he identified as the same persons who were apprehended on board the Shane Hind, namely Mohammed Ali Hossein, Abdulkader Mohamed Hassan, Abdule Ali Abdullahi, Ali Dahir Hassan, and Salad Dajhir Jimale.  He also took possession of the Photographs and recordings made during the operation which were viewed and admitted as exhibits by the Court.
[13] Tetsuya Nozaki, and Lieutenant Yasuke Hata both Japanese navy helicopter pilots based on the Japanese vessel Samidare testified that they were tasked with locating a dhow and a skiff which had attacked the vessel Nave Atropos around 9 pm on the 17th January, 2014. Tetsuya Nozaki took off 20 minutes later and located the Nave Atropos about 2 hours later whilst Lieutenant Hata remained on the Samidare and co-ordinated the operation as well as attempted to contact the vessels.
[14] From the information gathered by the helicopter they concluded that there was no other vessel in the vicinity of the Nave Atropos except one dhow towing a skiff. They took photographs and at 2040 hours they lost sight of the dhow. They took the helicopter back to the vessel for refuelling and then returned to the location and after some time located the dhow and again, the radar revealed no other similar vessel in the area. After they returned a second time to the Samidare, another crew went out to continue the mission.
[15] Petty Officer Yamaguchi Hiroshi and Lieutenant Commander Yasue Daisuke were both based in Djibouti and took part in the operation to locate the Nave Atropos and the vessel that had attacked it. They were conveyed to the area of the attack by a P3C Orion aircraft. Petty Officer Yamaguchi Hiroshi took photographs and was the lookout. He testified that at the co-ordinates they were given he observed a dhow towing a skiff and there were about 13 persons on the dhow but much of its deck was covered with a blue sheet and a yellow or orange sheet.
[16] Lieutenant Commander Yasue Daisuke maintained that they did not observe anything being thrown overboard and that they observed some other vessels in the area but none similar to the Shane Hind or towing any skiff. All the information was passed to the French vessel Siroco which they had been informed had been tasked with the interception of the dhow.
[17] Alan Robert Tweed testified that in January 2014 he was escorting the Nave Atropos from the Port of Eden through the Suez Canal and on the 17th at around 2205 hours he was called to the bridge where he met the operator and suddenly he heard gunfire. Together with the watch officer, they used night vision devices and as it was a full moon, the visibility was good. He observed a dhow about 3 nautical miles away with no lights and a skiff approaching their vessel. The skiff was splashed with laser and in return the persons on the skiff fired their weapons at the Nave Atropos in bursts of 3 to 5 rounds. As an ex-marine in the Royal Navy, has was trained to identify different weapons being fired and he identified the sound of the weapons as AK47.
[18] The witness added that immediately after they were fired upon he issued the person on the watch with a weapon and ammunition as well as the other members of the team who had arrived. There were further bursts of gunfire and from the noise it was obvious that the firing was getting very close so he gave orders to the team to return fire which they did and the skiff then changed direction. They observed the skiff return to the dhow and they also kept monitoring the position of the dhow by radar and communicated the position to the centre of operation in the UK.
[19] The other witnesses were Seychelles police officers who participated in the handing over of the 5 accused persons and the exhibits to the Seychelles police and they conducted the formalities required to arrest, detain and charge the accused persons. Their respective testimonies were not challenged or contradicted.
[20] In their declarations made to the crew of the Siroco, the accused persons gave the following information about themselves:
A1: Mohammed Ali Hussein: 19 years old
Job in Mogadishu: as a peddler of goods using a wheelbarrow
He was travelling clandestinely to Saudi Arabia.

A2: Abdelkader Mohammed Hassan: 22 years old
A shepherd from the bush; also a waiter in a restaurant in Mogadishu
He was travelling clandestinely to Saudi Arabia to work as a shepherd and paid $150.

A3: Abdule Ali Abdulahi: 11 years old
A shoeshine boy in Mogadishu
His mother and father as well as his 12 brothers and 2 sisters live in Mogadishu and he is the 4th child.
Travelling clandestinely to Saudi Arabia to work as a shepherd and paid $150.

A4; Ali Daher Hassan; 23 years old
In Mogadishu be burnt wood to make charcoal for sale
He was travelling clandestinely to Saudi Arabia to work as a shepherd and paid $150;

A5; Salad Dajhir Jimaleh; 11 years old
He was travelling clandestinely to Saudi Arabia to work as a shepherd.
He has 9 brothers and sisters in Mogadishu and he is married with 2 children.
[21] Consequently the prosecution called Dr Sameera Anuruddha Gunawardena, Dr Asela Mendis, Dr Jayanie Bimalka Weeratne and Dr Udari Apsara Liyanage who  testified that they were tasked with establishing the approximate ages of the five accused persons through forensic and radiology analysis. They conducted the following examinations on all accused:
Tanner staging
Height –weight measurements and nutrition
Dental eruption
Radiology of 3rd molar
Plain x-ray of hand and wrist, and
CT scan of the clavicle.
   
[22] During the course of the examination the accused persons gave their ages as follows:
A1: Mohammed Ali Hussein: 17 years old
A2: Abdelkader Mohammed Hassan: 12 years old
A3: Abdule Ali Abdulai: 11 years old
A4; Ali Dahir Hassan; 14 years old
A5; Salad Dahir Jimaleh; 16 years old

[23] The examiners all testified that the ages of the accused persons as per their determination from the examinations as follows:
A1: Mohammed Ali Hussein: is more than 20 years old 4 months and less than 25 years old 4 months;
A2: Abdelkader Mohammed Hassan: is more than 19 years old 2 months and less than 23 years old 11 months;
A3: Abdule Ali Abdulai: is more than 19 years old 2 months and less than 23 years old 11 months;
A4; Ali Dahir Hassan; is more than 20 years old 4 months and less than 25 years old 4 months; and
A5; Salad Dahir Jimaleh; is more than 20 years old 4 months and less than 25 years old 4 months.
[24] I note that in view of the ages being proffered by the accused persons, the Honourable Attorney General issued and filed a fiat under section 92(1)(b) of the Children Act authorising the prosecution of all 5 accused persons. Considering the uncotroverted evidence of Dr Sameera Anuruddha Gunawardena, Dr Asela Mendis, Dr Jayanie Bimalka Weeratne and Dr Udari Apsara Liyanage, I can only conclude that the Honourable Attorney General acted out of an abundance of caution but nevertheless prudently considering the finding of the Court of Appeal on this issue in the case of Abdirahaman Nur Roble and others v Republic SCA 19/2013.  
[25] At the close of the case for the prosecution, the defence moved the Court to rule that the accused had no case to answer on all the charges against them. After reviewing the evidence adduced, the Court ruled that all accused persons had a case to answer on all the counts. All accused persons then chose to exercise their right to silence and did not call any additional witness. I warn myself that the right to silence is the constitutional right of the accused persons and no adverse inference is made from the exercise of their constitutional right. Indeed article 19(2) of the Constitution of the Republic of Seychelles states:
“Article 19(1)...
(2) Every person who is charged with an offence-
(a) is innocent until the person is proved or has pleaded guilty;
(b) ...
(c) ...;
(d) ...;
(e) ...;
(f)...;
(g) shall not be compelled to testify at the trial or confess guilt;
(h) shall not have any adverse inference drawn from the exercise of the right to silence either during the course of the investigation or at the trial;...”
[26]  It is therefore entirely up to the prosecution to prove the case against all the accused persons on all counts levelled against them beyond reasonable doubt. The accused persons have nothing to prove.
[27] In his closing submission learned counsel for the Republic submitted that the evidence tendered by the prosecution proved its case beyond reasonable doubt as is required by law on all counts. Learned counsel submitted that the attack on the Nave Atropos was witnessed by Allan Tweed and Oliver Faulkner who gave evidence that the attack came from a skiff having four to 5 people on board and the skiff came from the dhow the Shane Hind which was being used by the Somali persons at the time as a mother ship.  After the attack the skiff went back to the dhow whereby it was tied at the back of the dhow.  The skiff and the dhow were seen visually and on radar and they followed it until the Japanese Navy vessel the Samidare and the helicopter from Samidare came and he gave the position of the dhow and skiff to both of them.  
[28] Learned counsel submitted that from the evidence of Nazoki Tetsuya, Hata Yusuke (both helicopter pilots), Yusue Daisuke and Yamaguehi Hiroshi from the Japanese navy who gave evidence as to the continuity from just after the time the Naïve Atropos was being attacked until the French Navy vessel, the Siroco took over on the scene.  They testified that there were no other vessel that fitted the description of the dhow but only large vessels like cargo vessel in the area.
[29] Learned counsel submitted that Lieutenant Benoit Prioul, the French Helicopter Pilot gave evidence that he took over the surveillance of Shane Hind and the skiff from the Japanese Navy Aircraft which had transmitted the position of Shane Hind to him and the description of the dhow and skiff and kept both under surveillance until the boarding team of the Siroco had boarded.  He also testified that at one point there were objects being thrown overboard.  He also gave evidence that there were no other vessel in the vicinity that fitted the description of the dhow in the position given by the aircraft from the Japanese Navy which shows the continuity of evidence from the time the Nave Antropos was attacked until the dhow was boarded by French Navy.
[30] Learned counsel further submitted that Romain Lacoste testified to the fact that he saw objects being thrown from the deck of the dhow through his binocular and this was confirmed by the evidence of the video footage from the French helicopter.  He gave evidence that he could hear calls made in English through the VHF radio saying help me, repeated several times.  He gave evidence that when they boarded the vessel everyone was on deck and the Indian crew was separated from the Somalis.  He gave evidence to the fact that 2 rifle butts were seized on the ship as well as 9 cartridges of 7.62 mm calibre.  
[31] Learned counsel submitted that Jean-Marie Le Quilliec, the Captain and Commanding Officer of the French Navy Vessel Siroco gave evidence to the fact that when the dhow stopped he could hear from the radio VHF 16 requests for help emanating from dhow in English with an Indian accent saying“11 Indians on board and 5 Somali people, please help” and Somali surrender, Sir, please help.  He then ordered the boarding team to board the Shane Hind.
[32] Learned counsel submitted that the case is very similar in facts and circumstances to the case of Roble and Ors vs Rep SCA 19/2013 whereby the Court of Appeal maintained the conviction of the Appellants and dismissed the appeal. Learned counsel maintained that there is no doubt from the evidence that the crew of the Shane Hind was frightened and as such it is circumstantial evidence at its highest to show that the accused persons had committed an illegal act of violence or detention or an act of depredation against the crew of the Shane Hind. Learned counsel concluded that the prosecution has proved its case beyond a reasonable doubt in respect to the 1st count.
[33] On the 2nd count learned counsel submitted that it is clear from the evidence of Allan Tweed and Oliver Faulkner that the Shane Hind was being used as a mother ship from where the attack on the Nave Atropos was launched since the skiff came from the Shane Hind and after the attack the skiff immediately rendezvoused with Shane Hind where it was tied at the back of the Shane Hind.  Learned counsel submitted that the evidence of Romain Lacoste and Jean-Marie Le Quillec shows that the 5 Somalis were in command or at least in control of the Shane Hind since they could hear from their VHF radio calls of help from a man having an Indian accent and after mentioning that there were 5 Somalis on board.  
[34] Learned counsel concluded that with respect to the 2nd count the prosecution has proved beyond reasonable doubt that the accused persons had committed an act of piracy by voluntarily participating in the operation of a ship namely the Shane Hind with knowledge of fact making it a pirate ship.
[35] In respect of the 3rd count learned counsel submitted that it is clear from the evidence of Allan Tweed and Oliver Faulkner that when the skiff was attacking the Nave Atropos, rounds from AK 47 riffles were being fired at the Nave Atropos by the persons on board the skiff and according to them the bullets came so close to them as they could hear a crackling sound and they feared for their lives.  Learned counsel concluded that the prosecution has proved its case beyond reasonable doubt in respect to the 3rd count by establishing that the accused persons with common intention committed an act of piracy by committing at least an illegal act of violence for private ends against the crew of the Nave Atropos.
[36] Learned counsel hence moved the Court to find that the prosecution has proved its case beyond a reasonable doubt in respect of all 3 counts against the accused persons and therefore to find all 5 accused persons guilty as charged and to convict them accordingly.
[37] Learned counsel for the accused also narrated the facts of the case as set out in the evidence adduced and submitted on the applicable law. Learned counsel submitted that the only direct evidence of an attack on the Nave Atropos came from the security officers onboard that vessel, namely Stephen Brown, Oliver Faulkner and Alan Tweed.  They all deponed that there was an attack which was launched by people in a skiff that was light in colour with 4 or 5 persons on board.  They could not provide any description of the attackers, albeit height, built, colour or otherwise.  Both Stephen Brown and Oliver Faulkner had indicated that it was a clear night with good visibility.  They used night vision goggles.  However learned counsel submitted that there is no independent evidence to show that it was the 5 accused persons who had attacked and taken control of the Shane Hind and that they were using that vessel from which to launch attack on other vessels and in that particular case, the Nave Atropos.
[38] Learned counsel also referred the Court to the case of Roble & Ors v Republic SCA R19 of 2013, maintaining that circumstances of strong suspicion without more conclusive evidence are not sufficient to justify conviction, even though the accused persons offered no explanation for them.  Learned counsel submitted that “all incriminating facts and circumstances must be incompatible with innocence of the accused of the guilt of any other person and incapable of explanation upon any other hypothesis than that of his guilt, otherwise the accused must be given benefit of the doubt.
[39] Learned counsel submitted that if the case depends wholly on circumstantial evidence, the circumstances must be of such nature as to be capable of supporting the exclusive hypothesis that the accused persons are guilty of the offences with which they have been charged.
[40] Learned counsel submitted that there is no evidence adduced to establish that the accused persons were on the Shane Hind unlawfully. There is no evidence that the accused persons exercised any act of violence or detention or an act of depredation against the crew of the Shane Hind and there is no evidence that showed that the Indians on the Shane Hind were under the control of the accused persons and that the accused persons had control over the Shane Hind. Learned counsel submitted that when the boarding team under command of Romain Lacoste boarded the Shane Hind it was the Indians that allowed them on board which shows that they had control of the Shane Hind.
[41] Learned counsel submitted that the defence does not dispute that there had been an attack on the Nave Atropos and that the attack was launched by men in a skiff and that the likelihood that the skiff was from the Shane Hind.  The evidence of the armed security personnel on board the Nave Atropos, namely Oliver Faulkner, Alan Tweed and Stephen Brown confirm such an attack and that it was carried out by 4 or 5 unidentified individuals on board a skiff.    The evidence of the French and Japanese naval officers corroborate the evidence of the security officers. However, there is no certainty as to who carried out the attack on the Nave Atropos as there were both Indians and Somalis on board the Shane Hind.
[42] Learned counsel submitted that the prosecution has not established that items found on the Shane Hind which could be associated with acts of piracy belonged to the accused persons. Learned counsel maintained that Louis-Marie Leroy and Romain Lacoste admitted that despite the accused persons having been fingerprinted, no fingerprints were lifted from any of the items seized and exhibited before Court.  There were no SIM Cards from the telephones that could be associated with the accused persons and the accused persons were not confronted with the items that were seized as the French officers simply assumed that they belonged to the Accused. Learned counsel submitted that this shows that the French officers acted in a manner that showed that they were prejudicial against the accused persons only because they were Somalis. Learned counsel referred the Court to the case of Ali & Ors v Republic [2014] SCAA 34, which contained a statement which warned that it should not be good practice to assume that acts of piracy can only be carried out by Somalis.
[43] Learned counsel submitted that the act of throwing items, which the French suspected to be arms is not shown on the video produced in evidence and cannot be associated to the accused persons.  There were also Indians on the Shane Hind and if such items were thrown overboard, it could equally have been done by the Indians.
[44] Learned counsel concluded that the chain of evidence adduced leaves reasonable ground for a conclusion that is consistent with innocence and it is not conclusive that the acts were performed by the accused persons. Furthermore, circumstances of strong suspicion without more conclusive evidence are not sufficient to justify conviction. Learned counsel submitted that the Prosecution has failed to discharge the burden of proof to the required standard and moved the Court to acquit all the accused persons of the charges against them.
[45] Section 65 of the Penal Code as amended by Act 2 of 2010 has the following provisions in respect of the offence of or related to piracy:
65(1)“ Any person who commits any act of piracy within Seychelles or elsewhere is guilty of an offence and liable to imprisonment for 30 years and a fine of R1 million.”

[46] Section 65(4) gives the following definitions of piracy:
65(4)“For the purposes of this section “piracy” includes-
(a) Any illegal act of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or aircraft and directed-
(i) on the high seas, against another ship or aircraft, or against persons or property on board such a ship or aircraft;
(ii) against a ship or an aircraft or a person or property in a place, outside the jurisdiction of any State;
(b) Any act of voluntary participation in the operation of a ship or an aircraft with knowledge of facts making it pirate ship or a pirate aircraft; or
(c) Any act described in paragraph (a) or (b) which, except for the fact that it was committed within a maritime zone of Seychelles, would have been an act of piracy under either of those paragraphs.”

[47] Section 65(5) also states as follows:
5.     “A ship or aircraft shall be considered a pirate ship or pirate aircraft if-
(i) It had been used to commit any of the acts referred to in subsection (4) and remains under the control of the persons who committed those acts; or
(ii) It is intended by the person in dominant control of it to be used for the purpose of committing any of the acts referred to in subsection (4).”
[48] The amended section 65 of the Penal Code became the applicable law in force in Seychelles on the 17th March 2010.
[49] As submitted by learned counsel for the accused persons, much of the case depends on circumstantial evidence. In the case of Republic v Ronny Laporte and another CR 13 of 2010  this Court stated thus on dealing with circumstantial evidence:
“The problem with circumstantial evidence is well-known. On the one hand it is said that circumstances cannot lie but on the other hand it can happen that truth is stranger than fiction. There is ordinarily greater certainty in proof by direct evidence than by circumstantial evidence. In the case of direct evidence error may arise from mistake or untruthfulness. In the case of circumstantial evidence the same chances of error may arise but there is the additional chance of making erroneous inference by the Court. However, it is well accepted norm that when there is no direct evidence, the case must rest on the circumstantial evidence alone, and the general rule is that to amount to proof such evidence must not merely be consistent with guilt but also inconsistent with innocence.”
[50] In the case of Teper v R [1952] A.C. 480 at 489 the Privy Council also made the following observation with regard to circumstantial evidence:
“It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no co-existing circumstances which would weaken the inference.”

[51] Pollock CB in the case of R v Exhall (1866) 4 F&F 922 at 928 described circumstantial evidence is in this manner which is still very much so today:
“It is [more] like the case of a rope comprised of several cords. One strand of the cord might be insufficient to sustain the weight, but three strands together may be quite of sufficient strength. Thus it may be in circumstantial evidence, there may be a combination of circumstances, no one of which, would raise a reasonable conviction or more than a mere suspicion, but the whole taken together, may create a conclusion of guilt with as much certainty as human affairs can require or admit of .”
[52] The case of R v Taylor, Weaver and Donovan 21 Cr App R 20  also stated that circumstantial evidence is no lesser evidence than direct evidence. “It has been said to be the best evidence as it is evidence of surrounding circumstances which by undesigned coincidence, is capable of proving a proposition with the accuracy of mathematics.”
[53] I find that the evidence has established that the 5 accused persons were apprehended on board the vessel Shane Hind after a thorough investigation by the French investigators had identified them as the perpetrators of the attack against the Nave Atropos. The evidence adduced by the prosecution also showed that the 5 accused persons were in a separate group from the persons of Indian origin and that the persons of Indian origin appeared frightened and subdued. There is also uncontroverted evidence that items relating to the offence of piracy were recovered from the Shane Hind and that the persons who were calling for help had Indian accents.
[54] However, having considered the evidence adduced I find that this Court has been left bereft on an important aspect of the element of the offence contained in the 1st count. There is no evidence adduced that established how the 5 accused persons came to be on the Shane Hind. Yet the particulars of the offence state that Mohammed Ali Hussein, Abdulkader Mohamed Hassan, Abdulle Ali Abdullahi, Ali Dahir Hassan, and Salad Dajhir Jimaale between the 01st day of January 2014 and the 18th January 2014 on the high seas, with common intention, committed an act of piracy, by committing an illegal act of violence or detention, or an act of depredation, for private ends against the crew of another ship, namely the Shane Hind.
[55]  This Court cannot assume that if the 5 accused persons were operating from the vessel Shane Hind, they must have committed an act of piracy against the Shane Hind. The act of piracy against the Shane Hind must be proved by the prosecution beyond reasonable doubt. Having not adduced any evidence to that effect, I find that the 1st count against the 5 accused persons has not been proved to the standard required by law. I therefore find all 5 accused persons not guilty of the 1st count of piracy and I acquit all of them of that count accordingly.
[56] On the 2nd count of using the Shane Hind as a pirate ship, and the 3rd count of committing  an act of piracy against the Nave Atropos, in addition to the evidence rehearsed above, there is also evidence that they were identified by the persons of Indian origin as being the persons who attacked the Nave Atropos and the evidence of the security personnel and the French and Japanese naval officers showed that the only vessel with such description which was kept under observation in the area and which was towing a skiff was the Shane Hind. It is immaterial whether the 5 persons had total control over the Shane Hind and its crew or whether they had joined the crew of the Shane Hind to carry out the offence of piracy as the evidence established that they were either in control of the Shane Hind or part of the crew of the Shane Hind. The evidence also showed that the 5 accused persons either acted on their own as a separate group or together with the persons of Indian origin. This brings in the concept of common intention which forms part of the charge.
[57] Section 22 of the Penal Code sets out what constitute common intention namely when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.
This section lays down a principle of joint liability in the commission of a criminal act and is not concerned with the manner of committing the 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 or at the time the offence is committed.  When more than one person are involved in the commission of an offence there can be equal participation or unequal participation but what counts is not the degree of participation but the mindset of the participants.
[58] This also raises the issue of identification. That is whether the prosecution must prove that it was the 5 accused persons who attacked the Nave Atropos and not the persons of Indian origin found on board the Shane Hind. From the evidence adduced, it is clear that from the time of the attack on the Nave Atropos to the time the accused persons were apprehended on the Shane Hind, no other vessels of similar nature to the Shane Hind and the skiff were in or near the area under observation. The evidence also established that the incident occurred in clear weather and through their night vision devices and radar, the skiff and its crew were observed going back to the Shane Hind and did not leave the Shane Hind until it was boarded by the French boarding teams.
[59] There is also uncontroverted evidence of simultaneous communications from the Shane Hind and recorded by the Siroco of the fact that there were 5 Somalis on board the Shane Hind and that the persons of Indian origin were calling for help. No other person left the Shane Hind until the accused persons were apprehended. Furthermore, the items found on the Shane Hind, namely, 9 bullets, a piece of a gun, 2 rifle butts, an ammunition shell and GPS device, all reinforce the evidence that the Shane Hind was the platform from which the attack on the Nave Atropos was carried out. All the circumstantial evidence taken together, places the 5 accused persons firmly on the scene and identify them as the perpetrators or participants in the attack on the Nave Atropos by using the Shane Hind as a mother ship.
[60] I am therefore satisfied that the prosecution has established beyond reasonable doubt that the 5 accused persons, Mohammed Ali Hussein, Abdulkader Mohamed Hassan, Abdulle Ali Abdullahi, Ali Dahir Hassan, and Salad Dajhir Jimaale either on their own or in conjunction with the crew of the Shane Hind, operated the Shane Hind with knowledge of making it a pirate vessel and that with common intention, the 5 accused persons committed an act of piracy, by committing an illegal act of violence namely by discharging firearms in the direction of the vessel Nave Atropos in an attempt to take control of the vessel or to commit an act of depredation against the vessel Nave Atropos for private ends.
[61] I therefore find that the accused persons Mohammed Ali Hussein, Abdulkader Mohamed Hassan, Abdulle Ali Abdullahi, Ali Dahir Hassan, and Salad Dajhir Jimaale between the 01st day of January 2014 and the 18th January 2014 on the high seas, with common intention, committed an act of piracy, by voluntarily participating in the operation of a ship, namely the Shane Hind, with knowledge of fact making it a pirate ship. I find them guilty of the 2nd count as charged  and I convict them accordingly.
[62] I further find that the accused persons Mohammed Ali Hussein, Abdulkader Mohamed Hassan, Abdulle Ali Abdullahi, Ali Dahir Hassan, and Salad Dajhir Jimaale on the 17th of January 2014 on the high seas, with common intention, committed an act of piracy, by committing an illegal act of violence for private ends against the crew of another ship, namely the M/T Nave Atropos. I therefore find all 5 accused persons guilty of the 3rd count as charged and I convict all five accused persons of that count accordingly.


Signed, dated and delivered at Ile du Port on 10 June 2016

 

G Dodin
Judge of the Supreme Court