R v Philoe & Anor (CO 64/2015) [2017] SCSC 755 (20 July 2017);

Legislation considered: 

IN THE SUPREME COURT OF SEYCHELLES

CriminalSide: CO 64/2015

[201     ] SCSC     


THE REPUBLIC

versus

TONY PHILOE

SALIM VOLCY

Accused


Heard:                         22, 26 Sept, 2016, 3 Feb. 21 March, 2017

Counsel:                      D Esparon,Principal State Counsel  for the Republic

                                   L Boniface for the first accused

                                   N Gabriel for second accused.

Delivered:                     20 July 2017


JUDGMENT


Dodin, J

[1]        The accused persons Tony Boniface and Salim Volcy stand charged with one count of Robbery contrary to section 280 of the Penal Code as read with section 23 of the Penal Code and punishable under section 281 of the Penal Code. The particulars of the offence are that on the 29th August, 2015, near the Wellness Centre, Les Cannelles, the accused persons with common intention robbed Hugue Dogley, a 50 years old security guard of his personal belonging namely; an envelope containing SCR 3500, his eye medicine, his identification card, his bus card, a telephone charger, one  packet of biscuit, one tin of luncheon meat, and a green and white shorts valued at SCR285, and at the time or immediately before the said robbery used personal violence against the said Hugue Dogley by using a deadly weapon, namely a machete.

[2]        The incident occurred on the 29th August 2015 near the Wellness Centre at Les Cannelles, in the district of Anse Royale at between 4 and 5 pm when the alleged victim, Hugue Dogley, was on his way to assume duty at the centre.

[3]        According to the testimony of Hugue Dogley on the 29th August, 2015 he left his home at around 2.30pm and took the bus to Sekaar’s shop at Les Cannelles arriving there at around 3.30pm. From an envelope in his backpack containing SCR 4000/- he removed a note of SCR500 with which he bought a packet of biscuit and a can of luncheon meat. He received around SCR400 plus some small denominations as change which he placed in his short pocket. He then walked along the secondary road towards his place of work at the Wellness Centre where he was posted as security guard for that evening. When he arrived close to the place a tall young man approached him and started talking to him. Another man also approached him and he noticed that the second man was carrying a knife. The tall young man grabbed his backpack from him and ran away with it. The other man with the machete grabbed his short pocket together with the SCR400 and small change in it tearing the pocket in the process and ran away as well.

[4]        He identified the 1st accused as the person who took away his backpack containing SCR3500, a can of luncheon meat, a packet of biscuit, a charger for his mobile phone, his bus card and his N.I.N. card.   He also identified the 2nd accused as the person with the machete who tore his pocket and took away the SCR400/-. And small change. He testified that at the time of the attack he had a short opportunity to observe both accused persons. The 1st accused was wearing a white t-shirt with purple stripe and a cap which was black at the back and yellow in front.  The 2nd accused was wearing a greyish t-shirt and brown shorts.

[5]        He testified that he cried for help and a lady assisted her as well as one Gilbert who was on duty as security guard at the centre. They contacted the police and Gilbert lent him SCR50/- so he could return home.

[6]        Helena Finesse testified that on the 29th August 2015 she was at home in the company of her daughter Marinette Finesse. At around 4pm whilst she was cleaning her house which is situated close to the Wellness Centre, she saw a person known to her as Tibert coming down the road. Shortly after she saw Salim Volcy, the 2nd accused and another man coming down. She knew Salim Volcy very well since he was a child. She did not know the 1st accused but maintained that the 1st person in the dock,(1st accused) was the person she saw with Salim Volcy that day. Shortly afterwards she saw Salim running back up the hill and heard a man crying that they had attacked him. She went towards that man who pointed towards the 2nd accused saying “la enn i taye an montan” (there is one who is running uphill). She did not see the 1st accused and she did not observe anything in the 2nd accused’s hand but saw that the short pocket of the man who was crying was torn. She called for help to assist the complainant.

[7]        Maizy Cafrine testified that on the 29th August, 2015 and around 4 to 5 pm whilst she was crossing the road to get to her yard near the Wellness Centre, she saw Tony and Salim whom she knew, standing further uphill and talking. She recalled that Tony was wearing a cap. A short while later, she heard the voice of her neighbour, Mrs Finesse shouting “sanmenm, monn vwar zot pe monte desann” (that is why I have seen them going up and down). At that point she did not see the two accused persons.  

[8]        Marie Brigitte Medor testified that on the 29th August 2015 at around 4 pm she was going to visit her husband at the Wellness Centre and near the centre she saw the security guards, Hugue talking to Salim Volcy whom she knew very well and it seems Hugue was giving Salim money. She did not stop to watch but after the visit she came across Hugue who was crying and said he had been attacked by two boys.

[9]        Sub-Inspector Lilianne Quatre testified that on the 29th August at around 4.15pm she received a call from Hugue Dogley lodging a complaint that he had been robbed by two young men, one of dark complexion and the other of fair complexion.

[10]      WPC Annette Landry attended the scene at near the Wellness Centre where she met Hugue Dogley who informed her that he had been attacked by two young men outside the centre who stole his back-pack and money from his pocket. She noticed that his short pocket was torn.

[11]      Charles Bastienne testified that on 29th August, 2015, he was a police officer on duty and he received instructions to collect from Hugue Dogley a pair of trousers, dark brown in colour which left pocket was torn. The same was kept as exhibit and produced in Court. On the 2nd September, 2015, he arrested Tony Philoe, the 1st accused at Anse Francois near a bin site and brought to Anse Royale Police Station. On the 11th September, 2015, he executed a search warrant on the premises of the mother of Tony Philoe and took away one cap which was dark brown and yellow in front.

[12]      P C Nerrick Delcy testified that on the 2nd September, 2015 at around 1640 hours he arrested Salim Volcy and brought him to Anse Royale Police Station. On the 12th September, 2015 he searched the properties of the 2 accused persons that had been brought for them by their relatives and picked out a brown billabong short from the property of Salim Volcy. From the property of Tony Philoe, he picked out a white t-shirt with reddish stripe and a brown short. All were kept as exhibits.

[13]      Inspector Gabriel Payet testified that on the 11th September, 2015 he was asked to hold identification parades for both accused to take part but that both accused refused to join the parade. The parades were therefore disbanded.

[14]      Both accused chose to exercise their right to silence and did not call any witness. I note that the right to silence is the constitutional and legal right of an accused person and no adverse inference is or can be make with regard to the exercise of that right by the accused persons.

[15]      Learned Counsel for the Republic submitted that all the elements of the offence of robbery with violence have been proved by the prosecution. The evidence of the victim and the witnesses, namely Helena Finesse, Maizy Cafrine and Brigitte Medor place both accused persons at the scene of the crime at the relevant time. The evidence showed that violence was used in that the bag of the victim was forcefully wrestled from him by the ist accused whilst the 2nd accused used a knife to threaten the victim and tore his pocket to get the money which indicate that force was used to take the money.

[16]      Learned counsel submitted that the three witnesses Helena Finesse, Maizy Cafrine and Brigitte Medor knew either both or at least one of the accused persons very well, there could not have been any mistake as to their identity. Furthermore at least two witnesses identified the cap that the 1st accused was wearing at the time of the attack. Learned counsel submitted that both accused persons were positively identified by witnesses who were testifying and noted that the dock identifications were the first opportunity the victim and witnesses had of formally identifying the accused persons as they had refused to take part in i.d. parades.

[17]      Learned counsel submitted that the two accused had common intention and that is supported by the evidence of Maizy Cafrine who saw them talking and Helena Finesse who saw them going together in the direction of the Wellness Centre immediately before the robbery took place. Secondly the evidence showed that 1st accused tried to talk to the victim whilst the second accused threatened the victim with a knife before the 1st accused grab the bag and the 2nd accused tore the pocket to get the money. This showed they had planned the attack and had common intention and common purpose.

[18]      Learned counsel hence move the Court to find that the prosecution has established all the elements of the offence and hence proved  it case beyond reasonable doubt and therefore convict both accused accordingly as charged.

[19]      Learned counsel for the 1st accused submitted that the evidence of the witnesses are contradictory. Brigitte Medor testified that she saw the victim talking to the 2nd accused only and did not see the 1st accused. Maizy Cafrine saw both accused in the vicinity but did not witness the robbery. The victim, Hugue Dogley testified that 2two persons attacked him and one, the 2nd accused, had a knife. He only identified the two accused persons in the dock.

[20]      Learned counsel submitted that the scuffle described by the victim, he could not have clearly identified the two persons involved and hence his dock identification is not safe. The identification of the clothing items are also not safe as there are so many t-shirts and caps that look similar. Learned counsel submitted that it cannot be said with certainty that the 1st accused was one of the persons who robbed Mr Dogley. Learned counsel moved the Court to fine the 1st accused not guilty and acquit him accordingly.

[21]      Learned counsel for the 2nd accused submitted that there is no corroboration of the evidence of the victim, Hugue Dogley that he was robbed by the 2nd accused. He admitted that there was evidence that the 2nd accused was near the scene and there is evidence that the 2nd accused was seen running whilst Hugue Dogley was crying saying he had been robbed but no-one saw the 2nd accused robbing Mr Dogley. Learned counsel submitted that during the investigations only the name of the 1st accused was mentioned and at no point was the 2nd accused mentioned until PC Nerrick Delcy arrested him and took him to the police station and later to central Police Station. Learned counsel submitted that without direct evidence of eyewitnesses the testimony of the victim Hugue Dogley is not supported or corroborated and cannot be relied upon to convict.

[22]      Learned counsel hence submitted that without direct evidence to show that the 2nd accused actually did commit the robbery on Hugue Dogley, it cannot be said that the prosecution has proved it case beyond reasonable doubt and moved the Court to acquit the 2nd accused accordingly.

[23]      The offence of robbery is contained in section 280 of the Penal Code with the penalties under section 281 of the Code.

280. Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed “robbery”.

281. Any person who commits the felony of robbery is liable to imprisonment for eighteen years.

  If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes, or uses any other personal violence to any person, he is liable to imprisonment for life.”

[24]      The offence of robbery has 4 elements which the prosecution must prove. There must be appropriation, which means the taking of something that belongs to another. There must be dishonesty. This means, that the taking was not done with the consent of the person or persons who parted with their properties. There must be also intention to permanently deprive the victim of the properties. Finally there must be the use of force or fear of the use of force or violence against the victim immediately before or at the time of the taking of the victim’s properties. In this case, in addition to the 4 elements, the prosecution must establish common intention of the two accused persons.

[25]      Section 23 of the Penal Code sets out what common intention is.

“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.”

[26]      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 the offence is committed. 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 any one 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 hence that the accused actually assisted in the actus reus which consists the crime.

[27]      It does not necessarily mean that the prosecution should always prove an express or pre arranged plan before the act. The arrangement may be by conduct.  Common intention may be conceived immediately before the act is executed or on the spur of the moment and even after the offence has commenced. The inference of common intention could be gathered by the manner the accused persons arrived at the scene, mounted the attack and manner in which the robbery was carried out that is the concerted  conduct during the commission of the offence are all matters to be taken into consideration in determining common intention. However insignificant the role of an accused may be, if it is proved by the prosecution that he had the common intention to participate in the unlawful act which is the robbing of the victim then he too will be guilty of the offence.

[28]      In this case, the evidence as rehearsed above remains uncontroverted on the 4 elements of the offence of robbery. In this case the defence did not even put much effort to contest the fact that the victim, Hugue Dogley was robbed of his possessions on the date and place stated in the charge and that at the time of the offence both accused persons were in the vicinity of the Wellness Centre. The contention of the defence is that only the victim claims that it was the two accused who robbed him but he did not name either of them and only made dock identifications. Both counsel maintained that the incident must have happened very fast that Mr Dogley could not have had time to identify the accused persons properly or at all.

[29]      Both counsel for the accused persons also maintained that the other witnesses, namely Mrs Finesse, Mrs Cafrine and Mrs Medor only identified one or the other or both accused persons before or after the incident but none of them saw the actual robbery and therefore cannot say that any one of the accused persons was involved or actually robbed Mr Dogley. Learned counsel for the 2nd accused submitted that without corroboration of Mr Dogley’s evidence there remains reasonable doubt which must be resolved in favour of the 2nd accused.

[30]      Learned counsel for the Republic maintained that even if no other person apart from the victim gave direct evidence of the attack and identified the two accused persons, the circumstantial evidence which placed the two accused at the scene of the crime leads to no other conclusion that they were the ones involved as there is no evidence that any other person went or came from the scene during that time.

[31]      Indeed the evidence of Helena Finesse stands uncontroverted on the fact that she saw the 2nd accused accompanied by another man she now identified as the 1st accused in the dock, go towards the Wellness Centre a few moment after a man known as Tiber had gone by. She further identified the 2nd accused “tay pti galo” (running or jogging at brisk gait) uphill when she went to assist Mr Dogley and that Mr Dogley pointed to the 2nd accused identifying him as one of his attacker who was running away up the hill saying “la enn i taye an montan” (there is one who is running uphill). Maizy Cafrine who knew both accused very well also saw them talking in the vicinity of the Wellness Centre shortly before the attack but did not see them immediately after the attack but confirmed that the 1st accused was wearing a black and yellow cap as testified to by the Mr Dogley. Brigitte Medor also confirmed witnessing the 2nd accused in very close proximity of the victim and it seemed to her as if the victim was about to give the 2nd accused money.

[32]      I do find circumstantial evidence in this case placing both accused persons at the scene of the crime to be strong and indeed very reliable. As stated in the case of R v Taylor, Weaver and Donovan 21 Cr App R 20, 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.”

[33]      Pollock CB in the case of R v Exhall (1866) 4 F&F 922 at 928 described circumstantial evidence such:

“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 .”

[34]      However I do take into consideration certain inherent pitfalls of circumstantial evidence as the Privy Council observed in the case of Teper v R [1952] A.C. 480 at 489:

“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.”

[35]      Although none of the three witnesses directly witnessed the actual attack, their evidence as to what they observed immediately before and immediately after the attack excluded the presence of any other person at the scene during that short period except one Tiber who had gone by just before the attack. Moreover these witnesses knew very well one or both accused persons and had the opportunity to observe them in broad daylight with no obstruction impeding their sights; hence it was not some fleeting glance views where the 4 persons could all have been mistaken.

[36]      Secondly, whilst the accused persons were perfectly entitled to refuse to participate in identity parades, the first chance that the victim Hugue Dogley had of seeing his alleged attackers was when he was testifying and they were in the dock. Such identification does not make the evidence of Hugue Dogley any lass credible than if he had identified them in an identity parade which the accused persons themselves refused to take part in. In any event I am satisfied that they were both clearly identified by other witnesses immediately before and immediately after the attack.

[37]      I am therefore satisfied that the evidence taken together does not leave any doubt that the 1st and 2nd accused persons were the ones who carried out a concerted and well co-ordinated attack on Mr Dogley and stole his backpack which also contained SCR 3500, his eye medicine, his identification card, his bus card, a telephone charger, one packet of biscuit, one tin of luncheon meat, and a green and white shorts valued at SCR285 and from his pocket SCR 400 plus some small change.

[38]      Further, even if I were to disregard the evidence of the use of a knife to threaten the victim, the evidence show that inordinate force was used to wrestled the backpack from the victim and to get the money out of his pocket resulting in the tearing of the pocket.

[39]      Consequently, I find that the prosecution has proved beyond reasonable doubt that it was the 1st Tony Philoe and 2nd accused Salim Volcy who with common intention on the 29th August, 2015, near the Wellness Centre, Les Cannelle, robbed Hugue Dogley, of his personal belonging namely; an envelope containing SCR 3500, his eye medicine, his identification card, his bus card, a telephone charger, one  packet of biscuit, one tin of luncheon meat, and a green and white shorts valued at SCR285, and SCR 400 plus some indeterminate amount of money in small changes and at the time of the said robbery used personal violence against the said Hugue Dogley.

[40]      I therefore find both accused persons guilty as charged and I convict both accused persons accordingly as charged. 

[40]    

Signed, dated and delivered at Ile du Port on 1 July 2017

 

G Dodin

Judge of the Supreme Court