Republic v Vidot & Anor (CR 61/18) [2019] SCSC 558 (09 July 2019);

Flynote: 
Legislation considered: 

TWOMEY CJ

The charges against the two accused.

[1]        The two accused stand charged as follows:

Count 1

 

Statement of Offence

Trafficking in a controlled drug, by means of being found in unlawful possession of a controlled drug with intent to traffic, contrary to Section 9(1) read with Section 2(c) of the Misuse of Drugs Act, 2016 and further read with Section 19(1)(c), Section 20(1)(c) and Section 20(3) of the said Act and together with Section 22(a) of the Penal Code and punishable under Section 7(1) read with Second Schedule of the Misuse of Drugs Act, 2016.

 

Particulars of offence

 

Tony Vidot, 29 year old male Maintenance Supervisor of SCAA, of Pointe Larue, Mahé and Keira Maria, 27 year old unemployed female of Pointe Larue, Mahé on or about the 05th of October 2018, were trafficking in a Controlled Drug by virtue of having been found in unlawful possession, with knowledge and consent of each other person, of Diamorphine (Heroin) having a net weight of 62.3 grams with an average purity of 57% and average Heroin content of 35.5 grams, which drugs were found hidden at a store at Seychelles Civil Aviation Authority at Pointe Larue, Mahé, preparatory to or for the purposes of selling, brokering, supplying, transporting, sending, delivering or distributing the said controlled drugs, which gives rise to the rebuttable presumption of having possessed the said controlled drug with intent to traffic.

 

Count 2 (in the alternative to Count 1)

 

Statement of Offence

 

Aiding, abetting or procuring another person to commit the offence of Trafficking in a controlled drug contrary to Section 15(1) read with Section 2(c) and punishable under Section 7(1) read with Second Schedule of the Misuse of Drugs Act, 2016.

 

Particulars of offence

 

Keira Maria, 27 year old unemployed female of Pointe Laure, Mahé on or about the 05th of October 2018, aided, abetted or procured one Tony Vidot to commit the offence of trafficking in a Controlled Drug namely Diamorphine (Heroin) having a net weight of 62.3 grams with an average purity of 57% and average Heroin content of 35.5 grams, which drugs were found hidden at a store at Seychelles Civil Aviation Authority at Pointe Larue, Mahé, preparatory to or for the purposes of selling, brokering, supplying, transporting, sending, delivering or distributing the said controlled drug.

 

The Prosecution evidence

Evidence of Chanel Herminie

[2]        Mr. Herminie, an Anti-Narcotics Bureau officer for the last two and a half years testified that on 5 October 2018, he was asked to collect the First Accused from Mont Fleuri Police Station and to bring him to the airport cargo terminal. He was met there by ASP Joseph, SI Pétrousse, Jerry Rath and Peter Flore. Mr. Rath was informed that a search was to be carried out in the offices at the Club House occupied by himself and the First Accused.

[3]        The First Accused stood by the door as the search was conducted. The witness found and removed a blue bag on the left part of the store. Inside the blue bag was another black bag, which contained a tin of milk, mark Pearl. A red bag was removed from the tin in which was a piece of cling film containing five cylindrical shaped objects, a part of a condom and a black digital weighing scale.

[4]        These were shown to the First Accused. He was told that he was still under arrest and he was cautioned and explained his rights.  PC Léon then took photographs of the scene. Dogs were requested to search the place and this was done by the dog handler, Officer Mellie. After the items found were photographed, the witness handed them to Egbert Payet for analysis purposes.

[5]        In cross-examination, he denied that he had made a bee line for the bag in the store, stating that he was searching the store in the company of Don Laramé when he found it. He denied any tampering with the bag. He did hear the First Accused declare that he had been set up.

Evidence of Jean-Philip Lucas

[6]        Mr. Lucas, a Police Corporal attached to the Scientific Support and Criminal Record Bureau (SSCRB) testified that he worked in the field of fingerprint, photography and scene of crime investigation. He had worked in the police force for seven years and for the SSCRB for three years, having undergone training in Gujarat, India and Egypt.

[7]        He received some exhibits for fingerprint analysis from WPC Chettiar on 10 October 2018. He also took twenty-five photographs of a blue and green shopping bag and its contents including a yellow coloured milk tin and its contents, namely cylindrical “bullets” and a black coloured pocket digital scales.

[8]        He conducted chemical treatment of the items on which the fingerprints had been obtained. He developed impressions from four of the prints taken from eight items: the blue and green shopping bag, the red plastic bag, the clear plastic bag with the STC sticker and other another item which he could not remember. As he was not the expert and his duties were only to photograph the prints as they developed, the photographs of the impressions he obtained were brought to the fingerprint expert, Mr. Aubrey Quatre, to see which prints he could work with.

[9]        Mr. Quatre then directed him to request from the ANB a list of suspected persons against whom the prints could be matched. A list of three or four suspects including that of the First Accused were given to him and their prints were retrieved from the Criminal Record Office. The impression lifted from the blue and green shopping bag matched the left thumb of the First Accused on a specimen form held by the Criminal Record Office. No comparisons of the impressions found on the other items were made with the other persons on the suspect list.

[10]      The expert required a formally obtained set of prints from the First Accused for confirmation purposes and this was requested. He received further finger and palm prints taken from the First Accused on 24th October 2018. The First Accused’s fingerprint matched the impression lifted from the blue and green shopping bag.

Evidence of Aubrey Quatre

[11]      Mr. Quatre is the Assistant Superintendent at the SSCRB for the past eight to nine years. He works as a crime scene officer, the manager and officer for fingerprint identification and verification. He explained that generally a crime officer collects and develops the print and the fingerprint officer does the comparison, verification and evaluation of the print. He received a green and blue shopping bag from PC Lucas on 24th October together with a fingerprint specimen form from the First Accused. He compared an impression taken from the bag with the fingerprint impressions on the fingerprint form and mapped ten points of similarities which all agreed in sequence and detail to both enlargements of the prints of the First Accused’s left thumb. The other impressions taken were not identifiable.

[12]      The witness stated that in the UK, ten similarities are required in terms of quality assurance and this was the standard he used.

Evidence of Yves Emmanuel Léon

[13]      Mr. Léon is attached to the ANB for the past two and half years and before that to the SSCRB for over twenty–two years. His duties included attending crime scenes, photographing and evaluating them.

[14]      On the 15 October 2018 he was called upon by Officer Manuel Marie to assist in a case of suspected importation of controlled drugs. On that basis, he travelled to the Club House at the international airport. He examined the place and took photographs. He took photographs of a blue bag and its contents where they were found. Officer Herminie then took the bag to the Investigation Unit at Bois de Rose.

[15]      At Bois de Rose, the witness photographed the blue bag and labelled it. He did the same in respect of its contents, namely a black bin liner, a milk tin marked Pearl, a black digital scale, five “bullets” wrapped in cling film and a part of a condom.

[16]      He also took buccal swabs from four suspects, namely Dominique Laure, the First and Second Accused and Neil Suzette. These were taken to the forensic laboratory in Mauritius for DNA analysis on 12th October 2019 and were received by Officer Ramkalawan together with a letter or of request for analysis by the Deputy Commissioner of Police of Seychelles, Mr. Ted Barbé. 

[17]      He collected the results of the analysis from the Head of the Forensic Laboratory in Mauritius on 22 February 2019. The piece of condom was later sent by post to him and it was handed to PC Herminie.

[18]      He was also the officer who obtained a fingerprint specimen form from the First Accused and which he handed over to Officer Lucas at the SSCRB. He agreed with Defence Counsel that he had not photographed the black substance in the milk tin suspected to be pepper.

Evidence of Jerry Rath

[19]      Mr. Rath is the Administration Manager of Seychelles Civil Aviation Authority (SCAA). for the past four and a half years. His duties were the general administration of the SCAA including the offices, transport, housekeeping and telephone operators.  The First Accused was the Maintenance Supervisor for the grounds and buildings of the Authority. On 5 October 2018, the Chief Operations Officer requested that a search of the premises be carried out as staff members did not feel safe because of reports of incidents at the Club House. The assistance of the National Drugs Enforcement Authority was sought. 

[20]      The First Accused had been in charge of renovating the Club House and had a key to the store in the Club House where the materials for the renovation were being kept. The other key was kept in the Administration Office. There were other keys for main doors but not for the store. When the search was requested, the witness took the key from the Administration Office and accompanied Mr. Peter Flore of the SCAA, the police, the Senior Human Resource Manager Mr. Frank Bamboche, the legal officer Ryan Laporte and the NDEA to the Club House.

[21]      The First Accused was brought over before the search started. Several officers assisted with the search and one of them picked up a blue bag in which there was a black plastic bag with a milk tin. Inside it was a small scale, black matter similar to pepper, a condom and five “bullets”. He identified the items as the ones on the photographs before the court and the exhibits before the court.  The First Accused stated that he had been set up.

[22]      In cross-examination, he admitted that although the Club House key was in the possession of the First Accused it would sometimes be handed over to the plumber. When the key for the store was requested for the search it could not be located although it should have been in the possession of either maintenance supervisor, that is, the First Accused or Mr. Andrew Figaro. The rest of the administration staff may also on request have access to the store key. Other staff members also have access to the Club House for meetings and members of the public have access to it for private functions but not to the store.

Evidence of Tracy Labrosse

[23]      ANB Officer Labrosse has been working in that capacity for two years. On 11 March 2019 she was directed to arrest the Second Accused. She did so at Point Larue and informed her of her rights. The Second Accused had been previously arrested in relation to another case.

Evidence of Egbert Payet

[24]      ANB Officer Payet is an investigator and store keeper at the ANB for two years and previously with its predecessor, the NDEA. Officer Herminie handed him a sealed evidence bag for safekeeping and analysis. On 8 October, he brought the same bag to Ms. Chettiar of the Forensic Science Laboratory at Bois de Rose together with a request letter for analysis of the contents of the evidence bag, namely a blue bag, a plastic bag, a yellow milk tin mark Pearl, a red plastic, a piece of cling film enclosing five cylindrically shaped “bullets” made of clear tape containing a substance and a black digital scale for the presence of controlled drugs and for finger prints.

[25]      He retrieved the same items in the sealed evidence bag on 17 October 2018 which had with them a certificate of analysis from Ms. Chettiar. The certificate stated that the cylindrical compressed masses of substance had a total net weight of 62.3 grams with a content of average purity of 35.5 grams of heroin. The second page of the report has a fingerprint referral note in respect of the items in the exhibit bag. He identified the items in the exhibit bag as the same ones exhibited in court. He had handed those items to Officer Herminie earlier. The condom and the clear plastic sachet with dark brown powder was not handed over to him. 

Evidence of Shaun Sohun

[26]      Mr. Sohun is the Forensic Scientist employed by the Mauritius Forensic Science Laboratory. On 17 October, the Seychelles Police submitted five exhibits to the lab. These were placed in the custody of the liaison desk officer (Mr. Ramkalawan) who placed them in the exhibit room after he registered them. He was assigned to the case and collected the exhibits for examination from the liaison officer. This was also recorded on the register.

[27]      The item he examined was found to consist of two pieces of translucent latex condom.  One of the parts was found inside the other and it appeared as one piece. On further examination they were found to be two separate pieces.  One of the parts was knotted in the middle area and measured 6 cm in length and 5 cm in width and the other part measured 11.5 cm in length and 5 cm in width. The parts were damp, used and dirty and had traces of a black and off white powdery material on the inside.

[28]      The exhibit was processed for epithelial cells and the DNA material recovered from both parts were similar and generated a partial female DNA profile. These matched the DNA profile from the reference sample of the Second Accused. Further DNA was recovered from the exterior surface of the exhibit as well and this time a full female DNA profile was generated.

[29]      The exhibits were then kept locked in a secured cupboard while the results were awaited and then transferred back to the exhibit room before being released to the enforcement agency. These movements of the exhibit were captured in the despatch book and the sample register.

Evidence of Johnny Malvina

[30]      Mr. Malvina is the Head of Investigation with the ANB and has worked there for approximately eleven years. With respect to the present case, he was in charge of the investigation and had also signed the request form for the DNA analysis in Mauritius to be conducted on the condom retrieved at the scene of the incident which was suspected to have been used to transport the drugs through the vagina or anus of a person. 

[31]      When Officer Laurine Constance informed the Second Accused that her DNA was retrieved from the condom she said that she was shocked as she had not travelled.

Evidence of Dominic Laure

        

[32]      Mr. Laure was presently working at Land Marin Services and previous to that had worked at the SCAA as a plumber. His Manager was one Moses Dogley and he had two supervisors: the First Accused and one Jim Albert. He saw the First Accused at the Club House with one Neil. The First Accused opened the store and removed a tin of milk mark Pearl. He removed a black plastic bag. Around the tin of milk there was black pepper. He showed the witness the “bullets” inside.  He said that they had come through the post. In cross examination he also stated that there was also saw small plastic containers and a scale in the tin.

[33]      In cross examination, he accepted that other people had access to the Club House. The store keys were kept in the office upstairs and Moses Dogley, Andrew Figaro, Tony Vidot and Jim Albert had access to them.

Evidence for the Defence

[34]      The Second Accused exercised her constitutional right to remain silent whilst the First Accused exercised his option to give evidence under oath. 

Evidence of First Accused

[35]      The First Accused is thirty years old and presently self-employed. Previously he worked for the SCAA as a maintenance supervisor and reported to one Moses Dogley, the Manager.

[36]      On the 27 September 2018, he travelled to Abu Dhabi and returned on 2 October 2018. He went through customs and immigration and went outside to meet his girlfriend. He did not travel in his car as his girlfriend had “leased” it out to a friend while he was away. His friend had returned the key to Dominic Laure, the plumber at the SCAA.

[37]      They then travelled to Dr. Murthy as he had an abscess on his buttock requiring treatment. He then went home to Pointe Larue and went to his bedroom. There was a knock on the door and the Second Accused informed him it was NDEA agents. The agents informed him that a search was going to be conducted in the premises. This was effected but nothing illegal was found.

[38]      He was then asked about his car and informed the agents that the car was at the airport car park. They went to the car and which was searched and again nothing illegal was found. He was then brought to the police station and saw the Second Accused there together with Dominic Laure and Neil Suzette. He remained there till 7 pm. He was not told he was being arrested or informed of his rights.

[39]      He gave a statement at around 7 pm and was transferred to Mont Fleuri Police Station.  On the 3 October he was transported to the airport where he was told a search was going to be carried out. They searched lockers and the maintenance office where nothing illegal was found. He was returned to the cell at Mont Fleuri. On the 5 October, he was again brought to the airport where Mr. Gerry Rath, Mr. Peter Flore, Mr. Fred Bamboche and two police officers were. Mr. Flore had a brown envelope with him. The First Accused was asked for the keys to the Club House and he stated that they were not with him. He asked for his lawyer but they continued to open the door and asked him for assistance. 

[40]      Inside the Club House he was asked for the store keys and again stated that he did not have them. They must have used the spare keys in Mr. Rath’s office to open the door. He was asked if he had anything illegal inside and responded no. He refused to assist them with the search but just stood at the door. Mr. Laramé, the NDEA agent started searching the store and Mr. Chanel Herminie just went past him and pulled out a bag. He placed the bag on the floor and was told by Mr. Marie to put it back. At that stage he got frustrated and went away and again asked for his lawyer and the request was refused.  After the bag was retrieved the dogs were requested and came. He was not shown the contents of the bag. Afterwards his car was searched.

[41]      He denied that he had ever shown Dominic Laure the milk tin with drugs inside.  He stated that he had many personal things in his car and used a bag similar to the one which was seized to store his tools in. He stated that he could not account for the pieces of condom found inside the tin. He reiterated that he and his girlfriend had been set up. They could have done a complete search when he was arrested on the 2 October but they let time go by whilst other people had access to his car and the store.

[42]      He had left the car at the airport because there was a problem with the left CV joint and it was being repaired. He had not collected the car from the airport on his return from Abu Dhabi because his girlfriend had informed him that the key was with his friend who had borrowed it.

 

 

Closing submissions

Submissions from Prosecuting Counsel

 

[43]      Prosecuting Counsel, Mr. Thatchett has submitted that the evidence led by the prosecution in respect of the search was corroborated by the numerous witnesses who testified and in fact is partly confirmed by the First Accused. He submitted that the First Accused’s version in terms of how the bag was found and that the contents were not laid out for him to see is a lie.

[44]      He submitted that the rest of the evidence in terms of the fingerprint evidence confirms that the blue bag was handled by the first Accused. Similarly, the fact that the keys were not there on the day of the search and the spare keys had to be used shows that the other keys were with the First Accused who had their possession and control. There was therefore no tampering with the evidence, namely the drugs, and therefore no support for the First Accused’s assertion that he had been set up.

[45]      Counsel also submitted that the evidence of Dominic Laure was strengthened by the fact that in cross examination he mentioned other items not put to him in examination in chief that were actually found to be in the tin.

[46]      With regard to the law, learned Counsel submitted that the charge under section 9(1) of MODA is read with subsection 2(c) and that section 19 (1) (c) and 21 (c) section 23 of MODA are read together with the Penal Code. In this respect the average content of heroin found in the “bullets” was 35.5g. The presumption therefore is that the person having its custody or control had the intent to traffic it unless the person proves otherwise. It was his submission that on the authority of Nenesse v R (SCA Cr. 35/2013) [2016] SCCA 23 (12 August 2016) when there is strong proof tending to support a charge and the accused’s presence is found in close proximity to the object and in those suspicious circumstances the accused does not offer an alternative explanation, the natural conclusion would tend to sustain the charge.

[47]      Learned Counsel submitted that no such evidence was adduced by the accused. The drugs were found in a place to which the First Accused had the keys and the condom retrieved inside the milk tin had the DNA of the Second Accused. Relying on R v Lenclume (CO58/2017) [2019] SCSC 219 (07 March 2019) Counsel submits that the presence of the Second Accused’s DNA on the condom confirms that at some stage the controlled drug was in her possession. In his submission, both accused therefore had the knowledge and possession of the drugs. Further, the traces on the digital scale show the intention of the parties to engage in the activity of trafficking and in any case the amount found presumes it was for trafficking purposes. In the alternative, the presence of the Second Accused’s DNA would support the alternative charge of aiding and abetting.

[48]      With respect to the fingerprint evidence of the First Accused on the bag, it is Counsel’s submission that on the authorities of Jean Francois Adrienne & Another v R (Criminal Appeal SCA25 & 26/2015) [2017] SCCA 25 (11 August 2017), Republic v Gilbert (1997) SLR 11 and R v Albert and anor (CO 27/2015) [2018] SCSC 131 (14 February 2018), fingerprint evidence alone is sufficient for a conviction.

 Submissions from Defence Counsel

 

[49]      Learned Counsel, Mr. Camille submitted that the doubt raised by the First Accused to the prosecution case in respect of section 20(1) (c) of MODA is enough to rebut the presumption of trafficking.

[50]      In his submission, there is doubt as regards the exclusive possession and control of the drugs by the two accused persons. The reasons are that several other people had access to the store where they were found as there were two sets of keys to it. The First Accused had left his set of keys with the plumber, Dominic Laure. As for the First Accused’s fingerprint on the bag, learned Counsel submitted that he was set up as other persons had access to his car and he kept such a bag in the back of his car with his tools in it. His car keys had also been left behind with Dominic Laure.

[51]      Learned Counsel also submitted that there was no connection between the condom with the Second Accused’s DNA found in the tin and the drugs which were also in the tin. The suggestion that the condom had been used to carry drugs had no basis as the DNA expert had testified that the no drugs were found in the condom.

[52]      The submission by the First Accused that they had been set up is bolstered by the fact that several searches were carried out between the 3 and 5 October indicated that anything could have happened in terms of the drugs that were eventually found.

The Court’s observations and findings

[53]      The prosecution case is that the two accused persons trafficked in a quantity of controlled drugs. Of the witnesses who testified in this respect, the evidence of Assistant Superintendent Aubrey Quatre of the SSCRB and that of Dominic Laure link the First Accused inextricably to the blue shopping bag in which the tin of milk containing the drugs was discovered.

[54]      The fingerprint evidence is uncontroverted. Ten points of similarities were identified between the fingerprint sample given by the First Accused and the impression lifted from the bag. Indeed, although the expert during his cross examination was challenged in relation to the minimum standard of similarities required for a positive fingerprint identification, the defence strategy throughout the case was that the First Accused’s fingerprint was on the bag as the bag belonged to him and must have been taken from his car.

[55]      I have tried to follow this narrative for credibility and coherence so as to amount to a reasonable doubt in favour of the First Accused. It is problematic to say the least as it is totally unsupported by the evidence. For the court to believe it, first, the First Accused would have to show that the bag was at least missing from his car. No such evidence was adduced.

[56]      Secondly, it would also have to be shown that someone removed the bag from the car and placed it in the store room.  Evidence was adduced by the First Accused that his car was lent or leased to a friend of his. Later in contradiction to this evidence he stated that the car had been left at the airport for a CV joint to be repaired. Either the car was in use or not. In any case no evidence was led as to whether indeed the keys were left with the Second Accused or with an unknown individual. The First Accused only stated that the friend who borrowed the car was meant to leave the keys with Dominic Laure. This crucial piece of evidence could have been led when Dominic Laure was cross examined but no such question was put to him. There is in fact no evidence that the car keys were ever with Dominic Laure or anyone at the airport.

[57]      Further, I am not at all convinced that there was a set up in this case. The Defence submissions are that more than one search was carried out at the airport and it was only the search on 5 October that revealed the drugs and that this was therefore suspect. However, this in my view is not borne out by the evidence. The first search on 3 October was at the instance of the ANB and conducted at the airport lockers and the maintenance office. Nothing illegal was found. The second search on 5 October was not at the instance of the ANB but rather at the request of the SCAA themselves, specifically the order of the Chief Operations Officer as staff members did not feel safe given reports of incidents at the Club House. The SCAA sought the assistance of the ANB. This was the first time the store was searched. I fail to see how an inference can be drawn from this that it gave a person or persons the opportunity to set up the First Accused.

[58]      There is also no evidence why Dominic Laure would lie about the First Accused showing him the drugs in the tin or indeed be part of a set up. The First Accused testified that Dominic Laure was forced to make such a statement but there was no evidence led on this fact. He was also neither a co-accused nor one turned state witness. Dominique Laure was not cross-examined at all on his alleged coercion to testify. On the contrary, he was a straightforward, frank, coherent and credible witness who was completely unruffled in cross examination. Crucially, his credibility was reinforced by the fact that he named other items which were taken from the tin about which questions were not put to him by the prosecution. He only volunteered this information on questions put to him by Defence Counsel, Mr. André.

[59]      With respect to the evidence that other people had access to the store room and presumably opportunity to place the drugs where it was found, the difficulty for this defence narrative is that it was the First Accused’s fingerprint that was found on the bag and no one else’s.

[60]      In this regard, as was pointed out by Fernando JA in Adrienne (supra)

“[the submission] that a single print found on one of the bags containing drugs was not proof beyond reasonable doubt that the drugs belonged to the 1st Appellant is not well founded in our view. Finger-prints are a very strong circumstantial evidence and in many cases convictions founded on them have been upheld where there had been no other evidence of identity. In the case of R v Castelton [1990] 3 Cr App Rep 74 the Court of Appeal upheld the conviction for burglary where the only evidence against the appellant was the finger-prints found on a candle which had been left behind at the place of burglary. In the local cases of Mondon v The Republic [1990] SLR 84 – (judgment of the Supreme Court on an appeal from the Magistrate’s court) and The Republic v Treffle Finesse Criminal Side No. 11 of 1994 – (Unreported Judgment of the Supreme Court dated 20th May 1996), the conviction of the accused was solely based on the finger-prints of the accused found at the scene of crime.”

 

[61]      Although not entirely necessary, in respect of the First Accused I find that the evidence of Dominic Laure corroborated the rest of the evidence against him including the fingerprint evidence.

[62]      With respect to the Second Accused, her DNA was found in the pieces of condom found with the drugs. The prosecution has submitted that in the absence of an explanation on her part as to how the condom ended up in close proximity with the drugs is proof beyond reasonable doubt that at some stage she had possession and control of the drug.

[63]      In Nenesse (supra) Fernando JA cited the case of R v Burdett (1882) 4 B & Ald 95 (at 120), the seditious libel case against Sir Frances Burdett, for the authority that when positive testimony is not  given against a proven fact, the court cannot otherwise but adopt the conclusion to which the proof tends. The South African cases of Magmoed v Janse Van Rensburg and Others [1993] 1 All SA 396 (A) (25 November 1992), a private prosecution for a fatal shooting by police officers, and S v Tandwa 2008 (1) SACR 613, a bank robbery in which a bank employee was also co-indicted and at trial remained silent, are modern applications of this principle.

[64]      Similarly, the European Court of Human Rights, in the case of Murray v UK [1996] ECHR 18731/91 stated that the right to remain silent under police questioning and self-incrimination contain concepts that generally underline recognised international standards lying at the heart of the notion of a fair procedure and these immunities contribute to avoiding miscarriages of justice namely but that: 

“46.   The Court does not consider that it is called upon to give an abstract analysis of the scope of these immunities and, in particular, of what constitutes in this context "improper compulsion".  What is at stake in the present case is whether these immunities are absolute in the sense that the exercise by an accused of the right to silence cannot under any circumstances be used against him at trial or, alternatively, whether informing him in advance that, under certain conditions, his silence may be so used, is always to be regarded as "improper compulsion".

 

47. On the one hand, it is self-evident that it is incompatible with the immunities under consideration to base a conviction solely or mainly on the accused’s silence or on a refusal to answer questions or to give evidence himself. On the other hand, the Court deems it equally obvious that these immunities cannot and should not prevent that the accused’s silence, in situations which clearly call for an explanation from him, be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution. Wherever the line between these two extremes is to be drawn, it follows from this understanding of "the right to silence" that the question whether the right is absolute must be answered in the negative.

 

It cannot be said therefore that an accused’s decision to remain silent throughout criminal proceedings should necessarily have no implications when the trial court seeks to evaluate the evidence against him.”

 

[65]      In the Australian cases of Weissensteiner v The Queen (1993) 178 CLR 217 and Azzopardi v The Queen (2001) 205 CLR 50, the court held that once a case to answer has been made out, the jury may take into account the failure of an accused to testify to a matter that is peculiarly within the accused’s knowledge in deciding whether it has any remaining reasonable doubts about the accused’s guilt.

[66]      Hence, despite an accused’s right to remain silent, and that inferences cannot be made by the court regarding his refusal to answer questions before or during trial, these cases are to the effect that the choice to remain silent in the face of evidence suggestive of the implication of the accused or his complicity in the offence may be taken into account by the court together with other evidence adduced to decide his guilt. In other words, such cases allow for a reversal of the legal burden which is not incompatible with an accused’s constitutional and legal rights.

[67]      In the present case, the prosecution led evidence as to the discovery of the Second Accused’s DNA on two pieces of condom in a tin of milk which also contained drugs. The tin was in a bag on which the fingerprint of her boyfriend was lifted. This was strong direct and uncontroverted evidence adduced by the prosecution implicating the Second Accused. It called for an explanation from her especially as this matter would be within her peculiar knowledge. She opted not to offer any explanation but to remain silent.

[68]      In deliberating on these facts, I have tried to analogise them to different circumstances to have a more objective view of such evidence. If a hammer with an accused’s DNA was found next to a dead body, would it not be strong circumstantial evidence that the accused killed the person and would not the accused be expected to offer an explanation of how and why his DNA got onto the hammer?

[69]      While the Court is cautious about convicting the Second Accused solely on the DNA evidence adduced, her silence in this case as how a condom with her DNA happened to be next to the drugs, the corroborative effect of her boyfriend’s fingerprint evidence on the bag containing the tin, the pieces of condom from which her DNA evidence was extracted and the evidence that the First Accused displayed the drugs to other persons leads to an irresistible inference that the Second Accused had knowledge and consent of the control of the drug by the First Accused.

[70]      In the circumstances and for the reasons I have outlined above, I find that the prosecution has proved beyond reasonable doubt that both accused had possession and control of the drugs found in the tin. In terms of section 20 (3) of MODA, the court infers from the evidence generally that the Second Accused was in possession of the drug having had the knowledge and consent of the control of the drug by the First Accused. Further, pursuant to section 20 (1) (c) of MODA the two accused persons had in their possession 2 grams or more of heroin and are therefore presumed to have trafficked the same since they have not proven otherwise.

[71]      I therefore find both accused guilty of the first charge and convict them both of the same.

 

Signed, dated and delivered at Ile du Port on 9 July 2019.

 

____________           

Twomey CJ