R v Vidot and Anor (CR 60/18) [2019] SCSC 811 (23 September 2019);

Flynote: 
Headnote and Holding: 

Conspiracy to commit the offence of importing a controlled drugs- elements of the offence- agreement

TWOMEY CJ

The charge against the two accused.

[1]        The two accused stand charged as follows:

Count 1

Statement of Offence

Conspiracy to commit the offence of importing a controlled drug contrary to Section 16 (a) read with Section 5 of the Misuse of Drugs Act, 2016 and punishable under the Second Schedule to the said Act.

Particulars of offence

Tony Vidot, 29 years old residing at Pointe Larue, Mahé and Kiera Maria, 26 years old residing at Pointe Larue, on or about the 2nd October 2018, at Pointe Larue, agreed with one another to pursue a course of conduct, that, if pursued would necessarily amount to or involve the commission of an offence of importation of controlled drugs under the Misuse of Drugs Act 2018.

The Prosecution evidence

Evidence of Zerene Moise

[2]        Zerene Moise has been working at the Anti Narcotic Bureau (ANB) for one year. On 2 October 2018 she was on duty at Seychelles International Airport when at 8 am she received information from Custom Officer Dominic Bristol that two men were acting suspiciously in a toilet at the arrival lounge and that one of the men was wearing a Seychelles Civil Aviation uniform. Something was exchanged between the two men.

[3]        Together with Ruth Dine and Dominic Bristol she approached one of the two men, who by now was in the Duty Free area. A fair skinned man was also standing nearby. The man wearing uniform went outside the lounge. Officers Ruth Dine, Sandy Julienne and Francois Ally went to view the camera footage in the Camera Room. Meanwhile Ms. Moise went to search the luggage of one the men who had been observed in the toilet, Neil Suzette. The officers who had gone to the Camera Room reported that the man seen with Neil Suzette on the footage worked in the Maintenance Department. Together with Ruth Dine and Dominic Bristol she proceeded to the Maintenance Room.

[4]        After talking to the Manager of the Maintenance Department they headed back to the Arrival Lounge and brought the Maintenance Manager to see the footage. He identified the man on the footage as Dominic Laure who was then called to the International Arrival Lounge. Both Neil Suzette and Dominic Laure were then handed over to Andy Servina and other ANB colleagues.

Evidence of Dave Mellie

[5]        Dave Mellie has worked in the ANB for eight years. He has trained as a dog handler. On 2 October 2018 he was on duty and was asked by the Team Leader to go to the airport. Arriving there he was informed by Zerene Moise of what had taken place. The Team Leader, Andy Servina separated the ANB officers into two groups and he was assigned to Group 1 which group was given the task of searching Neil Suzette’s property at Les Mamelles. A search was carried out and nothing was found. Mr. Suzette was then brought to the ANB Office and arrested.

[6]        Subsequently, the officers were informed that the First Accused was also involved in the offence and Andy Servina, Don Laramé and he proceeded to the First Accused’s house where a search was carried out. They were assisted by a sniffer dog who gave “an indication” next to a closet. The dog also picked up the scent of drugs inside the bedroom as well as in the living room specifically in relation to a small plastic bag that was on the sofa. Officer Mellie identified the two accused persons in court as the occupants of the house he searched on that day at Pointe Larue.

Evidence of Andy Servina

[7]        Mr. Servina has worked for the ANB for six years. On 2 October 2019, he proceeded to the airport with other officers. He was informed of two suspects and thereafter he proceeded with one of the suspects, Neil Suzette to his house together with other officers. The search proved fruitless but he brought the suspect back to the ANB office and arrested him.

[8]        Subsequently on the receipt of a lead he proceeded with other officers to the First Accused’s house at Point Larue where a search was carried out. The two accused persons were present during the search. A sniffer dog was also present. The dog picked up a scent in the bedroom and in the living room. Nothing illegal was found in the house, although a white plastic bag with a green design was recovered from the sofa where the dog had given an indication. The witness identified the two accused as the persons at the house on the day of the search. Both of them were arrested on that day.

Evidence of Don Laramé

[9]        Mr. Don Laramé has been working for the ANB for one and half years. He was on duty on 2 October 2018 and after receiving information mounted an operation to search the First Accused’s house. Before going to the First Accused’s house they proceeded to St. Louis to search Dominic Laure’s house. Nothing was found at either residence.

Evidence of Egbert Payet

[10]      Egbert Payet is an investigator and exhibit store keeper with the ANB and has worked for three years with the ANB and its predecessor the NDEA. On 2 October he was on duty at the ANB station at Bois de Rose when he received a sealed evidence bag from one Terry Florentine. On 3 October he brought the bag and its contents to the Forensic Analyst for examination. The exhibit bag contained the plastic bag that had been seized from the house where the two accused had been staying. He collected the exhibit bag which had been resealed and the certificate of analysis on 16 October 2019. The certificate signed by Forensic Analyst M Chettiar states:  

Description: One white plastic bag with green grid design and a green imprint, inside bearing traces of herbal material

Result of examination: Negative for controlled drugs

Evidence of Neil Suzette

[11]      In 2018 Mr. Suzette had been working as a painter for the SCAA. His supervisor was the First Accused but also a childhood friend. Occasionally the First Accused would help him out with money. In September 2018 he had rung him to tell him that he had planned to go to Abu Dhabi to buy baby items and that his girlfriend might not be able to travel with him because she was heavily pregnant. He was asked to accompany him instead. 

[12]      He went on the trip to Abu Dhabi with the First Accused on 27 September. He was dropped at the airport by Dominique Laure who gave him some money to give the First Accused who was being dropped at the airport by the Second Accused. In Abu Dhabi, they stayed at the Premier Inn Hotel together with one Tyra Constance who had been brought to Abu Dhabi by the First Accused. He went shopping with the First Accused who also gave him money to shop with. The First Accused also paid for his hotel room. Altogether they stayed four days in Abu Dhabi and came back to Seychelles on Sunday night arriving in Seychelles the following Monday. During the journey on the plane the First Accused gave him a white and green plastic bag.   

[13]      On landing he received a phone call from Dominique Laure who asked to be put through to the First Accused. He had then gone to the toilet. The door of the booth was locked and then Dominique Laure came out of the toilet. Mr. Suzette gave him the white and green plastic bag containing bullet shaped objects which were brown in colour. On coming out of the toilet he saw a woman with a custom officer pointing a finger at him. He asked the First Accused what was in the bag and he was told that it was “a deal”. Subsequently, Mr. Suzette went to the baggage claim area and was approached by an ANB Officer who asked him whether he had received a plastic bag from someone while he was in the toilet. Previous to the court proceedings he had agreed to being a state witness in return for not being prosecuted.

[14]      He denied in cross examination that the plastic bag the First Accused had given him to give to Mr. Laure contained a mobile phone and wireless earphones. He admitted however, that he had not stated in his statement to the police that the plastic bag contained the bullet shaped objects.

[15]      Mr. Suzette was recalled during the trial to identify the white and green bag he had given to Dominique Laure and confirmed that it was the same bag exhibited in court.  

Evidence of Dominique Laure

[16]      In September 2018, Mr. Laure was working at the SCAA. He had known the First Accused, his supervisor for two years and they were friends. He had also bought a car from the First Accused. In September 2018, the First Accused travelled to Abu Dhabi together with Neil Suzette and Tyra joined them the following day. On the day the First Accused returned to Seychelles, although he was meant to finish his duty, at 7 am he stayed on. The flight landed at 7.20 am and he sent a text to Neil Suzette to ask if he had disembarked. He received a text back from him stating that he was inside the toilet in the lounge and to open the door. In the toilet, Neil Suzette removed a white plastic bag with a square with green designs from his backpack which he gave to him. It was opened and inside there were bullets wrapped in cling film.  

[17]      A customs officer saw him coming out of the toilet with the bag in his hands but he went to his office and changed his clothes and called the Second Accused to ask her to come and collect her things. She asked him to go up to her grandmother and that she would wait for him there. He identified the plastic bag exhibited in court as the same bag he had received from Neil Suzette. In cross examination he maintained his narrative and denied that the plastic bag contained a phone, a wireless earphone and a memory card. He denied that he had been forced to give evidence as he did but agreed that he had signed an agreement with the Attorney General to be a state witness.

Evidence of the Forensic Analyst Mandu Chettiar

[18]      Ms. Mandu Chettiar is a Forensic Analyst, holding qualifications in Forensic Chemistry and appointed under the Misuse of Drugs Act to provided certificates of analyses in terms of controlled drugs. She had been working in this capacity for two years and had performed tests in at least 200 cases.

[19]      In respect of the present case she had received a written request for analysis from Egbert Payet on 3 October 2019 together with a plastic evidence bag. Inside was the white and green bag exhibited in court. She observed traces of herbal material. She performed a physical analysis of the bag and then carried out a presumptive test, first a blue B test for cannabis which gave a purple colour indicating the possible presence of cannabis. She then performed a confirmatory test, that is, thin layer chromatography but that gave a negative result for cannabis. There was ultimately a negative result for the presence of all controlled drugs.

The Defence Evidence

Evidence of Kiera Maria, the Second Accused

[20]      The Second Accused testified that she had been in a relationship with the First Accused since 2017. She had been pregnant on 27 September 2018 when the First Accused left for Dubai to purchase items for the baby they were expecting. They had planned the trip together but the antenatal clinic had warned her against travelling given her advanced pregnancy. Rebate tickets had been arranged by Dominic Laure’s girlfriend who worked for Air Seychelles. When she could not travel they agreed that he would transfer the ticket to his friend and work colleague Neil Suzette.

[21]      She drove the First Accused to the airport and was met there by Neil Suzette, his girlfriend and daughter. The First Accused left his work phone with her. The following morning it rang and one of the First Accused’s work colleagues, one Dodin, asked if he could borrow the First Accused’s car. She rented him the car for three days.

[22]      On 2 October, the First Accused retuned home. At 7 am that morning she received a call from Dominic Laure. The plan had been for Dodin to return the First Accused’s car keys to Mr. Laure but Mr. Laure informed her that he had not done so. She then arranged to drive down to pick up the First Accused. Mr. Laure also informed her that he had something for her from the First Accused. She met him in the car park at Pointe Laure and he gave her a plastic bag in which she could see a mobile phone box and a couple of electronic gadgets.

[23]      She then headed to the Arrivals Lounge where she waited for the First Accused. When he arrived they went to Skychef for breakfast. After ordering, a woman came towards them and asked the First Accused to accompany her back inside the lounge with his luggage. When he came back she asked the First Accused what had happened and he explained that he had purchased three mobile phones and that he had would have been in breach of custom regulations if he brought them all in personally so had asked Neil to carry one of the phones for him and to get it to her.

[24]      She then took the First Accused to the doctor as he was complaining of having a boil on his backside which needed attention, after which they headed home.

[25]      Subsequently she had showered and was coming out of the shower when NDEA officers came to the house. They searched the house fruitlessly after which they were asked to go to the Bois de Rose office. She was questioned there and a statement taken from her. Subsequently she was brought back to her home for another search and the white and green plastic bag was retrieved.

[26]      In cross examination, it was put to her that it did not make sense for Neil Suzette to accompany the First Accused to buy baby clothes since the First Accused would have been able to purchase more items with the money spent on another ticket for Neil Suzette. She maintained that they were friends and it was agreed that he would bring Neil Suzette along. In any case the First Accused had come into some money as he had just received his end of contract gratuity from the SCAA. The money was used to buy baby clothes and not drugs. She did not agree that it was illogical for Dominic Laure to call her to give her a bag from the First Accused when she was in fact going to meet the First Accused.

Evidence of Ron Laporte

[27]      Ron Laporte knows the First Accused from school. In October 2018, an ANB officer driving by him as he walked along the road, asked him to embark in the car which he did. He was asked about the First Accused, where he lived, who else lived with him and what time he got home. He cooperated with the officer by giving him some selective information and was given SCR200.

[28]      The next day he was taken for another “ride along” by ANB officers. He was asked to go to the First Accused’s house to see if he could find any drugs and that he would be paid a hefty sum. He refused. He found the request unusual as he was of the view that the First Accused had not been involved with drugs. 

Closing Submissions

[29]      In closing submissions learned counsel, Mr. Camille for the two accused stated that the prosecution had failed to prove an essential element of the charge of conspiracy preferred against the two accused, namely that there was an agreement between them to pursue a certain course of conduct. He relied on the authorities of Dugasse v R (2013) SLR 67 and Celestine v R (SCA 08/2013) [2015] SCCA 33 (28 August 2015). He also submitted that the evidence of Ron Laporte supports the theory that the two accused were set up.

[30]      Learned counsel for the prosecution, Mr. Chinnasamy submitted in response, relying on the authorities of Celestine (supra), R v Taylor [2002] Crim, L. R. 2015 and R v Dupres CR 28/2018) [2019] SCSC 353 (07 May 2019), that although evidence of both the agreement and the commission of an overt act is required for a conviction for the offence of conspiracy this has been produced in the present case. He relies specifically on the evidence of Neil Suzette and Dominique Laure relating to the importation of the drug by the First Accused which was handed to them and which he gave to the Second Accused. He further submits that the evidence of the Second Accused in terms of how and why she was given the plastic bag by Dominic Laure is not credible. Elements of the conspiracy is supported by the fact that it would have been illogical for her to meet Mr. Laure with something from the First Accused at her grandmother’s place when she could have received it directly from the First Accused when she picked him up at the airport. 

Discussion of the evidence with regard to the applicable law

[31]      Both accused have been charged with conspiracy to import a controlled drug. In this regard, section 5 of the Misuse of Drugs Act (MODA) provides that:

“A person who imports or exports a controlled drug in contravention of this Act commits an offence and is liable on conviction to the penalty specified in the Second Schedule.”

[32]      In respect to conspiracy section 16 (a) of MODA states that:

“A person who agrees with another person or persons that a course of conduct shall be pursued which, if pursued will necessarily amount to or involve the commission of an offence under this Act by one or more of the parties to the agreement … commits an offence and is liable to the punishment provided for the offence.”

[33]      Hence, in respect of these provisions the Court must be satisfied that the accused persons had a guilty mind (mens rea) and an intention to conspire to commit the offence of importing a controlled drug (actus reus). In explaining the interplay between these two elements in a conspiracy charge, Msoffe JA in Assary v R (SCA CR No.18 of 2010) [2012] SCCA 33 (07 December 2012), stated:

“…[T]here are two main elements of the offence: - The agreement and the course of conduct. So, first and foremost, the evidence must show that a person agreed with another. Hence the actus reus is the agreement which requires knowledge as of the facts or circumstances. Indeed, as observed by Lord Woolf in the case of Roger John Alexander Bolton (1992) 94 Cr. App. R. 74 at page 80 “…In the case of conspiracy as opposed to the substantive offence, it was what was agreed to be done not what was in fact done which was all important”. The second element of the offence is the course of conduct. The course of conduct relates to the acts the parties intended to carry out.”

 

[34]      Again with respect to conspiracy Msoffe JA in Celestine (supra) further explained:

“[15] The actus reus in a conspiracy is therefore the agreement for the execution of the unlawful conduct, not the execution of it. It is not enough that two or more persons pursued the same unlawful object at the same time or in the same place; it is necessary to show a meeting of minds, a consensus to effect an unlawful purpose.

[16] The central feature of a conspiracy is that the parties agree on a course of conduct that will necessarily amount to or involve the commission of an offence by one or more of the conspirators.

 

[17] Thus, a mere association of two or more persons will not constitute a criminal conspiracy. The main elements of conspiracy are a specific intent, an agreement with another person to engage in a crime to be performed, and the commission of an overt act by one of the conspirators in furtherance of the conspiracy.”

[35]      In focussing on the first element to be proved, that is, an agreement between the First and Second Accused to import drugs I must find evidence beyond reasonable doubt of that fact. That burden of proof rests on the prosecution and it can discharge this burden either in the usual way or by proving circumstances from which it may be inferred or presumed that there was an agreement. However, as was stated in Julie v R (Criminal Appeal SCA21/2017) [2018] SCCA 18 (31 August 2018) if the Court has a doubt as to proof of guilt that fairly arises out of the evidence and that appears to be a reasonable doubt, and if it relates to one of the essential elements of the charge, then the Court should dismiss the case and set the accused free.

[36]      Further, in R v Osman (2011) SLR 345 Gaswaga J stated:

“Be that as it may, it is a cardinal obligation for the prosecution to prove beyond reasonable doubt that each one of the accused committed the offence charged. It must be stressed that this burden of proof is in respect of every issue and in respect of every element of the crime. The court is not bothered by the strength or weakness of the defence case. The defendant is entitled to be acquitted even though the court is not satisfied that his story is true, so long as the court is of the view that his story might reasonably be true. See Green v The Queen [1971] CLR 28.”

[37]      I will return to the element of an agreement between the two accused later on. 

[38]      As concerns the importation of the controlled drug, the evidence of Neil Suzette and Dominic Laure are to the effect that the First Accused had gone to Abu Dhabi precisely with the intention of bringing drugs into Seychelles. However, the offence of importation is explained in R v Micock & Anor (CO 07/2017) [2018] SCSC 214, as having three necessary components:

“[F]irst, that there was an importation, secondly that the drugs were controlled by law, thirdly that the person committing the act of importation did so intentionally.”

[39]      With regard to the first component, “import” simply means to bring, or cause to be brought, into Seychelles (see Clarisse v Republic (1982) SLR 75).

[40]      As to the second component, drugs are controlled if they are specified as being of Class A, B or C as set out in Schedule 1 of the Act. In the context of the present case, the type of drug is not specified either in the charge or in the evidence. Suzette and Laure talk about bullet shaped objects which are brown in colour. The Forensic Analyst, Ms. Chettiar, says that she observed traces of herbal material in the bag allegedly given to Suzette by the First Accused. However, after running tests, she concludes that there were no drugs in the bag. The lack of specificity in relation to the drug is also problematic in terms of proving an alleged agreement between the two accused. What did they conspire to import? Where they in agreement as to the particular drug that would be imported? Where they in agreement to import any type of drugs?

[41]      Equally, as to the third component, namely the “guilty mind” of the two accused, evidence has to be adduced by the prosecution. It must be able to show not only that each accused person had possession of the drug but that they had knowledge of the illicit substance (See in this respect R v Albert (1997) 27, The Republic v Marengo & Ors (2003) SLR 14).

[42]      Hence, although I would have no reason to disbelieve Suzette and Laure (notwithstanding the fact that they are accomplices in this offence) that the First Accused told them of his plans to import drugs, their evidence is hearsay and is inadmissible as the truth of the contents of the First Accused’s statement to them. No drugs were ever recovered and there is no evidence before this court that drugs were imported.

[43]      Even if this was not essential for the offence of conspiracy, I must however be able to find that there was evidence of some agreement between the two accused to carry out the endeavour as alleged. As was held in Bolton (1992) 94 Cr App R 74, 79-80 - the offence is complete when the agreement is made; it is immaterial that nothing is done to implement the conspiracy or that what is done is different from what was agreed. But in the present case, I find no such evidence whether directly or circumstantially.

[44]      There is no evidence of a meeting of minds or even an agreement between the two accused. Although it is certainly illogical that Neil Suzette travelled to Abu Dhabi with the First Accused and that the Second Accused went to meet Dominic Laure to obtain a gift that the First Accused could himself have given her a few moments later, and although I disbelieve the Second Accused’s account as to what happened on that day, I must be satisfied beyond reasonable doubt that she conspired with the First Accused and he with her to import drugs.

[45]      With respect, the prosecution case did not establish conclusively and beyond reasonable doubt the existence of such an agreement between the two accused to commit the offence in question. Where there is no evidence that two accused have combined to commit an offence of this nature there can be no conviction.

[46]      In the circumstances I acquit both accused persons of the offence as charged.

Signed, dated and delivered at Ile du Port on 23 September 2019.

 

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Twomey CJ