SUPREME COURT OF SEYCHELLES
Reportable
[2022] SCSC
CO71/2019
In the matter between:
THE REPUBLIC Republic
(rep. by Hemanth Kumar)
and
ANDREW BANANE 1st Accused
(rep. by Alexia Amesbury)
SAVIO MARIMBA 2nd Accused
(rep. by Nichol Gabriel)
GIOVANI POOL 3rd Accused
(rep. by Nichol Gabriel)
YANNICK SEDGWICK 4th Accused
(rep. by Nichol Gabriel)
ABDUL KHUDIN 5th Accused
(rep. by Alexia Amesbury)
GOERGE CANAYA 6th Accused
(rep. by Leslie Boniface
SHAROPAUL TIRANT 7th Accused
(rep. by Leslie Boniface)
Neutral Citation: Republic v Banane & Ors (CO71/2019) [2022] SCSC (28th February 2022)
Before: Burhan J
Heard: 20th October 2020, 22nd October 2020, 23rd October 2020, 28th October 2020, 6th May 2021, 19th July 2021
Delivered: 28th February 2022
JUDGMENT
BURHAN J
The accused persons in this case namely Andrew Banane, Savio Marimba, Giovani Pool, Yannick Sedgwick, Abdul Khudin, Goerge Canaya and Sharopaul Tirant have been charged by amended charge sheet dated 31st January 2020 as follows.
Count 1
Statement of offence
Counselling the persons to commit the offence of Abducting in order to subject the person to Grievous Harm contrary to Section 22 (d) of the Penal Code read with Section 245 of the Penal Code and punishable under Section 245 of Penal Code.
Particulars of offence
Andrew Banane on or before 02nd November 2019 counselled the persons namely Savio Marimba, Giovani Pool, Yannick Sedgwick, Abdul Khudin, Kurtis Tomkin, Goerge Canaya and Sharopaul Tirant to commit the offence of abduction on a person namely Isaac Daniel of belvedere in order to subject him to grievous harm.
Count 2
Abducting a person in order to subject him to Grievous Harm contrary to 245 of the Penal Code read with 241 of the Penal Code further read with 22 (a) of the Penal Code and punishable under section 245 of the Penal Code.
Particulars of offence
Savio Marimba, Giovani Pool, Yannick Sedgwick, Abdul Khudin, Kurtis Tomkin, Goerge Canaya and Sharopaul Tirant on 02nd November 2019 at Port Glaud, Mahe, have taken part in committing the act of abduction on a person namely Mr. Isaac Daniel of Belvedere who was abducted by them and subjected to Grievous Harm.
Count 3
Statement of offence
Acts intended to cause Grievous Harm contrary to and punishable under section 219 (a) of the Penal Code
Particulars of offence
Andrew Banane, Savio Marimba, Giovani Pool, Yannick Sedgwick on 02nd November 2019 at Port Glaud, Mahe unlawfully did Grievous Harm on a person namely Mr. Isaac Daniel of Belvedere by multiple fist blows and foot kicks of them.
The first witness called by the prosecution Mr. Daniel Isaac, the victim in the case gave evidence that he was working as a Security Guard at PJM Security which was owned by Mr. Molle. On 2nd November 2019 around 4.00 pm on his way to work, he had gone to a shop and was going to buy himself some “stim” to smoke at work when he had met Savio Marimba the 2nd accused in the shop. Savio had told him that he owes his friend Andrew (1st accused) some money and that his friend Andrew wanted to speak to him and had given his phone to witness. He had spoken to Andrew Banane who had asked him when he would be able to return his money and he had replied he would do so the following Monday. Witness explained his relationship with the 1st accused Andrew Banane who he stated has a daughter with a cousin of his. After speaking with Andrew, as he was going to his workplace, he had heard someone talk to him and then he was hit. The only person he remembered who hit him was Savio Marimba the 2nd accused. He had seen black and then they had taken him away in a car and had continued to beat him in it. He stated there were four other persons three men and a woman in the car. All this occurred at Villa Vanilla. From there he had been taken in the car to Cap Ternay. At that time he was “not really normal”. He had been assaulted near a tree at Cap Ternay and he recognized it was Yannick, the 4th accused who had hit him. He also stated there were several others who were kicking and hitting him on the side of his body and head. Someone had put a knife on his neck but he could not see as there was blood in his eyes and he was in pain. They had threatened to cut his neck. Then he had got a chance to run away and he had done so and escaped through the bushes in to the marsh.
Witness Daniel Isaac had thereafter hidden himself and taken a call to his Supervisor Mr. Botsoi who had arrived after some time. He identified the photographs 15 to 30 in the Album P1 as the place where he was assaulted at Cap Ternay. His Supervisor on arrival had put him in the back seat of the car and taken him to Port Glaud police station. From there he had gone directly to the hospital. Witness thereafter identified the 1st 2nd and 4th accused in open court. Under cross examination he mentioned that “stim” meant Hashish and Heroin.
The next witness called by the prosecution Kurtis Tomkin, an accomplice who was formally charged and then called by the prosecution as a witness. He stated that on the 2nd of November 2019, he was in a shop at Port Glaud around 3 to 4 pm, he had seen Ms Sharopaul (7th accused) and Abdul (5th accused) running and then saw Rendolph (the 6th accused) coming in the car. He had asked Sharopaul where she is going and she had said they are looking for someone. He too had got in and they had gone to Villa Vanilla. Rendolph had been driving the car. It is clear from his evidence that the car had been driven back and forth looking for a person. Then they had seen the victim Daniel Isaac at Villa Vanilla. Giovani and Savio had come to Villa Vanilla on a scooter. He had seen Giovani and Savio approach the person. Savio had held him by the neck and brought him back to the car whilst Giovani had hit Daniel Isaac. After hitting the victim and putting him in the car Savio continued to hit him on his face. Giovani had gone in the scooter. They had taken the victim Daniel to Cap Ternay in the car and Giovani had joined them there on his scooter with Yannick.
At Cap Ternay Daniel had been removed from the car and taken to the bushes. Andrew Banane was also present at Cap Ternay. Witness had seen Savio, Andrew Banane and Yannick hit the person with fists and blows. They had left him in the bushes and gone. Thereafter they had all left and he had gone back to Port Glaud in the same car. Witness identified Abdul as the 5th accused, He identified Rendolph as the 6th accused and Sharopaul as the 7th accused. He further identified the 2nd accused as Savio and the 3rd accused as Giovani. He also identified Andrew Banane as the 1st accused and Yannick as the 4th accused. Under cross examination he admitted he was an accused and he had agreed to become a witness for the prosecution. He stated that Rendolph and Abdul had not hit the victim. He further stated he was telling the truth and not betraying his friends as suggested by learned Counsel Mrs. Amesbury. Under cross examination he admitted that Sharopaul had told him they were going in the car to look for someone. He admitted after hearing these words he had got into the vehicle and was therefore complicit in the offence. He admitted that Abdul and Sharopaul and he only watched while Daniel was being assaulted. He further described the incident in the car by stating that it was Abdul Savio the victim and himself who was seated in the back of the car. He even described the positions they were seated. He stated Sharopaul and he stated to stop hitting him. Rendolph too had not taken any part in the beating. He admitted he had smoked drugs (herbal material) on that date.
Detective Corporal Joachim Allisop attached to the SSCRB identified the photographs taken by him. He identified them as depicting the scene where the victim was assaulted and the marsh where he escaped to and hidden. Photographs also shown were that of a black scooter bearing registration number S34162 taken into custody used by the accused and the black Picanto S23039 used to bundle the victim into and transport him to Cap Ternay. The contents found in the vehicle were also photographed which included a kitchen knife and a rental car hire document. Also photographed were a black pepper spray and a black baton. There was also a Bank of Baroda card in the name of Goerge Rendolph Canaya (Photo 56) in the vehicle. He also referred to a skid mark in photo 37. He could not tell to which car it belonged. He admitted he had not finger printed any of the items. He stated that pepper spray, baton were used by security guards. He had photographed all items on the instructions of Police Constable Simeon.
The next witness called by the prosecution Corporal Jean Phillip Lucas stated that he too was an officer from the SSCRB. He had photographed Mr. Daniel Isaac and identified the photographs in open court and the injury marks on the victim Daniel Isaac. He stated he had photographed the victim three days later as he was brought by the Officers of the CID to the SSCRB to be photographed only on the 5th of November 2019. He admitted he had not seen any of the accused cause these injuries. Mr. Jules Camille stated he had a car hire business named “Streetcar Hire”. He identified the car hired out to Rendolph Canaya as the vehicle taken into custody in connection with this incident as a Black Picanto bearing registration Number 23039. He identified the relevant documentation in respect of the hire as P3. He admitted under cross examination his statement had been taken one month after the incident on the 2nd of December 2019. He stated he was unaware what the police did with his vehicle for one month. The next witness Geris Holanda stated she was a Sergeant in the police force and gave evidence in respect of the arrest of Mr. Abdul the 5th accused who in the presence of witness had gone to his home at Beolière. He had and given them a baton which was produced as P4. Witness had also arrested the first accused Andrew Banane. Under cross examination witness admitted that she had not tagged the baton. Witness stated further that after that date she had received the baton from Sergeant Eulentin to produce in Court on the date of trial.
The next witness Marianna Eulentin attached to the CID stated that she had assisted PC Simeon in his investigations. She had received a CD with footage in respect of the incident from one Corporal Landry and a pen drive from one Leroy Gabriel. She had given the pen drive and footage to Inspector Esparon. She had arrested Ms Sharopaul Tirant and recorded her statement. Sharopaul Tirant had handed over to her a pepper spray taken from the complainant Daniel Isaac which was produced as P5. She admitted that Sharopaul had mentioned in her statement that the victim had agreed to go in the vehicle with them. It appears from the cross examination that witness had produced a black pepper spray. Learned Counsel also suggested to witness that as the accused Sharopaul had stated in her statement that the victim had got into the car she could not be charged for Kidnapping or abduction. Witness Marianna Eulentin denied that she had refused Sharopaul access to a lawyer and denied that she had refused to give her tampons when as she was having her menstrual cycle and asked her to use her T-shirt instead. She denied the suggestion she did not make any arrest or that she had not read the rights to the accused Sharopaul. She further denied that she had threatened the accused Sharopaul by saying she would take her children away from her.
Mr. Michael Labonte Communication Officer at Seychelles Licensing Authority who provided information regarding two vehicles S34162 and S23039. He produced document P6 indicating that vehicle number S23039 was registered to one Giovani Pool and letter marked as P7 was registered to Swift Car hire. Mr Charlie Botsoi giving evidence under oath stated that he was working as Commander and Supervisor to the security company owned by Mr. Naiken. He stated that on the 2nd of November, he was on duty and in charge and had appointed a security Officer by the name of Daniel Isaac to be deployed at Villa Vanilla at Port Glaud. Mr. Isaac was due to start his duty on the 7.00 pm for twelve hours. Mr. Isaac as equipment had with him a belt including pepper spray, taser and handcuffs. He had received a distress call a 5.30 pm from Isaac who had said “Charlie help me.” He had informed him he had been attacked. He had called for his driver and gone to the location at Cap Ternay given by Mr. Isaac. Mr. Isaac had come out from hiding and was in a bloody state. His eyes were covered in blood. He had put him in the vehicle and taken him to the police station and then the hospital. He had gone back to the scene of the incident at Cap Ternay with the CID Officers who took photographs. He admitted the accused had told him that he had been assaulted and could not recognize the people. The medical certificate was produced as P8. It was the contention of the defence that the doctor’s report did not refer to the fact that the victim was soaked in blood. He stated that the equipment, pepper spray, baton and handcuff given to him was lost and never found. He denied the fact that the victim worked on that day.
The next witness was Detective Police Officer Simeon who stated he was attached to the CID and the investing Officer in this incident. They had taken over the file from the Anse Boileau police station regarding the kidnapping and injury of an individual named David Isaac. He had interviewed the victim, visited the scene and concluded investigations in this case after arresting and charging seven persons and one Curtis Tomkin. He had also taken a scooter and a car into custody and identified same from the photographs He also gave evidence that a baton and pepper spray were recovered and identified same. He stated the baton was handed over to him by Officer Geris Hollanda and the pepper spray by Officer Eulentin. He denied there were serious allegations of corruption against him. He stated that there was video evidence but it appears this evidence was not produced by the prosecution as it only showed the victim and the car and a scooter passing by. He denied saying that he would arrest Rendolph’s sister as well.
Thereafter the prosecution closed its case and the defence made a submission on no case to answer. On the 7th of December 2020, this Court made an order that a defence be called from all the accused.
In defence the first accused made an unsworn statement from the dock. He stated he had never spoken to Savio Marimba on the 2nd of November nor got in contact with him on that day. He had no intention of advising anyone to do anything wrong. The only person he gives orders is to his children. He denied touching anyone or causing grievous harm to anyone. He stated that the police were falsely accusing him.
The second accused gave an unsworn statement from the dock and he too denied participating in any violent activity on the said date. He said he had been falsely accused by the police and he had not given a statement to the police and it was the police who was stating words of their own.
The third accused gave a dock statement stating that none of what was said happened. He had not got into contact with anyone and no one had told him to do these things. The 4th accused too made a dock statement saying that what he was being accused with something that never happened. He stated that the statement given by him was not voluntarily made as he had been told that if he followed the format of the statement, he would be released and made a crown witness. The signature on the statement was not his nor like his signature on his identity card. The fifth accused too gave an unsworn statement from the dock stating that nothing of what was said happened. The sixth remained silent. The seventh accused Sharopaul made an unsworn statement from the dock. She stated she did not know anything that happened but on the 2nd of November, she was in her vehicle with her children and had gone for a drive. Sergeant Eulentin had threatened her. She had written a statement and made her sign. She had not told anything directly or signed anything. They had stripped her naked and kept her in a cell and told her not to speak or say anything that she would be released and made a witness for the state. She stated that she is a mother of three children and does not engage in these type of activities. No witnesses were called by any of the accused. After defence the closed time was given for submissions.
The prosecution filed submissions on the 19th of July 2021. Though several dates were given the defence failed to file any submissions in the case.
When one considers the evidence led by the prosecution, the evidence of the victim Daniel Isaac (also referred to as Isaac Daniel) a security Officer is that on the 2nd of November 2019, he met Savio Marimba the 2nd accused in the shop at Villa Vanilla on his way to duty. Savio had informed him one Andrew Banane the 1st accused wanted to speak to him on Savio Marimba’s phone. The conversation had been in respect of some money Daniel Isaac owed Andrew Banane the 1st accused and he had undertaken to pay the money back by the following Monday. After speaking with the 1st accused as Mr. Isaac was going to his work place, he had been hit by the 2nd accused Savio Marimba. He had seen black and not felt quite normal and then they had taken him away in a car and had continued to beat him in it. The victim stated there were four other persons three men and a woman in the car. From there he had been taken in the car to Cap Ternay. Thereafter at Cap Ternay again he had been taken out of the car and assaulted near a tree at Cap Ternay and he could recognized that one of the persons hitting him was Yannick the 4th accused. He also stated there were several others who were kicking and hitting him on the side of his body and head. Someone had put a knife on his neck but he could not see as there was blood in his eyes and he was in pain. They had threatened to cut his neck. Then he had got a chance to run away and he had done so and escaped through the bushes in to the marsh.
An accomplice Kurtis Tomkin who gave evidence for the prosecution and witnessed and participated in the incident clearly identified the persons as Savio the 2nd accused and Giovani the 3rd accused who had approached the victim at Villa Vanilla and Savio had held him by the neck whilst Giovanni had hit Daniel Isaac the victim. This witness had seen both the accused after hitting the victim, putting him in the car and Savio continuing to hit him on his face. Giovani had gone in the scooter. They had taken the victim Daniel to Cap Ternay in the car and Giovanni had joined them there in his scooter with Yannick. Witness Kurtis Tomkin stated that at Cap Ternay the victim Daniel had been removed from the car and taken to the bushes. Andrew Banane the 1st accused was also present at Cap Ternay. Witness had seen Savio, Andrew Banane and Yannick hit the person with fists and blows. They had left him in the bushes and gone.
Witness Kurtis Tomkin further stated that prior to this incident on the same date when he was in a shop at Port Glaud around 3 to 4 pm, he had seen Ms Sharopaul the 7th accused and Abdul Khudin the 5th accused and then saw Rendolph Canaya the 6th accused coming in the car. Witness had asked Sharopaul where she is going and she had said they are looking for someone and got into the vehicle. He too had got in and they had gone to Villa Vanilla. Rendolph had been driving the car. It is clear from his evidence that the car driven by the 6th accused Rendolph had been driven back and forth looking for a person. Then they had seen the victim Daniel Isaac at Villa Vanilla. He had seen Giovani and Savio who had come to Villa Vanilla separately on a scooter commence the assault on the victim. It is clear from his evidence and that of the victims that the victim Daniel Isaac was forcibly put into the vehicle by the 2nd and 3rd accused which was the vehicle driven by Rendolph Canaya the 6th accused in which Ms Sharopaul Tirant the 7th accused and Abdul Khudin the 5th accused and he were in. It is clear from his evidence and that of the victims that the victim Daniel Isaac was taken against his will from Villa Vanilla to Cap Ternay, where the 1st accused was and it was here that the victim was further beaten and it was here that the 1st accused had joined in the beating of Daniel Isaac. It is also clear that the car driven by the 6th accused had been used to transport the victim against his will from Villa Vanilla to Cap Ternay.
The evidence of this witness Kurtis Tomkin is also material to establish the conduct of the 6th and 7th accused prior to the beating, in that witness Tomkin states that on the 2nd of November 2019 he was in a shop at Port Glaud around 3 to 4 pm he had seen Ms Sharopaul (7th accused) and asked Sharopaul where she is going and she had said they are looking for someone. It is also clear from his evidence that the car driven by Rendolph in which Sharopaul, Abdul and witness was in had been driven back and forth looking for a person. Then they had seen the victim Daniel Isaaac at Villa Vanilla and soon thereafter, the assault and abduction in the car driven by Rendolph of the victim had taken place and continued till Cap Ternay where the 1st accused had joined in the assault on the victim. The motive for the assault is clear as the victim admits he owed money to the 1st accused Andrew Banane. The evidence given by the victim Daniel and accomplice Tomkin in respect of the sequence of events and the conduct of all the accused, clearly indicates the preplanning and the soliciting and preparation of the future offence by the 1st accused with the other accused which culminates in the 2nd to 7th accused bringing the victim to Cap Ternay to be assaulted by the 1st accused. The telephone call to the victim by the 1st accused asking for his money, the physical presence of the 1st accused at Cap Ternay and the 1st accused himself taking part in the assault indicates that the 1st accused, the counsellor, was well aware of what was happening and had counselled and planned the abduction and the subsequent assault of the victim and was even present at Cap Ternay to personally himself assault the victim. In the case of Ferguson v Weaving [1951] 1K.B.814 at 819 DC (per Lord Goddard CJ), it was held that in a charge of counselling, the prosecution must establish that the defendant intended that an offence be committed. The evidence referred to above clearly establishes this fact. I am also satisfied beyond reasonable doubt that the evidence before court clearly establishes the joint liability of the accused referred to in the respective charges.
Although subject to cross examination, no material contradictions were observed and the accomplice Kurtis Tomkin did not waiver in the identity of the victims who were known to him. He even describes the positions of persons seated in the car at the time of the abduction. The law in respect of the evidence of an accomplice has been settled in the Seychelles in the case of Dominique Dugassse & Ors v Republic SCA Cr 25, 26 and 30/2010 and Raymond Lucas v Republic SCA 17/2009 where it was held that it is left to the discretion of the judge to decide whether corroboration is necessary before accepting the evidence of an accomplice and should do so only when an evidential basis exists. In this instant case the evidence of the accomplice was clear and uncontradictory in nature. I am of the view his evidence could be accepted even without corroboration. In this instant case, I further observe that the evidence of the accomplice is corroborated by the victim in regard to his assault at Villa Vanilla, abduction to Cap Ternay and even his subsequent assault at Cap Ternay and further corroborated by the independent report of the doctor P8 setting out the injuries on the victim Mr. Daniel Isaac. I therefore proceed to accept his evidence.
For all the aforementioned reasons, I am satisfied beyond reasonable doubt that the prosecution has proved that the 1st accused counselled the 2nd to 7th accused to abduct the victim Daniel Isaac in order to beat him up as he had failed to pay the money owing to the 1st accused. I am also satisfied beyond reasonable doubt that the 2nd to 7th accused performed the act of abduction and transport of the victim against his will and was done with the purpose and intention of providing an opportunity for the 1st accused to beat him up at Cap Ternay. In the course of beating of Mr. Daniel Isaac, it is clear from the evidence and the medical report filed that serious injuries were caused to him that resulted in him bleeding as borne out by the evidence of the victim and Mr. Botsoi his supervisor who had come to rescue him. Having considered all this evidence before court, I am further satisfied from the evidence led by the prosecution, that the 1st 2nd 3rd and 4th accused abducted the victim and assaulted him with the intention of causing grievous harm to him as set out in Count 3. Further section 219 (a) of the Penal Code refers not only to grievous harm being caused but even wounding. The evidence of the prosecution on all these facts was not contradictory in nature and stood corroborated. For all the aforementioned reasons I will accept the evidence of the prosecution and I am satisfied the prosecution has proved all three charges against the respective accused beyond reasonable doubt.
When one considers the defence of the accused all deny in their dock statements involvement in any offence and state that the police had concocted the whole story. However, no reason has been given by any of the accused why the police or even the victim Daniel Isaac or Kurtis Tomkin would implicate them in an abduction and assault. There exists no contemporaneous complaint to higher officials that this was a set up by the police. The mere fact that one accused in a statement to the police has stated that the victim got into the vehicle does not make the corroborated evidence of the prosecution in regards to abduction unacceptable. It is to be mentioned that certain items in the possession of the victim namely a pepper spray and baton were recovered by police Officer at the time of arrest of the 5th and 7th accused. However as these articles were not shown to the victim or his supervisor and identified this evidence will not be considered. I therefore proceed to reject the defence of all the accused and proceed to accept the corroborated evidence of the prosecution.
I am satisfied that the prosecution has proved Count 1 against the 1st accused beyond reasonable doubt, Count 2 against the 2nd to 7th accused beyond reasonable doubt and Count 3 against the 1st 2nd 3rd and 4th accused beyond reasonable doubt. I proceed to find the 1st accused guilty on Count 1 and convict him of same. The 2nd to 7th accused are found guilty on Count 2 and convicted of same. The 1st, 2nd, 3rd and 4th accused are found guilty on Count 3 and convicted of same.
Signed, dated and delivered at Ile Du Port on 28th February 2022.
M Burhan J
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