Esparon v Republic (CR SCA No.29 of 2009) (29 of 2009) [2011] SCCA 9 (28 April 2011);
IN
THE SEYCHELLES COURT OF APPEAL
Serge R.
Esparon
…................................................................................................Appellant
AND
The
Republic
…...................................................................................................Respondent
CR SCA No.29 of 2009
[Before:
Hodoul, Domah & Fernando, JJA]
Mr. B. Hoareau for the
Appellant
Mr.
B. Vipin for the Respondent
JUDGMENT
Hodoul, JA
[1] Serge
Esparon, now appellant, was charged with the offence of trafficking
in controlled drugs contrary to Section 5 as read with
Section 14 and
26(1) (a) of the Misuse of Drugs Act 1990 as amended by Act 14 of
1994 and punishable under Section 29 and the Second
Schedule referred
thereto in the Misuse of Drugs Act 1990 as amended by Act 14 of 1994.
[2] The
particulars of offence are that Serge Esparon of Baie Ste Anne,
Praslin, on the 9th
September
2008 was found in possession of a controlled drug, namely, 714.6
grammes of cannabis resin, which gives rise to the rebuttable
presumption of having possessed the said controlled drug for the
purpose of trafficking.
[3] He was tried in the Supreme
Court and Burhan J, found him guilty as charged and sentenced him to
imprisonment for 10 years.
[4] Aggrieved by the decision,
the appellant has appealed against conviction only on a number of
grounds:
1. The learned trial judge
erred in accepting as being credible and trustworthy the evidence of
the main prosecution witnesses,
as the said testimonies were full of
inconsistencies and contradictions in material particulars and in
respect of certain facts
that should have been obvious and as such
the learned trial judge should have rejected the evidence of the said
witnesses.
2. The learned trial judge
erred on the evidence, in failing to properly and sufficiently
consider the following facts:
(i)
the place
where P. C. Pillay was seated in the vehicle;
(ii)
the
failure by the police officers to stop the vehicle when the
wife
and children of the appellant were still in the vehicle;
(iii) the fact that the
police officer failed to stop the vehicle at the first opportune time
after the appellant had dropped off
his wife and children;
(iv)
the
failure by the police officers to effect the search in the
car
park of Bale Ste Anne Hospital, when it was practical for
them to
do so; and
the Assistant Superintendent
Agnes Mondon, who was the officer in charge on Praslin at the
relevant time, had a motive to frame
the appellant and had indeed
threatened the appellant in that respect.
3)
The
learned trial judge erred on the evidence in that:
(i)
the
learned trial judge without any factual basis came to the
conclusion
that "it is very unlikely that the police would have access to
such a quality (of drugs) in order to frame the accused";
and
(ii)
in
attaching too much weight to the fact that the appellant
had not
complained to higher authorities, especially since no
evidence was
led on that issue.
4. The learned trial judge
erred in law and on the evidence in holding that the presumption
raised by section 18 of the Misuse of
Drugs Act had not been rebutted
and as such that section 18 was , applicable to the case.
5. The learned trial judge
erred in law and on the evidence in convincing the appellant of the
offence, as the prosecution had failed
to prove beyond a reasonable
doubt that appellant had exclusive possession of the drug.
[5] When he addressed us in open
Court, learned advocate for the appellant, stated that we should pay
particular attention to the
notion of "a lurking doubt" as
to whether an injustice has been done and as such the conviction is
unsafe and unsatisfactory.
The notion of "lurking doubt" is
not offending as such, provided it is not intended to and does not
have any bearing
whatsoever on the standard of proof in criminal
cases.
[6] For
sometime, we noticed significant improvement but regrettably, it
would seem that "old" ways are creeping back
surreptitiously. For instance, we find no substance in ground one
which is hereby dismissed. Ground two in fact contains five grounds
and ground three contains two grounds. In any event, we have
carefully read those grounds and found nothing of substance therein.
They are hereby dismissed. The attorney drafting the grounds has
succeeded in lumping together a number of grounds, to be read
as one.
In Mervin
Benoit vs The Republic (CR SCA No. 5/06) we
stated: "... as
is too often the case, the list of grounds is unnecessarily long and
diffuse, at the expense of clarity and precision. "Surplusage
"
does not serve the cause of an appellant and, in most cases, a few
concise grounds would be more effective. In this regard,
an appeal is
launched to all advocates who appear before this Court. To do justice
to the appellant, we will hereinafter deal with
the essential issues
raised. "
[7] One of the main grounds of
challenge to the Prosecution case was that the evidence of the main
Prosecution witnesses were full
of inconsistencies in respect of
material particulars that they should have been rejected. The
inconsistencies relied upon are.
PW3, PW4 and PW5 referring to a
call received by PW3 the driver of the police vehicle, while they
were on routine patrol informing
them of a man in a white Terios
dealing in drugs and PW2, who was seated next to PW3, denying the
receipt of such a call.That
the four police officers have not been
consistent in their evidence as to when and where they spotted the
white jeep driven by
the appellant for the first time.Inconsistency
between PW3 and Prosecution witnesses 4 and 5, as to where PW4 and %
who escorted
the appellant in his white jeep to the Baie Ste Anne
Police Station from the hospital sat in the jeep of the appellant.
[8] We are of
the view that none of these inconsistencies are so material as to
cast doubt on the Prosecution case. It is too much
to expect that
four police officers testifying in respect of an incident several
months after the incident to remember in detail
and
all four of them to
be consistent as to whether they received a phone call when they
spotted for the first time a white jeep driven by the appellant.
Consistency amongst some of the Prosecution witnesses on these
matters should be sufficient. We are all human and erare
humanum est. Sometimes
it is inconsistencies that render credible the case for the
Prosecution. In the present case, inconsistencies exist but
we find
that they do not cast doubt on the case for the Prosecution.
[9] Grounds 4 and 5 of the
appeal are based on the inability of the prosecution to prove
exclusive possession and the failure of
the learned trial Judge to
appreciate that the presumption under section 18 had been rebutted in
view of the major inconsistencies
in the evidence before the Court
indicative of a set up and the uncontroverted evidence that
immediately prior to the appellant
being arrested by the police, the
wife of the appellant was in the vehicle.
[10] It
is to be noted from the defence evidence and the cross-examination
of
the prosecution witnesses that the appellant had clearly taken
up the position
that he had been framed. The appellant had stated
from the dock: "It
is typically
that I have been framed by the police under the
orders of Agnes Mondon for her
to be able to venge her anger on me
and my family because we sued her before
Court
DW2 and DW3
had said that one of the police officers who was
involved in the arrest of the
appellant had admitted to them that the drugs were planted by him.
[10] We
are conscious of the fact that it is possible for an accussed to
raise several defences and sometimes conflicting defences, but
when
an accussed categorically raises the defence of a set up, adducing
evidence in substantiation; his other defence that his
wife had
access to the vehicle and therefore the opportunity to place drugs in
the vehicle looses its evidential value. The resultant
position is
that both defences loose their evidential value.
[11] In
conclusion, the appeal is dismissed and the judgment of the learned
trial Judge upheld.
J.M.
HODOUL
Justice
of Appeal
I
concur:
S.
B. DOMAH
Justice
of Appeal
I
concur:
A.
FERNARDO
Justice
of Appeal
Delivered
at Victoria, Mahe on this 29th
April, 2011