Reference by the Attorney General under Section 342A of the Criminal Procedure Code – Criminal Appeal (SCA CR 02/2025 [2025] (Arising in CO 11/2024)) [2025] SCCA 15 (18 August 2025)

IN THE COURT OF APPEAL OF SEYCHELLES Reportable [2025] (18 August 2025) SCA CR 02/2025 (Arising in CO 11 of 2024) In the matter of a Reference by the Attorney General under Section 342A of the Criminal Procedure Code (rep. by Corinne Rose, Senior State Counsel and Dericka Arrisol, State Counsel) Neutral Citation: Reference by the Attorney General under Section 342A of the Criminal Procedure Code – Criminal Appeal SCA CR 02/2025 [2025] (Arising in CO 11/2024) Before: Fernando President, Twomey-Woods, Andre JJA Summary: Reference by the Attorney General under Section 342A of the Criminal Procedure Code seeking the opinion of the Court of Appeal on the standard required for a prima facie case to be established for the offence of fishing without a foreign licence (contrary to section 11 (1) read with section 69 of the Fisheries Act 2014). ANSWER DR. M. TWOMEY-WOODS JA The nature of the matter before this Court 1. This matter comes before this Court by way of a reference from the Honourable Attorney General (AG) under Section 342A of the Criminal Procedure Code, seeking an opinion on the correct legal standard for establishing a prima facie case in prosecutions for illegal fishing without a foreign license under Section 11(1) of the Fisheries Act 2014. 2. The reference arises from the decision of Adeline J in R v Thennakoon1 where the learned judge upheld a submission of "no case to answer" by the defence at the close of the prosecution’s case. The AG contends that this ruling erroneously applied too stringent a standard for a prima facie case, failed to address legal presumptions under the Fisheries Act, did not sufficiently consider circumstantial evidence, failed to weigh the evidence 1 (CO 11 of 2024) [2024] SCSC 218 (30 January 2024). adduced by the prosecution correctly and failed to apply the relevant local and international law correctly. 3. The question this Court is specifically asked to answer is the following: i. “Whether the learned judge correctly considered all the elements in totality when considering the No Case To Answer motion for the offence of fishing without a foreign licence contrary to section 11(1) read with section 69 of the Fisheries Act and …more particularly whether a prima facie case can be established through compelling circumstantial evidence in an illegal fishing case.” 4. Before answering this question, we must point out at the outset that the defence counsel during the trial repeatedly raised unsustainable evidentiary objections, many of which were erroneously upheld by the trial judge. This led to the improper exclusion of critical prosecution evidence, significantly undermining the integrity of the proceedings. I shall return to these matters later. 5. The court's response to the question posed by the AG is best understood in the context of this case and the offence with which Mr. Thennakoon was charged. The charge 6. The charge against Mr. Thennakoon, a Sri Lankan national aged 43 years and captain of the vessel Ranashura 01, which was not licensed or authorised to fish in Seychelles waters, was as follows: Statement of Offence Fishing without a foreign vessel license, contrary to section 11 (1) read with section 69 of the Fisheries Act 2014 (Act 20 of 2014) and punishable under section 58 (a) of the said Act. Particulars of Offence TM Sumeda Tharenga Thennakoon, aged 43 years of Sri Lankan nationality and captain of vessel ‘Ranashura 01’ which is not licensed or authorised along with the crew, on 4th February 2024 at approximately 23 nautical miles West Northwest from Farquhar within the Seychelles EEZ, used said foreign vessel for fishing in Seychelles waters in contravention of the Fisheries Act 2014. 7. The prosecution called multiple witnesses in support of its case regarding the alleged illegal fishing activities within Seychelles' Exclusive Economic Zone (EEZ) under Section 11(1) of the Fisheries Act 2014. The Prosecution’s evidence 8. Captain Archille Uzice of the Seychelles Air Force testified regarding an aerial surveillance mission conducted on 4 February 2024 near Farquhar Island at around 1300 hours local time. According to his testimony, his team identified a vessel approximately 20 nautical miles northwest of Farquhar Island that appeared to lack an operational Vessel Monitoring System (VMS) and Automatic Identification System (AIS) equipment. The crew documented the vessel through photographs and videos before reporting their findings to maritime authorities. 9. On the same day, at around 18:30, they again took off from Farquhar Island to relocate the vessel which was spotted about 20 nautical miles northwest of Farquhar Island. 10. Second Lieutenant Sebastian Hoareau of the Seychelles Coast Guard provided testimony regarding the subsequent interception of the boat by the Seychelles Coast Guard vessel, PS Etoile. He stated that the interception took place approximately 23 nautical miles north- northwest of Farquhar Island, near Bulldog Bank. He observed fish and fishing equipment on the deck of the vessel, as well as fish being thrown overboard. The fish was fresh, recently caught, gutted, and not preserved in ice. There were fishing hooks, nylon fishing line, and blood on the deck floor. Fishing equipment was seen in a blue barrel on the vessel. 11. The prosecution was barred from submitting navigational charts to corroborate the precise location of the interception. The trial judge sustained the defence’s objection without providing a reasoned basis, and the ruling appears devoid of any valid evidentiary grounds for this exclusion. 12. As correctly referred to by State Counsel, demonstrative evidence—such as maps or diagrams—constitutes a form of real evidence that visually illustrates or clarifies witness testimony. Unlike documentary evidence (which proves the contents of a document and requires prior disclosure), demonstrative evidence merely aids the fact-finder in comprehending existing testimony. Its admissibility hinges solely on its relevance to a witness’s account, with no exclusionary rules barring it unless it is misleading or prejudicial. 13. In this case, Captain Uzice and Second Lieutenant Hoareau had already provided testimonial evidence regarding the Ranashura 01’s location. The navigational charts would have served as legitimate demonstrative aids to clarify their accounts, not as independent documentary proof. Their exclusion was therefore unjustified and undermined the fact- finding process. 14. Inspector Ivan Esparon of the Seychelles Police Force, attached to its Scientific Support & Criminal Records Bureau (SS & CRB), attempted to extract digital data from two GPS trackers retrieved from the fishing vessel. He discovered that one device was damaged, the other had its tracking functions disabled, and neither contained any recordings. He also examined an iPhone handed to him by Kurt Elizabeth and retrieved the data. These were admitted as evidence, and the images show the flagless vessel, Ranashura 01, the crew, the fish and fishing equipment on deck, documents from the Sri Lankan government for fishing on the high seas, and the boat registration. 15. Roddy Allisop, Head of Department for Monitoring, Control and Surveillance at the Seychelles Fishing Authority, testified that the vessel in question, identified as Ranashura 01, was not registered as having a valid fishing licence for Seychelles waters. His testimony included observations about the vessel's apparent lack of proper identification and tracking systems, and the fact that a locator beacon, which was intended to be on the vessel, was actually in northern Sri Lanka. 16. He also testified that the vessel was without a flag, had shark and demersal fish on board, a fishing net was spread across the deck, and the vessel's captain was unable to specify where he had fished, with no entries in his logbook. In his view, the vessel was involved in illegal, unreported, and unregulated (IUU) fishing.2 He identified objects in the photos as a drift net, other unauthorised fishing gear, fish, and bait. He stated that if the fish had not been caught in Seychelles waters, they should have been stored in the hold, which they were not. He also remarked that if the vessel was engaged in innocent passage through Seychelles waters, it would not be stationary, and the fishing gear should be stowed. 17. Lieutenant Kurl Elizabeth, an officer in the army based at the Seychelles Coast Guard and patrolling from Providence Island on 4 February 2024, who commanded the interception operation, provided coordinates placing the vessel within Seychelles' EEZ at the time of interception. His testimony described the vessel's manoeuvres during the interception and observations made during boarding, including the throwing of fish overboard. The vessel only stopped after several warning shots were fired at it. The photographic evidence he referenced was entered into the court record. He also observed fresh fish on the deck and blood, which he presumed was fish blood. However, he was not permitted to produce a chart he had plotted to indicate where the vessel was intercepted. Again, no legal basis for the inadmissibility of this document was given by the court, although its discovery had been made to defence counsel. 18. The evidence presented comprises both direct observations and technical findings concerning the vessel's location, equipment, and contents. The prosecution's case relies on a combination of eyewitness testimony, photographic evidence, and expert analysis to support its claims of unlawful fishing within protected waters. The court will need to evaluate all this evidence to determine whether the prosecution has met its burden of proof at this stage of the proceedings. Concerning matters 19. As mentioned in our earlier comments, this case raises several concerning issues that need further examination. Of particular importance are multiple statements made by the trial 2 Explained by the witness on Page 238 of the court transcript of proceedings as follows: “The illegal part would the vessel fishing without a licence. Unregulated would be a vessel unregulated by a flag sate and unreported would be a vessel providing false information to the port state or its flag state." judge that were not only irrelevant to the substantive matters before the court but also cast serious doubt on judicial impartiality. Most worryingly, he falsely accused State Counsel of claiming the accused’s medical report was fabricated and threatened to permanently exclude her from his courtroom unless she retracted this alleged statement. This accusation is entirely unsupported by the trial transcript. 20. Further, the court neglected to rule on a motion for remote witness testimony, then improperly blamed State counsel for failing to “reactivate” the request, despite the judiciary’s duty to resolve pending motions. 21. The judge also inappropriately expressed opinions on medical matters, claiming without foundation that only a specialist, not a General Practitioner, could treat heart conditions. His additional remark, that a Sri Lankan doctor had an obligation to assist a “compatriot was irrelevant and improper. The judge's repeated references to counsel's junior position and perceived lack of experience were equally inappropriate. Most concerningly, when the State Counsel attempted to introduce demonstrative evidence, she faced unwarranted rebukes regarding her professional competence, criticisms that were both personally demeaning and irrelevant to the evidentiary issues. Such personal comments have no relevance to the legal merits of the case and risk compromising the proper administration of justice. Overall, these actions undermined procedural fairness and judicial impartiality. We hope that such behaviour is not repeated. Reference by the Attorney General 22. Section 342 A of the Criminal Procedure Code, in relevant part, provides that the Attorney- General may refer a point of law from a criminal proceeding to the Court of Appeal if it arose before the Supreme Court, but only if the Attorney-General seeks an opinion on that point of law. 23. At the outset of the appeal hearing, we inquired from Mrs. Arissol, the State Counsel, whether the issue before the Court by way of reference complied with this provision or whether factual matters were being challenged. Her response, which we accept, is that the specific question posed would require an answer on several legal points, particularly the sufficient prima facie evidence to be presented in an offence under section 69 of the Fisheries Act 2014. The law relating to prima facie evidence 24. The present matter establishes without doubt the need to clarify the parameters of a prima facie assessment and the judicial inquiry that needs to occur when a no case to answer application is made. 25. The law is stated in section 183 of our Criminal Procedure Code as follows: “Section 183. Acquittal of accused person when no case to answer If at the close of the evidence in support of the charge, it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit him.” 26. The provision predates the current Constitution of Seychelles, but despite its colonial-era origins, it aligns with the constitutional requirement of the presumption of innocence (Article 19(2)(a) of the Seychellois Constitution). By demanding that the prosecution establish a sufficient evidentiary basis before proceeding, section 183 serves as a procedural safeguard against frivolous or weak cases, thereby decreasing the likelihood of arbitrary prosecution. This initial examination reinforces the presumption of innocence by ensuring that only cases with credible evidence move forward, balancing prosecutorial efficiency with fundamental rights. Although not explicitly mandated by the Constitution, the provision’s role complements modern due process standards, illustrating how pre- constitutional legal frameworks can adapt to uphold contemporary constitutional values. 27. That provision exists in all common-law jurisdictions and is a discharge procedure originating from nineteenth-century English law.3 It can also be logically explained in the context of jury trials. Juries were responsible for deciding questions of fact (they still are 3 R v Smith 1912 AD 386 and R v Fardully 1914 AD 186. For an expose of the history of the no case to answer process and its relevance in modern day jurisdiction see Reddy, M., 2018. Section 174 of the Criminal Procedure Act: Is it time for its abolition? De Jure, 51(2), pp.251–270 and Watney, M ‘Concern about the (seemingly) unlimited discretion to discharge an accused after close of the state’s case’ (2021) 3 TSAR 611. in murder trials in our jurisdiction), while judges had to decide questions of law, including the relevance and admissibility of evidence.4 28. To safeguard against jury convictions based on inadequate evidence, common law jurisdictions developed a type of judicial review mechanism. This permits a trial judge to acquit the defendant either at the close of the prosecution's case or following the defence's presentation if the evidence remains insufficient, as a matter of law, to sustain a conviction5. This procedure was retained even after jury trials were abolished for all offences apart from murder. 29. The legal standard for a "no case to answer" submission in English criminal trials, based on prima facie evidence, is set out in the case of R v Galbraith6. The test is in two limbs as follows: i. If there is no evidence that the crime alleged has been committed by the defendant, the judge must stop the case and direct an acquittal7. ii. If there is some evidence, but it is so tenuous, weak, or inconsistent that, even when taken at its highest, no reasonable jury properly directed could convict, the judge should also stop the case.8 30. At this stage, the judge does not weigh the credibility of witnesses or the reliability of evidence unless the evidence is so discredited that no reasonable jury could convict on it.9 The prosecution must have presented credible evidence in support of each element of the crime, but the judge does not need to be satisfied beyond reasonable doubt—only that a prima facie case exists. 4 Watney, M. op cit 3.p. 615. 5 Ibid,. p. 616. 6 [1981] 1 WLR 1039. 7Ibid., p. 1256. 8 Ibid. 9 Ibid. 31. In R v Hoareau,10 the court explained that Galbraith was itself an enunciation of common law principles long established and reiterated in a Practice Direction of the Divisional Court of England in 1962 (and now updated) as follows: "A submission of no case should be allowed where there is no evidence upon 'which, if the evidence adduced were accepted, a reasonable jury, properly directed, could convict.11 32. Galbraith had long been applied in Seychelles in the cases of R v Lepere12, R v Stiven13 and R v Olsen.14 Our courts have maintained unwavering adherence to these principles. 33. In the case of Stiven, it was held that the court has to consider at the stage of no case to answer whether a) there is no evidence to prove the essential elements of the offence charged and b) whether the evidence for the prosecution has been so discredited or is so manifestly unreliable that no reasonable tribunal could safely convict on it. 34. In Green v R15, Sauzier J explained that in a submission of no case to answer: "The considerations which apply at that stage are purely objective and the trial Court is not asked to weigh the evidence. At that stage it is only necessary for it to find that a reasonable tribunal might convict." 35. Similarly, in Olsen, the court held that such submissions would only be upheld if there is no evidence to prove an essential element of the alleged offence, and the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is manifestly unreliable, that no reasonable tribunal could safely convict on it. 10 (CO 79/2-14) [2015] SCSC 567 (18 November 2015), 11 Archbold in Criminal Pleadings Evidence and Practice 2012 Edition 4-363 12 (1971) SLR 112. 13 (1971) SLR 137. 14 (1973) SLR 188. 15 (1972) S. L. R 55. 36. The Court of Appeal has adopted the same approach in Sopha & Another v the Republic,16 R v Marengo,17 and R v Matombe.18 In Reference by the Attorney General under Section 342A of the Criminal Procedure Code,19 Fernando, PCA explained: “18. To determine whether a ‘prima facie case’ had been established, the Court in a normal criminal trial evaluates the case at the close of the prosecution’s case to determine if there is any support for proceeding further with the case by calling for a defence. It is a standard of proof under which the party with the burden of proof need to present enough evidence to create a rebuttable presumption that the matter asserted is true.” 37. In R v Valabhji & Ors,20 the Chief Justice, with regard to charges of illegal possession of firearms, referred to these same cases and stated: “(91) It is clear from the above authorities that, to establish a prima facie case, the prosecution must establish all the essential elements of the offence. At this stage it is not necessary for the court to determine whether the prosecution has proved all the elements of the offences … this determination shall be done at the end of the case if the trial proceeds on the defence arguments. Once the prosecution establishes a rebuttable presumption, the accused persons have a case to answer and may rebutt the same presumption in their defence. (92) Where some of the evidence seems unconvincing, it is better left for the end of the trial when evidence would be weighted unless the evidence has been so compromised by the defence or by serious inconsistencies in the prosecution's testimony…” (emphasis added). 38. Finally, and on all fours with this case, the Supreme Court in R v Mahani, charged with a similar offence under the previous Fisheries Act of 1997, stated: “In the determination of such application, the court must make an assessment of the evidence as a whole and not simply focus on the credibility of the individual witnesses or of any evidential inconsistencies between the witnesses. It is clear that where the prosecution evidence fails to address a particular element of the offence at all, then no conviction could possibly be reached and the court should allow the application to succeed. Nevertheless, where there is some evidence to show that the accused committed the offence, 16 David Sopha & Anor v Republic (SCA 2 of 1991) [1991] SCCA 10 (14 October 1991). 17 [2004] SLR 116. 18 No. 1 [2006] SLR 32. 19 (18 of 2021) [2022] SCCA 40 (19 August 2022). 20 [2024] CO 04/2022 (2 September 2024) it is a matter to be left to the end of the trial, where the evidence would be weighed and the court would reach a verdict after assessing the witness's credibility together with the available evidence. From the evidence adduced by the prosecution, there is uncontroverted evidence that the vessel on which the accused is the master did not have a license to fish in Seychelles’ waters and that the vessel was a foreign vessel... The evidence of witnesses, although circumstantial in nature, strongly support the contention of the prosecution that the vessel was engaged in fishing activities during the period in question by reason of the maneuvering it was observed to be making and the freshness of the fish on board... Hence, the court is satisfied that the prosecution has sufficiently addressed all the elements of the offence of fishing without a licence in Seychelles’ waters...21 39. The law is pellucidly clear on this issue, as demonstrated by its application in the cases. The test to be applied for a no case to answer submission 40. The summary of the above principles in Seychelles law is as follows: At the stage of an application for no case to answer, a court should not conduct extensive credibility assessments of witnesses. The test requires the evidence of the prosecution to be viewed in the strongest light, meaning the court must assume, for this limited purpose, that the prosecution’s witnesses are credible and their evidence trustworthy. However, this does not oblige the court to accept testimony that is clearly implausible or inherently unbelievable. In such exceptional cases, the court retains the authority to reject evidence that no reasonable tribunal could accept. 41. To ensure clarity in the judge's function at critical stages of the trial, the following two-part test should apply: At the Close of the Prosecution’s Case: i. The trial judge must determine, as a matter of law, whether the prosecution has presented sufficient prima facie evidence to sustain each essential element of the charged offence. i. If no such evidence exists for a given charge, the judge must dismiss it. 21 Ibid. , paragraphs and pages unmarked. At the Close of the Entire Trial: i. The judge must assess all admitted evidence and render factual findings (where acting as factfinder, that is, and not sitting in a jury trial to decide whether the accused’s guilt has been proven beyond a reasonable doubt. ii. This stage requires weighing credibility, inferences, and the totality of evidence to reach a verdict. Elements to be proven with regard to a fishing offence under section 11 of the Fisheries Act 42. With this in mind, we must first examine the provisions of the law relating to the charge Mr. Thennakoon faced in the present case. Section 11(1) of the Fisheries Act 2014 provides: “11 (1) A foreign fishing vessel shall not be used for fishing or any fishing related activity in Seychelles waters or for sedentary species on the continental shelf, except under and in accordance with a licence granted by the Authority.” 43. In the circumstances, the prosecution must prove: i. ii. iii. iv. The vessel was foreign (not Seychelles-licensed); It was engaged in fishing (as defined in Section 3); The activity occurred within Seychelles waters (including EEZ); and There was no valid foreign fishing license in force. 44. We examine the evidence regarding each of these ingredients: The first and last ingredients, that is, that the vessel was foreign and did not have a valid foreign fishing licence, are not disputed and merit no further consideration, save to point out that evidence of these facts was adduced by the prosecution in the evidence of Second Lieutenant Radegonde and corroborated by Mr. Allisop. 45. The witnesses also presented evidence of the third element. Captain Archille Uzice of the Seychelles Air Force testified that the aerial surveillance mission he conducted identified the fishing vessel approximately 20 nautical miles north-west of Farquhar Island at around 13.000 on 4 February 2024, and again at approximately 18.30 hours. 46. Second Lieutenant Sebastian Hoareau of the Seychelles Coast Guard stated that the interception of the vessel occurred approximately 23 nautical miles north-northwest of Farquhar Island around Bulldog Bank. Similarly, Lieutenant Kurl Elizabeth, who commanded the interception operation, provided coordinates placing the vessel within Seychelles' EEZ at the time of interception. 47. Mr. André, learned defence counsel, conceded that the vessel was intercepted in Seychelles waters.22 Given this admission, his subsequent and persistent objections to the very evidence proving the vessel’s location, objections inexplicably allowed by the trial court, were not merely inconsistent but amounted to an abuse of process. This conduct undermined the integrity of the proceedings. In light of these facts, the following statement by Adeline J in his judgment is difficult to comprehend: “35. The most fundamental issue which learned counsel should have addressed is whether the prosecution adduced evidence before this court to prove the essential elements of the offence. That is to say, to prove that the accused was fishing and that the fishing took place in Seychelles waters. For that, learned counsel should have addressed learned counsel for the accused proposition that the prosecution’s evidence in that regard was uncorroborated by documentary evidence, particularly the lack of the proper chart on which the plotting were made.”(emphasis added). 48. The vessel’s location was corroborated by the testimony of at least three witnesses— evidence that the defence did not contest. In light of this, the trial judge’s insistence on documentary evidence as the sole form of admissible corroboration lacks justification and raises serious concerns about the court’s evaluation of the factual record. In any case the trial judge inappropriately excluded the chart evidence on two different occasions. 49. The only matter in dispute was whether the vessel was engaged in fishing. Section 3 of the Fisheries Act defines fishing and fishing-related activity as follows: “ "fishing” (a) means (i) searching for, catching, taking or harvesting fish or attempting any such activity; 22 Page 149 of the transcript of proceedings. (ii) placing, searching for or recovering fish aggregating device or associated equipment including a radio beacon; and (b) includes activities performed in support of fishing; "fishing related activity" means- (a) transhipping fish to or from any vessel; (b) landing of fish from any vessel; (c) storing, packaging or processing of fish; (d) transporting fish except as part of a general cargo; (e) refuelling or supplying fishing vessels; (f) attempting or preparing to do any of the acts referred to in paragraphs (a) to (e);” 50. Multiple witnesses testified to observing the crew of the Ranashura 01 actively discarding fish specimens, including sharks and groupers, overboard, while noting the presence of tuna and other fish species on deck alongside fish blood. Their testimony further detailed the observation of deployed fishing equipment, including unsecured nets, rods, and lines. Law enforcement personnel reported requiring repeated warning shots to halt both the disposal of evidence and the vessel's movement. Photographic evidence was also admitted to the court supporting the witnesses’ observations. Cumulatively, this evidence satisfies the statutory definition of 'fishing and fishing-related activities' under the definition in section 3 above. 51. In the circumstances, we find that evidence was adduced regarding all the elements of the offence. 52. Furthermore, since the presence of fish or fish products on board the vessel was undisputed, section 69 of the Fisheries Act established a rebuttable presumption, stating, namely, that: "All fish or fish products found on board any vessel used in the commission of an offence under this Act shall be presumed to have been caught illegally, unless proven otherwise." 53. Given this presumption, the defence was required to present evidence disproving it. In these circumstances, it is inconceivable that a no case to answer submission succeeded. 54. Mrs. Arrisol has submitted other arguments, including that the defence counsel erred on a point of law which was nonetheless accepted by the trial judge regarding the fact that the ANDRE JA IN ADDITION TO THE JUDGMENT OF TWOMEY-WOODS JA [1] I have had the benefit of reading the judgment of Twomey-Woods JA and endorse both her reasoning and conclusion. For the avoidance of doubt, I do not adopt the paragraphs in my learned colleague’s judgment under the heading “Concerning matters”. My own observations on the conduct of the judge and counsel, set out below, are limited solely to what I consider necessary for the resolution of the issues in this matter. CONDUCT OF JUDGE DURING CRIMINAL TRIAL [2] The conduct of judges is governed by fundamental principles designed to uphold the rule of law and preserve public confidence in the judiciary. Judicial conduct refers to the ethical and professional standards that judges must adhere to in their judicial and extrajudicial behaviour. These standards ensure that judges perform their duties with independence, impartiality, integrity, and diligence, and they are essential for maintaining the legitimacy of the judicial process.23 [3] One of the most influential instruments setting out judicial conduct principles is the Bangalore Principles of Judicial Conduct (2002), which articulate six core values: independence, impartiality, integrity, propriety, equality, and competence and diligence. These principles are recognized internationally and have been incorporated into national codes of conduct, including in Seychelles. The principle of independence requires judges to be free from external influences in their decision-making, whether those pressures arise from the executive, legislature, private individuals, or the media. Impartiality, on the other hand, mandates that judges approach each case without bias or preconceived notions and decide solely based on the law and evidence. [4] In Seychelles, judicial officers are bound by the Judicial Code of Conduct adopted by the Judiciary24 and enforced by the Constitutional Appointments Authority (CAA). The Code 23 Canadian Judicial Council (2014) “Ethical Principles for Judges” available at https://cjc- ccm.ca/cmslib/general/news_pub_judicialconduct_Principles_en.pdf. 24 In 2010 the Judiciary adopted the Code of Conduct for Judicial Officers. applies to all judicial officers, including Judges of the Supreme Court and Justices of Appeal. It requires judges to uphold the Constitution and laws of Seychelles, to avoid conflicts of interest, and to ensure their conduct does not undermine the dignity of judicial office. [5] Misconduct by judges may take several forms, including abuse of judicial power, bias, undue delays in delivering judgments, or engaging in inappropriate relationships or activities. Under Article 134 of the Constitution of Seychelles, a judge may only be removed from office for inability to perform the functions of office or for misbehaviour. [6] Comparative case law has reinforced the importance of accountability and oversight in the judiciary. For example, in the South African case of Hlophe v Judicial Service Commission and Others (43482/2021) [2022] ZAGPJHC 908 (5 May 2022) the Court held at para 7 that “Regard has to be had to the need to ensure the consistent functioning of the Judiciary. Matters of gross misconduct on the part of a Judge and subsequent questions of impeachment lie at the heart of the integrity of our judicial system.” [7] Ultimately, judicial conduct is not only about the avoidance of wrongdoing but about affirmatively demonstrating commitment to justice, fairness, and accountability. A judiciary that exemplifies integrity and independence strengthens the rule of law and reinforces the legitimacy of the judicial process. Judges must therefore be ever mindful of the vast responsibility they bear and the public scrutiny under which they operate, as their conduct directly impacts the perception of justice and the effective functioning of a democratic legal system. [8] In the case of R v Watson; Ex parte Armstrong (1976) 136 CLR 248, the Court held whether a fair minded observer might reasonably suspect that the judge was biased, particularly in the sense of having predetermined an issue that is central to the case.25 In the aforementioned case the High Court of Australia had recognised that judicial remarks 25 This was further confirmed in the case of Porter v Magill [2001] UKHL 67, [2002] 2 AC 357. made in the course of argument are generally exploratory but, in some cases, cross a line into prejudgment if they are too firm or absolute in expression. [9] However, the appellate court evaluating the Appeal in this instance noted that although the judge's remarks may have been expressed more strongly than necessary, a reasonable observer would not necessarily conclude that she had closed her mind to the issues or that her decision was fixed. The judge had explicitly stated that her comments were based on the facts before her at that moment, and she had repeatedly clarified that she was not prejudging the outcome. Moreover, her remarks were made in the context of a settlement offer presented in court, which she deemed insufficient. In that light, her comments were interpreted as an effort to encourage a more adequate proposal rather than a conclusive ruling. [10] The judgment underscores the delicate balance judges must strike in managing courtroom proceedings. While they are permitted and sometimes required to engage with counsel and test arguments vigorously, they must avoid conveying an appearance of having predetermined the matter. Even where a judge believes their intentions are clear, the standard applied is that of a reasonable and informed observer, not the subjective intention of the judge.26 Apparent bias can undermine the fairness of proceedings, even if actual bias does not exist. [11] In the case of R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256 it was held that the principle that "justice must not only be done but must also be seen to be done" underpins concerns about a judge stepping into the arena. Even where no actual bias is proved, the appearance of bias can be sufficient to vitiate proceedings. [12] Further, in the case of Jahree v State of Mauritius [2005] UKPC 7, [2005] 1 WLR 1952, a magistrate had asked questions of the defendant in a way which amounted to hostile cross- examination. The Privy Council strongly deprecated the questioning by the magistrate but 26 R v Watson; Ex parte Armstrong (1976) 136 CLR 248. concluded that “it was not of sufficiently central significance in the present case to affect the overall fairness of the trial and justify setting the magistrate's finding aside.” [13] These authorities collectively underscore the obligation upon judicial officers to exercise constant vigilance in preserving not only actual impartiality but also its appearance. Although judges are permitted to engage actively in managing proceedings, they must avoid conduct that may reasonably be perceived as indicative of bias, hostility, or prejudgment. Failure to do so risks the judge stepping beyond the proper boundaries of the adjudicative role, thereby undermining the integrity and fairness of the trial process. [14] In the present case, the Judge, on several occasions, offered pointed guidance to the Prosecutor regarding the conduct of the proceedings, at times in a manner that may have been perceived as overly critical or dismissive. Additionally, certain remarks and interventions appeared to align more closely with the position advanced by Defence Counsel. While such conduct may not have been intended to undermine the prosecution’s case, it is important to acknowledge that, when viewed objectively, it could give rise to concerns regarding the appearance of bias and the potential impact on the fairness of the trial, particularly in light of the relevant authorities. CONDUCT OF LEGAL PRACTITIONER DURING CRIMINAL TRIAL [15] The conduct of legal practitioners plays a central role in safeguarding the administration of justice. As officers of the court, practitioners are not merely advocates for their clients but also custodians of the integrity of the judicial system. Their duties extend beyond client loyalty to encompass a paramount obligation to the court and to the proper functioning of justice itself. [16] The Legal Practitioners (Professional Conduct) Rules, 2013 in Seychelles explicitly recognise this responsibility. Rule 4 requires legal practitioners to act with honesty and integrity, while Rule 5 states that a practitioner must act in the best interests of the client, subject to their duty to the court. These rules affirm that the administration of justice is not to be sacrificed at the altar of client interest or tactical advantage. Further, Rule 10 prohibits any conduct that brings the profession into disrepute, implicitly recognizing that the conduct of legal practitioners directly impacts public confidence in the judicial system. [17] Inappropriate courtroom behaviour, such as disrespect toward judicial officers, excessive aggression, or attempts to intimidate opposing counsel, undermines judicial decorum and may impair the court's ability to deliver a reasoned and impartial judgment. Such conduct, if unchecked, risks not only disrupting proceedings but also eroding public trust in the legal process. [18] In R v Farooqi [2013] EWCA Crim 1649, the Court of Appeal of England considered the conduct of defence counsel who was repeatedly confrontational and accused the judge of bias during the trial. The Court found that such behaviour, which included publicly undermining the authority of the court, could have jeopardised the fairness of the trial and warranted censure. The judgment emphasised that legal representatives must exercise restraint, and their duty to defend their client does not justify disrespectful or inflammatory conduct. [19] In the case of Jasat v Natal Law Society (78/98) [2000] ZASCA 14 the Court held that “the profession of an attorney is an honourable one and demands complete honesty, reliability and integrity from its members. However, as he went on to point out, this does not mean that any untruthfulness, however trifling, will render an attorney unfit to practice and liable to be struck off the roll. As important as the requirements of honesty, reliability, and integrity are, each case must undoubtedly be examined in the light of its own facts and circumstances.” CONCLUSION [20] The principles articulated in the Constitution, the Judicial Code of Conduct, and the Legal Practitioners (Professional Conduct) Rules, 2013, serve as the cornerstone for maintaining the integrity of the judicial process and the broader administration of justice. 20