Benoiton v R (SCA 5 of 1996) [1996] SCCA 36 (12 December 1996)

- - ------~---- IN THE SEYCHELLES COURT OF APPEAL ~ -.-.-1: _ ---------- - - 1. DAVE BENOITON 2. PASCAL TIRANT v. THE REPUBLIC (Before: H. Goburdhun, p. A. M. Silungwe; E. O. Ayoola, JJ. A.) A. Juliette for the Appellant Cr. Aop. No.5 of 1996 ----" A. J. Derjacques for the 2nd Appellant; Miss L. ?ool for the Respondent Reasons for Judgment of the Court In this case Dave Benoiton ("the 1st Appellant") was convicted at the Supreme Court with Pascal Tirant ("the 2nd Appellant") of Possession of firearms, charged in the 1st count, and possession of ammunition, charged in the 2nd count,contrary, respectively, to section 84(1) read with section 23 of the Penal COde. They were each sentences to three years imprisonment on the 1st count and two years imprisonment on the 2nd count. Both sentences were to run concurrently. They have appealed-from their conviction. On 5th July 1996 their appeals were allowed and their convictions set aside. We now give reasons for our decision. The prosecution's case as summarised by the trial Judge was that on the 14th July 1993, in the evening, Police t, __ Offic~rs at =ascade Polic~ Station had er~cted a road block by placing a police v~hicl~ GS 5914 on on~ sid~ of the road. :,.,10 Police Of f Lcers , narne Ly , Inspector Desire Esparon and Corporal Bibi manned the ~aid r~~j block. In~pectcr D~sir~ Esparon ~tooj ~~me f~et from the entrace of Cascade Police Station, wh Llst; Corporal--_Bibi Apprivat~ car r~Jistration No. S6226 travelling from ~orth and proce~ding to~ards the South avoided th~ road block and continued on its -~ay without s t.oppi nq , I;nm~diat~ly there- car. of ;3 Lene pe st tll~::;cIGenE:;r;!S, ~40. 35226 had :::~to?~)~~det the :::lu~C3r reo Lst r-stLon che 33io entr2rcfC"1..•."'·ci1n,; to t};,~ low C2bt Housing Cst2~e. P. C. Victor who sat astri~~ cn the door of the Police vehicle ~riv~n by Corporal 5i~i sew the f~rst accused l~ave car S6226 tnrough th~ window of the drivc::r'sdoor. :1.•• hdJ wi th h Lrn "some t t. Lnq which r esemb Led 'whilst runn Lnq aVI(:lYt rie first acoused (2nci appel- a ri f Le s " -lant) turned back an] Fe Victor recognised him. 31:;0 saw the s econ d accused hst Appellant) running t owa rds PC ~ictor th~ left side of the lane. He pur-sued the 2nd__App~11ant up to the juncti~n of the said lan~. After he lost th2t dPp~llant, h~ r~trac~d his ot~ps to~ards the Polic~ v~hicles. Upon a search of th~ 2re3, th~ oolic~ found th~ 1st App~llant sitting in a marshy and bushy area. A 5edrc~ of th~ vicinity of tile Housing Estate WdS then undertaken wh~reupon an AK 47 wi th i ts m39dzin~ c on t.a.lni.nq 40 bu llet s were f ounJ lying ne~r a rock 150 - f rorr. the place ','h •..re the 1st :':"'p;uc:l- •••3/ " w~re pr~duc~d in evidence ~t th~ trial. The 2nd Appel- lant WfS arr~st~d by ASP Guy Roucou at his home at Brillant between 8 and 10 ~m from the scen~ of the crime at about 11.15 p.m. Th~ 1st a~pellant who plead~d Not Guilty to the charse el~cL~d not tc glve evi~~nce. ~ne 2nd aDG~llant gave evidence d~nyin9 the charge. His . Ie f e-nc e 'v(~san alibi. In summary, his evidence was that on the night in question, he W:c:::. S ct horne 'with his wife an-i t hree children. According ./ to him~{;uring the ~3y h~ wa s working on a Spani.:.>hship an"::; he ",ent h~m, h~ h~l~~d his wif~ t~ cock,~sh~c supper, ~5tch~j the S~V~~ o'clock n~ws on ~~1~~i5ion anj '1G:Tlt:, acc'Y'din~ to e t; abou t; 5 p.m. Arrlv.i..n':: hi~ cloth~s, had his her·,,: th~r~aft~r went to b~d and fell asl~~p. H~ sai~ ~h3t he W3S "- sl,·c-(nrJ'.,) at h o.ne <=.t t he t i me ·,.,.n('"n the a Ll.eq ed incident happ~n(~d. After ni!ecting himself on th~ law 2Q re~~r~s ij~ntifi- cation and the standard o~ ~roof, the learn~J trial Judge found that th~ ~vi~enc~ of identific~tion lant (1st aesused) ~~s correct. of th~ 2nd appel- He consijer~d the lighting condition under which the identification W3. S made and held '1:1--)a tit 'das qoo f , che 2nd Appellant 'I'ur nLn J to tht.! fact tho t of this appellant was arr~st~~ at hi5.home sl~eping when he was arrest~~, he said: The Po l. Lc...o f f Lcers who drove ITA period of time of at least 30 to 4Q minutes had elapsed from the time h~ had escap~d at Cascade up to the time he was arr~:3ted ut; his jee p home , took D~tween 8 to 9 minutes to re~ch the hou5e of the first ac cu sed f rom Cascad~. for~ not impos5ibl... ~or someon~ to run that distanc~ in the ~0dce of 30 minut~s. is 3. young man anJ if he w~s a01~ to run :~st~r It is there- The accused the "'-00":-::0 -,0:- than PC Victor th~n it is not impossible accus~d to hdV~ cov~red that distanc~ minut~s." within ~ho is young~r thirty for th~ first than him In r~ ....a.ro to t.he 1st appe Ll en t (2nd a.rou se d ) 7 he ·... Jas of the vi~w that his ij~nl:::ificotion wa s '::>yr<",cognit Lon and that his id~ntification was r~inforc~d by the fact that h~ was found hidin] in the midst of a marshy ~nd bushy land. The l~arned trial Judg~ aft~r noting th~ discr~panci~s in the ~~OSecl1tion's C~3e and holjin~ ci~,3 di:: not detri:-;ct r:-CiTI the f sc ': tr.,,,t that thos~ discrep3n- t:J.-~ Lwo ar'pl"'llants wer~ inf~ct in Cdr r~glstr2tion No. 56226 or in any wey l~nd su~port ~istaken summed to ~h~ view that the 4itn~3S-s ~~r~ lying ~n reg3r~ to t~~ case up his conclusion or '-- ci~~:iinst ::h~ two app-e Ll an t s in th-. f o lLowl.nq wo rd s , without 51"IGrifle. of Mahe7 passed a roa( w~re s~~n travelling stopping and the first ~o los~ his pursu~r " I am satisfi~d that the two accused each having an AK 47 and trav~11in9 in th~ car Mangroo of 3uilner towards the South block a~cused mana]ed v'.'ithhis escaped accus~~-discarded an,j oull~ts It goe6 without themselves with SUch wea~ons many bullets intend actions. succ~ssfully would p,",rp~:trd ti::m c f s e.rious cri me s s " an~ wit~ so do not do so if th-y do not sto~ped the two ~ccused, they th~'Se his own \"i t!-'I the magazine to hi:j~ in the bush. I am sure that had the police to use them in the pursuit and The second saying that p~opl~ have certainly who arm allj vent used not of unlawful ~,'eapons in the On these appeals the appellants by their counsel, hav~ critici~~~ thes~ conclusions. his conv i c c Lon was unsafe and unsc3.;':~s[actory;i'J'enthe 'r -'!'-- -: material discrepancies which existed in the case and that the learned trial Judge erred in his evaluation of the evidence relating to identification of each of the appellants. Counsel for the 2nd appellant challenged, as regards this appellant, the conclusion which in effect accepted that this appellant who was found in bed 30 minutes after his alleged flight from the-site of the incident could have covered the 8 - 10 km distance to his home in 30 minutes on foot. In the final analysis this appeal must turn on the facts. The main question at the trial having regard to the charge was whether the appellants were at the material time and place in possession ot arms and ammunition as charged. In particular regard to the 1st appellant, the question can be further nar-rowed down to \"hether he was in possession of the gun found several feet from the spot where the appellant was found there being no direct evidence that he was seen in possession of any gun. In the result, the fact of his possession of arms and ammunition must turn on circumstantial evidence. The question on this appeal there- fore was whether there was such circumstantial evidence. In regard to the 2nd app~llant about whom there was oral and direct evidence of identification and possession of a~un, the question was whether it was safe to convict him on such evidence as there was of identification when -considered along- side the evidence which tended to show that it was improbable that he would have been on the scene and yet found 30 minutes later sleeping in his home about 8 - 10 km away. The evidence of the circumstances in which a gun and ammunition were recovered was this: The 1st appellant having been seen getting down from the •••6/ vehicle which the Police were chasing and running into the bush, the Police searched for and found him in the bush. Upon a search of the locality a rifle (AK 47) and ammunitions (said to be 40 bullets) were found 150 200 ft. away from where the 1st appellant was found. The rifle and ammunitions were found on the steps or terrace of a house. There was no evidence as to who placed them on the steps or terrace. The prosecution witness who gave evidence of the finding of the rifle and bullets asked if he knew to whom they belonged or who placed them on the steps answered No. The record shows questions nut to him \"h~n cross- examined and answers to them as follows: Q: Do you know who is the occupier'? A: The occupance of the house closest to the place where the items was(sic) picked, yes, the occupier is known to me; Q · Do you know how many adults live in that house'? A · I know two ladies that live there; · · Q • • Did you interview them; • A · No· Q · It could belong to them also, it was on their · property; A · I do not know; Q · In fact you do not know at all to whom it belongs, A · No· Q · You do not know; · who placed it there; • ••••7/ \,,- ... A: I do not know; Q: It could even belong to the PMU, because your post is CIO you do not know what belongs to them, so it is a possibility; A: There is a possibility, could have claimed first, I don't know. but perhaps they Finally, he was asked: "So you would agree with me the entire question is open, the ownership. possession, who placed it there, to whom it belongs, it is entirely open. and he answered "Yes, and I do not know for who it iso" A further remarkable fact was, as disclosed by the evidence, that the spot where the 1st appellant was found was never searched but the Police chose to search a place 200 ft. to 400 ft. away. There was no evidence that finger prints on the gun were taken and matched wi th those of the 1st appellant. From the totality of the evidence in this case, there was no evidence of facts that point to an inference that the t arm and ammunition found was ever in possession of the 1st appellant. For circumstantial evidence to be proof of guilt, it must point irresistibly and beyond reasonable doubt to the guilt of the accused. Evidence that merely shows circumstance of suspicion will not do. There was no shred of evidence to support the conclusion of the learned trial Judge that - "The second accused discarded his own (SMG rifle) with the magazine and bullets and went to hide in the bush." There was no evidence that he was ever in possession of an SMG rifle etc. let alone that he discarded them. •••8/ I'-- I'- ~-~::·1~~~~~f:~~<1'~r~T- ~:;-- -7 ~~-~-!--1~r;~~-~c: ~·i~:-~.~-: ~ .; All these put at the highest were mere speculation based on suspicion. In the circumstances, we were satisfied that on the evidence before him the learned trial Judge should have found the case not proved beyond reasonable doubt against the 1st appellant and acquitted himo ~~_ In regard to the 2nd appellant, th~----'prosecutionrelied solely on the evidence of identification of him at the scene by Unas Victor (6th p.w.), a Police Constable. His evidence as regards the identification of the 2nd appellant was that this appellant came out of the car S 6226 and ran towards the river holding an "AK 47". The time according to him was be tween 8.30 and 9 p.m. He flrst saw the appe l. Lan t at a distance of 30 ft. to 35 ft. and ran after him but the appellant go~ away from him. Cross-examined, he said that he saw the appellant in the glare of light w~en the appellant turned and looked back at the vehicle and he saw the appellant, whom he had seen about 3 times prior to the incident, for only 2 seconds. The witness Unas Victor said that he was certain the appellant whose house was about 3 km away from the scene was brought back to the scene about half an hour later after he had seen the appellant running away. He said he did not know how he could have got to his house. Another prosecution witness, Inspector Esparon gave evidence which contradicted the evidence of Constable Victor in regard to the time when they gave chase to the car in which the 2nd appellant was alleged to be. He said that if Victor stated that the car passed by 8.30 p.m., that is three hours before the witness, Esparon, said the car went by, Victor must have been in error. Also he and another prosecu- tion witness Elvis Lue did not see Victor sitting astride the ••••9/ door of the vehicle. Victor was riding in as Victor had claimed he was doing. Sub-Inspector Boniface (P. W. 11) also contradicted Victor in reg2rd to the time the vehicle S 6226 drove past the road block. He gave the time as 11.20 or 11.25 p.m. The evidence of P. W.7, A.5. P. Roucou who led the arrest of the 1st appellant was that the whole incident before the arrest of the 1st apoellant took clace before 11 p.m. He said that he went to the appellants home at 11015 p.m. None of the witnesses has been able to explain how the 2nd appellant could have been seen at the scene of the alleqed crime and lie in bed sleeping 8 to 10 km away thirty ~!~~~~s later 3n~ ~~W he co~lrl ~3ve surfaced in his hou~e without ~eing seen by the Police along the route he would have had to take whereas the evidence was that there were Police vehicles on the main road. The conclu- sion by the learnej trial Juj-.jethat it was not impossible for someone to run the distance in question in the soace of 30 minutes was not suoported by evidence. The facts that the 2nd aopellant was seen in his bed 30 minute. after he was allegedly last seen on the scene in circumstances which required explanation from the prose- cution as to how he could be in his home in bed and that no explanation came from the prosecution, by themselves ouqht to have raised reasonable doubts as to the identification of the 2nd appellan~ by Victor. These facts taken together with the rest of the evidence showe d that it was unsafe to have convicted the 2nd 208ellant. r~2re were unresolved discre- pancies in the evijence of the prosecution witnesses and Victor as to when the car 5 6226 was sighted driving by by the Police. There was no evidence in rebuttal of the alibi of the 2nd appellant or even of an investigation of his alibi. • •• 1'JI • r .:-~ The materiality of discrepancies in a case must depend on the circumstances of each case. In this case, the time when the 2nd appellant was said to be identified at the scene by Constable Victor was material to the defence of alibi of the 2nd appellant. Yet Victor who was the only witness who g2ve any direct evidence against the 2nd apnellant had been described by one or two prosecution witnesses as being in error in resoect of some other matters over which those other witnesses were in position to testify. In these circumstances where the case depended mainly on the accuracy and quality of evidence of the witness Vi~tor9 on the totality of the e'lidence, the learned trial Judge 3hould have entertained ~rave doubt 05 to whet~er ~he person the prosecution witness Constable Victor saw was the 2nd appellant. It was worth mentioning that the 2nd aopellant's house was not searched for arms and ammunition and that the Police did not seem to have looked for any evijence to connect the 2nd appellant with the crime other than the unsafe evidence of Constable Victor. In the result, we were of the view that the learned trial Judge on the evidence before him ought not to have convicted the first appellant. It was for t hes e reasons tha t we allowed the appeal, quashed the convictions and acquitted and discharged them. Dated this day of '/.11 r'f ~ 11/tt ~. -;.!:----- ,[l--T' H. GOBURDHUN ---U~---:==><4-..--' A. r'i. SILUNGWE (JUSTICE: OF APPEAL) (PRESIDENT) LuuJO--t!( LJ.,-- E. O. AYOOLA (JUSTICE OF APPEAL)