Clement Bradburn & Anor v The Republic (SCA 6 of 1989) [1989] SCCA 12 (25 October 1989)

.i-: ."."~ J .~ IN THE SEYCHELLES COURT OF APPEAL CLEMENTBRADBURN 1s t Appellant CALIXTEBRADBURN 2nd Appellant THEREPUBLIC Respondent. Criminal Appeal No. 6 of 1989 Mr Juliette Mr Derjacques for appellants for Republic JUDGMENTOF THECOURT Each of the appellants was charged with one count of possession of dangerous drugs. Each wa's alleged to have in his possession 3 grams of cannabis. At the Magistrate's Court they were tried together and in his judgement the Magistrate stated: have in possession been "They being evidence possession. or ~r.ejudice has c h a e.ge d separately with each of 3 grams of cannabis. The established ~tiat they were in joint This fact has caused no injustice to the a c c.use d in my view" The Mag~strate found the appellants guilty of joint possession of 3 grams of cannabis a n d convic ted and \ sentenced each of them to 3 years imprisonment. \. On first appeal counsel for the appellants submitted that the trial magistrate had erred in holding that no prejudice or injustice had been caused in convicting the appellants of joint possession when they were cha~ged separately. The firs t appellate Judge Sea tonC~'J" . stated: .' - 2 - "The charge in the present case was' one on which the learned Magistrate could not convict them of jOint possession of 3 grams of cannabis. He was with respect, in error in doing so". However, Seaton C. J.· , was of the view that this error had caused no prejudice to the appellants and was cura b Le by vi'rtue 0 f the provi sions of Sec. 331 (a) of the Penal Code. He dismissed the appeal. Mr Juliette for the appellants before us contended that Seaton C. J. had erred in invoking the provisions of Sec. 331(a) to dismiss the appeal. His argument was that since there was .only one quantity of 3 grams of cannabis and each of the appellants was charged with its' possession, the Magistrate's error was fun- damental and would be incurable. We think that the irregularity in this charge was curable and such irregularity could not possibly have caused any injustice or prejudice to the appellants. We do not agree tha t the a-ror or irregu larity .was su basic or fundamental as io be incurable. The appeal is.dismissed. r: 2.. 6 (I- Dated this ••••• day of October 1989. . ~ .........~ T... - \ \ (PRESIDENT) .................. . . . . . (JUSTICE OF APPEAL)