Mein v R (SCA 12 of 1994) [1995] SCCA 25 (13 June 1995)

IN THE SEYCHELLES COURT OF APPEAL DANIEL ALLAIN MEIN JASON ALCINDOR APPELLANTS V. THE REPUBLIC RESPONDENT Criminal Appeals Nos. 12 and 13 of __1995 Before Goburdhun, P., Silungwe and Ayoola, JJA. M . J. Renaud for the appellants Mr. C. Lablache for the Respondent JUDGMENT OF THE COURT Both appellants were jointly charged with Robbery with violence, contrary to section 281 as read with section 23, and separately charged with Rape, contrary to sections 130 and 131 of the Penal Code. It was alleged on the first count that on May 13, 1992, at Victoria, the appellants had jointly robbed Jovinella Tsnard of a wrist watch and jewellery; and on the second count, that each appellant had raped Jovinella Isnard on the date and at the place above-mentioned. Having pleaded not guilty to both counts, the appellants were tried and convicted as follows: the first appellant was convicted as charged on the first count; and was convicted of neglect to prevent commission of a felony, contrary to section 380 of the Penal Code, on the second count; but the second appellant was convicted as charged on both counts. The first appellant was sentenced to prison terms of 5 years on the first count and 6 months on the second count; whereas -3- submitted that common there was no such evidence in this case. purpose must be pre-arranged but that In his treatment of the issue of common purpose, the learned trial judge said in his judgment: argued that this "Even though it may be accused did not physically rob P. W.4, still, as per evidence quoted above, he is the one who incited and encouraged or counselled the As per section theft to be carried out. (d) of the Penal Code, he would 22(c) and He has been still be a principal offender. charged under ss.281 together with 23. As He is rightly charged. stated earlier, he of is, Robbery with violence and he is convicted accordingly." therefore, guilty of the offence Section 23 of the Penal Code provides that - "23. When two or more persons form a common intention to prosecute an unlawful purpose in the with conjunction of such purpose an offence is prosecution committed of such a nature that its commission was a probable consequence of the prosecution such purpose, each of them is deemed to have of committed the offence." one another, and in On was purpose the facts, of this case and considering the 23 of the Penal Code, there can be no of section provisions here established and that doubt common consequently, the criticism levelled against the learned trial judge's finding on the point at issue is unjustified. The first appellant's (own) revelation of his mind was clear testimony that he was not an innocent bystander, but a participant in the commission of the offence of robbery with violence, contrary to sections 281 and 23 of the Penal Code. It is erroneous to argue that common purpose entails a pre-arranged plan. We agree with Rault, C. J., who said in the Mauritian case of Paniapen v. The Queen 1981 M. R.224, at p. 255, that: -5- physical injuries and mental trauma. complainant's In his submission, the injuries as described by the doctor were as a result of the offences of robbery with violence and rape. Section 30 of the Penal Code on which the compensation order was grounded is in these terms: "30. Any person who is convicted of an offence may be adjudged to make compensation to any Any such person may be either in addition to or in compensation substitution for any other punishment." injured by his offence. The rationale behind compensation orders was stated by Scarman, L. J., in Inwood (1975) 60 Cr. App. R. 70: "Compensation orders were not introduced into convicted to buy our themselves out of the penalties for crime. law to enable the were introduced .. as a convenient and They rapid means of avoiding the expense of resort to civil litigation when the criminal clearly has means which would enable the compensation to be paid." In our view, compensation may be ordered for personal or damage. It is not necessary for the liable civilly for the loss although in most injuries, loss convict to be cases he will be. It is pointless to make a compensation order if there is no realistic possibility of it being complied with (Webb and Davis 1979) 1 Cr. App. R. (S)16 or if the convict will not be able to pay off the amount of compensation within a reasonable time. In this case, the appellants were each given long prison terms and, although the compensation order is silent as to the period of payment, it cannot be said that there is a realistic possibility of the order being complied with within a In Bradburn (1973) 57 Cr. App. R. 248, the Court of Appeal had this to say: reasonable time.