Benoiton v R (SCA 15 of 1995) [1996] SCCA 37 (15 March 1996)

DAVID BENOITON V. THE REPUBLIC Cr. Appeal No.- 15/95 Before: Goburdhun, P., Silungwe, Ayoola JJ. A. Mr. J. Renaud for the appellant Mrs. A. Antoo for the respondent At the Supreme Court, the Chief Justice on 18th September convicted David Benoiton, the appellant, of the offences charged in the first count of being armed with intent to cause a felony by night contrary to and punishable section 293(b) of the Penal Code and in the second \ under count of being masked with intent to commit or a with face blackened or disguised felony contrary to and punishable under section 293(e) of that Code. He sentenced the appellant to (thirty) months imprisonment on the first count but did not pass any sentence on the second count as he regarded it as part and parcel of the same offence. The appellant has now appealed from his conviction on the main grounds that he had been charged in the first count with an offence unknown to the law; and that his conviction cannot be supported by the evidence. Section 293(b) of the Penal Code ("the Code") under which the appellant had been charged in the first count provides that: "Any person who is found . (b) being armed (with any dangerous or offensive weapon or -2- instrument) by night and being so armed with intent to break or enter a dwelling house, and to commit a felony therein, guilty is imprisonment for three years." felony, of a and is liable to By virtue of section 293(e) of the Code under which the appellant had been charged in the second count a person is also guilty of a felony and liable to imprisonment for three years if he is found: his "having being commit a felony." otherwise face masked disguised, or blackened or with intent to It is evident that what constitutes an offence under section 293(b) of the Code is not merely being found armed with a dangerous or offensive weapon or instrument by night with intent to commit a felony but being so armed with the following intents: to break and enter a dwelling house, and to commit a felony therein. However the charge as laid in the first count contained the following: "Statement of Offence armed Being by section 293(b) of the Penal Code. intent to cause a felony to and punishable under contrary night with Particulars of Offence David prosecution a knife prosecution Praslin with intent to commit a felony." Benoiton with a person unknown to the on 3rd July 1995 was armed with the armed with an AK47 at Cote d'Or unknown person the and to It is obvious that this is not a case in which although an offence known to the law has been described shortly in the statement of offence as prescribed by section 114(a)(ii) of the Criminal Procedure Code (Cap.54 1991 Ed.), all the essential elements of the offence have not been stated. Rather, it is a case in which the offence described in the -3- statement of offence in the first count is not one created by section 293(b) of the Code which had not created any offence of "being armed with intent to cause a felony by night." This is a case in which the observation of Lord Bridge in Ayres (1984) A. C.447 seems apt. He said at pp.460-461" the "If offence criminal case described a ~t:.and." the conviction statement an in offence and whatever indictment particulars of the no in which be a nullity, it is obvious that that indictment cannot under disclose fairly could ..... indictment as express the For to the view that even if this were regarded as a case in it is appropriate of completeness, sake which the statement and particulars of offence had pleaded the offence in terms which were inaccurate, incomplete or otherwise imperfect, such inaccuracy, incompleteness and imperfection had in this case not been cured by thel evidence. In the circumstances, the prejudice and embarrassment that had been inherent in the defect in the charge had persisted up to the conviction of the appellant on the first count. Put otherwise, even if the charge can be~ said Code to in have been properly laid under section 293(b) of the the first count, the evidence led by the prosecution was insufficient to support a conviction under that count. The evidence accepted by the learned Chief Justice in regard to both counts and the fact found by him are as follows: In the early hours of 3rd July 1995 at around 02.45 a.m. Claude Fred a national security guard and Benjamin Leon, the Chief Security Officer employed by the Berjaya Praslin Beach Hotel while on duty at the premises of the said hotel saw two persons coming at a distance about 50 metres towards them in a surreptitious and stealthy manner that aroused their suspicion. The two persons were masked and wore hats that reached down their ears. One of them had an AK47 and -4- the accused had a knife in his right hand. When the two persons had come close as metres from the two guards, Claude Fred fired one shot in the hope to scare the intruders. The appellant stumbled and fell. On Claude Fred moving closer to him where he h~d fallen, he found that the appellant was wearing a pair of white gloves and-a black leather head gear which reached down his ears. A large knife was found at about 10 metres from where the appellant lay. The faces of the appellant and his partner had been masked at the material time. From these facts, the learned Chief Justice had concluded that the intention of the appellant had been to commit a felony, namely, theft or grievous harm and theft. He went on further to say that : "Theft is a felony and the intention of the acccused at the time of the night and the manner and the way he was armed all indicate that he had gone there to commit a felony.~ These .nferences and conclusions follow reasonably from the uncontroverted evidence by the Iprosecution witnesses and the facts found. However they short 6f what is required to sustain a convictioon on a ~ fall charge under section 293(b) of the Penal Code for the simple reason finding J that there was neither evidence nor, consequently, of an intent to break or enter any building and to commit a felony therein. For these reasons the conviction of the appellant on the first count must be quashed. In regard to the second count, however, the evidence and the facts found amply support the appellant's conviction on that count. The inference drawn by the learned Chief Justice on the facts found are reasonable and justifiable. He rightly convicted the appellant on the second count of an ioffence contrary to section 293(e) of the Penal Code. tIn the result, the appellant's appeal from his -5- conviction on count is allowed. His conviction and sentence on that count are set aside. The appellant's appeal from his conviction on count 2 is dismissed. His conviction on that count is affirmed. The case is now remitted to the Chief Justice to pass sentence on the second count. Dated this /J(~ day of F~, 1996. ;-)a •..f{.• IU~1~~ ............. (H. GOBURDHUNl PRESIDENT OF APPEAL ~cU-- ............ (E. O. AYOOLA) JUSTICE OF APPEAL