Suleman v R (SCA 3 of 1995) [1995] SCCA 29 (29 April 1995)

(ti IN THE SEYCHELLES COURT OF APPEAL IBRAHIM GILBERT SULEMAN APPELLANT V THE REPUBLIC RESPONDENT Criminal Appeal No. 3 of 1995 (Before: Goburdhun, P., Ayoola, Adam , JJ. A) Mrs. N. Tirant-Gherardi for the Appellant Mr. S. Fernando for the respondent Judgment__o the Court The Appellant, Ibrahim Gilbert Suleman, was on 3rd February 1995, convicted by the Supreme Court of the offence Trafficking of drugs contrary to section 4A(1)(a) read with section 4A(2) and section 5 and punishable under section 26(1)(b) of the Dangerous Drugs Act and in dangerous sentenced to 8 years imprisonment. The allegation made against him is that he, on the 8th September 1994 at Victoria, Mahe, did traffic in dangerous drugs, namely cannabis by having in his possession 9 kg. and 660 grammes of cannabis without lawful authority. The prosecution case was that on 8th September 1994 the appellant who was at the material time a sailor was seen by the second prosecution witness (Bonne), a security guard at. the Seychelles Fishing Authority (SFA), sitting in a bus which had arrived at the gate of the SFA and which Bonne had stopped for routine search. The Appellant was sitting in the front passenger seat next to the driver. After searching the back of the bus Bonne went towards the front of the bus where the appellant was seated and saw a travelling bag under the feet of the appellant that he wanted to search. -3- whose bus the appellant was riding when Bonne wanted to carry out a check on the appellant's bag. In a carefully written judgment, the learned Chief Justice after reviewing the evidence for the prosecution and for the defence found as follows: had accused materials grammes "I have doubt the which herbal kg. He was but were bag. officers predicament that they office. were The distraction seized running up by police. packages Georges cannabis." found the following proved beyond namely that on the 8th September 1994, in his possession a bag in there were pockets and plugs containing namely cannabis weighing 9 without lawful authority. trying to smuggle out the said drugs unfortunately for him the security guards vigilant and insisted upon searching his Faced with the intransigence of the the accused only way out of his was to con them by telling them in the The security guards unfortunately in by the accused's contrivance. moment of on the part of the officers chance and bolted. Whilst dropped his bag which was picked Bonne and handed over to the Samples were taken from all the The Pharmacist they were and the plugs. Lailam could search his bag confirmed that taken accused waiting his he Pascal for a As has been said the learned Chief Justice convicted the Appellant. On this appeal by the Appellant against his conviction and sentence, the grounds of appeal argued by Counsel on behalf of the appellant are as follows: That the learned Trial Judge failed to consider the evidence adduced by the Defence in rebuttal of the evidence adduced by the prosecution witnesses. The learned Trial Judge failed to give the consideration to the, material discrepancies in the evidence of the main prosecution witnesses concerning the bag that -5- been recovered when the Appellant dropped it; there were no contradictions. What have been pointed out by counsel on behalf of the appellant as contradictions are not of any significance to the main issue or to the credibility of the witnesses. In regard to the defence of the appellant, the Chief Justice painstakingly considered his defence and rejected it. There was also nothing to support the contention that the reliability of some of the prosecution witnesses has been damaged because they were interviewed by the police 0 1- the prosecutor in the course of the proceedings. Jules said that he was advised by the police to tell the truth and Toussaint said that he was invited to the prosecutor's office to go over his evidence. There is no suggestion that in both instances any impropriety took place and it is difficult to see what prejudice has been occasioned to the Appellant by the prosecutor talking to a witness for the prosecution. The appeal against conviction is all on facts. Where there is evidence which, if believed, is sufficient to support the conviction this court will not interfere with the (See R.v. Cupidon (1974) S. C. A. R. trial court's conclusion. 102). In this case, we see no cause to interfere with the conclusion of the Chief Justice. the appeal against conviction would be dismissed. In regard to the appeal against sentence the only ground in the memorandum of appeal is that the sentence passed by the Chief Justice was wrong in principle because, it was contended, the Chief Justicie took into account a previous conviction said to be similar which had been in fact been quashed on appeal. It is common ground that the Appellant in 1986 was convicted for trafficking in dangerous drugs but that that conviction had been quashed. However, in sentencing the appellant, the Chief Justice had referred to the Appellant's -7- dismissed as was his appeal against conviction. Much as the court should be guided by pattern of previous sentences in similar cases, it must be acknowledged that time and circumstances do often combine to make cases dissimilar for the purposes of sentence. In this case the learned Chief Justice had referred to "the drug situation in this country." when the Dias case remained exactly case was passed observe from pattern of sentence 1985. It would be wrong to assume that since 1985 was decided, the drug situation had the same as in 1995 when sentence in this by the Chief Justice. It is reasonable to the sentence passed in the Robert case that the might have changed from what it was in In consideration this the case, after taking several factors into Chief Justice evidently did not think the minimum sentence be interpreted as meaning that trafficking" only of 5 years adequate. Dias case should not in every case of "presumed the minumum sentence should be considered adequate. trial judge to factors other consideration. are not of the principle disturb the sentence passed by him. Much is certainly left to the discretion of the be exercised after having regard to several entitled take into which In the circumstances of the present case, we view that the Chief Justice applied a wrong in sentencing the Appellant and we find no cause to to he is In the result the appeal of the Appellant against both conviction and sentence is dismissed. H. Goburdhun, P. /itO'L~"-4(A--- E. O. Ayoola, J. A. M. A. Adam, J. A. LIAA=--f-au c-tA a • Delivered this )-(4-6, day of April 1995.