Serret v R (SCA 14 of 1995) [1995] SCCA 31 (19 October 1995)

IN THE SEYCHELLES COURT OF APPEAL JEAN-BAPTISTE SERRET APPELLAN'12/ Versus THE REPUBLIC RESPONDENT Criminal Appeal N O: 14 of 1995 Mr P. ,Doulle for the appellant Mr F. Elizabeth for the respondent A t.e..4-A..a.“.40/n,_ JUDGMENT OF THE COURT The Appellant was charged with the offence of murder in breach of Section 193 of the Penal Code. It was averred that he had on 7 May 1995 murdered Joseph Benson Ernesta. The case was heard by Amerasinghe J, and a Jury. State Counsel for the Prosecution in his opening address, indicated witness would be called for the Prosecution but that an eye the witnesses who were called did not live up to the of the Prosecution. As a result the only expectations material evidence adduced by the Prosecution at the end of its case was that the victim had died of a stabbed wound and the unsworn statement of the Appellant to the effect that it was he who had stabbed the victim but in circumstances which would amount to self-defence. Mr Boulle for the defence submitted that the Appellant had no case to answer and that the case should not be allowed to go to the Jury. The trial Judge, with the consent of Mr Boulle, heard the submissions of Counsel for both the Defence and the Prosecution on the issue of no case to answer in the presence of the Jury. • t r, - 2 -- Mr Boulle in his submissions that there was no case to answer stated that the only evidence which had been adduced by the prosecution to connect the Appellant with the offence was his own statement , which indicated that the Appellant acted in circumstances amounting to self-defence. In his reply, State Counsel stated, inter alia, that "there is evidence that when the accused stabbed the deceased there was no necessity for the accused to continue to stab the deceased because the deceased collapsed, he fell down the road . .." Mr Boulle took objection to that statement of State Counsel and he said "No evidence, my Lord. This must not be said before the Jury. That is very, very dangerous, not one iota of evidence. My learned friend must be very careful, the Jury is here." The trial judge did not consider it necessary, notwithstanding the observations made by Mr Boulle, to invite the Jury to withdraw but merely requested State Counsel to "rephrase the statement." The trial Judge rejected the submission of no case to answer. The Appellant then made a statement from the dock in which he stated that he had to defend himself as he had told the police. Counsel then addressed the Jury and after the summing up the Jury returned a verdict of guilty. The Appellant was then sentenced to undergo life imprisonment. He has now appealed against conviction and sentence. The Memorandum of Appeal filed on behalf of the Appellant is very comprehensive and sets out various grounds which, for purposes of this judgment, may briefly be summarized as follows - the trial Judge erred in his ruling that there was no case to answer; there were misdirections to the Jury; , o 0 - 3 - the trial Judge failed to direct the Jury on some key issues; and some of the directions to the Jury were inadequate. At the outset of the hearing of this appeal, we invited State Counsel to address us on the issue as to whether the presence of the Jury when the issue of No Case to Answer was debated did constitute an irregularity amounting to a it miscarriage that miscarriage the Appellant. of justice. State Counsel very fairly conceded was open to this Court to hold that there had been a I of justice but that the Court should not acquit This view that of Counsel is misconceived. If we were to find there had been a miscarriage of justice we would have no option but to quash the conviction and it would not be proper for to speculate on the decision of the Attorney-General whether or not to institute new proceedings or on the plea of "autrefois acquit". decision of the Supreme Court or this Court on a Court this We however decided to hear Counsel on the merits. Mr Bou le reiterated his submission that there was no case to answer and drew attention to the fact that the only evidence which could be relied upon to hold that there was a prima facie case against the Appellant was the statement the Appellant had made to the police but that the contents of the statement were insufficient to infer guilt. State Counsel in his reply submitted that the statement contained an admission that was the Appellant who stabbed Benson Ernesta but the issues regarding the defence of self-defence had to be decided upon by the Jury. it The Supreme Court has had occasion to pronounce itself in the considerations which apply at the stage of a accused has no case to answer. The Court respect of submission that an said: , 1 - 4 - stage are "The considerations which apply at purely objective and Court is not asked to weigh trial evidence. At that stage it is only it to find that a that the the necessary reasonable tribunal might convict." (Vide Green v. R (1972) S. L. R 55.) for It is therefore essential to determine what evidence there was on record at the time the submission was made (whether such evidence was credible or not) to establish the various matters which the prosecution had to prove namely - the fact of death - which was not in dispute; the appellant committed the act whic that the death - this is(admitted by the his statement. oa0e!;," caused an in that the Appellant had the intention to cause death or that he had the knowledge that the act causing death would probably cause the death of or grievous harm to some person; the defence invoked by the appellant being one of self-defence, that what the accused did was not by way self-defence). self-defence negativing (i.e of the The only evidence to connect the appellant with the death of Benson Ernesta is contained in his statement the relevant part of which reads as follows'- "When we arrived near at Sounan's place, I heard a voice of a man calling Lorna on the public road. I recognize the man who was in concubine with Lorna before on the road. Lorna said to him, I'm separated with you, why do you follow me?" Be continued calling. There I went towards the road where that man was, he came on me and obstructed me. I saw him placing his hand under his shirt on the left, I saw him removing something from under I had At that his shirt. time .3 i - 5 - to was able near hand not be know where I made arrived him and I caught his hand which having something in it. There we struggle, I took that thing which I that it was a weapon, but I recognize will identify. I was catching the handle of this weapon in my and I stabbed him with. I do right stabbed him. When I not a sound t hou' like stab him he someone one with a punch.. There that man turned and went on When I finished stabbing him, the road. the weapon and the weapon was I removed still in my hand. After I stabbed him, I did not think that he would die, because I did not want to kill him. After that I stabbed I turned and returned back where Lorna and Sounan were." had hit another him, It the that clear the Appellant while admitting that he victim also stated that it was in would constitute self-defence. That part is had stabbed circumstances which of his statement where he which exculpatory paAt. Brian Larue v. The pronouncement on this issue in the following terms - admitted that he dealt the blow excised from the This Court has recently in the case of Republic (Cr. App. No.3 of 1994) made a fatal cannot be proved to be He admissions." "The admissions of the appellant were admitted "qualified having pushed the victim but he said he did it in self-defence. Such an admission is not It must be taken as a whole. part which is advantageous to the prosecution and disadvangeous to the maker the statement cannot be excised and to bolster the prosecution case." divisible. of used The On or otherwise, way of self-defence. the statement negatived. in arriving at the other hand, there was no evidence, circumstantial to establish what the appellant did was not by Nor can we draw the inference from the that self-defence has been We accordingly hold that the trial Judge was wrong that there was a case to conclusion defence his of answer. We have already made reference to the irregularity in -, - 6 - allowing the Jury to be present during the debate on the issue whether regard irregularity. to there was the A fact similar a case to answer specially having that condoned such had situation arose in the case of Joan Counsel Olive Falconer - At lee - a Court of Appeal decision delivered December 1993 in the course of which Roskill L. J. had on 9th this to say in respect of the presence of the Jury during a submission of no case to answer - at the for you have which years. it was appellant, the outset of the submission, which properly made in the circumstances to be successful or by Mr. Wheatley who was then the judge said: "Mr. Wheatley, you I have had experience of each other a If is not infrequently this stage of the case, unless is some particular aspect of the may be confusing to the jury hear, I think it is better that the should know what is going on and they should hear it. If you tell that you want to raise a point which law, purely I will accept it to which Mr. Wheatley repled you" I do not want them to be excluded was case. The Judge then said "If purely Mr. interrupted and said "Like any involves facts." Wheatley agreed that the jury ensuing place in the presence "At was (whether not) appearing learned and some for submission made there law which to jury that me is from "No; from anything in this purely legal." it Wheatley question of law, it Then should submission of the jury. not go out and the ..." and legal then took Mr. is It it is is there where happen the suggested leaving because is justify or , that should submission either Crown to jury, some would the that the the This Court has said again and again very undesirable that this a of no case to go to the jury evidence for the to be insufficient the the because, though there may be it is so tenbus that it to leave the case to It is most undesirable that take place in jury. Inevitably a discussion presence of judge express a view should the be jury. evidbyce, unsafe case may on to 0 - 7 - matter of fact, which is within the province of the jury. The presence of freedom of the discussion between counsel and judge." jury may hamper In the present casp, although Mr Boulle had not objected to the presence the danger of such presence when Counsel for the Prosecution of the Jury, he made specific reference to made reference to facts which had not been adduced in trial Judge should have asked the Jury to evidence. The ignore that part of Counsel's submission and invite the Jury to withdraw. Instead, he merely invited Counsel to rephrase his statement. This constituted a serious irregularity as it is not possible to evaluate the prejudicial effect which the statement of Prosecution Counsel (based on facts which had not been established ' ,evidence) could have had against the Appellant. He has thus been denied a fair hearing. have Courts It has been assumed in certain quarters that submissions of no case to go to the Jury, in the presence of the Jury or otherwise is a discretionary matter for the Judge. The English opined that such a practice was undesirable. We are however of a different view. The right of an accused to a fair trial is a fundamental right enshrined in Article 19 of the Constitution and our Courts are bound to give effect to that constitutional requirement. This has recently by the Privy Council which held that an irregularity in the proceedings will vitiate a conviction. In that particular case the accused did not understand the English language but he was assisted by Counsel. A witness deponed in English but his evidence was not translated in a language which the accused understood. The Privy Council held that there was an irregularity he although he was represented by counsel, and quashed a conviction4. stressed been • This appeal is allowed. The conviction of the Appellant is quashed on the grounds that there was no case to go to the • .. , / - 8 - Jury and that there has been a miscarriage of justice. The sentence is set aside. A. Silungwe (Justice of Appeal) E. O. Ayoola (Justice of Appeal) Ofitc-&---e L. E. Venchard (Justice of Appeal Dated this Al. October 1995. II