Ildris v R (SCA 7 of 1995) [1995] SCCA 30 (19 October 1995)

IN THE SEYCHELLES COURT OF APPEAL LOUIS MICHEAL ILLDRIS (ALIAS ILLDRICE) V. THE REPUBLIC Criminal Appeal No. 7 of 1995 Before A. Silungwe, E. O. Axoola and L. E. Venchard JJA. JUDGMENT The Appellant under Count 1 with the charged offence of Attempt to Murder in breach of section 207(a) of the He was also char g ed in an alternative Count grievous harm in breach of Penal Code. was 2 for the offence of causing section 219(a) of the Penal Code. The case was heard before Alleear C. J. offence He found the Attempt to Murder and He however made no pronouncement on the He sentenced the Appellant to undergo a of of Appellant guilty convicted him. alternative count. term of 10 years imprisonment. the The Appellant conviction and sentence. of challenged on the following grounds - Appeal, it is appealed the However, in the revised Memorandum initially against only the conviction which is being The learned Trial Judge erred in failing to consideration to the give adequate and due evidence of alibi as adduced by the defence. The learned Trial Judge erred in failing to give adequate consideration to the flaws and discrepancies of key prosecution identification witnesses. evidence in of the the I The main facts which have led to this p rosecution may be -2- summarised as follows - The Appellant was living in concubinage with Silvianne Pointe and a child was born out of their relationship. She left the Appellant some 4 to 5 months before the occurrence of the incident giving rise to this prosecution and went to live at the house of her relatives with a new paramour, Alex Allisop, the victim in the present case. On 6th February 1995, the victim went to bed at about 10 p.m. On 7 February 1995 at about 1 a.m. someone entered his room and stabbed him in the chest. conscious and he shouted that Idrice had stabbed him. He was perfectly The li g hts were put on and Steve Pointe who was also living in that house was able to recognise the Appellant who was trying to remove the dagger from the victim's chest but afterwards ran away. The victim was taken to hospital and had to undergo surgery and the dagger was removed from his chest. It is not disputed that given the circumstances in which he was Mrs. TirantGherardihowever submitted his injuries that there was an wounded and the nature of attempt on his life which would constitute an attempt to the Murder. Appellant had a perfect alibi in that he was at his place at on the night of 6 to 7 February 1995 and that in Bel Ombre any case it has not been satisfactorily proved that it was the Appellant who was the victim's assailant on that night. that As regards the defence of alibi, the Appellant gave His Two evidence that he had not left his house on that night. brother Olivier also gave evidence to that same effect. the Appellant gave evidence that on a certain friends of night they were in the company of the Appellant but they were give any indication of the date on which they were The trial judge quite rightly He examined the unable to in Appellant's company. rejected the evidence of the two friends. evidence of the Appellant and that of his brother. He -3- rejected their evidence in view of various contradictions. The trial judge had the o pportunity to see how those two witnesses demeaned in the witness box and we see no reason to interfere with that finding of fact. Evidence was adduced to rebut the defence of alibi. Two witnesses whose credibility was not impugned were called by the prosecution. They stated that they had seen the Appellant on that night in the vicinity of SMB at about 8 p.m. and respectively. in the vicinity olf St. Louis at about 10.30 p.m. It was therefore obvious that the Appellant had lied when that night. he asserted that he had not left his house on Mrs. Tirant-Gherardi submitted that guilt could not be inferred from a false alibi nor should adverse inferences be drawn from lies. She referred us to the case of James Penman She submitted that even if the (1986) 82 Cr. not be accepted it was still incumbent alibi evidence on the prosecution to establish that it was the Appellant who had assailed the victim on that night. App. R.44. could expatiated on the Appellant. her submission regarding the She stated that the She identification of evidence of the identification should be viewed with extreme it was too easy to assume that it was the caution as Appellant who had perpetrated the crime in view of strained the fact that Silvianne had She drew our relations preferred the victim Appellant. from to resulting the guidelines set out in R. Turnbull (1976) 3 attention to the She commented that there was always a ghastly ALL ER 549. risk of being in cases where identification rests mistaken She referred also to the solely on more recent case of Pope v. R. (1985) 85 Cr. App. R.201 where it was held that the summing-up was impeccable containing all Turnbull guidelines but the Appellate the elements of Court allowed the appeal as it was unsafe to convict on the fleeting encounters. the identification evidence which was available. -4- We entirely endorse the view of the law as exposed by learned Counsel. We only wish to add the following passage from Archbold 1993 edition at p.1139 paragraph 14-21. learned referring The case of R. Weeder author while the to (1980) 71 Cr. App. R.228 made the following comment - a or the Thus of the volume of it. quality than "The court emphasised that what mattered was the identification evidence rather the identification can be poor, even though it is given by a number of witnesses. They may all have had only the opportunity of a fleeting glance longer observation made in difficult Where, however, the quality the jury can safely be left to assess its value, even thou g h there is no other it, the trial judge is entitled (if so minded) to direct the jury that an identification by one witness can constitute support for the identification by another, provided that he warns them in clear terms that even a number of honest witnesses can all be mistaken." evidence to conditions. such that support is The trial judge was alive to the Turnbull guidelines and the need for caution. He had this to say - allege to be mistaken. "The case against the accused person depends substantially on the correctness of one or identifications of the accused which the more defence Hence there duty cast upon the court to warn itself is a of caution before convicting reliance of the correctness of the identifications. The court must bear in mind the possibility that a mistaken witness could be a convincing one and that a number of such witnesses could all be mistaken. special need the for in I have In this case a witness the examined closely the circumstances in which the identification by each witness came to be made; the length of time had the accused under distance, observation, the lighting condition, it was identification by recognition were seeing the accused the first time. I note that recognition might be more reliable than identification of a stranger. Also I bear in mind that sometimes mistakes could in recognition of close relatives and friends. In this case all witnesses for the person whether whether made or be -5- those who identified the accused person did so b y recognition. They did so in good Both Alex Allisop and lighting condition. Steve Pointe knew the accused person very well and saw him in good lighting condition and were not confused or mistaken." In view of the findings of fact of the trial judge, which findings are fully borne out by the evidence on record, • the trial judge was fully justified to conclude that it was the Appellant who had stabbed the victim. The appeal is dismissed. Delivered on the /F g day of October, 1995. A. SILUNGWE (JUSTICE OF APPEAL) La, tVt/t- E. O. AYOOLA (JUSTICE OF APPEAL) L. E. VENCHARD (JUSTICE OF APPEAL) e