R v Chand (CO 86/2020) [2021] SCSC 968 (28 July 2021)

SUPREME COURT OF SEYCHELLES In the matter of: THE REPUBLIC (rep. by Hemanth Kumar) and SHY AM BAHADUR CHAND (rep. by Bryan Julie) Reportable [2021] SCSC ~ 6 c., co 86/2020 Republic Accused Neutral Citation: Republic v Chand (CO 86/2020) Before: Heard: Delivered: Burhan J 30th June 2021 (Submissions) 28 July 2021 ORDER [202 J] SCSC (28 July 2021). Accused acquitted on Count 3 Defence called in respect of all other Counts. RULING BURHAN J [1] I have considered the submissions made by learned Counsel Mr Bryan Julie on behalf of the accused at the close of the prosecution case, in regard to his contention that the accused has no case to answer. J have also considered the submissions of learned Counsel for the prosecution Assistant Principal State Counsel Mr. Kumar in reply to same. [2] Archbold in Criminal Pleadings Evidence and Practice 2012 Edition 4-363 sets out the principle in a no case to answer application. "A submission of no case should be allowed where there is no evidence upon which, ifthe evidence adduced were accepted, a reasonable jury, properly directed, could convict" [3] In the case of R vs. Stiven 1971 SLR 137, it was held what Court has to consider at the stage of no case to answer is whether: a) there is no evidence to prove the essential elements of the offence charged. b) whether the evidence for the prosecution has been so discredited or is so manifestly unreliable that no reasonable tribunal could safely convict on it. [4] The main grounds urged by learned Counsel on behalf of the accused are that: a) The evidence does not disclose any money being given to the accused and all witnesses gave evidence that they came through an agency and money was deposited but not in the bank account of the accused. b) Further there is no evidence that any of the victims were threatened by the accused and the accused has not been properly identified. c) Whatever money he has taken was on a loan. d) The prosecution has failed to establish the elements of Human Trafficking. [5] A the very outset J would say that the fai lure of the prosecution to call witness Ms Shei la Shahi to give evidence is fatal for Count 3 and therefore I proceed to acquit the accused from Count 3. [6] In respect of all other Counts against the accused learned Counsel for the prosecution in reply to the no case to answer submission of the accused, relied on the evidence led by the prosecution. He stated that the witnesses called by the prosecution clearly identified the accused as the person who had called them on IMO calls (video). Further the prosecution witnesses state that it was the accused who had given them the details of the bank accounts the money was to be deposited in banks in Nepal. Learned Counsel Mr. Kumar also referred to the evidence of Thakur Kumar Khatri who gave evidence that the accused had requested him to deposit large sums of money in accounts in Nepal in order to get his relations down for jobs in the Seychelles which his relations had done. However even though such large sums of money had been deposited in the accounts indicated by the accused, the accused had not obtained jobs for them and when asked to return the money, the accused had threatened to throw Mr. Kumar Khatri into the sea. He had similarly taken money from witness Bhakta Bahadur Chhettri. Other than the money deposited in banks in Nepal at the request of the accused this witness had directly and personally given a sum of 4400 dollars directly to the accused in addition to other sums of money and the amounts deposited by his relations and friends in the Nepal banks on the instructions of the accused. Ram Bahadur Tharu also gave evidence stating he had given a sum of US dollars 3500 to the accused which he had failed to pay back. [7] I also observe from the evidence before Court that both these witnesses Thakur Khatri and Bahadur Chhettri were friends of the accused and were meeting the accused regularly and on friendly terms with him for a considerable length of time. Therefore the necessity to hold an identification parade does not arise and identifying him in open Court would suffice. [8] In addition to this evidence, I observe that a large number of copies of travel documents, CV's, letters of recommendations, school leaving certificates and other employment oriented documents of very many persons have been taken into custody from the possession of the accused. [9] On consideration of the evidence of the prosecution witnesses in its entirety, it cannot be said that the evidence is manifestly unreliable nor could it be said that the prosecution has failed to prove an essential element of the remaining offences against the accused. It also cannot be said that on considering the evidence of the prosecution as a whole that the evidence is so discredited that the prosecution has failed to establish the essential elements of the charges against the accused. The statement of learned Counsel for the accused that all the money was given as a loan is not substantiated in any way. [10] In the light of the above findings by this Court, it cannot be said that there is no evidence to prove the essential elements of the offence charged. Further at this stage, it cannot be said that the evidence for the prosecution has been so discredited or is so manifestly unreliable that no reasonable tribunal could safely convict on it. Therefore this Court is satisfied that there is a prima facie case against the accused in respect of all the charges other than Count 3 framed against him. [11] This Court therefore proceeds to call for a defence from the accused in respect of Counts 1,2,4,5,6 7 and 8 framed against him. vered at TIedu Port on 28 July 2021 "'}" ",0 :'\ ' c;."o Burhan J 4