R v Monthy & Ors (CO 39/2015) [2017] SCSC 960 (9 November 2017)

IN THE SUPREME COURT OF SEYCHELLES Criminal Side: CO 3912015 [2017] SCSC \ 1;J~'. S THE REPUBLIC versus DANIEL MONTHY DINOMONTHY RONNY APPASAMMY SAVIO HOAREAU JOEL SERVINA Accused Heard: Counsel: 13th July 2015, 4th April 2016, 04th October 2016 and 20th January 2017. Mr. David Esparon, Principal State Counsel for the Republic Mrs. Alexia Amesbury Attorney at Law for the 15t yd and 4th accused Mr. Nichol Gabriel Attorney at Law for the 2nd accused Delivered: 10 November 2017 JUDGMENT Burhan J [1] The aforementioned accused were charged as follows: Count 1 Threatening Violence with common intention contrary to section 89(a) as read with section 23 of the Penal Code, Cap 158 and punishable under section 89(a) of the same code. Particulars of offence are that, Daniel Monthy, Dino Monthy and Ronny Appasammy all residing at Anse Boileau, Mahe on 14th June 2015 at Anse Boileau Police Station, Mahe with intent to cause alarm to Alex Monthy unlawfully threatened him with injury by means of violent threats. Count 2 Threatening Violence contrary to and punishable under section 89(a) of the Penal Code, Cap158. Particulars of offence are that, Ronny Appasammy of Anse Boileau, Mahe on the 14thJune 2015 at Anse Boileau Police Station, Mahe with intent to cause alarm to Police Officer Stephan Evenor and Police Officer Lise Azemia threatened them with a Pen knife. Count 3 Damaging Property contrary to and punishable under section 325(1) of the Penal Code, Cap 158. Particulars of offence are that Daniel Monthy of Anse Boileau Mahe on 1lh June 2015 at Anse Boileau Police Station, Mahe unlawfully damaged a fixed wireless phone with a value of SR6251- being the property of the Seychelles Government. Count 4 Damaging property contrary to and punishable under section 325(1) of the Penal Code, Cap 158. Particulars of offence are that, Dino Monthy of Anse Boileau, Mahe on 11h June at Anse Boileau Police Station, Mahe unlawfully damaged a sliding door with a value of SR12001- being the properly of the Seychelles Government. CountS Disorderly conduct in police building contrary to and punishable under section 61(1) of the Police Force Act, Cap 172. Particulars of offence are that, Daniel Monthy, Dino Monthy, Ronny Appasammy and Savio Hoareau all residing at Anse Boileau, Mahe and Joel Servina of Grand Anse, Mahe on 14th June 2015 at Anse Boileau police station, Mahe conducted themselves in a disorderly manner in the said police building. [2] The accused denied the charges against them and the prosecution opened their case by calling SI Ralph Agathine attached to the SSCRB (Scientific Support and Crimes Record Bureau. He stated he was on duty on the 13th of June 2015 had received a call from Command Centre requesting him to photograph a scene where damage had been caused to government property at the Anse Boileau police station. He had proceeded to the scene and when he got there, he had met Superintendent Jacquelin who had instructed him to photograph the area and the police station itself. [3] Witness observed the main entrance door to the station was damaged as its glass was broken and there was debris on the ground. He had photographed the inside of the police station and thereafter had the photographs developed from his memory card and mounted in an album. There were 13 photographs, he produced the album of 13 photographs as PI (photos 1 to 13). He thereafter proceeded to describe each and every photograph taken by him. [4] It is apparent his photographs 1 to 11, depicted the damaged entrance door to the police station showing the glass on the door had broken and the debris of the fallen glass. Photograph 12 showed a damaged chair and photo 13 showed a general over view of the inquiry office of the Anse Boileau police station. Under cross examination, he admitted he had not conducted a forensic examination on the red substance in the photographs and had not seen any weapon or machete. He had photographed a chair the way it was P 12. The seat had been removed there was no damage or tear on it. He had seen the occurrence book and a pen next to it and a black phone next to it. The phone was not broken. He stated there was no evidence of a broken mobile phone and no damage to the fixed line as per his photographs. He said the debris of the glass from the door was outside, therefore someone going from inside to outside would have hit the door from inside causing the damage. Witness further stated under cross examination, he had not done any finger printing and he had not taken pictures of any pen knife or machete or axe that day. He had been asked to photograph damaged property but no damaged phone was shown to him. He stated his camera was a Nikon Digital Camera but there was no option in respect of date and time. [5] The next witness Mr. Alex Monthy, testified to the fact that he was a fisherman and on the 13th of June 2015, he was first at his brother's Gerard Monthy's house and left around 10.55 p.m. When he was passing Daniel Monthy's house, Dino Monthy had thrown a glass bottle on the right side mirror of his pick up and the glass had broken and when driving a piece had pricked his feet. He had gone to the Anse Boileau station and spoken to Corporal Evenor. He had been told to keep his pickup in the station for finger printing. Mr. Evenor had gone inside and witness had been talking to Chantal Low his girlfriend and Emma (correct name Elma) his niece who were in his pickup, when a car had passed by and made a turn and had come and parked by his pickup. He heard doors opening and closing and he saw his brother Daniel Monthy, Dino Monthy, Ronny Appasamy, Savio Hoareau coming towards him. [6] He identified the accused in open Court and stated Dino had a knife and spanner and Ronny Appasamy had a knife like a dagger and Savio too had the same. When he saw them coming, he had run into the police station as they were coming to beat him. They too had followed and they had said we are going to kill the cunt of your mother. Dino had tried to block him but he had pushed him and gone in. The police officers inside had tried to make peace and protect him. Then Chantal Low and Elma had also come into the station to protect him. They all had got behind the counter as the accused were aggressive. Then Dino with a knife had taken one police officer to the back and Ronny Appasamy had placed a knife on one police officer Lize Azemia's stomach. Dino had thrown the spanner at him and it had hit his hand and then Dino had came at him with a bigger knife. Daniel had grabbed Elma and thrown her on the ground as she had tried to prevent Dino reaching Alex. [7] When Dino was coming at him witness had looked around and found a baton and when he bent down to collect the spanner thrown at him to defend himself, he had seen a machete and picked it up. A lot of things were being said at the time but he could not remember what. When he picked up the machete Dino went out of the police station and when he was leaving, he had hit on the glass door shattering it. Joel Servina had been eating chips and looking at television. Then WPC Liz Azemia had taken witness and locked him in the toilet to protect him. When Chantal was trying to call the police, Daniel Monthy had taken the phone and thrown it. Witness Alex Monthy stated when the accused left, the chairs were on the ground and two phones scattered all over. [8] He further stated under cross examination, he could not recall whether his statement to the police was read over and explained to him. He denied he was embellishing his story. He denied he was lying to Court. Under cross examination his evidence revealed earlier when he was on his way to his brother Gerard's house, a bottle was thrown on his vehicle and he had gone to his brother's house and waited for the police to come and they had come. His sister had come before that and accused him of throwing a rock on her car and breaking the windscreen. After the sister had come and the police had gone, he had gone to hospital and then came back again to his brother's house taken his girlfriend Chantal, Rien his son and Elma his niece and on the way back home he had once again gone to the Anse Boileau police station. It appears it was at this time the incident occurred. [9] He admitted nothing had happened outside the station. Learned Counsel for the accused pointed out that there was no mention in his statement that Savio had used a knife to threaten a police officer Evenor but had only mentioned in his statement that he had seen him taking officer Evenor to the back. He admitted he had taken a machete to defend himself. Even though he stated he had seen Dino break the glass on the door of the station, learned Counsel pointed out that in his statement he had stated he heard glass falling but did not know who had broken the glass. [10] He admitted a case had been filed against him for committing arson on his brother Daniel's fishing vessel. It appears from the cross examination that there were other incidents between his brother and him and several complaints made by parties in the Anse Boileau police station. He denied he had given money to a police officer. [11] Witness police officer Stephan Evenor stated that on the said date, he was working at the Anse Boileau police station and it was his first day and corroborated the fact that Alex Monthy had come into the station in respect of a report in regards to a cracked windscreen in his pickup. He had recorded the statement and gone out and examined the vehicle and come back and called for a request for fingerprints, when a man called Daniel Monthy entered the station and said to Alex, there he is that set fire to my boat and the big prison will crumble on him. Witness identified the 1st accused as Daniel Monthy. Alex had been near him at that time. Mr Daniel Monthy had uttered these words aggressively. Thereafter Daniel had approached Alex to start a fight and he had intervened to bring peace. All of a sudden a group of person entered and they started to swear at Alex and were all turning against Alex to fight him. He identified Ronny Appasamy and Joel Servina. Dino too had come in and gone straight to fight with Alex and witness had again intervened and tried to separate them. Dino had told to let go so that he can kill the mother fucker. WPC Azemia was present and they were throwing things around, books, chairs and phone. When he was trying to bring peace Ronny Appasamy came towards him pressed him against the wall and he noticed in his hand, he had a small pen knife which he pointed at the chest of witness and told him to leave his friend to kill the mother fucker, otherwise he would kill him. Officer Evenor had let go of Dino as the knife was pressed against his chest. [12] Alex had gone behind the counter and picked up a machete which was an exhibit. He raised the machete and asked them whether they wanted to fight and Dino had stated machete you want, machete you will get and gone outside. When he was going out, he crashed onto the door with glass and it broke and there was blood on the floor. Then they all left, WPC Azemia took Alex with her to hide him. After that he had searched for the crime book, it was not on the table he had left it. While the commotion was going on Joel had been sitting on a waiting bench. Witness identified the 2nd accused as Dino Monthy and the 3rd as Ronny Appasamy. He stated he was afraid when the penknife was being pressed against his chest. Police officer Evenor produced the phone that was thrown as exhibit P2. He produced the spanner thrown at Alex by Dino as exhibit P3. [13] Under cross examination, he stated it was Daniel who came in and was aggressive and not Alex. He too stated that Chantal Low and Elma Monthy had come into the station to protect Alex Monthy. He stated the crime book was found the next day near the grass in the police station. He admitted that he had picked up the spanner and the mobile phone prior to Mr. Agathine coming to the crime scene and photographing it. [14] Witness Elma Monthy stated her age was 18 years and she had gone to the airport on the 13th of June 2015 around 7.30 p.m. Cl\. to meet her father Mr. Gerard Monthy. From the airport arriving at ~place called "Kot Boy" at Anse Boileau and were going towards their house, she had seen some people seated on a box. She could recognise her cousin Dino Monthy and Savio Hoareau. A red car had stopped in front with full lights on their pick up. Then a glass on the right side of their pickup had shattered. She had not seen anyone throwing anything but on tuming back she had seen Dino coming in a hurry. Her uncle Alex on seeing Dino had accelerated and gone to their house to avoid conflict. Her uncle Alex had called the Central police and informed them of the incident. It had taken time for the police to respond but they had come. [15] Thereafter her uncle had gone to the police. He had come back and collected Chantal and child Rein and herself as she was staying with them. She corroborated the evidence of Alex in that whilst they were on the way, as he had felt something pricking him under his feet which resembled a piece shattered piece of glass, he had gone to the Anse Boileau police to show it. The police had seen what was under his foot and gone inside the station when a red car came in. She further corroborated the evidence of Alex in that she had seen Dino, Daniel Savio and Joel Servina Ronny Appasamy get out of the pickup and go into the station. Her uncle Alex had gone into the station and she had seen from the pickup, Dino pushing Alex and meanwhile she had called her father Gerard Monthy. Her evidence also indicates she and Chantal had got down from the pickup and gone into the police station too. The police were trying to bring the situation under control and things were being thrown all over. She was trying to prevent Dino getting close to Alex and she too had been grabbed by the hair by Daniel Monthy and pushed down. She had fallen and felt pain at her back. She had seen Dino going towards the door and smashing on the glass and the glass breaking. Her uncle had been taken to the back of the police and locked somewhere inside. She had gone to the fire station close by and called her mother who had come. She admitted under cross examination the photographs did not show thrown books or chairs. She was aware that Daniel's boat was burnt. She stated the window that was damaged was a side window and not the windscreen. She stated she lived with her uncle Alex. She stated she had seen Daniel throwing the telephone on the ground when her cousin was trying to take a call. [16] Witness Chantal Low stated Alex Monthy was her boyfriend. She corroborated the evidence of witnesses Alex and Elma in regard to the finding of a piece of glass in the vehicle and going to the Anse boileau station. She corroborates the evidence of Alex and Elma in that while they in the Anse Boileau police station, the accused had come and gone into the station where Alex was and she and Elma had too got down and gone to the station. Her evidence too corroborates the fact that the accused became aggressive argued and threatened Alex and Alex had to go into the reception and she and Elma were standing in front to protect him. They grabbed chairs to throw but as she and Elma were there it prevented them from throwing it. She corroborated the fact that Daniel Monthy had taken the phone and thrown it on the floor when she was trying to use it and that a spanner was thrown and they were threatened. She also corroborated the fact that Alex had a stick and dropped it to take a machete to protect himself. She too stated when Alex had taken the machete Dino had left the station but when going out he had smashed into the glass door and broken it. [17] After the police had taken Alex and hidden him she had gone outside as her son had been in the car and seen Daniel was taking the key from their pickup. She had asked him to give her son and he had allowed her to take him and then taken the key and gone. She had then gone to the fire station close by and asked for assistance and called her family who stated they were on their way. Under cross examination she stated she was aware that that I Alex was being accused of burning Daniels boat. She denied that earlier on when Alex was driving past Daniel's house he had revved his engine to annoy them. She admitted there was an earlier incident when the window of Alex truck was smashed. There were arguing, insults and swearing from the accused. Alex could not make any "big statements or arguments'. She admitted she had not seen what they were removing from their pockets. It appears even though Alex was very big in stature, the ladies and the police were trying their best to protect him from the accused. She stated the chairs were lifted to be thrown but not thrown. [18] Thereafter the prosecution closed its case. On a no case to answer submission the s" accused Joel Servina who accompanied the others but during the incident sat down and ate chips was acquitted. [19] In defence the 15t accused made an unsworn statement from the dock. He stated he was Daniel Monthy and he lived at Anse Boileau. He stated he had already given his statement. What Alex Monthy said against them was for them to be kept in a cell. He further however stated his wife came and told the truth to COUli. It is for Court to decide. [20] The other accused remained silent. In terms of Article 19 (2) (h) of the Constitution no adverse inference should be drawn from the fact that the accused chose their right to remain silent. Thereafter the prosecution and defence made submissions. [21] As set out above having considered the evidence before Court, it is apparent the first contention of the defence is that the photographs do not corroborate the version of the prosecution witnesses in that the photographs, do not show essential exhibits referred to by the witnesses or any disturbance. I am inclined to disagree with learned Counsel on this issue as the photographs P 1 to 11 clearly indicate evidence of disturbance where the shattered glass of the entry door to the police station is shown. P 12 shows a chair without the seat while P13 shows a chair on its side. It is apparent that the crime book disappeared from the station after the accused walked out and was found thrown in the garden of the police station only the next day morning after the photographs had been taken by the SI Agathine. [22] Further the evidence of police officer Evenor is that he had removed from the scene prior to it being photographed, the phone and the spanner which he produced as exhibits. No doubt this act of his to remove an exhibit from a crime scene prior to it being photographed is incorrect but considering the preponderance of corroborated evidence led by the prosecution which stand corroborated by the independent evidence of the police and even by the photographs Ito 13, this COUli is of the view that this oversight on the part of the police is not fatal to the case of the prosecution. [23] It appears learned Counsel for the accused in her submissions has quoted parts of the evidence and not taken into consideration the entirety of the evidence in the case. Several witnesses as set out above deponed to the aggressive and threatening conduct of the accused which included swearing and acts of violence whilst within the precincts of the Anse Boileau police station but learned Counsel has chosen to ignore all this corroborated evidence of the prosecution. [24] I observe that learned defence Counsel has brought out a material omission in that witness Alex has not stated in his statement that accused Savio Hoareau had threatened officer Evenor with a knife. As this is a material omission, this Court will accept it. However this does not mean that the evidence of Alex Monthy which also stands corroborated should be totally disregarded. Understandably things were happening fast and furiously and he was the main target and therefore it would not be possible for him to recollect every single detail of what happened. [25] I also observe discrepancies in the affidavit marked 2d 1 by the defence i.e. the affidavit of Inspector Antoine to the evidence of the witnesses but it must be borne in mind that Inspector Antoine was preparing a report in general of what had happened and was not actually present at the scene and witnessed the incident, unlike the witnesses themselves. I therefore would accept the evidence of the witnesses who actually saw and witnessed the incident, rather than the details set out in the report by a person who had not witnessed the incident. Another fact brought to the attention of Court during cross examination was that a case was pending against witness Alex Monthy for having burnt the boat belonging to the 1st accused. However this is not acceptable as an excuse or defence to the acts of the accused committed at the Anse Boileau police station that day. [26] Learned Counsel for the defence submitted that it was Alex Monthy who was armed with a machete and stick and not the accused. The evidence before Court clearly indicates that some of the accused too had weapons while in the face of the aggression from several of the armed accused, witness Alex Monthy had taken a baton and then a machete which was an exhibit lying in the police station to defend himself. It is clear from the evidence before Court that the aggressor was not Alex Monthy but the accused. For all the aforementioned reasons, I would proceed to reject the defence of the accused. [27] The evidence of police officer Stephan Evenor indicates that it was the 1SI accused who had come into the station and started the commotion and he and officer Azemia had tried their best to keep the peace. When the 1SI accused Daniel had approached Alex to start a fight he had intervened to bring peace. The other accused too on entering the police station started to swear at Alex and were all turning on him in a threatening manner to fight him or cause harm to him. There were threats to kill him as well. In addition to Daniel Monthy witness clearly identified the 2nd accused Dino, yd accused Ronnie Appasamy as the perpetrators of the threats. Witness had held Dino but Dino had told him to let go, so that he can kill the mother fucker. [28] Having considered the evidence of the prosecution, I am satisfied the evidence of witness Alex Monthy in regards to the threats received by him from the aforementioned accused stands corroborated by the evidence of witnesses Elma, Chantal and the independent evidence of police officer Evenor. I will therefore proceed to accept the evidence of the prosecution. The aggressive behaviour of the accused in attempting to throw chairs, ~ throwing spanners and phones, pulling a young.o}tgirl by her hair and pushing her to the ~lIQ' :.,.. ground, swearing in abusive language and making threats to kill Alex Monthy, the use of \0/ a knife to threaten a police officer, the taking away of the crime book and depositing it in the garden and damage to the entrance door of the station, all indicate the threatening, violent, aggressive and the mischievous nature of the acts of the accused, committed within the precincts of the Anse Boileau police station. I therefore am satisfied that the ) ) prosecution has established all the essential element of Counts 1 and 5 beyond reasonable doubt and I proceed to find the l ," 2nd and 3rd accused guilty on Counts 1 and 5 and proceed to convict them of same. [29] I also observe and hold that the 1st 2nd and 3rd accused were all acting in joint liability as envisaged in section 22 (a) of the Penal Code and therefore are jointly liable. It appears from the evidence that whilst acting jointly in threatening the victim with harm they committed other acts as well amounting to disorderly conduct in a police station. [30] Witness police officer Evenor specifically states while he was trying to control Dino Monthy the 3rd accused, Ronny Appasamy came towards him, pressed him against the wall and pointed a knife at his chest and told him to leave his friend to kill the mother fucker, otherwise he would kill him. Though subject to cross examination the evidence of this witness Evenor withstood the rigours of cross examination and no material contradictions or omissions were observed. I therefore will proceed to accept the evidence of this witness and am satisfied that the prosecution has proved all the elements of Count 2 in respect of the victim Stephan Evenor beyond reasonable doubt. I proceed to find the 3rcl accused Ronny Appasamy guilty on Count 2 and convict him of the said Count. [31] I also will proceed to accept the evidence of Alex Monthy, Elma Monthy and Chantal Low concerning the fact that that Daniel Monthy had forcibly pulled out a fixed phone belonging to the police when it was being used by Chantal Low and had thrown it resulting in damage and disconnection to the phone produced as P2 by officer Stephan Evenor. I therefore am satisfied that the prosecution has proved all the essential elements of Count 3, beyond reasonable doubt and I proceed to find the 1st accused Daniel Monthy guilty on Count 3 as well and convict him of same. [32] As set out herein several witnesses namely Chantal and Elma Monthy, police officer Evenor have deponed to the fact that when the aggressive Dino Monthy was leaving the police station, he had crashed into the door breaking the glass on it. Having considered the corroborated evidence of these witnesses and the photographs PI to P 11, I am satisfied beyond reasonable doubt, all the elements of Count 4 too have been proved by the prosecution. I proceed to find the 2nd accused guilty on Count 4 and proceed to convict him of same. [33] I have considered the evidence against the 4th accused Savio Hoareau. It is apparent the evidence of Alex Monthy in regard to his actions threatening officer Evenor cannot be accepted as there is a material omission. In fact there exists no charge in respect of threatening police officer Evenor against this accused. Although Alex Monthy states that he was armed this fact is not corroborated. No other witness speaks of any particular act done by him though they refer to "they" were aggressive, swearing. He like Joel Servina was present. Considering these facts, I would therefore proceed to give the 4th accused Savio Hoareau the benefit of the doubt and acquit him. Signed, dated and delivered at Ile du Port on ION ovember 2017 J .~ ~J~~ -P . M Burhan Judge of the Supreme Court / 13