R v Prosper (CR 65/2010) [2017] SCSC 944 (26 October 2017)

IN THE SUPREME COURT OF SEYCHELLES Criminal Side: CO CR6S/2010 [2017] SCSC ,\ lb THE REPUBLIC versus SELBY PROSPER Accused Heard: Counsel: 26,29 March, 3,4,22 October 2012, 7 February, 27 July, 4 Sept 2017 M Kumar, State Counsel for the Republic J Camille for the accused Delivered: 27 October 2017 RULING Dodin J [1] The accused Selby Prosper was initially charged with 18 counts, but on the 71h February 2017, the prosecution withdrew 16 of the counts leaving only two counts namely: Count 2 Statement of offence Conspiracy to commit a felony namely the offence of stealing by servant contrary to Section 381 of the Penal Code read with Section 260 of the Penal Code and further read with Section 266 of the Penal Code and punishable under Section 381 of the Penal Code read with Section 266 of the Penal Code. Particulars of offence Selby Prosper of Anse Etoile, Mahe, together with a person known to the Republic namely Royston Meriton of Mont-Buxton, Mahe during theperiod between I" day of January 2009 and the 30lh of June 2009 at the Seychelles Land Transport Agency, Victoria, Mahe whilst being a servant of Seychelles Land Transport Agency, agreed with another to commit afelony namely the offence of stealing by servant of the sum of Seventy One Thousand Three hundred and Thirty Four (USD 71, 334) or the equivalent in Seychelles Rupees One Million Seventy Thousand and One Hundred (SR 1,070,100), which is the property to the said Seychelles Land Transport Agency. Count 3 Statement of offence Retaining the money knowing or having reason to believe the same to have been feloniously stolen contrary to and punishable under Section 309(1) of the Penal Code. Particulars of offence Selby Prosper of Anse Etoile, Mahe, during the period between lSI day of January 2009 and the 051"day of February 2010 did retain the money namely British Pounds 20419.30/- holding in his Account Holder Name and Number namely Selby A. Prosper, Lloyds TSB - Middleborough Branch, United Kingdom Account Number 30955611403368, which is the property of the Seychelles Land Transport Agency knowing or having reason to believe the same have been feloniously stolen. [2] At the close of the case for the prosecution, learned counsel for the accused moved the Court to rule that the accused has no case to answer on the two remaining counts. Learned counsel submitted as follows: "The accused person submits that at the close of the prosecution's case t hat the pro sec uti 0 n has failed to establish a prima facie case against him for the following reasons and invites the court to dismiss the charges against him and acquit him accordingly: (i) servant made contrary to section 260 of The accused was originally charged with one count of stealing by the Penal Code (the Code) one namely count thereunder; contrary stealing by servant read with section 260 and 266 of of conspiracy to commit a and punishable to section 381 of the Code felony as the Code and punishable thereunder; one count of retaining money knowing or having reason to believe same to have been feloniously stolen made contrary to section 309(1) of the Code and 15 counts offorgery contrary to section 335 read the Code and punishable with section 333(a) and section 331 of thereunder. The Court will note that subsequently the prosecution moved to withdraw count 1 and counts 4 to 18from the original charge sheet leaving the accused to answer 2 charges only namely count 2 and count 3. Count 2 alleges that the accused along with one Royston Meriton, (ii) whilst being a servant of the SLTA, agreed with one another to commit a felony namely the offence of stealing by servant ofUSD 71, 334, which was the property of the said SLTA. The Court will note that an offence is made against the accused, under section 266 of the Code if the prosecution can show that the thing stolen is the property of his employer. The Court will note specifically that under count 2 of the charge sheet, theprosecution has restricted the charge to allege that the money allegedly stolen, actually belonged to the SLTA. There is no allegation or averments that the accused may have come into possession of the money on account of his employment with the SLTA. On that basis, it will be submitted that the prosecution must bring evidence to show that at the material time USD 71, 334 belonged to the SLTA. Court will note that there is no evidence from the SLTA to show that USD 71, 334, was at the material time the property of the SLTA. None of prosecution witnesses who testified thus far in the case, confirmed that the said sum was the property of the SLTA. (iii) Mr. Liam Hogan testified as PW2 in this case for the prosecution. He stated that he was the deputy director of the FlU (Financialfntelligence Unit). He testified that he was called upon to investigate criminal activity within the SLTA. He also stated that search warrant was executed at the house of Meriton with the assistance of Sf Bibi and agent Scully, on the 16 April 2010. Hundreds of documents, 3 to 4 computers and memory sticks were all seized from the house. He also testified that on the 16 September 2010 Sf Bibi executed search warrant at the accused's house and computers and documents were also seized from the said house. The witness then proceeded to testify about the accused's willingness to meet up with them and talk on the incident. Same were arranged by Sf Bibi with The the accused and the accused visited them at and witness testified statements recorded from him. The Defence objected to all 3 statements testified by the witness and which P intended to admit as exhibits. A voire dire ensured in respect of all 3 statements and the Court ruled that 2 statements made by A, dated 18 September 2010 and 19September 2010 to be admitted. Two statements made on the 20 respectively, were not up to the point of the accused being cautioned the Central Bank. September 2010 were admitted and marked as Exhibit P43 and Exhibit P44 respectively. (iv) The Court will also note that in particular regards to this case, Mr. Hogan who testified for the prosecution, passed away at the crucial stage where the Defence was about to cross examine him on his testimony. Hence the accused was deprived the opportunity to verify and test the evidence of this material witness for prosecution. On that basis, the defence will submit that Mr. Hogan's evidence before Court cannot carry in line with fair any weight and must be disregarded altogether, in terms of the provisions procedures contained in Article 1 9 (2)(e) of the Constitution which states that every person charged with an offence: of the Court and in particular to examine, in person or by a legal practitioner, "has a right the witnesses called bv the prosecution before any court and to obtain the attendance and carry out the examination of any witnesses to testify on the person's behalf before the court on the same conditions as those applying to witnesses called by the prosecution". take particular The Court will note that Mr. Hogan testified to a statement given by the accused which they claim to have been a confession made by the ace use d. The same statement was admitted as Exhibit P43 after a voire dire was conducted by the court. Mr. Hogan after having admitted the statement could not be cross examined and the matter was subsequently adjourned during which time Mr. Hogan passed away. It is submitted that the whole evidence of the late Mr. Hogan must be disregarded and be set aside by the court given the provision stated above. This will be inclusive of Exhibit P43, which the defence could not be afforded with the opportunity to cross examine Mr. Hogan on its substance particularly on its contents which the prosecution alleges to have been a confessions. Such deprivation isfatal to the accused's right tofair hearing enshrined in Article 19 of the Constitution. Natural justice further calls jar the court to disregard the whole of MR. Hogan evidence inclusive of Exhibit P43 which he testified on and which he read to court as part of the prosecution's case. (v) Should the court accept the submission made under paragraph (iv) above, (which the accused is inviting the court to accept), then court will note that the prosecution has no iota of evidence to support the charge of conspiracy against the accused. The only evidence thus far has been a statement made in Exhibit P43 and copies of invoices, all which in no way, prove any element of the offence of conspiracy to commit the offence of theft by servant. None of the documents for example, prove an agreement between the accused and Meriton to steal the sum of USD 71,334. None of the documents prove that the accused and Meriton agreed to any criminal conduct. Hence it is submitted that count 2 must fail. (vi) The same above arguments are also adoptedfor count 3. Hence court will note that the prosecution. must prove that the money alleged to have been in account number 30955611403368 held with Lloyds TSB at Middleborough Branch in the United Kingdom. namely UK Pounds 20, 419.30, was money which belonged to SLTA. No such evidence was Furthermore, there is no evidence to show tendered by the prosecution. that the offence. No evidence was tendered to show that the accused knew or had reasons to believe that the money had been feloniously stolen. If the court accepts that Exhibit P43 (for the reasons stated above), then the Court must also must also fall acquit the accused under count 3. the accused had the mens rea for In the event that the Court may accept Exhibit P43, the Court (vii) has both repudiated and retracted his must take note that the accused statement in the Exhibit P44 and hence the need for the court to look for corroboration. On that basis also, it is submitted that there is no evidence to corroborate the statement. There is no evidence of 'special ownership 'to the money alleged to have been stolen by the accused belonging to SLTA and there is no evidence of an agreement between the accused and Meriton for the theft. (viii) For the above reasons, the Court is invited to acquit the accused. " [3] Learned counsel for the prosecution made the following submission in reply: "It is submitted that the prosecution proved the necessary elements of the charges in this trial at the end of the prosecution case against the accused herein relating to charges of Conspiracy to commit the Offence of Stealing by Servant and the Offence of Retaining Stolen Money. that at the time of committing these t\1Iooffences, the It is the known fact accused herein was working as an Engineer in SLTA and the overall in charge of Petit Paris Plant of SLTA. The co - accused namely Royston Meriton involved in the conspiracy charge was working as CEO of SLTA and the accused herein were reportable to CEO of SLTA relating to the works done by him on behalfofSLTA. As employees ofSLTA, both of them were bound to follow Seychelles Land Transport Agency Act (Act: - 2 of 2009). According to Section II of the SLTA Act, each and every money transaction ofSLTA relate to its operation and the works done by SLTA are to be done by the SLTA bank accounts situated in Seychelles. Contrary to the said Section, when the SLTA was doing the asphalting work for Berjaya Beau Vallon Bay Hotel in the year 2009 in which the CEO of SLTA was Royston Meriton and the Accused herein was the Engineer of SLTA who have executed the said work and directed the said hotel to pay the payment to their 'mown overseas account at UAE instead of directing to pay through SLTA bank account. According to SLTA Act, they are not allowed to do any money transaction with the SLTA clients except using the SLTA bank account. According to Exhibit. P.23 which was the letter dated 20th March 2009 sent to Mr. Ken Choe, General Manager, Berjaya Beau Vallon Bay Hotel, Beau Vallon, Mahe by Royston Meriton in the name o[SLTA quoting Selby Prosper as engineer clearly showed thefact that both were conspired in directing the said Hotel to transfer the money to their Known Overseas Account instead of directing to SLTA bank account. The confession statement which was accepted by the court after voire dire and marked as Exhibit P - 43 & 44 in which the accused herein explained well that how he and Royston Meriton fooled the SLTA by submitting inflated invoices and extracted money from SLTA illegally. The accused herein further accepted in this statement that some of the said illegal money transferred to its student account and he was ready to return the said money which was deposited in his student account to SLTA as soon as he was able to arrange the money. As far as the voire dire conducted in Court relate to Exhibit P-43 & 44, the defence had all the opportunities to cross examine Mr. Liam Hogan who recorded the statement from the Accused herein and it was proved by the prosecution that the said statements were given voluntarily by the Accused herein. So there were no violations relate to Article 19 (2) (e) of the Constitution as alleged by the accused herein as far as the voire dire conducted in Court relate to the said two statements. There is no legal to the Court to rely Exhibit P- 43 & 44 to adjudicate this impediment application of No Case to Answer notwithstanding the other facts stated in the evidence of Chief Examination given by Mr. Liam Hogan. The Exhibit P-4 which is the Bank statement of the Accused herein at Lloyds TSB in England and the abovementioned Exbibit-F.23 clearly substantiate thefacts stated by the accused herein in his confession statements in Exhibit P-43 & 44 and proved the offences of Conspiracy and Retaining Stolen Money against the accused herein. that In support of the prosecution arguments, the case ofR- Vs- Galbraith (1981) 1 WLR 1039 in which the principles for consideration on a submission of no case to answer are well settled is hereby relied by the prosecution which tt Where however the prosecution evidence is such that its states strength or weakness depends on the view to be taken of a witness reliability or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the Judge should allow the matter to be tried by the Jury". the prosecution that laid down in this subject matter, it is In following the said principles the submission of there was a prima facie case established by the prosecution at the end of the prosecution trial in this in proving the necessary elements of the said two charges against Court the accused herein. Hence it this Honourable Court may be pleased to dismiss the application of no case to answer moved by the accused herein and thus render justice. " is prayed by the prosecution that [4] It is necessary to deal with two issues raised by the prosecution and defence with regards to the proceedings, both in respect of the late Liam Hogan. Firstly, the witness testified in chief and in 4 voire dire proceedings. In the voire dire he was cross-examined by the defence but only in respect to the voluntariness of the statements recorded from the accused. The evidence adduced at the voire dire are not admissible in chief and do not go to the proof of the offences with which the accused stands charged. Secondly, as the witness unfortunately passed away before he could be cross-examined by the defence, it cannot be denied that the defence did not and would not have the opportunity to test the testimony of the witness by cross-examination. How would the Court therefore treat the evidence adduced in chief only. [5] The denial of the opportunity to cross-examine automatically takes away the right of the accused to confront witnesses against him, in violation for instance of his constitutional rights as enshrined in the constitution. In Canada, it has been argued that even though a similar provision is not expressly provided for in the Canadian Charter of Rights, it is included by implication in §7 by virtue of its reference to the principles of fundamental justice and also the §11(d) reference to a fair hearing. The right of confrontation is also reflected in Art 6 of the European Convention on Human Rights, Art. 14 of the International Covenant on Civil and Political Rights and Art 20 of the ICTR Statute. The same can be said with respect to the provision of a fair trial under the Constitution of Seychelles. [6] In South Africa, the position is reflected in the following cases: [7] S v Motlhabane and Others 1995 (2) SACR 528 (B) was a criminal trial before Khumalo J of certain accused persons on charges of murder and robbery. One of the state witnesses died during the trial. Counsel for the accused had commenced his cross-examination of the witness, but had not completed it at the time of the witness's death. At the end of the state's case, counsel for the accused applied for discharge of the accused in terms of S 174 of the Criminal Procedure Act 51 of 1977 on the basis that the evidence of the witness who died should not be taken into account and that, based on the remainder of the evidence, no reasonable man might convict the accused. [8] Khumalo J came to the conclusion that if a witness dies before cross-examination commences, his evidence is untested and must be regarded as pro non scripta. If cross examination had commenced, then the opposing party may, if he or she considers that the purposes of cross-examination have been achieved, agree that the evidence of the deceased witness be considered with the rest of the evidence. Khumalo J excluded the evidence of the witness who had died and came to the conclusion that the interests of justice would be best served by allowing the application for discharge. [9] S v MSimanga and Another 2010 (J) SACR 544 (OS]) was also a criminal trial in the South Gauteng High Court before Moshidi 1. During the course of his cross-examination a state witness died. After considering case precedents as well as similar cases in foreign jurisdictions, Moshidi J held that no probative value should be attached to evidence where cross-examination of a witness was absent 'for whatever reason including illness or death' (at para 26). [10] In Nigeria, the case of Christian Onyenwe V. Chief Godwin Anaejiol7u (Ca); (2014) Lpelr- 22495(Ca). In the trial COUlt, Counsel for the Claimants applied to the court that the evidence in chief of Donatus I. Onyukwu be expunged now that he is dead. Counsel for the Defendants did not object. The trial judge ruled that in view of the fact that the D. W.l Donatus I. Onyukwu is dead and he was not cross examined before his death, the Application of counsel for Claimant that the evidence in chief of the said Donatus Onyukwu be expunged is granted as prayed; the said evidence in chief was expunged. The decision of the trial judge was based on the fact that cross examination being an integral part of every trial cannot be dispensed with and hence believed that where a witness dies before cross examination, the evidence in chief of such witness should be expunged. [11] However it must be noted that in another Nigerian case of Christian Onyenwe V Chief'Godwin Anaejionu (Ca); (2014) Lpelr-22495(Ca) the Court of Appeal had a different view when it stated on appeal thus; "I must state that where a witness gives evidence in proceeding whether after Examination-in-Chief or in the course of Cross Examination and died without completing his evidence under any of the two situations, thefact of his death will not render his evidence useless or irrelevant in that proceeding. The Court depending on the circumstances can still accord the evidence of a deceased witness some weight or value. " [12] See Mafidolt Okwa v.."./Yere Iwerebor & Ors (1969) NSCC 73 At 75 Per Ademola, CJN who held thus: "The law as to the position of a witness who died before cross-examination of his evidence in chief appears to be settled. It is clear that it is accepted that such evidence is legal but the weight to be attached to such evidence should depend upon the circumstance of each case. " [13] From the above overview, I can state in conclusion that the statements of unavailable witnesses who have not and cannot be cross-examined should generally not be admitted in evidence. However, trial judges may, depending on the circumstances of each case, allow such evidence to be included as they are experienced and detached enough to look into such evidence and determine what weight to give to it. [14] Inthis case, the only witness who testified fully was Joseph Bibi. However, at the close of his cross-examination and from questions by the Court, the witness clearly stated that according to his investigations, it was a Mrs Descombes who dealt with the accounts at SL TA and not the accused. He further stated that he did not recover any document indicating that the accused transferred any money from SLTA. All such documents were by Mr Meriton only. Should the Defence have had the opportunity to cross-examine the late Liam Hogan and similar statements had been forthcoming from the same, it would have been obvious that no case could be made at all against the accused with respect to the offences against him. In view of the fact that the outcome of the cross-examination of the witness is uncertain and that he is the most crucial witness, the chance of the prejudicial effect of the testimony against the accused cannot be ignored. Furthermore benefit of any doubt must be given to the accused. In the circumstances, the testimony of the late Liam Hogan is expunged from the record. [15] We are now left with the two under-caution statements of the accused to consider together with the testimony of Mr Bibi. The accused gave the following statements which were admitted after voire dire: The first statement was recorded on the 20th September, 2010 at 1145 am, as follows: that 1am making. "I understand the caution you gave me and 1do not want any Attorney present with me for this statement I am sorry about yesterday and 1really want to tell you everything I know and only tell you the truth what 1said about Parmarex late last night was true. Royston told me that he had inflated the Parmarex invoices so that he could give me a stipend to go to college once he got someone to pay them. 1knew he got, VIJAY, SCM, SLTA and Central Bank to pay some of the invoices. He told me that one Parmarex had the extra money in their account. He Royston would instruct them to pay the money into my student account. 1told him that this is not a good idea because when the bill of entry arrived it will not reflect the invoice. You see it was not only my stipend but he also wanted shown on the invoice that has used some of the extra money to pay some of the invoices for the asphalting private work. Like Berjaya, Four Seasons and the Soccer Federation. Parmarex would send invoices and they would be CC to him as he was the only one who can instruct and approve payment. the invoices 1know he amended and inflated them on a When he got I say some of these inflations and maybe I can computer on his laptop. identify some of them for you. Some of the money in my student account around 12000 pounds sterling camefrom these inflated prices and the rent for 4500 pounds also camefrom the inflated prices. It was Royston Meriton who approved all the inflated invoices and got them paid by different parties. It was my Aunty who put in thefirst 8500 pounds into my account and I am very sorry about letting Royston Meriton get me involved like this and I will give back all of the money he got me through the inflated invoices. Yes yes as soon as possible. 1know he inflated the BG Europa spares I want to himself, he said he had suppliers like the Berjaya and that he would be able to put I never said it to anyone only my partner Patricia. invoices and he organised payment in the middle last like ABU DHABI who could get us good deals. He told me the bitumen costs to the big that he was going to inflate the invoices for projects the money in ABU DHABI and he would give me something later but he has not given me any money and he said he had paid of spares with all the money. I found that strange because I never saw any extra spares we were always struggling for spares. to tell you that I received a death threat about July of this year I got phone call from a call boot in the Stadium Park to my mobile it was a male voice and he said if I said anything about all the things that were going on in SLTA I would get killed. I wrote this in my diary and I noted the caller's number. I checked thepublic phone directory and Ifound the number. I did not know the voice but I thought it was a clear bigman 's voice. I was scared because he said they would break me into myflat also. I did not report it and I do not know why I got this call but maybe they had some information. I changed lock on the main door of my apartment. I have met Royston afew times since he was let go from SLTA. Usually when Ijog at Roche Caiman he was there with people on the St Anne Jetty, one of hisfriend is Harry and the other a guy called Furneau. I met them afew times. Royston once told me that FlU searched his office and that he was suspended but he never again talked to me about SLTA. He never told me he was going to England even though he spoke to mefrom a prepaid phone. Then this week I got a text late in the night from a UKphone number asking how was I. I did not reply as I did not know his new number so he sent the same message again with his name on it. Then on the I jill of September he sent a message to Payet WasIus birthday and he was having a beer. I do not know where Royston Meriton is right now but it must be in the UK because his phone was from there. It was Royston Meriton who controlled all of the inflation operation of all of the invoices and he organised the money to be paid and he was using ABU DHABI on Dubai for the extra money. I never had any dealings with ABU DHABI on Dubai this was all done by Royston Meriton. This statement has been read over to me by Mr. Hogan and I understand it and it is correct I have no wish to alter, amend or make any correction on. I wish to tell you that my partner has resignedfrom her work as she is now going with me to England. Yes the statement is correct and I was offered the right to have my attorney present but I did not want him as I feel I can work this out and I am embarrassed by it. Yes." Signed ... [16] The statement then had this added: "Yesterday I said something to you about getting an email from Royston about a bank account in Dubai. I think it might have been a mistake by him as he said please see attached detailsfor payment. I was not sure what this that 1opened to see what it was. 1saved it on my was it was an attachment laptop to open it. 1read it and dealt it as it had nothing to do with me. This is the document you showed me yesterday about Dubai which I said I knew nothing about that was a lie and I am sorry but it was Royston who sent it to me that's how it got into my laptop. This additional statement have been read over to me by Mr. Hogan. I am aware that I am under legal caution but this is the through it is correct. " Signed.. [17] The second statement was recorded on the same day, 20th September, 2010 at15.58 pm. "I have been thinking about my situation over lunch time and I realise that I need to tell you everything I am hoping that when I tell the whole truth we can sort out all my problems. I understand the caution I could nearly give it myself. Can we start with the bitumen and how it works at SLTA. At SLTA we always have our own stock of bitumen that is usedfor both public and private work. The procurement of bitumen is done through Termcotank which SLTA has a contract with at that time. Quantity for quotations is determined by CEO, approval for payment can only be done by CEO. All bitumen from Termcotank are sent straight to Seychelles. It is the bitumen from Termcotank that we have used all the time that I was at Petit Paris. I have no knowledge of any other supplier of bitumen and as far as I am concerned it was only Termcotank who supplied bitumen and I never sought out a different supplier. This meant that for every job I did with SLTA the bitumen was from our stock at Petit Paris paid for in advance by procurement. Procurement is in the Ministry of Finance and they would send approval to our CEO and our Accounts Sectionfor payment. We drew all our stockfor of bitumenfrom Petit Parisfor jobs both public and private and as 1already told you I knew that the stock we used on the jobs at Berjaya, Four Seasons and SFF was SLTA bitumen which we had already purchased in full from Termcotank. SLTA owned it outright and I never ever heard of any private customer having to send money abroad to purchase bitumen before we could start ajob. Thepurchase would have to go through procurement and that would be SLTA paying for stock. As I said the customer was always expected to pay SLTA infull price for thejob before we could start it. We would only move in the plant on site once our Account Section confirmed it had been paid in full. The Account Section would sent us a receipt indicating payment and they would phone me also. In the case of the Berjaya I got a verbal instruction from Royston Meriton to move the plant on site and start the work. I phoned Mrs. Descommes at Accounts and she told me she had got aroundjive hundred thousand rupees for thejob. I said to her this must be part payment knowing the size of the area and the size of the job. The CEO had said to start the work when I the part payment. phoned him about Royston Meriton the CEO then told me that he was going to bet the customer to pay for some items from SLTA in Abu Dhabi where he had some supplier companies. At a later stage he said he would give me some money later when I am going for study. I took this to mean it would come out of Abu Dhabi. He never mentioned it again to me, he just said it had been spent on spares. When we did the roadway at the Four Seasons the CEO told me it was a public road and the President So we went ahead with SLTA bitumen and wanted public roads repaired. laid the roadway. Again at SFF it was SLTA bitumen that we used. I guess if the Four Seasons road was private it would have coast 400 to 500 that thousand rupees for thejob. So if this was nor a public road SLTA lost at least 400 thousand rupees. And I know I priced the job at the SFF in the region of one hundred and sixty thousand rupees so again if this should have been done as a private job then SLTA lost at least one hundred and sixty thousand rupees. One of my primary jobs is pricing thesejobs I work outthe area and prepare a quote. I would be very experienced in this type of work so my pricing is usually the cost of a project unless the CEO adjusts it. He always got my quotes in soft copy and then he signed off on them. When we need spare parts I was introduced to Collin Green by Mr. Patrick Andre. When Collin Green phoned me he told me that for the last twenty years he has being supply LTD now SLTA with mostly all of their needsfor spares. It was he who assisted LTD to purchase the Astec plant and he came to Seychelles on its commissioning of the plant. He also helped to upgrade the Parker Asphalt plant on Praslin. I used him on a regular basis for quotes and spares. He would act as a middleman or representative for BG Europa and it was always BG Europa invoices for the asphalt plant. I cannot recall an invoice with Collin Green on the heading. At the time I took over the stores Parmarex had just started to supply parts for JCB, IVECO, Bomerg, Dunapacn and Bedford. them for quotations. The SLTA mechanic would have advised me what parts were needed and I would submit our requirements to Parmarex for a quote. When I got a quote I passed it in soft copy to Royston. That means I sent it to him by email for his sanction. If it was below a one hundred thousand rupees he would approve it otherwise he had to send it to procurement. TIley would approve it and send it back to us for purchase. These were some of the invoices that I know Royston Meriton interfered with and altered them by inflating them before he sent to them to Procurement for approval. In doing this hefooled them into thinking they were real invoices and they authorised payment. He also sent some of these invoices with the inflated prices to VIJAY, SCAA and that is the only two that I am aware of this is because I saw some the Parmarex statement of my account it shows this in the document we looked at yesterday. That is the one that shows the Parmarex payments to my student account he got the other money in that account for himself. Like the money from Seychelles Civil Aviation Authority that went to him. This was all his idea and as I told you I want to give back the money I got as soon as Royston said we could save money for I would contact like Raffles SLTA as VIJAY got exemption on tax and duties on projects This mean that they only because it was FDI or Foreign Direct Investment. tax or duties. Royston said he could then pay paid GST on parts but not VIJAY by offsetting the cost against a VIJAYproject. Lets say that a project that VIJAYs owed 2 million to SLTA but that SLTA had received 400 thousand in parts from Vijay then Vijay's bill would be 1.6 million instead of 2 million, he figured this saved money for SLTA. He tried to do the same thing with machines like rollers bent the Ministry of Finance queried some of thousand instead on the duty and taxes on it even where VIJAY wanted to give the roller as a present. Of course at present that would be written off against their SLTA bill. I did not really understand how it worked at SCAA except Royston said it would move things faster as SCAA had a foreign exchange account. It was Royston who always wrote the official letters to the CEO ofSCAA and he attached the invoice and their CEO dealt with these letters. He did the same with the inflated invoices,just sent them for payment and he got the benefit. This statement has been read over to me and it is correct. 1have like I did in the other statements not made any alterations or written amendments. The statement is correct. " Signed ... [18] To determine whether an accused person has a case to answer the Court must make an assessment of all the evidence adduced by the prosecution and make a determination on two issues. 1. 11. Whether all the elements of the offence have been established by the prosecution and therefore established a prima facie case against an accused. Whether the available evidence has been so compromised by the defence or by serious in the prosecution's testimonies such evidence taken as its highest would not properly secure a conviction. inconsistencies [19] Where the prosecution's evidence fails to address any particular element of the offence at all, no conviction could possibly be reached and the Court should allow the application of no case to succeed. Where there is some evidence to show that the accused committed or must have committed the offence but for some reason such evidence seems unconvincing, the matter is better left for the end of the trial where the evidence would be weighed and the Court would reach a verdict after assessing the witnesses' credibility together with all available evidence. [20] Where the available evidence has been so compromised by the defence or by serious inconsistencies in the prosecution's testimonies, the Court must determine whether the evidence adduced taken as its highest would not properly secure a conviction. If the Court determines that in such a circumstance a conviction could not be secured, the submission of no case to answer would also succeed. [21] Lord Lane's CJ' dictum in the case of R v Galbraith [1981 11 WLR 1039 Lord Lane C. J. has been well quoted on the issue: "How then should a judge approach a submission of 'no case '? If there has been no evidence that the crime alleged has been committed by the defendant, there is no difficulty. Thejudge will of course stop the case. The difficulty arises where there is some evidence but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence. Where thejudge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could notproperly convict upon it, it is his duty, upon a submission being made, to stop the case. Where however theprosecution evidence is such that its strength or weakness depends on the view to be taken of a witness' reliability, or other matters which are generally speaking within the province of thejury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by thejury ... There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of thejudge. " See also the cases of Green v. R !I9721 No 6, R v. Stiven [J9711 No 9 and R v. Olsen [19731 No 5. [22] Having considered the evidence adduced and having read the statements, I cannot say that they contain unequivocal admissions of acts done by the accused but rather what the accused believed was happening at the SLTA under the direction of the SLTA. Being aware that someone may be committing an offence and being a party to the commission of the offence are two different state of affairs. [23] Many people are unaware if they have a legal obligation when it comes to reporting criminal activity. Some don't want to get involved for fear of becoming a victim themselves. There is always the possibility that one risks harm to yourself or a third party if you divulge information about a crime you suspect has already been committed, or know of before it happens. Others may feel they have a moral obligation to respond and expose criminals for their wrongdoing. However, there is a big difference between a feeling of ethical responsibility and a legal duty to act. [24] Generally speaking, most people are under no legal obligation to report a crime, whether they knew about it in advance, witnessed its commission, or found out about it after the fact. However, there are exceptions to this such as; 1. 11. 111. IV. Aiding and abetting a crime by assisting another person to commit a cnme. Know the perpetrator's illegal plan when there is an obligation to report; Intentionally encourage and/or facilitate that plan; and Aid, promote, or instigate in the crime's commission. [25] The standard common law test of criminal liability is expressed in the Latin phrase actus reus non tacit reum nisi mens sit rea, which means. "the act is not culpable unless the mind is guilty". There must be both actus reus ("guilty act") and mens rea for an accused to be guilty of a crime. As a general rule, someone who acted without mental fault is not liable in criminal law except for strict liability crimes which are not the case in the charges levelled against the accused in this case. [26] Having considered the evidence available in this case, the prosecution has not established that there was any agreement between the accused and Royston Meriton to steal money from SLTA or the clients of SLTA. In addition, it has been established by evidence that the accused had no access to the monetary transactions of SLTA which was under the exclusive purview of the CEO of SLTA and one Mrs Descombe. I find that no reasonable Court or Tribunal would convict any accused on the evidence available in this case on that count. [27] With respect to the 3rd count, I also find from the evidence that the evidence taken at its highest would only show that the accused was made aware that the money being transferred into the accounts were possibly stolen or unlawfully transferred by the CEO of SLTA after the FlU had conducted investigations. Hence the accused could not be criminally liable for an offence he did not have the mental element of it being committed or by being imparted the knowledge after the fact. [28] I therefore find that the accused has no case to answer on both counts, (2 and 3), and I acquit the accused of both counts accordingly. 17