R v Thennakoon (CO 11 of 2024) [2024] SCSC 218 (30 January 2024)

SUPREME COURT OF SEYCHELLES Page 1 of 13 In the matter between: THE REPUBLIC (Represented by Mrs Dericka Arrisol) and T. 1\1 SUMEDA THENNAKOON (Represented by Mr Clifford Andre) Reportable CO 1112024 Prosecution Accused (30 January 2025) Neutral Citation: Rep vs Thennakoon (CO 11/2024) Before: Summary: Heard: Delivered: Adeline J Submission of no case to answer 13 September 2024, 15 October 2024 and 18 December 2024. 30 January 2025 FINAL ORDER On a close examination of the totality of the evidence of the prosecution at trial against the accused, this court finds, that the prosecution has failed to establish a prima facie case against the accused to warrant putting the accused on its defence. As such, the submission of no case to answer succeeds, and accordingly, the accused is acquitted of the charge of fishing without a Foreign vessel license. RULING Adeline, J mTRODUCTORYBACKGROUND [1] This ruling pertains to a submission of no case to answer by learned defence counsel for the accused at the close of the case for the prosecution at trial. The accused, one T. M SUMEDA THARANGA TENNAKOON, a Sri Lankan national, is indicted before this Page 2 of 13 Court of one count of Fishing Without a Foreign Vessel License Contrary to Section 11 (1) read with Section 69 ofthe Fisheries Act, 2014 and Punishable under Section 58 (a) of the said Act. [2] To determine whether the accused does or does not have a case to answer in respect of the indictment against him, it is necessary at the outset, to know what the wordings of the statutory provisions of the offence of which the accused has been indicted are. [3] Section 11(1) under Part II, - Licensing Requirements, sub Part 1 Foreign Fishing Vessel License is couched in the following term; "11. (1) A Foreign Fishing Vessel shall not be used for fishing or any fishing related activity in Seychelles waters orfor sedentary species on the continental shelf, except under and in accordance with the license granted by the Authority". Section 69 of the Fisheries Act is couching the following terms; "69. All fish or fish product found on board any vessel which have been used in the commission of an offence against this Act, shall be presumed to have been caught in the commission of the offence, unless the contrary is proved" THE LAW TO BE APPLIED [4] The most significant case law authority of our jurisprudence often cited for consideration to determine whether an accused person has a case to answer or not is the case of the Republic versus Stiven [1971J SLR No.9. In that case, inter alia, the Court held that at this stage of the criminal proceedings during the course of the trial, there are two things that the court ought to consider, and they are; (i) Whether there is, or there is no evidence adduced by the prosecution to prove the essential elements of the offence of which the accused is being tried, and (ii) Whether the evidence for the prosecution has been so discredited, or is manifestly unreliable that no reasonable tribunal would safely convict. Page 3 of 13 [5] The Case of the Republic vs Olsen, 1973 SLR No.5 at page 189, instructs us, that whether or not the accused has a case to answer depends not so much on whether the adjudicating tribunal would at this stage of the proceedings convict or acquit the accused but rather, whether the evidence is such that the Tribunal might convict. This consideration in approach was reiterated in the case of David Sopha & Another vs the Republic SCA 2 of 1991. In that case, the Court went further as to say that in considering a submission of no case to answer, the presiding judge must decide, "whether the evidence taken at its highest could lead aproperly directedjury convicting the accused. Ifso. the case should be allowed to go to the jury". [6] In essence, therefore, the applicable principles which ought to be applied as per R v Olsen [1973J SLR 188, followed by the R v Marengo [2004J SLR 116, and R v Matombe No.1 [2006J SLR 32 are the following, that is, whether; (a) there is no evidence to prove an essential element of the alleged offence, and (b) the evidence adduced by the prosecution has been so discredited as a result of cross examination or is manifestly unreliable, that no reasonable tribunal could safely convict on it. [7] The English jurisprudence has formulated a similar test to determine whether an accused has a case to answer or not at the close of the prosecution's case. In that regard, the cases of Galbraith [1981J 1, WLR 1039 as well as Queen v Jahnoy Walters EC SC Crim - case No 5 of 2009, and the Daley v R [1993J 4 ALLER 86 are often cited. In the Galbraith case (supra), the court spelt out two tests, notably; 1. Firstly, whether there is no evidence that the crime alleged has been conunitted by the accused. This is likely to be the case, where, for example, the essential evidence has not been called such as when witnesses have not come up to proof. 11. Secondly, whether there is some evidence but it is of a tenuous nature. That is to say, it is of inherent weakness or inconsistent with other evidence. [8] In Galbraith (supra), the court had this to say; Page 4 of 13 "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 110 difficulty. The judge will, of course stop the case. The difficulty arises when there is some evidence but it is ofa tenuous character, for example because ofinherent weakness or vagueness or because it is inconsistent with other evidence. Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that it's 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 iwv and where on one possible view of the facts there is evidence upon which a jury can come to the conclusion that the defendant is guilty, then thejudge should allow the matter to be tried by theJUTy... There is, of course, as always in the branch of law, the borderline cases. They can safely be left to the discretion of the judge". . [9}" .. Guided by the. 'case law discussed in the preceding paragraphs of this ruling, on a submission of no case to answer, if the court was to rule that as a matter of law there is no evidence on which the accused could be convicted, the judge shall direct the jury to enter a verdict of not guilty or the court sitting without a jury will make a declaration. [10] Therefore, the question that warrants a determination is when can it be said that there is no evidence on which the accused can be convicted. In the case of R v Hoareau, Twomey CJ (as she then was) makes reference to the case of Green vs R 1972 SLR 55, in which case Sauxier J had this to say about what constitute "no evidence" as provided for under Section 294(1) of the Criminal Procedure Code, notably; "The consideration which apply the at that stage are purely objective and the trial court is not asked to weigh the evidence. At that stage, it is only necessary for it to find that a reasonable tribunal might convict." [11] It is worthy of mentioning, that in Archbold in Criminal Pleadings and Evidence and Practice, 2008 edition, at page 492, the applicable principle in a no case to answer submission is written as the following; Page 5 of 13 "A submission of no case to answer should be allowed where there is no evidence upon (f the evidence adduced were accepted, a reasonable jury, Vproperly directed, which, could convict". [12] It is equally worthy of mentioning, that in a criminal trial as the instant one, the burden of proving the accused's guilt lies on the prosecution throughout the trial. There is no burden of proof on the accused to prove its innocence. This is what for the purposes of Article 19 of the Constitution guarantees the accused to a fair trial. In discharging its burden of proof, the standard required of the prosecution is beyond reasonable doubt. Nonetheless, at this stage of the proceeding, the prosecution is only required to establish a prima facie case against the accused to warrant the accused to be placed on its defence. A prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court oflaw to return a guilty verdict even if the accused opts to exercise its right to remain silent. [13] In Ramanlal Trambaklal Bhatt vs R 1957 E. A 332 at 335, the COUlt reminds us on whose onus is to prove the guilt of an accused person in a criminal case, and the standard required or sueh proof. In that regan±;--the-eOtt·lt'1t'--ll"t:'H'~ldl--"t#htti<:-s -t.to~s~ayl;T';~------------------ "Remembering that the legal onus is always on the prosecution to provide its case beyond reasonable doubt, we cannot agree that the prima facie case is made out if, at the close of the prosecution's case, the case is merely one in which onfull consideration might possible be thought sufficient to sustain a conviction. This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather, hopes the defence will jill the gaps in the prosecution's case. Nor can we agree that the question --- there is a case to answer depends only on whether there is some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence. A more scintilla of evidence can never be enough, nor can any amount of worthless discredited evidence. It may not be easy to define what is meant by a prima facie case ", but at least it must mean one on which a reasonable, properly directing its minds to the law and the evidence could convict ifno explanation is offered by the defence". (underlined emphasis is mine) Page 6 of 13 [14] In the Kenyan case of Ronald Nyaga Kiuva vs the Republic 2018 KLR, the court held the following; [15] "It is important to note that at the close of the prosecution's case, what is required in law at this stage isfor the trial court to satisfy itself that a prima facie case has been made out against the accused person sufficient enough to put him 011 his defence pursuant to the provisions of Section 211 of the Criminal Procedure Code". THE EVIDENCE OF THE PROSECUTION [16] One of this prosecution witnesses to testify at the trial was Captain Archille Uzice, a Pilot employed by the Seychelles Air Force who was also the Aircraft Commander and is the deputy commander of the Seychelles Air Force. The evidence of Captain Uzice was that on the 4th of February this year, 2024, he was the captain of the Aircraft as well as the , mission Commander conducting an operation that entailed two patrols in the area of Farquar Island. [17] The mission was to locate any vessel deemed suspicious for not displaying the Vessel Mrrrritorirrg System (VMS) in respect oflocal fishing vessels or the AIS transl11lfiersystem. Capt. Uzice testified, that any vessel without those systems was deemed suspicious and considered a target of interest. As per Captain Uzice's testimony, on the 4th February 2024, at around 1300 hours local time, the Aircraft under his command, and in the presence of First Officer Captain Marcus Leste and Operator Sergeant Darren Collie took off from Farquar Island. [18] At approximately 20 nautical miles North West of Farquar inside the Seychelles EEZ, they located a vessel of interest that was adrift without VMS, nor the AIS transmitter system. As part of their investigation, Captain Uzice and his crew took some pictures of the suspected vessel and took some video shots of the vessel whilst adrift. Those information was then relayed to the Maritime Operation Centre (MOP) on Mahe. The information was then relayed to the Seychelles Coast Guard which had its vessel, PS Etoile in the Providence Island Area, and thereafter the Aircraft landed on Farquar Island. Page 7 of 13 [19] It was the testimony of Capt Uzice, that they then undertook a second mission and that was to assist PS Etoile to intercept the suspected vessel, and to provide air coverage to the crew on PS Etoile to ensure their security and safety. After the interception Captain Uzice and his crew went back to Farquhar Island. [20] Another prosecution witness who testified for the prosecution was Second Lieutenant Sebastian, Laurent Hoareau of the Coast Guard who was on board PS Etoile at the time it sought to intercept the vessel of interest. As per Lieutenant Hoareau's evidence, his involvement in this case was for him to do the chart work that according to him entailed plotting, navigating and watch. Second Lieutenant Hoareau testified, that what came to be known as a Sri Lankan vessel was catching a lot of fish in our ocean. He then went on to state, that they did not see the crew of the vessel fishing exactly, but found a lot of fresh fish on board.the vessel after it was intercepted. Second lieutenant Hoareau also stated, that the crew of the vessel were seen throwing fish in the sea as the vessel was trying to evade interception that warning shots had to be fired to get the vessel to stop. Second lieutenant Hoareau did say in reply to question put to him, that he could not remember the exact ... coordinates for him to confirm exactly what was the position of PS Etoile when instruction was given to intercept the suspected vessel. [21] It was the evidence of Second Lieutenant Hoareau, that instructions to intercept the suspected vessel was given to PS Etoile which was under the command of Lieutenant Kurl Elizabeth, by the Director of Operation based on Mahe, one Major Hans Radegonde. According to him, the instruction was to proceed to the coordinates given by the crew of the Aircraft to locate the vessel suspected of illegal fishing in Seychelles waters. It was the testimony of Second Lieutenant Hoareau, that he received from Lieutenant Elizabeth, the acting Commanding Officer of PS Etoile, 3 coordinates to plot. He then plotted the 3 coordinates on the chart and the first and closest one, was 23 nautical miles of North West of Farquar Island and 50 nautical miles from where PS Etoile was and therefore PS Etoile went to intercept the vessel first. According to Second Lieutenant Hoareau, the other two coordinates were not used for the interception. Second Lieutenant Hoareau also testified, that he obtained instructions from Lieutenant Kurl Elizabeth to log down everything in a log book which he said he did and thereafter prepared a report. Page 8 of 13 [22] In his evidence, Second Lieutenant Hoareau stated, that the interception of the suspected vessel took place around the bull dog bank, 26 nautical miles from Farquar Island which he said was in Seychelles waters. He did now however corroborate his oral testimony with any documentary evidence such as the chart he did the plotting on or a map for example, which one would have expected of him to do within the rules of evidence. Second Lieutenant Hoareau also stated, that when PS Etoile intercepted the suspected vessel, the crew observed a lot of fish on the deck which were not placed in ice, which he said had just been fished. According to second lieutenant Hoareau he also saw fishing gears in a blue barrel inside the vessel. [23] Another witness to give evidence for the prosecution was Inspector Ivan Esparon attached to the SSCRB, and whose duties entail, inter alia, digital extraction from mobile phone, GPS, CCTV footages and so forth. Inspector Esparon gave expert evidence. As regards to , this case, Inspector Esparon received instructions to carry out three main tasks. The first one was to extract digital data from GPS devices, one was model 6012 serial number IEM00282. Inspector Esparon was also entrusted with the task of extracting digital data from two iPhones. Inspector Esparon confirmed, that the GPS Cannin Model 6012 could not be powered on because it was damaged. [24] Inspector Esparon also examined another GPS make Anwa mode SK4328 serial number 4328210600037. After powering the GPS on, Inspector Esparon found no track log coordinate, and that was because the track recording setting on the GPS had been set off. As regards to a black micro SC card 4 gb no GPS coordinate was found on the SD card, whereas, as regards to the Anwa, the setting on the GPS was set in the off mode meaning that no track was recorded. In essence, it was the testimony of Inspector Esparon that no coordinates were found upon examination of the GPS devices because the track recording was set off. [25] It was also the testimony of Inspector Esparon, that he did carry out digital extraction from one iPhone model A2890 secured from lieutenant Kurl Elizabeth, and that he thereafter produced a Report. The iPhone contained a cable & wireless sim card number 2595877. Inspector Esparon found some photographs which he then put on a DVD. He did produce Page 9 of 13 a Report dated 7th March 2024 (exhibit PI) pertaining to a case of illegal Fishing, bearing CB 239102/04. [26] Another prosecution witness who testified was one Roddy Allisop, the Head of Monitoring and Surveillance Division at Seychelles Fishing Authority. As per Mr Allisop's oral testimony, he did write a Report pertaining to the case for which he was in court to give evidence, and that was regarding the case of Fishing without a Foreign Fishing License involving suspected vessel lMULA 1697 MTR which was intercepted approximately 23 nautical miles NW of Farquar Island which he said was within the Seychelles Exclusive Economic Zone. The key aspect of his testimony, was that the suspected IUU Fishing Vessel was non-compliant because it had no functional VMS and AIS system on board and was flagless. Most importantly relating to the charge, it had no fishing license issued to it by the Seychelles Fishing Authority to fish in the Seychelles exclusive Economic Zone. It r- was the evidence of Mr Allisop, that the flagless suspected vessel was in contravention of the Fisheries Act. [27] It was also the evidence of Mr Allisop, that the suspected fishing vessel was also non- ~-----------{c~o}fnB.11pI3-Jll-};ia511nHt-4\N-VlH· tlnl-finntH:€~ml1iat:iefta·l--law,-- in that, it 'Nas flagless and that--i-tsCPS was--ine-pera+tti""v~e.----- According to Mr Allisop's testimony Fishing vessel right to navigation by transiting in the Seychelles Exclusive Economic Zone requires that the fishing gears are stowed properly which he said was not the case in the instant case. It was also the evidence of Mr Allisop, that the fact that the Fishing vessel was flagless it was suspecting of conducting illegal fishing in Seychelles waters. [28] Another prosecution witness who testified was lieutenant Kurl Elizabeth ofthe Seychelles Coast Guard. His testimony was that, he was the acting commander of PS Etoile on the 4th February 2024, and that PS Etoile was carrying out routine patrol around Providence Island on the day in question. As regards to this case, lieutenant Elizabeth's main tasks were to coordinate the operation at sea for the interception of the suspected vessel and to relate relevant information to the Director of Operation at the Seychelles Coast Guard by way of photographic evidence, and to relay Reports of the incident as it unfolded. Lieutenant Elizabeth's evidence was that he received information from a Seychelles Air force Aircraft Page 10 of 13 of a suspected vessel of illegal fishing near Farquar island at around 23 nautical miles North West of Farquar Island which information he then related to the Director of Operation at the Seychelles Coast Guard, one Major Hance Radegonde. [29] Lieutenant Elizabeth was then instructed to investigate and to intercept the suspected vessel at 13 knots which vessel was 5 nautical miles from PS Etoile. As Ps Etoile approached the vessel lieutenant Elizabeth found that it was a flagless Sri Lankan Fishing vessel. PS Etoile tried to establish radio contact via VHS with the suspected vessel but received no reply. As PS Etoile closed the distance between it and the suspected vessel, the latter increased its speed to evade interception and in the process threw some fish overboard. After few waming shots were fired, the suspected vessel stopped. Lieutenant Elizabeth stated, that he saw fresh fish on the deck of the vessel as well as blood which he presumed was fish blood. [30] It was the testimony of lieutenant Elizabeth, that the suspected vessel was intercepted 23 nautical miles fr0111Farquar Island and that the coordinate was 10 degrees, 05 minutes 08 seconds south, 5 degrees 47 minutes, 4 seconds East and that this coordinate indicates, that when it was intercepted, the suspected vessel was in the Seychelles EEZ. No chart was ----~-----i~xt!hH:ibetfiteeldEl_{(toT_ifil±1:1u~sftltJFfl'UtBte7-fra'ITcl-eei'foborate Iieetenant- Elizabeth's ora-l--e\; idence, although-lre-dicdl------ confirm, that he did the plotting on a chart. Lieutenant Elizabeth confirmed, that he was the one who took the 56 pictures that were extracted from the iPhone and then put and stored on a DVD labelled "XAMN Extraction Report" made exhibits in the prosecution's case. Going through the pictures, lieutenant Elizabeth identified, amongst other things, the flagless suspected vessel suspected of illegal fishing in Seychelles waters as lMULA 169 7MTR which was intercepted by PS Etoile. SUBMISSIONS OF DEFENCE COUNSEL [31] In his submission, inter alia, learned counsel for the accused contended, that the charge of Fishing without a Foreign Vessel License requires the prosecution to prove that the accused was fishing, and that the fishing was without a foreign vessel fishing license, and that it took place in Seychelles waters. Learned counsel emphasised, that one of the elements of the offence is fishing within the Seychelles Economic Zone. It was the contention of learned counsel, that the prosecution did not adduce evidence before this court to prove Page 11 of 13 that the accused was actually fishing and fishing in Seychelles waters. Learned counsel submitted, that the failure of the prosecution to come up to proof stems from the fact, that the prosecution had not prove the position of the suspected vessel when detected and intercepted, although the figure of23 nautical miles of Farquar was mentioned in evidence. [32J Learned counsel refers this court to the fact that the acting Commander of PS Etoile, lieutenant Elizabeth had said, under cross examination, that the chart which was used by him and his team on the vessel to plot the position of the suspected vessel at 23 nautical miles of Farquar was not the one that he was shown in COUlt. On the point, learned counsel referred the COUlt to the Court of Appeal case which he cited as Assan vs The Republic, albeit a drugs case, in which case, he stated, the court said that if the prosecution doesn't tender evidence as to the position of the vessel, it cannot be said that the vessel was in that position. [33] Leamed counsel added, that lieutenant Elizabeth even stated, that he did not see any fishing activities and I must add, that so did second lieutenant Hoareau who stated that he did not see the crew of the suspected vessel fishing. Thus, it was the contention of learned counsel, that none of the \vitnesses who testified for the prosecution came up with evid-eftee-tlToHp'lfr"AONvP.-e---- that the accused was fishing, let alone fishing in Seychelles waters. Commenting on the .prosecution's evidence that the suspected vessel was moving when detected, learned counsel submitted, that under UNCLOS 1985, the vessel was simply exercising its right to innocent passage from Madagascar heading to Sri Lanka. [34] In conclusion, it was submitted by learned counsel, that the prosecution having had the burden of proof also had the evidential burden to prove the facts asserted, and that in the instant case, they failed to adduce sufficient evidence to prove the essential elements of the offence, therefore, the accused should be acquitted of the charge against him. Learned counsel added, that some of the evidence of the witnesses needed to be corroborated by other evidence which unfortunately they were not as there were no corroborate evidence adduced before this court at trial. [35] In her submissions in reply, learned counsel for the prosecution sought to place emphasis on certain aspects of the evidence of the prosecution witnesses which in this court opinion Page 12 of 13 is less significant than the points raised by learned counsel for the defence. In fact, all that learned counsel has sought to do is to repeat certain aspects of the evidence of the prosecution's witnesses. Yes, the prosecution did prove that the suspected vessel was flagless, that there were fish on the deck of the suspected vessel, and perhaps most importantly for the purpose of the charge against the accused, that the suspected vessel was unlicensed. The most fundamental issue which learned counsel should have addressed, is whether the prosecution adduce evidence before this court to prove the essential elements of the offence. That is to say, to prove that the accused was fishing and that the fishing took place in Seychelles waters. For that, learned counsel should have addressed learned counsel for the accused proposition that the prosecution's evidence in that regard was uncorroborated by documentary evidence, particularly the lack of the proper chart on which the plotting were made. ASSESSMENT OF THE EVIDENCE OF THE PROSECUTION . [36] In considering the evidence led before this COUIt by the prosecution against the accused from an objective perspective; one would have expected the star prosecution witnesses, --'----...:..=..c..:..;__--'------'-'-----HnElJall±ln~el¥_Lieutenant Elizae~El Second lieutenant Hoareau, te-c-eme up to proof-ot+f-ttli'h'lCf':------ essential elements of the offence of which the accused has been charged. Their evidence, which was largely uncorroborated by documentary evidence contrary to what one would have expected, was insufficient to prove the essential elements of the offence of which the accused has been charged to prove a prima facie case against him. [37] In evidence, lieutenant Elizabeth did say, that the chart he did the plottings on was not the same one that he was referring to in COUlt. Second lieutenant Hoareau did say in examination in chief, that with regard to the alleged incident of the 4th February 2024, he was entrusted with the task of doing the chart works that included, doing the plottings, the navigating and the watch, and that he even prepared a Report thereafter. However, he produced no exhibits as documentary evidence to corroborate his oral testimony and that of lieutenant Elizabeth. He did not, for example, exhibited and used the charts on which he did the plottings of the coordinates. In fact, when in examination in chief he was asked what was the position of PS Etoile when instruction was given to intercept the suspected Page 13 of 13 vessel, his answer was that he could not say exactly what the coordinates were, and then went further as to add that he did write a report which report was not made exhibit in the case for the prosecution. Second lieutenant Hoareau also testified, that he did receive instructions to log down everything in a log book which he did, but failed to tender the log boole as an exhibit in the case for the prosecution. [38] There were also some inconsistencies between the testimony of the Aircraft pilot captain Uzice and Second Lieutenant Hoareau. In evidence, the former had stated that the crew of the vessel were "catching a lot of fish in our ocean", and then went on as to say that he did not see the crew of the vessel actually fishing. When asked where was the suspected vessel intercepted approximately, second lieutenant Hoareau's reply was around the bull dog bank, 23 nautical miles north west of Farquar. He did not however tender any evidence to . corroborate what he said, and maintained that the suspected vessel was in Seychelles waters simply because as he put it, "he is navigator". One would have expected him to make use of the chart he did his plottings on or a map which he failed to do. CONCLUSION [39] All in all, on account of the totality of the evidence laid before this court by the prosecution against the accused, considered in the light of the submissions of counsels and the law as discussed in the preceding paragraphs, this COUltfinds, that the prosecution has failed to establish a prima facie case against the accused to warrant putting the accused on its defence. As such, the submission of no case to answer succeeds, and accordingly, the accused is acquitted of the charge of fishing without a foreign vessel license. Signed, dated and delivered at He du Port 30th January 2025.