R v Valabhji & Ors (CO 4 of 2022) [2024] SCSC 220 (2 September 2024)

SUPREME COURT OF SEYCHELLES Reportable [2024] CO 04/2022 Republic lSI Accused 2nd Accused 3rd Accused 4th Accused 5th Accused In the matter between: THE REPUBLIC (rep. by S Powles) and MUKESH VALABHJI (rep. by J Lewis and ors) LAURA VALABHJI (re. by R Scott and ors) LESLIE BENOIT ON (rep. by B Hoareau) LEOPOLD PA YET (rep. by B Hoareau) FRANK MARIE (rep. by J Camille) Neutral Citation: Summary: Before: Heard: Delivered: The Republic v Valabhji & Drs (CO 04/2022) Stay of proceedings Govinden CJ for abuse of process; [2024] submissions (ZJlSeptember 2024) of no case to answer 2 September RULING GOVINDEN CJ BACKGROUND [I] The l " Accused, Mukesh Valabhji, is charged on 19 counts of a 27 count Indictment (Counts 1-3, 5, 7-21). The 2nd Accused, Laura Valabhji, is charged on the same counts as the 151 Accused (Counts 1-3,5, 7-21). Both Accused filed submissions of no case to answer in relation to all the counts. Under separate heading, both Accused also filed submissions that the proceedings should be stayed for an abuse of process. [2] The 2nd Accused adopted the full detail of the written arguments advanced by the 15t Accused. However, it is submitted that her position is distinct from that of her husband and must be considered separately. The 2nd Accused further emphasized that the Prosecution's case asserts her guilt by mere association with her husband, while evidence against her, upon proper and objective analysis, does not withstand the barest scrutiny. [3] For the purpose of the Ruling, whenever reference is made to the submissions of the lSI Accused, it will be understood that these are also the submissions of the 2nd Accused. Submissions advanced only on behalf of the 2nd Accused will be addressed separately. [4] The 3rd and 4th Accused, Leslie Benoiton and Felix Payet, have filed joint submissions of no case to answer. The 3rd Accused is charged on 8 counts (Counts 1,2,4,6,22-25; relating to conspiracy, possession, and abuse of office) and the 4th Accused is charged on 2 counts (Counts 2 and 27; conspiracy and abuse of office). Both Accused have filed submissions of no case to answer in relation to all the counts. [5] The 5th Accused, Frank Marie, is charged on 2 counts (Counts 2 and 26; conspiracy and abuse of office) and has filed submissions of no case to answer in relation to all counts. [6] The Prosecution has filed their joint reply to the 151 and 2nd Accused; and a joint reply to 3rd, 4th and 5lh Accused. Subsequently, the 1st, 2nd, 3rd and 4th Accused have filed further replies to Prosecution's submissions. [7] The Court will follow the sequence of the submissions and will first address the issue of abuse of process before proceeding to analyze the submissions of no case to answer. ABUSE OF PROCESS [8] It was submitted on behalf of the 1st Accused that there are three separate heads of abuse of process: the stolen CCTV, the missing laptop and failure of disclosure. It was submitted that each of these should be considered individually and then cumulatively. [9] The 2nd Accused submitted that her Prosecution is "entirely parasitic upon the Prosecution of her husband"; therefore, the submissions of the JSI Accused in relation to the abuse of process are adopted by the 2nd Accused. Legal Framework [10] Both, the Ist Accused and the Prosecution submitted that the court has an inherent power to stay proceedings to prevent any abuse of process (Mein v Chetty (No I) (1975) SLR 184; Republic v Yuan Mei Investment (1999) (Prop) Ltd (1999) SLR 14). Such power is applicable in two main situations. [11] The I Sl Accused referred to the United Kingdom Supreme Court case of R v Maxwell [20 10] UKSC 48 at [13]: "It is well established that the court has the power to stay proceedings in two categories of case, namely (i) where it will be impossible to give the accused a fair trial, and (ii) where it offends the court's sense of justice and propriety to be asked to try the accused in the particular circumstances of the case. In the first category of case, if the court concludes that an accused cannot receive a fair trial, it will stay the proceedings without more. No question of the balancing of competing interests arises. In the second category of case, the the integrity of the criminal justice system. Here a stay will court is concerned to protect be granted where the court concludes that in all the circumstances a trial will 'offend the court's sense ofjustice and propriety' (per Lord Lowry in R v Horseferry Road Magistrates' Court, Ex p Bennett [1994J 1 AC 42, 74G) or will 'undermine public confidence in the criminal justice system and bring it into disrepute' (per Lord Steyn in R v Latif and Shahzad [1996J 1 WLR 104, 112F)." [12] The Prosecution referred to Crawley [2014] EWCA Crim 1028: [2014] 2 Cr App R 16 G..lil at [17] and [18], where the scope of abuse of process was summarized as follows: "[Tjhere are two categories of case in which the court has the power to stay proceedings for abuse of process. These are, first, where the court concludes that the accused can no longer receive afair hearing,' and, second, where it would otherwise be unfair to try the accused or, put another way, where a stay is necessary to protect the integrity of the limb focuses on the trial process and where the court criminal justice system. The first concludes that the accused would not receive a fair hearing it will stay the proceedings,' no balancing exercise is required. The second limb concerns the integrity of the criminal justice system and applies where the Court considers that the accused should not be standing trial at all, irrespective of the potentialfairness of the trial itself. ..... There is a strong public interest in the Prosecution of crime and in ensuring that those charged with serious criminal offences are tried. Ordering a stay of proceedings, which in criminal law is effectively a permanent remedy, is thus a remedy of last resort. " [13] It was submitted by the JSt Accused that Category 2 abuse requires evaluating "... a twa stage approach. First it must be determined whether and in what respects the prosecutorial authorities have been guilty of misconduct. Secondly it must be determined whether such misconduct justifies staying the proceedings as an abuse. " (R v Norman [2017] I Cr App R 8). At the second stage, the Court must evaluate the competing public interests (Hamilton v Post Office [2021] EWCA Crim 577). The Privy Council in Hui Chi-Ming v R [1992] I AC 348 summarised category 2 abuse as "something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all other respects a regular proceeding" (adopted by the court in Yuan Mei Investment (supra)). It was further submitted that, depending on the nature and degree of the abusive conduct, the same acts and/or omissions may both render a fair trial impossible (a category I abuse) and make it an affront to the conscience of the court to prosecute at all (a category 2 abuse) (Hamilton v Post Office (supra) at [127]). [14] It was further submitted on behalf of the l" Accused that a stay is an exceptional remedy, only granted when the trial process cannot address the issues. It should not be used to punish prosecutors unless bad faith is involved. Absent bad faith, the power "should not be used to punish prosecutors where afair trial remains possible" (DPP v Gowing [2013] EWHC 4614 (Admin)). [15] The Prosecution submitted that the two key issues in relation to the two categories of abuse referred to above are: (I) To what extent is the accused prejudiced? (2) To what degree are the rule of law and the administration of justice undermined by the behaviour of the investigators or the Prosecution? In determining the extent to which the accused has been denied a fair hearing, the considerations align with those determining violations offair trial provisions under international human rights conventions,' which are mirrored in Article 19 ofthe Constitution of Seychelles. The Prosecution submitted that in relation determination of the fairness of proceedings pursuant to Article 6 of the ECHR, the European Court of Human Rights in Ibrahim v United Kingdom 13 September 2016, Case No. 50541/08 at [250], the Grand Chamber of the Court emphasized that the overall fairness of criminal proceedings must be evaluated in its entirety, rather than focusing on "isolated consideration of one particular aspect or one particular incident ": "Compliance with the requirements offair trial must be examined in each case having regard to the development of the proceedings as a whole and not on the basis of an isolated incident, although it cannot be consideration of one particular aspect or one particular excluded that a specific factor may be so decisive as to enable the fairness of the trial to ... In evaluating the overall fairness of be assessed at an earlier stage in the proceedings if appropriate, the minimum rights listed the proceedings, the Court will take into account, in respect of typical in Article 6(3), which exemplify the requirements of a fair therefore, as procedural in Article 6(1) .... specific aspects of the concept of a fair trial in original proceedings situations which arise in criminal cases. They can be viewed, trial I Article 14 of the International Covenant on Civil and Political Rights, Article 6 of the European Convention of Human Rights, and Article 7 of the African Charter on Human and Peoples' Rights However, to contribute to ensuring thefairness of the criminal proceedings as a whole ..... , those minimum rights are not aims in themselves; their intrinsic aim is always [16] The Prosecution submitted that it is the defence who bears the burden of establ ishing abuse on the balance of probabilities (TelfOrd Justices,' ex parte Badhan [1991] 2 08 78). Further, there is a presumption that the trial should go ahead unless there is a compelling reason for stopping the trial from taking place. In this context, "the burden ofproof or persuasion lies on the defendant to show that afair trial is no longer possible" (E [2012] EWCA 791 at [22]). Failure to obtain, losing or destroying evidence [17] It was submitted on behalf of the Ist Accused that a sub-category of Category I concerns the failure of authorities to retain evidence. In R (Ebrahim) v Feltham Magistrates' Court [200 I] EWCA Admin 130) it was held that the Prosecution's failure to obtain or retain evidence, and the defence's ability to demonstrate (on the balance of probabilities) that the absence of the material caused the defendant serious prejudice such that a fair trial could not take place, means the proceedings should be stayed as an abuse of process. Ebrahim concerned lost CCTV footage, and the attention of this Court was referred to [29] of the judgment, which provides detai led review of numerous prior applications for a stay based on missing CCTV records. [18] It was submitted that since the decision in Ebrahim, its principles have been frequently applied and some themes of general application have emerged: (1) a defendant is disadvantaged only if the evidence might, if available, have made a difference to the outcome of the trial; and (2) a stay is not appropriate if the content of the missing evidence is a matter of speculation (for example, if the date or period of lost medical records is unknown, or if it cannot be shown that missing CCTV would in fact have captured the incident at issue). [19] It was submitted that the test laid down by Ebrahim assumes that the evidence has been lost through accident or inadvertence. However, in circumstances where, by contrast, there has been serious fault or bad faith on the part of the investigating authorities, the legal framework applicable to Category 2 cases of abuse of process is additionally engaged. The submissions on behalf of the 151 Accused referred to the decision in Sheikh v R [2006] EWCA Crim 2625 where a stay was granted as a result of lost evidence (absent any prosecutorial culpability). The case concerned sexual offences committed at the residential care home, and the evidence that had gone missing was the care home records of when each staff member was on duty. The court held that such evidence was likely to be highly relevant to whether the appellant would have come into contact with the complainant and whether the appellant had the opportunity to commit the offences. It was submitted by the ISl Accused that there are two points of note in Sheikh v R. First, that it was not necessary for the court to conclude that the missing documents were likely to support the appellant's defence (it being impossible to speculate as to their content); and secondly, that an element of doubt over the fairness of the trial in the absence of those documents was sufficient for the Court of Appeal to overturn the trial judge's ruling on abuse of process and to quash the convictions. [20] The Prosecution, in reply, referred to the decision in Dobson [1991] QB 78, which held that in determining where there was an abuse of process, it was appropriate to consider: (a) What was the duty of the police? (b) Did the police fail in their duty by not obtaining or retaining the appropriate video footage? Cc)Ifso, was there serious prejudice which rendered a fair trial impossible in light of such failure? (d) Alternatively, did the police failure result from such bad behaviour, faith or serious fault, as to render it unfair that the accused should be tried at all? in the sense of bad [21] The Prosecution submitted that in Dobson, the court found that while the police failed in their duty to review the CCTV footage, the prejudice to the defendant was not 'serious' because it was uncertain whether that the footage would have assisted the defence. The defendant could have requested the footage or sought other evidence to support the alibi. There was no malice or intentional omission, as opposed to mere oversight, on behalf of the police, and the judge rightly concluded that a fair trial was still possible, upholding the conviction. [22] The Prosecution submitted that Dobson adopted the approach taken in R (Ebrahim) (supra), which held that the starting point for determination must be whether there was a duty to obtain and/or retain the material. If there was no duty, there can be no grounds to stay the proceedings for failure to obtain and/or retain the said materials. If there was a duty, and that duty has been breached, there has to be either an element of bad faith, or at the very least some serious fault, on the part of the police or Prosecution authorities for this ground to succeed. Moreover, it has to be clear that the accused could not be fairly tried (R (Ebrahim) at [23]-[24]). The Prosecution further cited R (Ebrahim) at [25]: "Two well-known principles arefrequently invited to stay proceedings for abuse of process: invoked in this context when a court is (i) (ii) The ultimate objective of this discretionary power is to ensure that there should be a fair trial according to law, which involves fairness both to the defendant and the Prosecution, because the fairness of the trial is not all one sided; it requires that those who are undoubtedly guilty should be convicted as well as that those whose guilt is any reasonable doubt should be acquitted. The trial process itselfis equipped to deal with the bulk of the complaints on which applications for a stay arefounded. [23] Furthermore, citing R (Ebrahim) at [27], the Prosecution submitted that in 'missing evidence' cases, the defence will be able to make use of the absence of any evidence, arguing that its absence should help create a reasonable doubt as to the gui It of the accused: "It must be remembered that it is a commonplace in criminal trials for a defendant to rely on 'holes' in the Prosecution case, for example, afailure to take fingerprints or a failure to submit evidential material to forensic examination. If, in such a case, there is if believed, would sufficient credible evidence, apartfrom the missing evidence, which, justify a safe conviction, persuade the jury or justices not to convict because evidence which might otherwise have been available was not before the court through no fault ofhis. Often the absence 0/ a is likely to hamhor the Prosecution as much videofilm or fingerprints or DNA material as the defence. " that a trial should proceed, leaving the defendant to seek to [24] The Prosecution further referred to decision in D [2013J EWCA Crim 1592 at [15]: In considering the question of prejudice to the defence, it seems to us that it is necessary to distinguish between mere speculation about what missing documents or witnesses might show, and missing evidence which represents a significant and demonstrable chance of amounting to decisive or strongly supportive evidence emerging on a specific issue in the case. The court will need to consider what evidence directly relevant to the appellant's case has been lost by reason of the passage of time. The court will then need to go on to consider the importance of the missing evidence in the context a/the case as a whole and the issues the court will have to identify what be/ore the jury. Having considered those matters, (f any, has been caused to the appellant by the delay and whether judicial prejudice, directions would be sufficient to compensate for such prejudice as may have been caused or whether in truth a/air trial could not properly be afforded to a defendant. [25] It was submitted that the relevance of fault on the part of the police or Prosecution should not be overemphasized. The Prosecution referred to Clay [2014] EWHC 321 (Admin) at [46]-[48], [75] where the Court held that injustice to the defendant could be avoided by judicious regulation of the trial: to the court in Ebrahim, "With great respect it seems to me that the question of whether the defendant can have afair trial does not logically depend upon whether anyone was "at in causing the exigency that created the unfairness. If vital evidence has as a matter fault' of fact been lost to the defendant whether occasioned by the fault of the police or not, the issue is whether that disadvantage can be accommodated at his trial so as to ensure that his trial is/air. There is in this respect no difference between an unfair trial occasioned by delay and an unfair trial occasioned by the loss of vital evidence. " [26] It is therefore submitted that for a stay to be granted in cases of 'missing evidence', the Court must be satisfied that the trial process cannot remove the unfairness caused by the absence of the evidence in question (PR [2019] EWCA Crim 1225; [2019] Cr App R 22 (227) at [71D. Further, in cases involving lost or missing evidence, a stay is to be granted only in exceptional circumstances. In DPP v Fell [2013] EWHC 562 (Admin) at [15] it was held that prejudice to the defendant must be 'serious' to the extent that no fair trial can be held and that the continuance of the prosecution would amount to a misuse of the process of the court. [27] The 1st Accused's further submissions in reply to the Prosecution, dated 19th July 2024, state that the Prosecution's response that "it is speculative by the Defence to assert that the CCTV would have shown evidence of plant in relation to Draganov rifle ... " misstates the legal test for missing evidence. The 1st Accused submitted that the authorities presented by the Defence clearly show that the defence is not required to demonstrate that the missing evidence would have supported its case, it is only required to show that missing evidence to issues in the case (Sheikh v R [2006] EWCA Crim 2625 at would have been relevant usu Failure to disclose [28] With regards to failure to disclose, it was submitted on behalf of the l" Accused, that failure of the Prosecution to comply with its disclosure duties during the trial is a further recognized basis for proceedings to be stayed as an abuse. The submissions referred to the judgment in Hamilton (supra), where the full scope and gravity of the failings only emerged after the appellants were convicted. It was submitted, however, that there are also examples of prosecutions which are stayed as an abuse of process whilst the trial is ongoing, on the basis that the failures to deal with disclosure have been so fundamental and so far-reaching that a stay is justified (rarely reported, being predominantly first-instance decisions). [29] It was further submitted that dishonest evidence given by prosecution witnesses, particularly in the context of Pl l or abuse applications, can also provide a basis for a stay for abuse of process (R v Early & others [2002] EWCA Crim 1904 at [10]). [30] The Prosecution, in reply, referred to the decision in Salt [2015] EWCA Crim 662; [2015] I WLR 4905, where the Court set out some of the relevant factors to be taken into account when deciding whether non-disclosure amounts to abuse of process: (i) the gravity of the charges, (ii) the denial of justice to the complainants, (iii) the necessity for proper attention to be paid to disclosure, (iv) the nature and materiality of the failures, (v) the conduct of the defence, (vi) the waste of court resources, (vii) the effect on the jury, and (viii) the availability of sanctions other than halting the proceedings. [31] It was submitted that the Salt decision was cited in Ahmed [2021] EWCA Crim 927. In Ahmed stay was granted due to disclosure failures, but later set aside by the Court of Appeal for the reasons that the failures did not "reach the level of grave executive misconduct which would undermine public confidence in the criminal justice system and bring it into disrepute [and were] not at a level of seriousness that they outweighed the very strong public interest in the trial of grave offences. " The Court also considered the defence's failure to raise these issues until after the trial began and the lack of disclosure applications made by the defence. [32] The Prosecution further submitted that even when there have been serious failings with regards to late disclosure, in the absence of serious misbehaviour, it would be rare occurrence that it will be unfair to try a defendant (M 0. [2011] EWCA Crim 2854; [2012] Crim LR 535; Sadler [2002"1EWCA Crim 1722; 166 lP 481). In M 0. the Court held that considering there was no allegation of bad faith on the part of the Prosecution, a terminatory judgment should not have been made unless it was established that the respondents would not have a fair trial. With regards to late disclosure, it was held: "Late disclosure should have been considered on that basis. Late disclosure is not the same as non-disclosure. It is not unusual for it to take place during a trial, and the question will then arise whether it can be coped with during with trial with or without an adjournment. " [33] The Prosecution further referred to Hewitt [2020] EWCA Crim 1247 at [128] and [142] where the COUlt observed "regrettable errors and shortcomings in the process of disclosure" and held: that, by reason of to show on the balance of "In order to justify the grant of a slay it was for the appellant probabilities the absence of documentation and all the other circumstances resulting from the delay, he would stiffer serious prejudice to the extent that a fair trial could not be held. 171equestion for us is whether the judge's conclusion that the appellant had failed to discharge this burden of proof was unreasonable and / or plainly wrong. the Prosecution's disclosure failings, The judge was entitled and correct to reject the second limb of [the} abuse application, that a stay was necessary to protect the integrity of the criminal justice system having regard to the failings in disclosure. Those failings were fully explored in evidence, and in counsel's written and oral submissions the judge was satisfied that there had been no badfaith on the part of the police or Prosecution. This was not a case, in our judgment, where the continuation of the proceedings would offend the court's sense of justice and propriety or would undermine public confidence in the criminal justice system and bring it into disrepute. Importantly again, to the judge. [34] The 1SI Accused, in his submissions in reply to the Prosecution, dated 19th July 2024, stated that the Prosecution without citing any authority asserts that the Court should take into account any failure by the defence to raise its complaints during the proceedings. The 1st Accused referred to US decisions in State v Baldwin and Giglio v. United States, 40S U. S. ISO, lS4 (1972). which established the principle that "whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor" and submitted that the central question was whether the undisclosed material was relevant and whether it could be expected to have an impact on the tribunal. In State v Baldwin, an application for dismissal was granted, it was held that State's withholding of information was wilful and intentional, there being no way for the court to right this wrong. [3S] With regards to issue of 'bringing justice into disrepute', the Prosecution referred to Warren vAG for Jersey [2011] UKPC 10, [2012]1 AC 22 and Maxwell [2010] UKSC 48, [2011] 1 WLR 1837 in support of the argument that powers to stay proceedings must not be used to "express the court's disapproval of the police misconduct and to discipline the police " In Maxwell, a case that involved serious police misconduct. The Court held: "It is well established that the court has the power to stay proceedings in two categories of case, namely (i) where it will be impossible to give the accused afair trial, and (ii) where it offends the court's sense of justice and propriety to be asked to try the accused in the particular circumstances of the case. In the first category of case, if the court concludes trial, it will stay the proceedings without more. No that an accused cannot receive afair question of the balancing of competing interests arises. In the second category cf case, the the integrity of the criminaljustice court is concerned to protect system ". " [36] In the case of Warren the misconduct was serIOUS, involving misleading the Jersey Attorney-General and the Chief of Pol ice, and the authorities of other states. Without the product of the unlawfulness, there would have been no trial. The court, however, considered other factors which, taken cumulatively, weighed heavily against a stay at [46] [50]. Such factors were: (i) the offence was very serious, (ii) the ringleader was a professional drug dealer of the first order, (iii) the 'unwise' advice of the Crown advocate mitigated, to some extent, the gravity of the misconduct of the police, (iv) there had been no attempt to mislead the Jersey court, and (v) there was 'real urgency' in the case and it was in these circumstances that police cuts corners and acted unlawfully. The Supreme Court in Warren summarized some of the principles which have emerged from recent cases on abuse of process at [83]: "(1) [A stay in the second category of case] should be granted where necessary to protect the integrity of the criminal justice system. [W]here a stay is being considered in order to protect (2) A balancing of interests should be conducted in deciding whether a stay is required to fulfil this primary purpose ... the 'the public interest in ensuring that those charged integrity of the crim inal justice system, with grave crimes should be tried' will always weigh in the balance ... a possible counter veiling factor was that the impression should not be created that the court is giving its sanction to an approach that the end justifies any means. With the emphasis that is given that prosecutorial or police misbehaviour will never in this and other cases to statement be condoned, this may not be as significant a consideration as heretofore ... (3) The 'butfor 'factor (i.e. where it can be shown that the defendant would not have stood trial but for executive abuse of power) is merely one of various matters that will influence the outcome of the inquiry as to whether a stay should be granted. It is not necessarily determinative of that issue. (4) A stay should not be ordered for the purpose of punishing or disciplining prosecutorial or police misconduct. Thefocus should always be on whether a stay is required in order to safeguard the integrity of the criminal justice system. " [37] The Prosecution submitted that the approach to be taken by courts was further summarized in Norman [2016] EWCA Crim 1564; [2017] I Cr App R 8 (75) at [23]: it must be determined whether and in what respects the prosecutorial authorities "First have been guilty ofmisconduct. Secondly it must be determined whether such misconduct justifies staying the proceedings as an abuse. This second stage requires an evaluation which weighs in the balance the public interest in ensuring that those charged with crimes in maintaining confidence in the should be tried against criminal justice system and not giving the impression that the end will always be treated as justifying any means. How the discretion will be exercised will depend upon the particular circumstances 0.( each case, including such factors as the seriousness 0.( the violation 0.(the accused's rights; whether the police have acted in badfaith or necessity; the availability of a sanction against the person/s) responsible for the misconduct; and the the competing public interest seriousness ofthe offence with which the accused is charged. These are merely examples offacts which may be relevant. Each case is/act specific. /J Abuse of Process - Analysis and Determination Missing evidence [38] As mentioned above, the JSt Accused argued that the stolen CCTY, the missing laptop and the failure of disclosure considered individually, and then cumulatively, amount to an abuse of process. Counsel for the Ist Accused and the Prosecution have extensively submitted on legal framework including persuasive authorities in relation to the issue. Further, the parties' submissions address each of the issues individually: stolen CCTY (the l" Accused's submissions: at paragraphs 20-74; Prosecution: at 169-181), the missing laptop (I st Accused: at 75-85; Prosecution: at 182-189), and failure of disclosure individually (l " Accused: at 86-104; Prosecution: at 190-210). After thorough consideration of the submissions, I have reached the following determination. [39] Pursuant to the authorities referred to above, there are two main situations where the Court's power to stay proceedings is applicable: (I) where the defendant cannot receive a fair trial (Category 1), and (2) where it offends the court's sense of justice and propriety to be asked to try the accused in the particular circumstances of the case, in other words - where it would be unfair to try the accused or, put another way, where a stay is necessary to protect the integrity of the criminal justice system (Category 2). [40] Category 1 cases focus on the trial process and do not require balancing of interests. If the court concludes that an accused cannot receive a fair trial, it will stay the proceedings without more. In Category 2 cases the Court the court is concerned with protecting the integrity of the criminal justice system and applies where the Court considers that the accused should not be standing trial at all, irrespective of the potential fairness of the trial itself. Acts and/or omissions may amount to both Categories, rendering a fair trial impossible (a category 1 abuse) and/or making it an affront to the conscience of the court to prosecute at all (a category 2 abuse). Ordering a stay of proceedings in criminal law is effectively a permanent remedy, which should be considered as remedy of last resort. A stay is also an exceptional remedy, only granted when the trial process cannot address the issue (R v Maxwell; Crawley; DPP v Gowing; Hamilton v Post Office (supra)). [41] With regard to Category 2 cases, which require balancing of interests, the Court needs to consider, firstly, whether and in what respects the prosecutorial authorities have been gui lty of misconduct. Secondly, it must be determined whether such misconduct justifies staying the proceedings as an abuse (R v Norman [2017] 1 Cr App R 8). Further, the misconduct may be determined to be so grave that the fair trial becomes impossible (Category I). The Court also needs to bear in mind that a stay should not be ordered for the purpose of punishing or disciplining prosecutorial or police misconduct (Warren (supra». [42] In R v Yuan Mei Investment (Prop) Ltd (CO 24/1998) [1999] SCSC 6 (2 July 1999) the court held the following in relation to abuse of process: "An "abuse of process" 'was defined in Hui Chi-Ming v R [1992] 1 AC 34 by the Privy Council as "something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all other respects a regular proceedings ". Theforegoing cases of abuse based on delay were summarized by Lord Lane CJ Sir Roger Ormrod in the case ofR v Derby Magistrates' Court, ex parte Brooks [1985]80 Cr App R 164 where two circumstances in which an abuse of process can occur. They stated thus- that the power of the justices to decline to hear a summons In ourjudgment, bearing in mind Viscount Dilhome's warning in DPP v Humphreys [1977} AC 1 at 26 that this power to slap a Prosecution should only be used "in most exceptional circumstances, " and Lord Lane CJ 's similar observation in R v Oxford City Justices, ex parte Smith (1982) 75 Cr App R 200 at 204, which was specifically directed to Magistrates' Courts, is "very strictly confined, " the effect of these cases can be summarised in this way. The power to stop a Prosecution arises only when it is an abuse of the process of the court. It may be an abuse of process if either (a) the Prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by the law or to take unfair advantage of a technicality, or (b) on the balance of probability the defendant has been, or will be, prejudiced in the preparation or conduct ofhis defence by delay on the part of the Prosecution which is unjustifiable: for example, not due to the complexity of the inquiry and preparation of the Prosecution case, or to the action of the defendant or his co accused, or to genuine difficulty in effecting service. We doubt whether the other epithets which are sometimes used in relation to delay, such as "unconscionable," "inordinate, " or "oppressive, "do more than add an emotive tone to an already sufficiently difficult problem. The ultimate objective of this discretionary power is to ensure that there should be a fair trial according to law, which involves fairness both to the defendant and the Prosecution, for, as Lord Diplock said in R v Sang [1980} AC 402 at 437: "... thefairness ofa trial ... is not all one-sided; it requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted. " It is, as Lord Diplock also said in that case "no part of a judge's function to exercise disciplinary powers over the police or Prosecution as respects the way in which evidence to be used at the trial is obtained by them. "Or, we would add, in regard to the preparation of the case, unless this has prejudiced the defendant in this way, lengthy inquiries into the reasons for the delay should not be necessary. [43] In R v Yuan Mei Investment (Prop) Ltd it was also held: "The staying of Prosecution is a drastic encroachment on the prosecuting powers of the state, exercised through the Attorney-GeneraL. Prosecution is stayed in exceptional circumstances not merely because serious prejudice may be caused to the accused, but also because if the trial were to continue, it would subvert the judicial process. Therefore abuse of process would involve more than simple unfairness to the accused. " [44] This approach was also followed in Republic v Beeharrv (44 of2008) [2008] SCSC 93 (17 July 2008). Seychelles Court therefore further emphasizes the exceptional circumstances of granting a stay. [45] In relation to the CCTV footage, the I" Accused submitted that the CCTV system in use throughout the property at Morne Blanc was tempered with, disconnected, and deliberately removed on 18th November 2021, which calls for the proceedings to be stayed as an abuse of the court's process. The 1st Accused submitted that it constitutes Category I abuse as missing CCTV evidence causes serious prejudice to the defence's position that the Draganov rifle was planted, meaning that the 1st Accused can no longer receive a fair trial on Count 9. It was argued that for the same reasons, Draganov rifle together with the ammunition said to have been found in the study and in the wooden crates in the wine cellar - all of which were planted at the property - should be deleted from the cumulative totals of firearms and ammunition pleaded in Counts 1,2 and 5. With regards to Category 2 abuse it was submitted that the manner in which the CCTV evidence disappeared demonstrates bad faith or serious fault on the part of the investigating and prosecuting authorities, such that it is unfair to try the 1st Accused at all. Further, it was submitted that this head of abuse applies to all charges since the prosecutorial misconduct taints the proceedings as a whole. [46] The Accused further referred to Jespers v Belgium (1983) 5 EHRR CD 305 in support of the submission that inherent in the right to a fair trial is the requirement that any investigation gathers evidence in favour of the accused as well as against them. The Accused submitted that it is not anticipated that the duty to obtain and retain material information will be in issue and that it was incumbent on the investigators conducting the joint ACCS/police operation to secure and preserve CCTV footage of the execution of the searches. It was argued that failure to do so means that the first criterion in the Ebrahim case is met. [47] This Court notes the Prosecution's submissions that the JSl and 2nd Accused withdrew their application for disclosure in relation to the CCTV. It was submitted that the Court was deprived of hearing evidence from them in relation to the missing CCTV and evidence in rebuttal which was to be presented by both the Republic and the ACCS. Further, it was submitted that there is no evidence of bad faith in relation to the disconnection and/or removal of the CCTV. The Prosecution stated that both Kevin Stephenson and Stephen Sadler confirmed that there were proper operational and security reasons for disconnecting the CCTV. The Prosecution also submitted that the evidence is that the CCTV was disconnected, but there is no evidence that it was deliberately removed from the property rather than lost. [48] It was submitted that cases of' missing evidence' (as alleged in the present case - missing CCTV footage and missing laptop) may be considered a sub-category of Category 1 cases. In these cases, the starting point is to determine whether there was a duty to obtain and/or retain the material in question. If there was no such duty, there can be no grounds to stay the proceedings. If there was a duty, and it has been breached, there still has to be either an element of bad faith, or at the very least some serious fault, on the part of the police or prosecution authorities, for this ground to succeed (Dobson and R (Ebrahim). Further, the defendant must show on the balance of probabilities that absence of the material caused the defendant serious prejudice. The court must also establish that the trial process itself is not equipped to deal with the bulk of the complaints on which applications for a stay are founded. [49] Despite the Ist Accused's subm ission that it is not anticipated that duty on the investigators conducting the joint ACCS/police operation - to obtain and retain material information, in particular, duty to secure and preserve CCTV footage of the execution of the searches will be an issue, this Court is of the view that such duty may indeed be at issue. I find that the 1st and 2nd Accused have not shown legal basis upon which the investigating authorities had a duty to obtain and/or retain the footage from privately installed CCTV on their premises. I have considered prior applications for a stay based on missing CCTV records r observe that the majority of cases referred to found referred to in R (Ebrahim). Firstly, that fair trial was possible. Secondly, I find that these cases are distinguishable from the present case. In several of the cases, there was CCTV footage, relevance of which was then considered by the police. Thereafter, the court determined whether police were in breach of duty to retain the said evidence. In the present case, as it appears the CCTV system was disabled prior to the alleged incident of planting during the search of the premises. Therefore, even if the alleged planting of certain items has indeed occurred during the search, it would not have been captured by the CCTV footage as it was disabled. In other words, there is no footage evidence to be retained. [50] In R v Reid (unreported) of March 1997, the detective constable in charge of the investigation was told by British Transport police that the cameras mounted to a bridge, close to which alleged offence took place, were not switched on. As it turned out, the cameras were actually working, but the police did not ascertain this fact until a month later, by when the footage had already been destroyed. A stay was refused, and the Court of Appeal dismissed the challenge to the said refusal. It was held that there had to be either an element of bad faith or at the very least some serious fault on the part of the police or the prosecution authorities. [51] On the matter of whether the investigating authorities had a duty to keep the CCTV operational during the search, I also find that there is no legal basis to suggest such a duty. Otherwise, this would imply that every search conducted must be monitored by the CCTV. On the other hand, I also observe, that the footage was not available not due to some malfunction or other accidental reasons; it was disabled by the investigating authorities. Based on the reasons advanced on behalf of investigating authorizes why the CCTV was disconnected, I do not find that there was a grave misconduct and/or bad faith that would render it impossible to conduct a fair trial and justify a stay of proceedings. [52] Further, I am inclined to find submission on behalf of the 1st Accused that missing footage could have supported the Defence's position that Draganov rifle was planted, to be speculative in nature (see D [2013] EWCA Crim 1592 supra). I further note the 151 Accused's submission that it is not required to show that evidence would have supported their case; instead, the Defence only need to show that missing evidence would have been relevant to the issues in the case. The JSt Accused referred to Sheikh v R (supra) at [45], a case involving sexual offences committed at the residential care home and missing care home records of when each staff member was on duty. The Court's decision was in relation to the appeal against the conviction. It was submitted on behalf of the appellant, the defendant, before the trial judge, that existence of these documents would provide the means by which the defendant could show beyond reasonable doubt a reverse alibi. It was argued that there was clear prejudice to the defendant and that there could not be a fair trial. The Court of Appeal at [45] stated that missing records were likely to be highly relevant to the issue of whether the appellant would have come into contact with the complainant to gain his trust and whether the appellant had an opportunity to commit the offence. The significance of the missing evidence was heightened because the offences could have occurred only within a very narrow two-day window. While the complainant asserted that the appellant was on duty on these specific nights, the defence showed a strong possibility that the appellant might have been on leave during that time. However, they were unable to conclusively prove this without the missing records. Notably, the case also involved the issue of delay. The appeal against conviction was successful. [53] Although, I can see the simi larities in issues with regards to missing CCTV in the present r am inclined to distinguish Sheikh from the circumstances of the present case for the case, following reasons. To reiterate, the ISI Accused submitted that missing CCTV evidence causes serious prejudice to the defence's position that the Draganov rifle was planted, and that the 1st Accused can no longer receive a fair trial on Count 9. The manner in which the CCTV evidence disappeared allegedly demonstrates bad faith or serious fault on the part of the investigating and prosecuting authorities, such that it is unfair to try the I 5( Accused at all. Furthermore, this argument is applicable to all charges since the prosecutorial misconduct taints the proceedings as a whole. [54] Firstly, I am of the view that while the allegation of evidence planting, if established, could arguably undermine the credibility of the process, it does not automatically taint the fairness of the entire trial. Notably, there are allegation of 53 firearms, 160 grenades and in excess of 30,000 rounds of ammunition being discovered, as well as other evidence adduced before this court in support of multiple counts. Given the presence of substantial remaining evidence and multiple counts, the missing footage in my view does not hold the same determinative weight as the records in Sheikh. [55] My view is supported by subsequent decisions by the Court of Appeal on this issue (see B. v MacKreth (deceased) [20091 EWCA Crim 1849 at [39] and R v Dent [20141 EWCA Crim 457 at [47]). The Court of Appeal in R v Dent [2014] EWCA Crim 457 distinguished the appellant's argument from Sheikh, emphasizing that the conviction in Sheikh was unsafe because the missing evidence was capable of being 'determinative' of the issue of whether the incident could have occurred. It was held: 'I46} Records from the Home lor this period were no longer in existence. The Appellant suggests that they would have shown whether, on duty, he had the opportunity to commit this offence. He advances it as "a classic Sheikhl. Joynson point": R. v Sheikh [20061 EWCA Crim 2625 and R. v Joynson [20081 EWCA Crim 3049. [47] We can deal with that point immediately. In Sheikh and in Joynson missing evidence was capable of/Wiling been determinative. This appeal isfounded on material jar short of that potential power" [56] As stated above, considering the rest of the evidence in the case, I find that the missing CCTV in the circumstances of this case, is not capable of being 'determinative' factor. [57] Further, the authority referred to by the Prosecution R v RD [20 I3] EWCA Crim 1592, which held that "In considering the question of prejudice to the defence ... it is necessary to distinguish between mere speculation about what missing documents or witnesses might show, and missing evidence which represents a significant and demonstrable chance of amounting to decisive or strongly supportive evidence emerging on a specific issue in the case "js a subsequent authority to R v Sheikh [2006] cited by the Prosecution. [58] Additionally, this Court also observes that R v Sheikh, R v Dent and R v RD are cases involving challenges to the safety of conviction for sexual offences, where the abovementioned developments in jurisprudence address issues related to missing documents in light of the substantial delay. While their determinations can be considered as persuasive in relation to certain issues and to some extent, they are also not entirely applicable to the circumstances of the present case and the charges faced by the accused. [59] I reiterate the decision in R v Yuan Mei Investment (Prop) Ltd that stay is granted in "exceptional circumstances not merely because serious prejudice may be caused to the accused, but also because if the trial were to continue, it would subvert the judicial process," Following this approach, serious prejudice alone is not sufficient for a stay order, the court also needs to consider whether if the trial were to continue, it would subvert the judicial process. Specifically, in cases involving lost or missing evidence, a stay is to be granted only in exceptional circumstances, where prejudice to the defendant is so serious that no fair trial can be held and where the continuance of the Prosecution would amount to a misuse of the process of the court (DPP v Fell [2013] EWHC 562 (Admin). [60] I do not find that the disabled CCTV footage has caused the Accused such prejudice that a fair trial cannot take place. I further refer to Dobson (supra), where the court found that while the police failed in their duty to review the CCTV footage (emphasis also on review, not recording CCTV footage of the search conducted), the prejudice to the defendant was not 'serious' because it was uncertain that the footage would have assisted the defence. [61] I further refer to findings in R (Ebrahim) and Clay that in 'missing evidence' cases, the defence will be able to make use of the absence of any evidence, arguing that its absence should help create a reasonable doubt as to the guilt of the accused; the trial process is equipped to deal with the complaints and allegations on which stay applications are founded; injustice to the defendant can be avoided by judicious regulation. For a stay to be granted in cases of missing evidence, the Court must be satisfied that the trial process cannot remove the unfairness caused by the absence of the evidence in question (see PR [2019] EWCA Crim 1225; [2019] Cr App R 22 (227), although this case is also related to the offence of indecency with a child and the issue of missing evidence due to delay in prosecution). [62] I would also emphasize the finding in R v Yuan Mei Investment (Prop) Ltd that "the reluctance on the part of courts to grant a stay in criminal proceedings, except in exceptional circumstances, should not serve as a licence to the Prosecution to adopt "trial and error" methods when prosecuting". [63] Nevertheless, I find that absence ofCCTV footage in the circumstances of this case and for the reason stated above, does not amount to the abuse of process justifying the stay of proceedings. [64] With regards to the issue of the missing laptop, the Ist Accused submitted that he was in possession of a Lenovo laptop at the time of his arrest, which subsequently went missing. The Ist Accused has consistently argued that access to this laptop is crucial for proving his innocence, as it contained documents essential to his defence. The Court has previously ruled that the missing laptop was a matter of disclosure. The ISI Accused's motion for disclosure was later withdrawn. Subsequently, it was submitted that the ISI Accused has been precluded from cross-examining a key witness regarding the laptop's existence, Mr Gibson, due to the investigator's refusal to give evidence. In light of the above background, the ISI Accused submitted that this amounts to Category 1abuse. However, the Ist Accused does not allege any bad faith or serious fault by the investigating and prosecuting authorities concerning the laptop's disappearance, as the circumstances of the laptop's loss are not known. [65] In response, the Prosecution contended that there is no evidence that any laptop was seized by police or ACCS officers upon arrest. They argued that the defence's reliance on unsworn statements made by the J 51 Accused from the dock cannot be treated as evidence subject to cross-examination. Further, it was submitted that complaint was made on 71h July 2023, long after the arrest. Additionally, the Prosecution submitted that even though Mr Gibson was not called as witness, other witnesses who were involved in the arrest gave evidence and the 151Accused was not precluded from exploring these issues. [66] Moreover, the Prosecution argued that even if any laptop had existed, the effect of its unavailability should be accessed within the context of all the evidence in the case. The Prosecution also pointed out that it is noteworthy that the defence does not allege bad faith or Category 2 abuse of process; and if any laptop existed and was taken, as alleged, this would amount to bad faith. The lack of any such complaint is an indication as to the veracity of the narrative advanced. [67] With regards to the issue of missing laptop, I find that similar considerations apply as with the missing CCTV. The Prosecution's argument that there is no concrete evidence of the laptop's existence, apart from the unsworn statement of the 151 Accused, supports the view that the defence's claims are speculative. Furthermore, the defence's argument does not sufficiently demonstrate how the absence of the laptop would cause significant prejudice. I reiterate my findings that in any case, the defence will be able to make use of the absence of any evidence, arguing that its absence should help create a reasonable doubt as to the guilt of the accused. As with the CCTV footage, the trial process is equipped to address the absence of evidence, and 1 find that, based on the current circumstances, the alleged missing laptop does not constitute an abuse of process justify in a stay of proceedings. Disclosure failures [68] The 151 Accused referred to the Disclosure Ruling given in this trial proceedings. It was submitted that, while it is correct to observe that, in the ordinary course of events, the fairness of the trial cannot be assessed until its conclusion, there will be exceptional cases in which incurable unfairness is apparent at an earlier stage and such cases would be a breach of Article 19(2). It was argued that present case is such a case but that it also goes further. It was argued that Prosecution's breaches of its disclosure duties have become so egregious that it is no longer credible to cite incompetence. It was further submitted that the Category 2 abuse threshold has been crossed. The submissions contend that there have been too many instances of such breaches, but they highlight some of the clearest examples. [69] The examples referred to and the Prosecution's reply can be summarized as follows: (I) Material allegedly not reviewed: (i) Bulgarian MLA material; The Prosecution submitted that materials that might be of assistance to defence were disclosed (ii) Documents seized from Albert Rene's house; The Prosecution submitted that materials were reviewed and none were found to be relevant to the case (iii) Exhibits seized from James Michel's house. The Prosecution submitted that "in relation to the search of James Michel's property it is simply confirmed that he [OS Simeon] executed a search warrant on )lh February 2022 (2) Material allegedly gone missing: (i) Materials removed from Hide 2 and the so-called 'ruined papers' from Hide 4; The Prosecution submitted that it is unclear what items are being referred as being removed/rom Hide 2; So-called ruined papers from Hide 4 have gone missing, but item can be seen on photograph Exhibit P3 (ii) Items found around yellow file seized by Stephen Sadler; and The Prosecution submitted all reviewed and the defence point "Anything relevant would have been identified and disclosed". items seized from Morne Blanc have been it was submitted that is without merit; (iii) Various Occurrence books The Prosecution submitted that the defence have been in direct contact with DS Simeon and if the defence is not satisfied with what he has provided, disclosure of the item, on application through Court should be sought. (3) Nature of disclosure review: (i) Police notebooks The Prosecution submitted that notebooks have been requestedfrom police and where available and relevant has been provided to the defence,' the ACCS notebooks have been disclosed and the request was made via counsel direct to the ACCS (ii) Review of OF by Sergeant Eulentin; The Prosecution submitted that the defence have now been provided with full and unfettered access to the content of the DF drives and can conduct their oJ-lin searches (iii) Occurrence books (iv) Indication that defence not formally set out or made clear; the Prosecution submitted that where a defence is known, With regards to review of all material for potential material that might assist it is the defence, possible to review material with that information in mind. Where the defence is not known, or not articulated, it is not possible to second guess what a defence might be. The Prosecution submitted that the defence position with regards to lSI and 2nd Accused has shifted during the course of the trial (first, implying permissionfrom Albert Rene, then in February 2024 =possible permissionfrom James Michel). The Prosecution submitted that accordingly and disclosure made. the material was reviewed (4) Material allegedly served late: (i) Supplementary witness statements The Prosecution submitted that the supplementary witness statements have been provided during the course of the trial; this matter has been previously considered by this Court and complaint was rightly rejected; it is open to the defence to seek to have witnesses recalled (ii) Notebooks The Prosecution submitted that the note of Peter Bennet was not disclosed as it contained sensitive information; the relevant details of it were provided in evidence by Peter Bennet; after review and redaction of sensitive parts, the note was disclosed (iii) ACCS briefing note, The Prosecution submitted that the relevant parts of the ACCS briefing notes the witnesses could have been were disclosed on 71h February 2024; further, recalled for further but such request was not made; disclosure of details of the A CCS 's relationship with VPH has been considered by the Court and disclosure made accordingly; the complaints with regards to the Gaps are not accepted, such complaints can be made during the course of the trial cross-examination, (iv) Gigov statement The Prosecution submitted that defence; request to recall the witness could have been made the Gigov statement was disclosed to the (v) Invoices for forensic boxes The Prosecution submitted that a request was made for invoices, which were then tracked down and disclosed; to Agreed Facts. the invoices were admitted pursuant [70] The 15t Accused submitted that cumulatively, these failures "paint a damning portrait of the systemic breaches of the accused's disclosure rights under Article 19(2) of the Constitution". Consequently, a fair trial is not possible. Furthermore, it was submitted that too much prejudice has been caused to the defence case, due to missed opportunities for cross-examination or because of decisions which might have been made differently had proper disclosure been made in a timely manner. The 15t Accused stated that, based on an entirely reasonable and necessary assumption that there are multiple further instances of prejudicial non-disclosure, of which neither the Court nor the defence is allegedly aware, both categories of abuse have been established. [71] The Prosecution, in reply, concluded that many of the issues the defence now complains about have not previously been raised with the trial judge by way of Motion for Disclosure. These matters could have been, and now can be, dealt with during the course of the trial, either by adjourning to allow for consideration of material or by recalling witnesses if required. The Prosecution stated that "the Republic has attempted to fulfil its disclosure obligations in goodfaith, there is certainly no element of bad faith in the manner in which the disclosure exercise has been conducted". Consequently, it cannot properly be said that a fair trial is not possible, nor can it be said that the integrity of the proceedings has been in anyway undermined. Furthermore, such difficulties as have arisen can and have been dealt with as part of the trial process. Finally, it was submitted that given the seriousness of the charges, the said 'difficulties' do not come close to justifying a stay of proceedings. [72] The Court has reviewed the specific examples of alleged disclosure failures provided by the 15t Accused, including issues with material allegedly not reviewed, missing documents, and late disclosure. The Prosecution's responses to these concerns-such as the claims that materials were either reviewed or found irrelevant, or that disclosure of sensitive information was appropriately managed-are noted. The Prosecution has also asserted that many issues were not raised in a timely manner through formal motions or applications during the trial, and that any difficulties arising from disclosure can be addressed within the trial process. [73] Ultimately, while acknowledging the complexities and challenges associated with disclosure in this case, the Court finds that the issues raised do not reach the level of systemic breaches that would undermine the fairness of the trial or justify a stay of proceedings. The Prosecution's attempts to meet its disclosure obligations in good faith, coupled with the mechanisms available within the trial process to address and resolve these issues, support the conclusion that the trial can proceed without prejudicing the integrity of the proceedings. Furthermore, considering the serious nature of the charges, the Court's view is that stay of proceedings based on the disclosure difficulties identified is not justified. [74] In this case I have continually held that the disclosure obligations on the prosecution in a criminal trial is continuous and any failures in this regard can be subject to applications on the part of the Defence up to the close of the case of the Prosecution and the COUlt should be in a position to make the appropriate and necessary orders, as it has done in many instances, in order to meet the justice 'of the case. [75] In the circumstances of this case and for the reason stated above, I find that an abuse of process justifying the stay of proceedings has not been established and the trial shall proceed. NO CASE TO ANSWER Legal Framework [76] Respective submissions of the Counsels for all the Accused and the Prosecution outlined the legal framework for a no case to answer. Their main points in submissions on the legal framework are summarized under this heading. [77] Submissions referred to section 183 of the Criminal Procedure Code, which provides: "183. Acquittal of accused person when no case to answer If at the close of the evidence in support of the charge, is appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shallforthwith acquit him. " [78] TheapplicabletestsetoutinRvStiven(1971)SLRandRvGalbra;[h[1981] 1 WLR 1039, R v Stiven: "A submission that there is no case to answer may properly be made and upheld: (a) or (b) When there has been no evidence to prove an essential element offence,' in the alleged When the evidence adduced by the Prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribula could safely convict on it" R v Galbraith: "How then should thejudge approach a submission of"no case"? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. Thejudge will of course stop the case. (2) 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. (a) Where the judge comes to the conclusion that the Prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the Prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of thefacts there is evidence is guilty, then upon which ajury could properly come to the conclusion that the defendant the judge should allow the matter to be tried by thejury. It follows that we think the second of the two schools of thought is to be preferred. There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge. " [79] As summited, the test for a 'no case to answer' is whether the Prosecution has adduced sufficient evidence upon which a reasonable tribunal, properly directed, could convict. [80] The l " Accused further submitted that with regard to the second Iimb of the test, it is the evidence as a whole that should be assessed. This means that it is not enough if there are parts of the evidence that support the case to leave the matter to the jury no matter what the state of the rest of the evidence is. Reference was made to R v Hoareau (CR 79/2014) [2015] SCSC 567 at [15], R v Shippey [1988] Crim LR 767148. [t was submitted that the Court in R v Hoareau held that the second limb of Galbraith: "It did not mean that ifthere are parts of the evidence which go to support the charge then that is enough to leave the matter to the jury no matter what the state of the rest of the evidence is. It is the evidence as a whole that should be assessed. " [81] Counsel for the yd and 4th Accused also referred to R v Shippey [1988] Crim LR 767 and submitted that in determining a submission of no case to answer the court must consider the evidence of the Prosecution as a whole, i.e. both its strength and weakness. [82] The Prosecution, in addressing the legal framework, further referred to the Court of Appeal decision in David Sopha & Anor v Republic SeA 2/1991, which held that: "In considering a submission of no case to answer, the judge must decide whether the evidence, taken at its highest, could lead to a properly directedjury convicting the accused. If so, the case should be allowed to go to the jury". [83] The I st Accused submitted, in essence, that the Prosecution's case against them is entirely circumstantial with no direct eyewitness evidence. Furthermore, the Prosecution aims to demonstrate a terrorist purpose or a purpose prejudicial to publ ic order by making an inference from the circumstances, namely from the following: 1) Firearms and ammunition were allegedly smuggled into Seychelles. The lSI Accused argued that this theory is contradicted importation, and transparent authorization, procedures. by trial evidence showing lawful 2) Nature and quantity of weapons indicate a specific use with no other reasonable explanation. The 15t Accused argued that no irresistible were lawfully import and hold. imported for the SPDF and are the type of weapons inference can be drawn since the weapons the SPDF would 3) Majority ofweapons were found in a hidden compartment in the First Accused's home. The 15t Accused argued that no reliable lawfully weapons imported at a hidden armoury at the home of the l " and 2nd Accused. and President Rene chose can be drawn as the weapons were to store some of those the state, inference for 4) A copy of the Anarchist's Cookbook wasfound on the First Accused's digital devices. The 15t Accused argued that a terrorist purpose. this has little evidential impact and is insufficient to infer 5) A number of official classified documents were found in the First Accused's study. The pi Accused with no indication of intent argued that these were internal memos provided by President Rene, to use weapons for terrorist purposes. 6) Firearms were imported during the 2006 election, suggesting use against political opponents. The ISI Accused argued that in 2020 disproves transition this is speculative this theory. and unsupported, as the peaceful power 7) A pistol allegedlyfound in the garden near the opposition leader's house, implying an assassination attempt. The 15t Accused argued that this is another unsupported speculation with no evidence that a reasonable inference can be drawn. [84] The Prosecution summarized the evidence in relation to Counts against the l " and 2nd Accused at paragraphs 2-68 and 97-140 of the respective submissions in reply. The Prosecution's evidence in relation to Counts against the 3rd, 4th and 5th Accused are addressed at paragraphs 2-3 of the respective submissions in reply and were enclosed as Annex A and C. Further, the Prosecution stated that important evidence was already summarized at paragraphs 3-68 of the reply to the submissions of the 15t and 211dAccused (Annex C). [85] In relation to the legal approach to proof by inference and circumstantial evidence the 1st Accused submitted that if there is a reasonable inference to be drawn from the facts that is consistent with innocence or inconsistent with the Prosecution case, then a reasonable tribunal could not convict (paragraphs 119-126 of the submissions). The }SI Accused referred to several authorities in support Kwan Ping Bong v R [1979] AC 609; Hodge's case [1838] ER 1136; Teper v R [1952] AC 480; R v Blom [1939] AD 188; Martin v Osborne [1936] 55 CLR 367154 at 375; McGreery v DPP (19731 1 WLR 276155). Having analysed the cited authorities, [ find that while these submissions are relevant to the final determination of guilt, they are not applicable at this stage of the proceedings. These cases address the standard of proof and the inferences to be drawn at the conclusion of a trial, when the evidence must be weighed against the legal burden of proof beyond a reasonable doubt. The issue of no case to answer was not addressed in the decisions. The present case is still at the stage of submissions of no case to answer, where the Court's task is to determine whether the Prosecution has established a prima facie case. At this juncture, the Court needs only to assess whether there is sufficient evidence upon which a reasonable tribunal could convict if no further evidence was called. Therefore, these authorities cited do not pertain to the current stage of the proceedings. [86] The 5th Accused referred to Green v R (1972) SLR 54 stating the Court must be satisfied at this juncture that there is a prima facie case against the accused and such consideration is purely objective. What the Court needs to decide at this stage is whether the evidence thus far is such that a reasonable court may convict, not would convict. [87] Having considered the submissions ofthe parties, I come to the following determination in relation to legal framework. At this stage of the case, the Court is tasked with determining whether under section 183 of the CPC, the accused persons should be acquitted for reasons of no case to answer. Under section 183, the Prosecution needs to establish that they have made out a prima facie case in respect of the charges framed against the accused; and the issue of whether the Prosecution has proved the charges beyond the reasonable doubt is a matter to be determined at the end of the case. [88] With regard to primafacie case standard, the Prosecution needs to present enough evidence to create a rebuttable presumption that the matter asserted is true, as held in the Reference bv the Attornev General under Section 342A olthe Criminal Procedure Code 080(2021) [20221 SCCA 40 (19 August 2022): in a ''[I8} To determine whether a 'prima facie case' had been established the Court normal criminal trial evaluates the case at the close of the Prosecution case to determine (f there is any support for proceeding further with the case by calling for a defence. It is a standard of proof under which the party with the burden of proof need to present enough evidence to create a rebuttable presumption that the matter asserted is true. In Black's Law Dictionary 1228 (8th ed) it is said: "Prima facie means generally that the evidence is sufficient to establish a fact or raise a presumption unless disproved or rebutted". " (emphasis added) [89] Further, in Aimee v Simeon (2000-2001) SCAR 103 it was held that, "Prima facie means evidence that establishes the matter unless rebutted by evidence to the contrary". [90] In R v Souffe & Drs (CO 52/2013) [2016] SCSC 457 (23 June 2016) it was held: ''[IO} In determining 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. First whether all the elements of the offence have been established by the Prosecution which establish a prima facie case against an accused. Where the Prosecution's to address any particular element of the offence at all, no conviction could possibly be reached ami the Court should allow the application of no case to succeed. Where there is some evidence to show that the accused committed seems but or must have committed 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. " reason such evidence evidencefails the offence some for (emphasis added) [91] It is clear from the above authorities that to establish primafacie case, the Prosecution must establish all the essential elements of the offence. At this stage it is not necessary for the Court to determine whether the Prosecution has proved all the elements of the offences according to the criminal standard of proof, beyond a reasonable doubt. This determination shall be done at the end of the case, if the trial proceeds to the defence arguments. Once the Prosecution establishes rebuttable presumption, the accused persons have a case to answer and may rebut the said presumption in their defence. [92] Where some of the evidence seems unconvincing, the matter is better left for the end of the trial when evidence would be weighted. Unless the evidence has been so compromised by the defence or by serious inconsistencies in the Prosecution's testimony, the Court must determine whether the evidence adduced, taken at its highest, Where the Prosecution failed to address any particular element of the offence at all, no conviction could be reached and submission of no case to answer should succeed. Where they would not properly secure a conviction (see David Sopha & Anor v Republic SCA 2/1991 ; R v Prosper (CR 65/2010) [20171 SCSC 944 (26 October 2017); R v Nizzam Uddin Ahmed (CR 53 of 2018) [20231 SCSC 761 (6 October 2023)). Where the Prosecution has failed to address any particular element of the offence at all, no conviction cannot reached, and a submission of no case to answer should succeed. [93] Further, with regard to the consideration of the weight of evidence at the stage of no case to answer submissions, in R v Hoareau (CR 79/2014) [2015] SCSC 567, a case involving offence of murder, it was held: the evaluation a/all of the evidence adduced is only called/or at the stage 0/ "[5J ... summing upfor thejury. However some minimal evaluationof evidence is also requiredto determine whether the Prosecution has established a prima facie case at the close of its case. " [94] At this point it is also pertinent to note the pI Accused submissions in reply to the Prosecution, dated 19th July 2024, regarding Galbraith test. It was submitted that the Prosecution's response contains materially mislead ing submissions (either because of what is said or what is omitted) and factual inaccuracies that support its claim that the Galbraith test is not met. Assertions were made without evidential underpinning and/or the evidence of the Prosecution's own witnesses was ignored where inconvenient to its case (addressed at paragraphs 26-34 of the submissions, the submissions refer to several testimonies). [95] Further, it was argued that the Prosecution's reply fails to address several critical issues, such as the nature of the 'terrorist purpose' allegedly agreed upon in 2003-2004; and on what basis the Republic contends that the Second Accused conspired with the 3rd, 4th and/or yh Accused, given its concession that she cannot be convicted of conspiring solely with her husband (addressed at paragraphs 35-38 of the submissions, the submissions refer to several testimonies). L ..... ...___ Having considered the submissions, I reiterate that, based on authorities referred to above, at this stage the Court shall not proceed to fully evaluate the evidence or weight the witness testimony as it would at the end of criminal trial. The necessary evaluation will be given to the extent of determining whether prima facie case made out by the Prosecution. Ultimately, in criminal trial, the standard that must be met by the Prosecution's evidence is proof beyond a reasonable doubt that the accused person committed the offence charged. However, this standard is not applicable at this stage. [97] At this juncture, it is also important to observe that, having scrutinized the submissions of the Accused in relation to individual counts, which will be analysed below, it appears to the Court that in relation to certain pieces of Prosecution evidence, the Defence advances to the extent that this is supported by evidence adduced within 'alternative' the prosecution case, these will be analysed and consider by the court. However, to the extent that they are not so supported, is mindful that at this stage of the case, the Court these submissions provided by the Accused are not yet evidence and the evidential burden remains on the Accused. explanations, [98] Count 1 (Conspiracy to Possess Terrorist Property) - the 15t,2nd and 3rd Accused Count 1 - Analysis in relation L" and 2nd Accused [99] Submissions on behalf of the 1st Accused, prior to addressing issue of whether evidence adduced are sufficient, raised two other issues: 'Alternative Counts' (Counts 1 and 2; Counts 3-4 and Counts 5-6) and 'Chain of Custody'. These issues were also addressed by the Prosecution in their reply. Alternative Counts [100] In relation to Alternative Counts, it was submitted on behalf of the Ist Accused that the Prosecution sought to make Counts 2, 4 and 6 as alternative to Counts 1,3, and 5. However, their application to amend the charges was not successful. Consequently, the question now arises at to which counts the Court will permit the Republic to proceed with. It was argued that Count I and 2 are mutually exclusive due to their different intentions, and therefore, should not both be included in the indictment. The same issue arises in relation to Counts 3-4 and 5-6. Further confusion, according to the submissions, arises because Counts refer to different periods and involve different co-conspirators. Therefore, the Prosecution cannot present mutually inconsistent cases simultaneously and claim them as alternatives; it should be required clarify the legal and evidential basis for attributing any intended purpose to the possession of the firearms and ammunition. It was submitted that the Prosecution should be put to elect between Count 1 and 2; Counts 3-4; and Counts 5-6. [101] The Prosecution in reply submitted that, firstly, the Counts are not pleaded in the alternative as the Court refused to grant leave to proceed with the alternative charges. Therefore, the Court has already ruled on the issue. Secondly, it was submitted that the Accused can be convicted of both an offence under the Prevention of Terrorism Act and section 84 of the Penal Code if the elements of both offences are establ ished; and sentences can run concurrently to reflect any overlap in conduct. The Prosecution stated that a terrorist act will necessarily always be prejudicial to public order and therefore also constitutes offence under section 84 of the Penal Code. Conversely, an offence under section 84 may, but will not always, amount to terrorist act (R v Azemia & Anor (CO 90 of 2021 )). Thirdly, it was noted that the different dates of the alleged conspiracies are due to the Prevention of Terrorism Act only coming into force on 1 December 2004. [102] The l " Accused, in further reply to Prosecution's submissions, stated that the Prosecution is advancing new arguments by changing its position that the counts are not in the alternative. Moreover, the position that it is now entitled to invite conviction on every count is not the effect of the Court's Ruling of7lh July (paragraphs 3.5 and 39 of the submissions dated 19thJuly 2024). [103] With regard to this issue, this Court ruled on the 7th July 2023 that "[7] In this case the proposed alternative charges do not add much to the case and does not change any circumstances. It is cosmetic and I do not accept learned Counsels for the Republic IS contention, that it gives an alternative to the Court to make a jinding in the case, because aflndings of the Court would be made irrespective of whether they are the alternatives or not. A Count will stand or fall depending on the evidence, however it is averred in the Information ". The Counts are not mutually exclusive due to the different intentions that need to be proved by the Prosecution. As submitted by the Prosecution, a terrorist act will be prejudicial to public order, but an offence under section 84 mayor may not amount to a terrorist act. I therefore finds that the counts are not in the alternative. Chain of Custody [104] It was submitted on behalf of the (Sl Accused that, in any case that depends solely on material said to have been obtained during a search, the Court must be particularly confident that the chain of custody - namely, the chronological recording of the sequence of custody, control, transfer, analysis, and disposition of materials said to have been found - have been preserved. Without this, the chain of custody cannot be proved to the crim inal standard. [105] The issues raised thereafter relate to: (i) majority of firearms and ammunition were not photographed in situ; (ii) court dependent on testimony to establish where items were found; (iii) 'the mystery' of OS Simeon's list; (iv) non-recording of items being moved from officer to officer, room to room and from inside to outside; (v) notebooks not used or went missing; (vi) exhibits went missing; (vii) issues with photographs; (viii) exhibit boxes and alleged lie on the official seals placed on the boxes (paragraphs 141-150 of the l " Accused submissions; paragraphs 228-235 of the Prosecution's submissions). The 1st Accused submitted that the chain of custody has not been preserved for the reasons stated in the submissions and that this is another basis on which there is insufficient evidence. The Prosecution in reply stated that evidence is sufficient to establish prima facie case. [106] Applying the test in R v Stiven, R v Galbraith and decision R v Souffe & Drs, this Court finds that mere inconsistencies in the Prosecution's evidence are insufficient for the submission of no case to answer to succeed. If the evidence is sufficient to establish the elements of the offence on prima facie basis and has not been discredited or shown to be so manifestly unreliable that no reasonable tribunal could safely convict on it, the accused has a case to answer. Regarding the chain of custody issue raised, the Court finds that, at this stage, the evidence has not been discredited or shown to be manifestly unreliable to the extent that no reasonable tribunal could safely convict on it. Therefore, the credibility of witness testimony and the documentary evidence related to this issue are matters best determined at the end of the trial. Sufficiency of evidence on Count 1 [107] The 1Sl, 2nd and 3rd Accused are charged of offence of conspiracy to possess terrorist property contrary to Section 7(b) of Prevention of Terrorism Act ("PTA") read with Section 20(c) of the PTA and punishable under section 7(b) of the PTA. The relevant statutory provisions state: ; or 7. Every person who (a) ... (b) possesses property intending that if be used or knowing that it will be used, directly or indirectly, in whole or in part, for the purpose ofcommitting orfacilitating the commission ofa terrorist act, is guilty of an offence and shall, on conviction, be liable to imprisonment for a term not less than seven years and not more than 20 years. . . 20. Every person who- (a) (b) (c) conspires to commit; (d) ... an offence under this Act is guilty of an offence and shall on conviction, be liable to the same punishment as is prescribed for thefirst mentioned offence. [108] The ISl Accused referred to the Court of Appeal decision in Sif}lore v R (SCA 15 of 20 II) [2015] SCCA 41 (17 December 2015) summarizing the elements of an offence of conspiracy: [18} As stated in Halsbury's Laws (5th Edn) at para. 73, the offence of conspiracy is committed where two or more persons agree to pursue a course of conduct which, if carried to or involve the out commission of an offence by one or more of the conspirators, or would do so butfor the existence of facts which render the commission of the offence impossible. in accordance with their intentions, will necessarily amount [19} The conspiracy arises and the offence is committed as soon as the agreement and the offence continues to be committed so long as the combination persists, the conspiratorial agreement abandonment or frustration or however it may be. is terminated by completion of its performance is made; that is until or by [20} The actus reus in a conspiracy is therefore the agreement for the execution of the unlawful conduct, not the execution of it. It is not enough that two or more persons pursued the same unlawful object at the same time or in the same place; it is necessary to show a meeting of minds, a consensus ad idem to affect an unlawful purpose. the centralfeature of a [2J} Yet again, as stated in Archbold 2012, 33-1 - 33-20, conspiracy is that the parties agree on a course of conduct that will necessarily amount to or involve the commission of an offence by one or more of the conspirators. [22} The main elements ofconspiracy are a specific intent, an agreement with another person to engage a crime to be performed. An unlawful agreement is an element of a criminal conspiracy. " [109] Further reference was made to below authorities: R v Azemia & aI's (CO 90 of2021) [2024] SCSC 51 (15 April 2024) at [137]: the Prosecution must show the existence of two elements: the "[137} To prove conspiracy, agreement, which is the actus reus, and the mens rea, which is the intention to enter into to carry out the intended underlying offence. The exercise 0/distinguishing the agreement between these two elements with respect to the offence 0/ conspiracy is not always an easy task. This is because the act 0/ agreeing is itself considered to be essentially a 'mental operation '1. The offence of conspiracy involves making an agreement, and no further action needs to be taken tofulfil the agreement (Mulcahy v R (1868) LR 3 HL 306). In R v Simmonds [1969} 1 Q. B. 685 the court observed that a conspiracy involves two or more in pursuit of a criminal persons acting or planning to act in concert under some agreement design. " R v Lesperance and Drs (CR 31/2019) [2020] SCSC 995 at [9], [22]; "[9} ... submission wasfocused on the offence of conspiracy. Halsbury' Laws (5th Edition) states that the offence of conspiracy is committed where two or more persons agree to pursue a course of conduct which if carried out in accordance with their intentions, will necessarily amount to or involve the commission of an offence by one or more of the conspirators, or would do so, but for existence offacts which render the commission of the offence impossible; see John Sifflore v The Republic SCA 1512011 (17'h December 2015). [22} The mere association of two persons or more will not constitute a criminal conspiracy. The essential elements of a conspiracy are a specific intent, an agreement with another person to engage in a crime to be performed, and the commission of an overt act by one of the conspirators infurtherance of the conspiracy. The conspiracy will arise and the offence committed as soon as the agreement feature of a conspiracy is that the parties agree on a course of conduct that will necessarily amount or involve the commission of an offence by one or more of the conspirators. " is made. Therefore the essential Dugasse & Drs v R (SCA 25/26/30 of 2010) [2013] SCCA 6 at [32], [34]: ''[32} The essence of conspiracy is the agreement. When two or more agree to carry their criminal scheme into effect, the very plot is the criminal act itself Nothing need be done in pursuit of the agreement,' repentance, lack of opportunity and failure are all immaterial. Proof of the existence of a conspiracy is generally: a matter ofinference, deduced from certain criminal acts of the parties accused, done in pursuance in common between them ...... Overt acts which are proved against some defendants may be looked at as against all of them. criminal purpose of an apparent Vide Archbold (2012) 33-14. [33} To be guilty of conspiracy, it is not necessary that the accused was a party to the original scheme. It is not necessary to prove that the defendants met to concoct or originate the scheme. A conspiracy may exist between persons who have neither seen nor corresponded with each other. If a conspiracy is already formed, and a person joins it afterwards, he is equally guilty with the original conspirators. Vide Archbold (2012) 33- 25. So far as mens rea of the offence is concerned it needs be established that the accused, when he entered into the agreement in the agreed course of in furtherance of the criminal purpose which the agreed course of conduct was conduct intended to achieve. Vide Lord Bridge in R v Anderson [1986} AC 27. Lord Griffiths in Yip Chiu-Cheung v R (J 994) 99 Cr App R 406 said: intended to play some part to an agreement The crime of conspiracy commit an unlawful act with the intention of carrying it out. It is the intention to carry out between two or more persons the crime that constitutes the necessary mens rea. requires that the [34} In R v Anderson [1986} AC 27, it was held that there was no requirement Prosecution should prove against any particular alleged conspirator that he intended that the offence the subject of the conspiracy should be committed. Thus it would be sufficient for an alleged conspirator who had full knowledge of the plan to have agreed to playa minor role by way of assistance. There can be 'chain' and 'wheel' conspiracies. In a chain conspiracy, A agrees with B, B agrees with C, C agrees with D, etc. In a wheel conspiracy, A at the hub, recruits B, C and D to his scheme. Thefacts of this case are suggestive of a wheel conspiracy. In either case, the aLleged conspirators must each be shown to be party to a common design, and they must be aware that there is a larger scheme to which they are attaching themselves. Vide Davenport [2009} ALLER (D) 30 (Mar). The engaging cf Ms Isaacs as a courier who had never been to the Seychelles before and who did not know anyone in the Seychelles,' her arrival in the Seychelles with hardly any money to support her stay here,' her bringing in the drugs concealed inside the boots,' her instructions to call and her calling a number in South Africa once she got out of the airport; Ms Isaacs being called from a number in Seychelles on four occasions when she was at 'Le Surmer ' hotel; the caller inquiring whether the boots were okay,' Ms Isaacs being informed that transport had arrived,' the vehicle driven by Payet appearing outside 'Le Surmer' and speeding away to Gondwana once she had got into the vehicle; Payet stopping at two different places to pick up Dugasse and D 'unienville who arrived that afternoon from Praslin on a boat to Gondwana; the handing over of the boots containing the substance substituted for drugs to Ms Isaacs,' clearly establish that the three appellants along to D 'unienvelle; the payment with Ms Isaacs and some others in South Africa were party to a conspiracy for trafficking in drugs. We see no substance in ground (vi) of appeal by D 'unienville. " Celestine v Republic (SCA 8/2013) SCCA 33 at [16]-[17]: ''[16} The central feature ofa conspiracy is that the parties agree on a course of conduct that will necessarily amount to or involve the commission of an offence by one or more of the conspirators. [17} Thus, a mere association of two or more persons will not constitute a criminal conspiracy. The main elements of conspiracy are a specific intent, an agreement with another person to engage a crime to be pel/armed, and the commission of an overt act by one of the conspirators infurtherance of the conspiracy. " [110] The Prosecution also cited the authorities of Azemia and Dugasse (supra). Further, the Prosecution referred to Archbold 2024 with regards to the elements of the offence of conspiracy: "The essence of conspiracy is the agreement. When two or more agree to carry their criminal scheme into effect, the vel'y plot is the criminal act itself. ... Nothing need be done in pursuit of the agreement" The agreement may be proved in the usual way or by proving circumstances from which the jury may presume it: Parsons (1763) 1 WB1,' Murphy (1837) 8 C P 297. Proof ofthe existence of a conspiracy is generally a "matter of interference, deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them": Brisac (1803) 4 Easl164 at 171, cited with approval in Mulcahy v The Queen (1868) LR 3 HL 306 at 3 J 7. See also Meyrick and Ribuffi (1930) 2 J Cr App R 94 at 99 and 10 J " Brittain and Shackell (1848) 3 Cox 76 at 77: De Berenger (1814) 3 M Se167, cited in Gurney (1869) 1J Cox CC414 at 423-424: Parnell (1881) 14 Cox 508 at 515-516,' Frost (1839) 9 C P 129 at 150,' Hunt (1820) 1 St Tr (NS) 171 at 437-438,' Hardy (1794) 24 St Tr 199 at 473-474. Overt acts which are proved against some defendants may be looked at against all of them, to show the nature and objects of the conspiracy: Stapylton, Esdaile and Brown (1857) 8 Cox 69. Mens rea is an essential element in conspiracy only in that there must be an intention to be a party to an agreement to do an unlawful act. In Anderson [1986} AC 27 HL, Lord Bridge said: But, beyond the mere/act of agreement; the necessary mens rea of the crime is, in my opinion, established if. and only if. it is shown that the accused, when he entered into the agreement, in the agreed course of conduct infurtherance of the criminal purpose which the agreed course of conduct was intended to achieve. Nothing less will suffice; nothing more is required. (at p. 39E) " intended to play some part [III] The main position of the 1st Accused is that, firstly, the Prosecution failed to establish actus reus of the offence, namely agreement to possess property (89 firearms, 160 grenades and in excess of 50,000 rounds of ammunition recovered from the residence of the 1st and 2nd Accused and the home and workplace of the 3rd Accused). [112] It was submitted that whi Ie there is a definition of possession under the Penal Code, there is no statutory definition of' possession' under the PTA or the Firearms and Ammunition Act ("FAA"). Therefore, as submitted, the Court must have regard to the common law authorities which establish the requisite elements of the term 'possession'. The l" Accused adopted submissions of the 2nd Accused in that regard (paragraphs 19 to 23 of the 2nd Accused' submissions). [113] The 2nd Accused, in summary, argued that the sole evidence against her is that she was the joint occupant of a house in which firearms and ammunition were allegedly found, and this does not establish prima facie case of her being a party to a criminal agreement to possess firearms and ammunition. [114] Alternatively, she submitted that it is settle law that a husband and wife cannot conspire together (reference made to Archbold 2024, 33-26 to 33-27; Kowbel v R [1954[ SCR 498; Director olPublic Prosecutions v Blady [1912J 2 KB 89; Mawji v R [19571 AC 126). [I 15] The 2nd Accused submitted that the Prosecution must prove, to the prima facie standard, that the 2nd Accused knowingly entered into a criminal agreement with at least one person other than her spouse, the 151 Accused. It was submitted that under Count 1 the only other alleged co-conspirator is the 3rd Accused; under Count 2 the alleged co-conspirators are the 4th and the 5th Accused. The 2nd Accused argued that there is no evidence at all linking her to the 3rd, 4th, and 5th Accused. [116] With regards to the substantive possession charges, the 2nd Accused submitted that there is no prima facie evidence that she had possession of any of the firearms and ammunition; that the only evidence against her is occupancy of the matrimonial home, but that falls short of establishing both knowledge of and control over items found in the house. Further, or alternatively, there is no prima facie evidence that the said firearms and ammunition were likely to be used for a terrorist act as alleged. [I 17] In relation to the 'possession' element of the offence, the 2nd Accused submitted that possession entails proof of knowledge and control (reference was made to Vidat/Maria v R (SCA CR 21 & 22/2019) [2020] SCCA - 18 December 2020 at [12]). The Accused further referred to R v Kausar [2009] EWCA Crim 139, a case concerning allegations of joint possession of counterfeit goods by co-habiting spouses, where the court considered the issue of proof in relation to control. The 2nd Accused argued that control is required to be active, the Prosecution needs to prove an ability to exercise control over the items. It was submitted that the evidence in the present case is even weaker than the evidence adduced in Kousar as in that case the appellant at least knew the counterfeit goods were in the house and were not concealed in any way. It was further submitted that there is no evidence linking the 2nd Accused to the presence of firearms and ammunition in the house. [I 18] With regard to the written note addressed to her husband, that the Prosecution relied on, the 2nd Accused stated that no inference can be made from the note that it refers to firearms; and that "Taken at its highest and an a fair and sensible reading, it is no more than a reference by the primary homemaker to her superior knowledge of matters relation to the matrimonial home". Further, the 2nd Accused submitted that the Prosecution is cherry picking in interpreting the note and pointed out that there is evidence from the note that the 151 Accused did not "know anything about what is there or not"; and that this is not the Prosecution's case. [119] The Prosecution in reply provided a summary of its evidence (paragraphs 2-68; and 97- 10 I), which this Court carefully considered, being mindful that at this stage it is not engaging in determining the weight of the evidence; and considering the standard of proof at the stage of submissions of no case to answer. The Prosecution outlined the relevant law in relation to all Counts at paragraphs 70-90. In relation to the definition of 'possession' the Prosecution referred to the Joint Possession under section 22(a) of the Penal Code and the section 5 definition.? The Prosecution further addressed points raised by the 2nd Accused's submissions at paragraphs 294-313 of their reply. [120] In relation to Count 1, the Prosecution summarized the evidence, arguing that in essence of a conspiracy is the agreement and the evidence shows that three accused named in Count 1 each agreed to possess a very large quantity of weapons to commit a terrorist act. It is submitted that both Accused persons were in possession of a large quantity of weapons, firearms and ammunition at their home. The 3rd Accused, Leslie Benoiton, was also in possession of firearms and ammunition; and his connection to arms and ammunition found at Morne Blanc is by virtue of 'Leslie' or 'Les' being written on boxes containing such firearms and on account of some being wrapped in identical 'Nescafe' plastic bags. The Prosecution further submitted that there is evidence that Mr Valabhji and Mr Benoiton were intimately involved in the importation of such weapons. It was submitted that while there is no evidence of Mrs VaIabhji being involved in the importation, she had knowledge of these weapons that were not hidden at Morne Blanc, and those that were hidden. The Prosecution submitted that her letter to her husband demonstrates her knowledge of such weapons and therefore she is a party to the agreement to possess such weapons. [121] In response to the 2nd Accused's argument that 'possession' requires both knowledge and control, the Prosecution contended that there is prima facie evidence showing Mrs. Valabhji had both knowledge and control over the arms and ammunition at Morne Blanc. The Prosecution also argued that the Kousar case is distinguishable from the present matter. 2 Section 5: "possession", be in possession of' or "have in possession" (a) includes not only having in one's own personal possession, but also knowingly having anything in the actual possession or custody of any other person, or having anything in any place (whether belonging to, or occupied by oneself or not) for the use or benefit of oneself or of any other person; (b) ifthere are two or more persons and anyone or more of them with the knowledge and consent of the rest has or have anything in his or their custody or possession, it shall be deemed and taken to be in the custody or possession of each and all of them; Section 22: When an offence is committed, each of the following person is deemed to have taken part in committing the offence and be guilty of the offence, and may be charged with actually committing it, that is to say- (a) every person who actually does the act or makes the omission which constitutes the offence; [122] It was submitted that: (i) a large amount of arms and ammunition was discovered in the open areas of the home; these items are not everyday items that are found in the home, they are weapons of war and, in the absence of clear authority, are unlawful; (ii) the claim that anTISand ammunition laid untouched for twenty years is incorrect as it is not known when the hides were constructed and that Hide 4 contained documentation well after the date of importation; (iii) the letter addressed to the husband, the Ist Accused written after the discovery of weapons the, taken with the existence of the weapons, demonstrates directing tone, suggesting that Mrs Valabhji is not passive, but is in control; and that she has greater knowledge of the house and items and she (as a lawyer) is in a better position to provide an explanation about things. [123] The Prosecution distinguished the Kousar case on the following basis. Firstly, items in Kousar were counterfeit goods, which are by their very nature designed to look genuine and do not, in themselves, give rise to concern; the key offence was the 'unauthorized use oftrademark', and, in addition to possession under the applicable law, the possession must be 'in the course of a business'; thus the offence required proof of trading and joint possessions and active participation in the course of business. By contrast, firearms and ammunition are, prima facie, unlawful. Possession alone without lawful authority is unlawful. Secondly, in Kousar items were found in a van (not used by wife) and in the loft. In this case, firearms were both openly stored and hidden in the concealed compartments. The quantity of firearms and ammunition found in hides and the elaborate construction in which they were contained suggest that considerable amount of effort and time would have been needed to create them. Moreover, viewed through the prism of the letter written by Mrs Valabhji, it is evident that she had primary knowledge and control over all matters pertaining to the house. Thirdly, there was no question of the wife having written a letter to her husband in the Kousar case. [124] This Court has also considered the 2nd Accused's further submissions in reply to the Prosecution in relation to the issue of possession (dated 19th July 2024). It was reiterated that the Prosecution has not proved 'knowledge' and 'active control' elements. It was submitted that the items being found in hides and the men's wardrobe are insufficient to link her to the presence of firearms and ammunition in the house. Further, it was submitted that the significance of the letter has been inflated by the Prosecution and that "legally qualified wife urging her lay husband to defer to her in dealings with law enforcement" cannot be taken as proof that she controlled her husband in all matters. With regards to the Kousar case, the 211d Accused emphasised that that it is the established legal principle of 'actual control' that is important, and not the similarities or differences between the cases. The 2nd Accused further submitted that proving that she agreed to 'play her part' entails more than proof of mere knowledge; and knowledge does not equate to possession, nor to participation in a conspiracy with terrorist purpose. [125] The Prosecution agreed with the 2nd Accused submission that husband and wife cannot be convicted of conspiracy if they are the only parties to a conspiracy agreement. However, they can both be found guilty of conspiring with others. The Prosecution referred to the decision in R v Chrastny [1991] 1 WLR 1381, where it was held: "It will be seen that the section [so1(1) of the Criminal Law Act 197J) restates the previous position at common law, namely, that the essence of conspiracy is the agreement to do an unlawful act. It has been well established that a conspiracy may exist between persons who have neither seen nor correspond with each other: see Rex v Meyrick (1929) 2 J Cr App R 93 and also the "Lime conspiracy" case, Reg. a Griffits [1966J 1 QB 589, where it was said that if any individual, though ignorant of the details of others concerned in the conspiracy, knows that there are others and that the activity in which he takes a part extends beyond his own dealings with the person at the centre of the conspiracy, then the evidence discloses one single conspiracy. therefore, that if jar example, a wife, knowing that her husband is It seems to us plain, involved with others in a particular conspiracy, agrees with her husband that she will join the conspiracy and play her part, she is thereby agreeing with all those whom she knows are the other parties to the conspiracy. " [126] The Prosecution further submitted that in Kowbel it was confirmed that the spousal exception under sec. 2(2)(a) Criminal Law Act 1977 also codifies the much older common law principle. Citing Stephen in his "Commentaries on the Laws of England", as reaffirming the common law rule, it is said: "The collaboration of two or more persons is essential to the existence of a conspiracy. A man cannot conspire with himself. If therefore, two persons are indicted for conspiracy and one is acquitted, the other cannot be convicted, even though he may have pleaded guilty. Husband and wife are for this purpose regarded as one person and cannot be indicted for conspiracy with one another; though both may be charged with conspiracy with a third person. " [127] The Prosecution further cited reference made in Kowbel to Halsbury, "Laws of England, (Vol. 9 1S/ Ed. Page 264 where it is said: "Husband and wife cannot alone commit a crime of conspiracy, as they are deemed but one person in law, but they may commit the crime of conspiring with others". [128] Therefore, the Prosecution concluded that since the allegation on Count 1 is against three accused, it follows that, as per Chrastny, it is alleged that Mrs Valabhji knowing that her husband, Mr Valabhji was involved with others in a particular conspiracy, agreed with him to join the conspiracy and play her part (i.e. allow their property to be used to store arms and ammunition for either terrorism and/or for a purpose prejudicial to public order). In that regard, the Prosecution submits thatprimafacie case has been established. [129] In further reply, the 2nd Accused submitted on issue of conspiracy that the Prosecution has not explain the evidential basis for asserting that she either knew that her husband was involved with others in a particular conspiracy; or agreed with him that she would join the conspiracy and play her part; and there is no evidence in support of these allegations. The only evidence that she occupied the marital home is legally and evidentially insufficient to draw any inferences of her knowing participation in criminal agreement. [130] With regard to mens rea it was submitted on behalf of the 1st Accused that the Prosecution needs to establish an intention to be a party to the agreement and an intention to play some part in that agreed course of conduct. [131] In relation to the terrorist purpose behind the weapons, firearms and ammunition, the Prosecution submitted that it can be inferred from the: (i) (ii) (iii) (iv) (v) (vi) the nature quantity weapons; vast majority being hidden or 'off books'; (Anarchist's Cookbook & other documents: digital material Weapons, homemade silencers, (iv) Murder Inc, (v) 100 Ways to disappear and live free; (i) Hidden Street (iii) Silent but deadly, more (ii) 21 Techniques of Silent Killing; Classified intelligence documents (relating to legitimate activities of high profile opposition figures); Nelson Flore firearm (firearm used by Mr Flore in the attempted robbery had been found in the garden of a property connected to Valabhjis that overlooked the then opposition leader, now President, Wavel Ramkalawan's home; inference being that the pistol with silencer had been left there to carry out an assassination); Timing of importation (imported in 2004 and 2006, times of potential political change; 2004 when Albeit Rene stepped down and 2006 being the year of Presidential elections) Importation of firearms and ammunition [132] The I st Accused's submissions reiterated that the lawful inference necessary for conviction must exclude any other possible inferences consistent with innocence, the incriminating inference must be the only possible inference for a tribunal properly directed to convict. [133] At this point it is pertinent for this Court to reiterate its earlier findings and and emphasize that the standard of 'excluding any other possible inferences' applies at the end of the trial, where the evidence must be weighed against the legal burden of proof beyond a reasonable doubt. The present case is still at the stage of submissions of no case to answer, where the Court's task is to determine whether the Prosecution has established z prima facie case. [134] The 15( Accused submitted that the Prosecution needs to establish that the accused, in their agreement, intended to possess the firearms and explosives and for them to be used to intimidate the public or a section of the public in the Seychelles or to remove from power the legitimate Government of the Republic of Seychelles. It was submitted that there is no evidence of such intention or agreement to carry out that intention. The l" Accused relied on the claim that the firearms and ammunition were lawfully imported under the order of President Rene for use by the SPDF. [135] It was argued that, due to the lawful importation, it is not possible to infer an intention that the arms and ammunition were to be used to intimidate the public or to remove from power the legitimate Government or to make a lawful inference of that intention. It was further submitted that lawful importation suggests an inference that the SPDF was properly equipped to prevent insurrection or maintain public order, and that President Rene's involvement negates any unlawfulness and a terrorist purpose. It was further submitted that the Prosecution does not allege that President Rene is a co-conspirator in Count I; this was specifically put to the Attorney General in writing and the reply was that they have no positive case against President Rene. The 15t Accused therefore argued that it is impossible to see how, if President Rene is not in the conspiracy, the l " Accused, who acted on behalf of President Rene, could have the necessary intention to commit a terrorist act. [136] In support of their submission that the importation and possession of the firearms and ammunition were authorized and lawful, the jSl Accused stated that in 2004 there were no set procedures or protocol for importing arms and ammunition into Seychelles and that it was a prerogative of the President alone.' Therefore, the Prosecution has failed to discharge its burden of proving that the importations were in breach of procedures or protocols as there is no evidence of what those procedures or protocols were. [137] Further, the l " Accused relied on testimony of Capt. Attala, SDF Chief of Staff; Lt Cedras, officer commanding President Rene's PSU; Brigadier Rosette; David Savy; President Michel;" and Exhibits in support of argument that the importation was done with due authority.' The JSt Accused also relied on testimony of Sergeant Major Cafrine; Lt Cedras; and Colonel Roseline in support of their submissions that the firearms and ammunition were not smuggled in and were duly collected by the SPDF in 2004.6 [138] Further, it was submitted that a central plank of the Prosecution's case is that the firearms were not an authorized importation because they were not embossed with the SPOF mark. Reference was made to cross-examination testimony of Colonel Roseline when he was asked in which year the marking machine was supplied and whether it was broken at any particular point in tirne.? [139] The 1st Accused subsequently submitted that there is no evidence to suggest that the firearms were not ordered by the SPOF, as the Prosecution has adduced as evidence only a list of firearms present in the HQ armoury at Bel Eau, despite it being known there were other armouries and also that no list was kept as at the material time. The 1st Accused further submitted that firearms imported under President Michel for the SPOF were not recorded on the lists produced by Capt. Allisop." It was submitted that since numerous imports of firearms during President Michel's incumbency that were not marked with the SOF markings and were not on the inventory produced by Capt. Allisop, there is no evidential value on the Prosecution's argument that weapons subject to Count I were not reference made to Standard Operating Procedures ("SOP") on Arms 3 Paragraph 166-168 of the Submissions: Procurement (Exhibit D 14); Testimony of Capt. Allisop Al7th Feb 20241AM/22/3048 4 Paragraphs 169-186 of the Submissions 5 Paragraphs 187-198 of the Submissions: Exhibit P211 C, end user certificate dated 4th March 2004, signed by Ltnt. Colonel Frank Marie; Exhibit P211 J, flight clearance document, dated 29thNovember 2004 signed by the Chief of Staff of the SPDF; Exhibit P208TT, air waybill dated 26th November 2004, stating that the consignee is President Rene, President's Private office; Exhibit 0178, end-use certificate dated 26th June 2006, signed by the Chief of Staff Leopold Payet; public document made under the Air Navigation (Overseas Territories) Order (CAP 31) confirming lawfulness of the import of pistols, dated 23rd October 2006 6 Paragraphs 199-211 of the Submissions 7 Paragraphs 212-215 of the Submissions 8 Paragraphs 215-222 of the Submissions marked nor on the limited inventory produced. Therefore, there is no evidence they were not recorded on the SPDF records. [140] In conclusion on the issue of the lawful importation, the l " Accused submitted that there is no inference which a reasonable tribunal, properly directed, could accept that the firearms and ammunition were unlawfully imported as: (1) between importation of arms for the SPDF; 2004-2006 there were no formal procedures or protocols on the (2) an end user certificate was issued for the importation; (3) the SPDF had an open import permit for arms and ammunition; (4) the documentation shows an open importation through normal channels; (5) there is no evidence the SPDF did not pay for theses firearms and ammunition; (6) the flight authorization Staff; and DCA; armourer; and copied to military HQ; marked for the importation was signed by the SPDF Chief of of the the attention for (7) the flight authorization showed President Rene as the consignee; (8) the Air Waybill showed President Rene as the consignee; (9) the firearms military flight; and ammunition were collected by members of the SPDF from a (10) the firearms and ammunition were stored (some permanently, at a SPDF armoury within Barbarons army camp; others initially) firearms and ammunition could be stored wherever (II) to be stored; the President directed them (12) the RECSA marking machine was not obtained until 2008 so obviously these firearms were not marked when imported; (13) the RECSA marking machine broke down and was abandoned for marking; (14) no evidence recorded Commando armoury at Barbarons has been adduced that than not camp; by the SPDF other the firearms recorded and ammunitions were not or on the Bel Eau armoury (15) no investigation was carried President Rene's PSU armoury was moved to the Bel Eau armoury; and out when the firearms and ammurution at (16) President Rene had authority to direct where and how these weapons ammunition were stored. and [141] It was submitted on behalfofthe l " Accused that no guilty inference can be drawn from the nature and quantity of the weapons found and large part of it being found hidden if the starting point is one of (i) lawful and authorized importation, (ii) authorization of the President Rene while in office with (iii) no evidence such authorization was ever rescinded. It is argued that a decision of an incumbent President continues even when he leaves office unless and until it is rescinded and there is no evidence of such rescission. [142] Further, it was submitted that weapons were entrusted not to a private citizen but to a trusted advisor to President Rene. The Defence relied on the diplomatic passport of Mr Valabhji and testimony of President Michel in relation to Mr Valabhji being an Economic Advisor. It was therefore submitted that President Rene entrusted lawfully imported weapons for the SPOF to an armoury at the home of the l"Accused. [143] Subsequently, submissions on behalf of the l" Accused argued that, during President Michel's time in office, other civilians had also been entrusted with SPOF firearms." The 151 Accused contends that the firearms and weapons were never used, as evidenced by their condition, and that they were sealed in hides. Therefore, the reasonable inference is that they were for the use of the SPDF in times of need. Consequently, it was submitted that the Prosecution's point that weapons were found in hidden secret compartments has no weight. [144] The key points submitted by the Prosecution in reply to the l" Accused's submissions in relation to the issue of lawful/unlawful importation can be summarized as follows. While the importations may have appeared authorized, this does not mean they were lawful. It was argued that, firstly, importations occurred after President Rene stepped down in April 2004, meaning he lacked the authority to authorize those importations. Secondly, the End User Certificates specified the intended use of the arms and ammunition; and if the items were not used according to these certificates, they were not lawfully held. It was submitted that the arms and ammunition in the home of civilians were not used in accordance with the End User Certificate which stipulated that the goods were for exclusive use of the SPDF. 9 Paragraphs 229-233 of the Submissions: Reference made to testimony of Colonel Roseline; President Michel; Capt Fonseka [145] Regarding witness testimony, the Prosecution countered the Defence's arguments by stating that President Michel testified he did not authorize civilians, including the I" and 2nd Accused, to keep firearms at their residences and was unaware of such possession until after their arrest in 2021.10 According to the Prosecution, Michael Rosette stated that, when he became Chief of Defence Forces in January 2022, no arms or ammunition were identified as being stored at the Isi and 2nd Accused's home. He was unaware of such arms and ammunition being kept at their residence prior to their arrests. I I Barry Alissop confirmed that the SPDF did not have an armoury at Morne Blanc and that neither the SPD F nor the SOF have ever had an armoury at any other private residence. 12 [146] Concerning the argument about President Rene's involvement, it noted that, firstly, President Rene was not in office at the time of the importation; and secondly, while the Prosecution does not advance a positive case against Albert Rene, this does not exclude the possibility of his involvement in the conspiracy. [147] With regards to the importation documents addressed by the Defence, the Prosecution's position is that, firstly, the End User Certificate issued on 4th March 2004 (while Albert Rene was still President) was signed by F. Marie, not President Rene; and, therefore, there is no evidence that Albert Rene was aware of the document. Secondly, the remaining documents are dated after President Rene had left office. [148] Further, the Prosecution argued that even if Bernard Cafrine was not informed that the collection of arms and ammunition from the airport was secret or covert operation, this does not mean that it was not a covert operation and a secret. The facts remain that the arms and ammunition were not officially marked, recorded, or registered with the SPDF. [149] It was submitted that the Defence's claim that firearms and ammunition imported by President Rene remained under his and the Presidential Security Unit's (PSU) control after importation is incorrect. It is argued that firearms and ammunition remained at the 1st and 2nd Accused's residence after President Rene's death and after the PSU was disbanded, indicating they were neither under PSU control nor under President Rene's control. Moreover, it was submitted that the Ist and 2nd Accused made a decision to retain 10 Paragraph 240 of the Prosecution's Submissions; Transcript 15 March 2024 pages 13 and 14 II Transcript 8 March 2024 pages 7 and 8 12 Transcript 7 February 2024 pages 20,33 and 34 possession of those the arms and ammunition not only after A. Rene's death but also after the 2021 Amnesty. Official Gazette number 622 of 2021, dated 12 August 2021, was exhibited at trial as Exhibit P409. It provides that President Ramkalawan ordered "all persons in possession offirearms or ammunition without any lawful authority or valid licence to surrender and deliver up the firearm or ammunition in their possession or under their control" to stipulated officers of the Seychelles Police Force between 16 and 23 August 2021. It further provided that pursuant to section 45(2) of the Firearms and Ammunition Act, no criminal proceedings would be instituted against any person who surrendered or delivered up any firearm or ammunition during the specified period.':' [150] Further, reference was made to Makarov found and used by Nelson Flore, four months after Rene's death. The Prosecution submitted that this indicates the true nature and purpose of weapons. The Prosecution disputes the Defence's claim of lawful and authorised possession by highlighting the lack of formal registration and the retention of weapons after President Rene's death and the 2021 Amnesty. [151] The Prosecution counters the Defence's argument that weapons for the PSU could be stored anywhere by submitting that there is no evidence showing President Rene directed those arms and ammunition be stored at Marne Blanc; and he was not in office when arms and ammunition were stored there. Furthermore, numerous witnesses testified that there was no proper basis for arms and ammunition to be held at Marne Blanc (reference to James Michel, Michael Rosette and Barry Allisop). [152] With regards to marking of SPDF weapons with the RECSA markings, the Prosecution argued that Roseline's testimony shows that the exercise was conducted to mark all the firearms in stock prior to receiving the RECSA machine, which was done after receiving the machine. The Prosecution submitted, therefore, that the arms and ammunition held at Rene's residence would have been marked by the SPDF if they were known about and were not held "off books". [153] At this stage, I find it pertinent to address part of the l" Accused further submissions in reply to Prosecution, dated 19th July 2024. It was submitted that the Prosecution wrongly seeks to reverse the burden of proof, by putting the onus on the Accused to prove that the 13 Paragraph 63 of the Prosecution's Submissions in reply to the lSI Accused no case to answer importation and storage of the firearms and ammunition were lawful and unauthorised. The 1st Accused substantiated the argument further at paragraphs 5-12. Having scrutinised submissions of both parties, and considering the stage of the present proceedings, I do not find that the Prosecution seeks to reverse the burden of proof. The onus is still on the Prosecution to establish a primafacie case. Moreover, submissions by the Accused before the Court at this stage are not yet evidence as the defence has not yet been put forward. Therefore, the Court cannot yet come to any determination of whether the Accused has proved anything. The Court is assessing whether the Prosecution established prima facie case. Anarchist's Cookbook [154] Regarding this piece of evidence, the Prosecution and Defence presented their opposing interpretations and the inferences that can be drawn from it. The Defence asserted that the file in question was downloaded as part of a larger set of documents labelled 'banned books'. Essentially, the Defence submitted that the Prosecution had grossly exaggerated the significance of the file; that the file contains nothing that can be vaguely connected to terrorism purposes; and that banned reading material may increase the curiosity about its content for the reader, in other words that a law-abiding citizen might be interested in the content of banned materials. It was submitted that it would not be rational to extrapolate from curiosity about ways to create an explosive device from household items to an intention to make such an explosive a device, let alone use it. The Defence concluded that the Prosecution's reliance on the presence of an incomplete digital version of the Anarchist's Cookbook as evidence of an intent to use weapons for a terrorist purpose is a "paradigm example of sensationalist innuendo which demonstrates no probative value whatsoever when properly assessed". [155] The Prosecution in reply submitted that the Defence downplays the significance of possession of such file. They submitted that possession of the Anarchist Cookbook in and of itself can amount to a serious terrorist offence (reference was made to cases R v Terence Roy Brown [2011 J EWCA Crim 2751; R v Bel [2021] EWCA Crim 1461; R v Ben John [2022] EWCA Crim 54; R v Michael Nugent [2021] EWCA Crim 1535). The Prosecution submitted that the file was not the only relevant publication and there were other copies of a number of significant publications (already mentioned above). The combination of all these publications in conjunction with a large cache of hidden weapons IS far from sensationalist but a clear indication of what those weapons were for. Classified information [156] Simi larly, regarding this piece of evidence, both the Prosecution and the Defence presented their opposing views on its interpretation and the inferences that can be drawn from it. The Defence argued that possession of these documents shows no more than that the lSI Accused was a trusted advisor to President Rene, who remained chairman of the ruling party. In reply, the Prosecution relied on testimony of Bernard George, who was not cross examined or challenged by the Defence, who testified that there was no proper reason why the ISIAccused should be in possession of his confidential correspondence. Nelson Flore's Gun [157] The Defence disputed the connection of the Accused to the property where the gun was found by arguing that Prosecution's evidence did not establish a connection between Mr Anil Valabhji, his cousin and the 151 Accused. The father's and mother's names on the birth certificates of Anil Valabhji and the 151 Accused, although similar, but are different, and therefore do not show any relationship between Mr Anil Valabhji and Mr Mukesh Valabhji. The Defence further challenged Prosecution's evidence that the pistol was one of the 6 Makarov pistols imported into Seychelles via the End User Certificate (Exhibit D 17B) as Mr Flore identified a gun marked with a star and the imported guns did not have a star on the handle. The Defence further challenged Mr Flore's evidence as unreliable. Additionally, the Defence submitted that even though the gun was found in the garden next to a political patty leader there is no evidence of an 'assassination plot' and such inference is "not simply speculation butfantasy". [158] In reply, the Prosecution disputed the claim that the gun exhibit was not the gun found by Mr Flore. It was further stated that the Birth Certificates show that Anil Valabhji and the 151 Accused are related. It was submitted that the 151 Accused was involved in the importation of the gun found. Additionally, that the assassination plot is far from fantasy as the circumstantial evidence is compelling. [159] The Submissions of the l " Accused in relation to Count I concluded that the importations of the firearms and weapons were lawful on the instructions of President Rene, who is not named or proposed as a co-conspirator, there is no evidence of, nor any inference that can be drawn that there was a terrorist purpose agreed upon by the Accused. The Prosecution maintained that the Defence has not effectively disproven the Prosecution's evidence, and therefore, the case should proceed. Count 1 - Analysis in relation 3rd Accused [160] It was submitted on behalf of the yd Accused that the actus reus of conspiracy is the agreement itself (reference was made to paragraphs 34-4 Archbold 2006; Mulcahv vs R [1868) L. R. 3 H. 306 at 317). With regards to mens rea, it was submitted that Prosecution must prove the intention in the minds of the conspirators to carry out the unlawful purpose (reference made to Yip Chiu-Cheung v R 99 cr. App. R 406 PC; Payel vis R (SCA Cr 108/23). The submissions further refer to Canadian case The Queen v 0 'Brien [1954] SCR 66 stating that there must exit an intention not only to agree but also an intention to put the common design into effect. [161] It was concluded in relation to Count 1 that the Prosecution must adduce evidence to establish that: (a) the yd Accused was a party to an agreement with the 1st and z= Accused and persons unknown to possess terrorist property and such firearms and ammunition likely to be used to commit a terrorist act; and (b) that there was an intention on the part of the 3rd Accused to be party to the conspiracy and an intention to put the common design into effect. [162] Further, it was submitted that the Prosecution's case in respect of Count I, and Count 2 as well, is based solely on circumstantial evidence. The submissions refer to Blackstone's Criminal Practice 2003, Indian case Satyapal Singh vis The State of'Delhi (RL. A.943/18) in relation to issues of drawing inference of the accused's guilt from circumstantial evidence. 14 It was therefore submitted that the court would have to determine whether the Prosecution has established a prima facie case in respect of Count 1, and Count 2, in light of the circumstantial evidence adduced by the Prosecution and, thus, in accordance with the laws applicable to a case based solely on circumstantial evidence. [163] The yd Accused Submissions stated that the Prosecution's case against the 3rd Accused on Count I is based on the following circumstantial evidence: (a) alleged illegal importation 14 Paragraphs 3.12-3.15 of the Submissions of firearms and ammunition in 2004 and 2006; (b) alleged illegal possession of certain firearms found at the residence of the 3rd Accused, and in the two safes at his NISCC office and in the dormitory at the Seychelles Coast Guard; (c) letters "LES" or "LESLIE" on some of the boxes allegedly found at the l " and 2nd Accused' residence; (d) allegation that a cartridge alleged ly found at the residence of the pt and 2nd Accused allegedly matched the ballistic fingerprint of the Makarov pistol found in the possession of the 3rd Accused; (e) Makarov pistol found in a Nescafe plastic bag which was similar to some of the plastic bags found at the ]51 and 2nd Accused' residence; (f) a loan in the sum of USD 100,000 from the l" Accused to the 3rd Accused; (g) documents retrieved from the 2nd Accused's safe at Coast Guard, relating to importation of firearms and ammunition in 2006. Importation [164] The 3rd Accused Submissions address the importation issue at paragraphs 3.17-3.45. With regard to alleged illegal importation, it was first submitted that the 3rd Accused was not involved in the importation of the firearms and ammunition in 2004. It was further submitted that any reference to the yd Accused in the confession statement made by the 5th Accused (Exhibit P382) should be disregarded by the Court. Additionally, that it is trite law that a confession made by an accused person which is admitted in evidence against that accused person is not evidence against any other person implicated therein." To summarize, the yd Accused argued that importation was legal, based on similar reasons advanced by the 1st and 2nd Accused. The submissions referred to End User Certificates and testimony of certain witnesses. [165] The Prosecution in reply, submitted that while Albert Rene, may have been the President at the time it appears the End User Certificate signed by Frank Marie was dated, he was no longer in office when the arms and ammunition were imported into Seychelles. Further, it was submitted that the existence of the End User Certificates does not render the importations lawful; rather, they were the necessary instrument by which the importations in 2004 and 2006 were facilitated. It was also submitted that End User Certificates were not kept in accordance with the requirements ofthose End User Certificates; arms were not 15 Reference made to Rhodes (1959) 44 CR app R 23 registered as they should have been and should not, under any circumstances, have been stored at the home of civilians. Possession of firearms and ammun ition . [166] Concerning the evidence related to possession of firearms and ammunition, the main submission on behalf of the 3rd Accused was that he was a member of the Defence Force and that the firearms and ammunition found in his possession were kept, carried, or used exclusively for Defence Force purposes. Therefore, under section 44 of the Firearms and Ammunition ActJ6 he was exempt from the requirement of a licence to possess firearms and ammunition. [167] In response, the Prosecution submitted that, firstly, the II rounds of ammunition found in a plastic bag in a drawer in his bedroom were not properly held in accordance with the requirements of the SPDF as the 3rd Accused knew that he should not have arms and ammunition in his home having been the subject of a Disciplinary Process in relation to a firearm in his home in 2014. [168] Secondly, Smith and Wesson Revolver and Makarov Pistol (with ammunition) found in the 'Nescafe' bag in the safe at NISCC Reflex Building, although issued and stamped by the SPDF, were not properly held. It was submitted that according to exhibited Record of Issue Card these weapons were issued to )I'd Accused when he was engaged to provide security to President Albert Rene. Thus, there was no proper reason for him to retain these firearms after the PSU was disbanded, and after Albert Rene had died in 2019. Further, the Prosecution argued that the 3rd Accused had undergone a Disciplinary Process, which should have made him aware of the need to return weapons he had no authority to keep. The Prosecution also submitted that the fact that these two firearms were marked confirms that firearms that pre-date those imported in 2004 and 2006 were marked by the SPDF. If the firearms stored in the guards' room at the Rene residence were official weapons, and 16 Notwithstanding anything elsewhere contained in this Act a firearm licence shall not be required to be taken out in respect of firearms or ammunition by:- (a) any person in the Defence Force or in the police force or prison service of the Republic, and by any member of any rifle association approved by the Minister in respect of any firearm kept, or carried, or used exclusively for the purposes of such force, service or association; (b) any person 01' class of persons especially exempted by the President from taking out such licence; (c) any person in possession of a firearm which by reason of its age, peculiarity of construction, damaged condition or other sufficient cause is certified in writing by the Commissioner of Police to be out of use and kept merely as a curiosity. not 'hidden' weapons, it is reasonable to expect that they would also have been marked in the same way. [169] Thirdly, with regards to weapon and ammunition found in a safe in the yd Accused's room at the Seychelles Coast Guard, it was submitted that the 3rd Accused took this rifle from the batch of 'off-books' weapons held in the bedroom of the guards' room at Rene's residence; and that it had not been held in the official armoury.'? The Prosecution further referred to email correspondence between Benoiton and Rosette. It was submitted that it makes clear that as of 8 February 2020, at the latest, the yd Accused knew he was required to return the weapons. He said he would, but he did not. The Prosecution submitted that it was asserted by the yd Accused that "neither Colonel Roseline nor Brigadier Rosette took any further steps to ascertain whether the 3rd Accused Person had returned the said weapon and ammunition". However, this misses the point, the yd Accused said he would return the weapon because he knew he had no authority to have it. The onus was upon him to surrender the firearm he did not lawfully possess, not for his superiors to pursue him to return it. 'LES' or 'LESLIE' on boxes & Cartridge [170] In relation to 'LES' or 'LESLIE' on boxes, the 3rd Accused submitted that no evidence has been led by the Prosecution as to the provenance of these letters; and that there is no evidence, whether by way of handwriting or otherwise, which links the 3rd Accused with the writing on the boxes. In relation to a cartridge, which matched the ballistic fingerprint of the Makarov pistol found in possession of the 3rd Accused, it was submitted that the Prosecution failed to produce evidence establishing that the cartridge was found in a drawer at the Ist and 2nd Accused residence as there is no evidence as to where and how it was found. Therefore, there is no evidence of the cartridge provenance. [171] In reply, the Prosecution submitted that there is a clear link between the significant number offirearms and ammunition found at the home of the 1st and 2nd Accused, noting that Leslie Benoiton was clearly involved in organizing their importation (reference to the schedule of documents and correspondence at Annex B). The existence of his first name written on the boxes of firearms found hidden in Morne Blanc further corroborates his involvement and 17 Prosecution referred to Cafrine's testimony contributes to the case to answer. The Prosecution further argued that the ball istic evidence confirms the spent cartridge found at Morne Blanc was fired from the Makarov pistol found in Leslie Benoiton's safe. It was submitted that it would have been practically impossible for anyone to plant it as the firearm from which it was fired was in the custody of the 3rd Accused in a safe. It is fanciful to argue that it could have been accessed from the safe, fired and put back in the safe. Therefore, it was submitted that the evidence shows that the spent cartridge was fired from Benoiton's gun and found at Morne Blanc. This forms part of the overall case against the 3rd Accused and the l " and 2nd Accused, which gives rise to a case to answer. Furthermore, the Prosecution submitted that the presence of multiple spent cartridges at the Valabhji's home further supports the case against the accused. 18 Nescafe plastic bags [172] It was submitted on behalf of the 3rd Accused that Nescafe plastic bag is not a plastic bag which was exclusively used by the 151 and 2nd Accused and there is no evidence to such effect. It was submitted that this evidence does not add any weight to the Prosecution's case. Reference was also made to testimony of Mr SophoIa that he has previously seen similar plastic bags. [173] In reply, the Prosecution submitted that although the Nescafe plastic bags could have been available to public, it being found at both the 3rd Accused's safe and at Morne Blanc, containing firearms and ammunition, serves as another strand of evidence linking the firearms to the first three accused. Moreover, the bags form part of the overall mosaic of evidence linking the 3rd Accused to the arms and ammunition found at the 15t and 2nd Accused home. When considered collectively, including the importation documents and correspondence set out at Annex B, there is a compelling evidential link between the yd Accused and the arms and ammunition found at the 15t and 2nd Accused residence. The Loan [174] It was submitted on behalf of the 3rd Accused that while there is no evidence of his involvement in the importation of firearms and ammunition in 2004, the loan was granted in September 2004; and firearms and ammunition arrived in Seychelles in December 2004 18 Reference was made to Expert Report of the Kenyan Ballistics Expert [Exhibit P332]; and [Exhibit P140] and [Exhibit P139] and in 2006, the latter being two years after the loan. It was submitted that the Prosecution has not established any connection between the granting of the loan and the importation; and that it is grounding its case on assumptions and not on factual evidence. [175] In response, the Prosecution submitted that the transfer of money is admitted by the yd Accused. Even though it is claimed to be a loan, there is no evidence that it was ever repaid, nor is there an explanation for why the loan was transferred from an 5MB account to a private citizen. It was submitted that the transfer was done during the time 2004 importations were being conducted and in advance of2006 importation, and documentary evidence shows that the 3rd Accused was involved in the importation. Further, it was submitted that this transfer forms part of the overall evidential picture from which inferences can be properly drawn as to the clear participation of the 3rd Accused in the conspiracy to import and possess weapons. Handing over of Firearms and Ammunition in February 2019 [176] It was submitted on behalf of the yd Accused that he was the one who informed his superiors in the Defence Forces to organize for the collection for the firearms and ammunition from the residence of Albert Rene after his passing (reference to Colonel Roseline's testimony). It was argued that the weapons and ammunition imported in 2004 were stored in the armoury at the President Rene's residence and remained there until his demise in 2019 and thereafter were transferred to Bel Eau Headquarters (reference was made to Cafrine's testimony). It was submitted that if the 3rd Accused was a party to a conspiracy he would have not contacted his superiors. [177] Further, with reference to testimony of Bernard Cafrine and Jossy Cedras, it was submitted that weapons kept at the armoury at the residence of Albert Rene were not the weapons and ammunition which were allegedly found at the residence of the 15t and 2nd Accused. The keys to the armoury were respectively in the possession of the 5th Accused and Cafrine; and the 3rd Accused did not have possession ofthe key. [178] Finally, it was submitted that there is no evidence linking the yd Accused to weapons imported in 2004 and those kept at the store close to Albert Rene's residence at Barbarons, nor there is evidence of the 3rd Accused's knowledge that there were weapons and ammunition being kept at the store. [179] Further, it was submitted that on the basis that the Prosecution has indicated that its case is not based on the premise that President Rene was party to the conspiracy, the Court cannot draw inferences that the 3rd Accused was party to the conspiracy through his Iink to and involvement with President Rene. [180] Regarding this issue, it was concluded that the Prosecution has failed to establish a prima facie case as the circumstantial evidence relied upon does not establish the involvement of the 3rd Accused in the conspiracy alleged in Count I. The submissions cite Polhin v R (Criminal Appeal SCAI3/2017 [2018] SLCA 17, which held that a court cannot make assumptions in a case as it has to be decided on the basis of proved facts before it; the court is free to draw inference from facts provided they are accurate, logical and can be justified. [181] The Prosecution in reply submitted that it is clear from the testimony before the Court that the weapons stored at the residence of Albert Rene were not kept in the armoury, but rather in a bedroom that guards slept in at Barbarons; that none of the weapons seized had been recorded and marked in the usual way by the SPDFI9 and thus were 'off-books'. Further, it was submitted that while there were approximately 7 men in the PSU, there were far more weapons held 'off books' in the guard house bedroom than could ever be used by those few men in the PSU.20 [182] Moreover, it was submitted that it is speculative for the 3rd Accused to argue that he would not have notified his superiors of the existence of such weapons if he was a party to any conspiracy. The Prosecution stated that the yd Accused lied to Roseline when asked if he had knowledge of where the weapons came from;" and that the evidence shows that the 3rd Accused had access to these weapons previously;" and had been intimately involved in the 2006 importation (Annex B of Prosecution's Submissions in reply). [183] Further submissions in reply to Prosecution on behalf of the 3rd Accused have been considered by this Court. To briefly summarise the relevant points raised: I February 2024 PM pp 15, 16 and 18 19 Reference to Transcript Transcript 20 Reference to Cafrine: Transcript Attala: Transcript 10 October 2023 AM page 42 21 Transcript 22 Transcript I February 2024 PM at page 12 I I October 2023 AM pages I I to 15 II October 2023 AM pages 6 to 7 and 11-12 and 22-23. And PM session pages 12-14; II October 2023 AM at pages 5, page 7 and PM session page 9; and testimony of (i) (ii) (iii) (iv) (v) (vi) (vii) documents conspiracy Defence Forces; in relation to 2006 importation in as he was acting in accordance with his capacity as a member of the do not prove accused involvement in the email exchange between the ($t and 3rd Accused in there is nothing sinister relation to importation as the l " Accused was liaising with the supplier in Bulgaria; other email exchange relates to the yd Accused organising holiday trip for himself to France and Bulgaria; with regards to cartridge evidence, rather than evidence and has failed to establish the origin of the cartridge (where and by whom was found); is relying on assumption the Prosecution in relation to transportation Bel Eau the submissions importation, allegation that his statement offirearms state that since the accused was not and ammunition in 2019 from Barbarons to involved in 2004 and the Prosecution he did not know as to the origin of the weapons to Roseline was deceitful is baseless; allegation that can be properly drawn - the Prosecution loan forms part of overall evidential picture from which inference and it was submitted that this is an audacious statement is acting on assumptions rather than evidence; of weapons (in relation to both conspiracy - and possession possession the accused was still a member of the submitted that after passing of Albert Rene, has not adduced evidence that the yd Accused Defence Forces and the Prosecution was obligated to return the weapons because he has ceased to be part of the PSU; charges) Prosecution's evidence; Investigation stolen, but accused. it was narrative submitted in relation that by of after the incident where the Glock Pistol assigned to the accused was the to Disciplinary there was is unsupported of a Board this was a Disciplinary an appointment process against there is no evidence process that Count 1 - Determination [184] This Court reiterates that it is mindful of the standard of proof and the depth of the analysis of evidence required at this stage of the case. On the prima facie basis, the Court needs to determine whether there is sufficient evidence to prove essential elements in the alleged offence; or whether the evidence adduced by the Prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it. What the Court needs to decide at this stage is whether the evidence thus far is such that a reasonable court may convict, not would convict. [185] Where the Prosecution's evidence fails to address any particular element of the offence at all, no conviction could possibly be reached, and the COUtt should allow the submission of no case to answer. 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. [186] In the view of this Court, the link between the three accused, l ", 2nd and 3rd has been established by the Prosecution on prima facie basis. Such link is more than a mere association. The link between the JSt and 2nd Accused is established by virtue of firearms and ammunition, large quantity thereof, being found at their residence (issue of 'control' will be addressed below). Any inconsistencies and issues in relation to the chain of custody raised by the Accused are better left for the end of the trial where the evidence would be weighed. [187] It was submitted by the 2nd Accused and submissions were adopted by the 1st Accused that the element of possession entails knowledge and control and Prosecution's evidence does not establish knowledge and control. The circumstances of the case referred to by the Accused, R v Kousar [20091 EWCA Crim 139, are similar to present case in relation to property being found/allegedly found in the home ofthe accused. Firstly, this Court agrees with the Prosecution's identification of distinguishing elements in the case and also considers the Accused's submission that it is not the specific circumstances but the underlying principle that is significant in the case. In the view of this Court, there is a further distinguishing element. The circumstances of Kousar involved a wife charged with aiding and abetting husband's possession of counterfeit goods in their joint home. Since primary possession was alleged, the court examined whether spouses living in the same household are in possession of each other's items in terms of exercising actual control over it. The court held that, "A finding of being able to exercise a measure of control, which is the basis upon which this issue was in due course left to the jury, is not the same as finding that she did exercise contra!". In other words, the court was determining whether a spouse exercised actual control over items belonging to husband simply by virtue of living together. In the present case, however, both spouses adopted this line of argument. Both parties, who are the primary occupants and residents of the property where the firearms and ammunition were found, claim, or rather it can be inferred from their submissions, that neither of them had knowledge of or control over that property for the purpose of common law definition of 'possession'. The question is then who was in control of the large quantity of arms and ammunition at their home if neither of them was? [188] It is inevitably the Prosecution's responsibility to prove beyond reasonable doubt the element of possession in relation to both 1st and 2nd Accused and such determination is made at the end of the case. At this stage, the Court needs to determine whether the Prosecution has established primafacie case. As held in Reference by the Attorney General under Section 342A olthe Criminal Procedure Code (supra), "Prima facie means generally that the evidence is sufficient to establish a fact or raise a presumption unless disproved or rebutted". In the view of this Court, the evidence adduced is sufficient to raise a rebuttable presumption that, given the large number of arms and ammunitions found in the home of 1st and 2nd Accused, home and residence which they control, they also had knowledge of and control over the weapons. Therefore, there is prima facie evidence establishing the element of possession. [189] As submitted by the 2nd Accused and agreed by Prosecution, a husband and wife cannot be convicted of conspiracy if they are the only co-conspirators. They can be so convicted if there is also another patty or more to the said conspiracy. Such alleged co-conspirator in the present case is the yd Accused, Mr Benoiton. The evidence adduced in relation to his alleged link to the 1st and 2nd Accused on Count 1 includes: (a) the alleged illegal importation of firearms and ammunition in 2004 and 2006; (b) the alleged illegal possession of certain firearms; (c) letters "LES" or "LESLIE" on some of the boxes allegedly found at the l " and 2nd Accused' residence; (d) the allegation that a cartridge allegedly found at residence of the l " and 2nd Accused allegedly matched ballistic fingerprint of the Makarov pistol found in the possession of the 3rd Accused; (e) the Makarov pistol found in the Nescafe plastic bag which was similar to some of the plastic bags found at the 1st and 2nd Accused' residence; (f) the loan in the sum of USD 100,000 to the 3rd Accused by the 1st Accused person; (g) documents retrieved from the yd Accused safe at Coast Guard, relating to importation of firearms and ammunition in 2006. [190] Having duly considered the submissions of the yd Accused and the Prosecution on Count I, the Court is mindful that the submissions on behalf of the 3rd Accused do not constitute his testimony at this stage. Further, the evaluation of all the evidence adduced is only called for at the end of the trial, but "some minimal evaluation of evidence is also required to determine whether the Prosecution has established a prima facie case at the close of its S9 case" (R v Hoareau (supra)). Upon such evaluation, this Court finds that, considering the strands of evidence referred to above, when considered collectively, a prima facie link between the yd, I SI and 2nd Accused has been established. A rebuttable presumption has been raised that the three Accused may have been parties to an unlawful agreement. [191] The main issue in relation to 'possession' element of the offence with regard to the 3rcl Accused, addressed in the submissions, was whether by virtue of being a member of Defence Forces his possession was lawful and whether under section 44 of the Firearms and Ammunitions Act he is exempted from obtaining firearm licence. Considering the email evidence requesting the 3rcl Accused to return the weapons and him not abiding by it, raises a rebuttable presumption that the possession of the said weapons was not lawful. [192] With regard to the terrorist purpose behind the firearms and ammunition, the Prosecution submitted that it can be inferred from the: (i) the nature and quantity weapons; (ii) the vast majority being hidden or 'off books'; (iii) digital material (Anarchist's Cookbook & other documents; (iv) classified intelligence documents; (v) Nelson Flore firearm; and (vi) the timing of importation. [193] Extensive arguments were advanced focusing on the issue of legal ity/illegal ity of importation of firearms and ammunition allegedly found at the residence of the l " and 2nd Accused and whether President Albert Rene had powers to authorize storage of firearms and ammunition to be at a location of his choosing. While the ISI and 2nd Accused argued that authorization was given by President Rene and such authorization continued by virtue of presidential office and was not revoked, the Prosecution's submissions in reply pointed to the contrary. The Prosecution submitted that firstly, President Rene was no longer in office since April 2004; and the documents relied upon by the Defence are signed after Albert Rene ceased to be President. Secondly, President James Michelle's testimony shows that he did not authorize Mr and Mrs Valabhji to store the firearms and ammunition at their residence. Finally, the Prosecution relies on the 2021 Amnesty, which required the return of the firearms, as further evidence of the lack of authorization. [194] With regards to the remaining evidence related to Count 1, namely, Anarchist's Cookbook, Classified documents, and Nelson Flore's pistol, the 1sr and 2nd Accused's submissions present alternative explanations and interpretations of the evidence presented by the Prosecution. As previously noted, at this stage of the case, these submissions are not the same as testimony; they have not yet been subjected to cross-examination by the Prosecution and are not evidence that the Court can weigh at this point. Therefore, in the Court's considered view, the evidence adduced by the Prosecution considered collectively and at its highest at this stage, has not been so discredited nor has been shown to be so manifestly unreliable that no reasonable tribunal could safely convict on. Consequently, applying the R v Hoareau (supra) evaluation of evidence and considering the strands of evidence in relation to intention collectively, this Court determines that a primafacie mens rea element of the offence has been established, the same applies to the actus reus and a rebuttable presumption has been raised. [195] I find that there is evidence to prove an essential element in the alleged offence on a prima facie basis. I also find that it cannot be said that the evidence given by the witnesses has been so discredited or is so manifestly unreliable that no reasonable tribunal could safely convict based on the evidence. For all the aforementioned reasons, I hold that the Prosecution has established e primafacie case against the PI, 2nd and 3rd accused in respect of this count [196] Any discrepancies, contradictions and omissions allegedly present in the evidence of the Prosecution are best decided at the close of the entire case. Count 2 (Conspiracy to Possess Firearms and Ammunition for a Purpose Prejudicial to Pubic Order) - All the Accused [197] All five accused are charged on Count 2 for conspiracy to possess firearms and ammunition contrary to Section 84( I) of the Penal Code, read with Section 381. The relevant provisions state: 84. Possession of fire-arms, etc. . (1) Any person who, without lawful authority or reasonable excuse, the proofwhereofshall lie upon him, carries or has in his possession or under his control anyfirearm or other incendiary material or explosive in circumstances offensive weapon, or any ammunition, which raise a reasonable presumption that such firearm, offensive weapon, ammunition, incendiary material or explosive is intended to be used or has recently been used in a manner or for a purpose prejudicial to public order is guilty of a felony ad is Liable to imprisonment for seven years. 381. Conspiracy to commitfelony Any person who conspires with another to commit any felony, or to do any act in any part of the world which if done in Seychelles would be afelony, and which is an offence under the law in force in the place where it is proposed to be done, is guilty of a felony, and is liable, greatest punishment than imprisonment/or if no other punishment if the to which a person convicted of the felony in question is liable is less for seven years, or, to imprisonment is provided, seven years, then to such lesser imprisonment. Count 2 - Analysis in relation to the I" and 2nd Accused [198] It was subm itted on behalf of the I SI Accused, subm issions also adopted by the 2nd Accused, that the intention is different from Count I but the evidence is identical. The submissions on conspiracy already addressed above are reiterated. It was submitted that the elements of the offence are: agreement (conspiracy); without lawful authority or reasonable excuse; has in his possession or under his control an firearm or other offensive weapon, or any ammunition, incendiary material or explosive; and in circumstances which raise a reasonable presumption that such firearm, offensive weapon, ammunition, incendiary material or explosive is intended to be used or has recently been used in a manner or for a purpose prejudicial to public order. [199] Regarding the issue of "without lawful authority or reasonable excuse", the l " Accused argued that the accused has only an evidential burden of proof, citing numerous authorities to support this position. The Ist Accused submitted that by showing that he had authority from the President, the evidential burden shifted to the Prosecution to present evidence to rebut this position to the criminal standard of proof. The 1st Accused does not have to prove anything himself; doing so would reverse the burden of proof and declaration of innocence, contrary to the Constitution. The Defence cited R v DPP Ex p. Kebeline [2000] 2 AC 326 and Lambert [2001] UKHL 37; [2002] 2 A. C. 545 among other authorities in support. [200] The Prosecution in reply referred to Ref?rence by the Attorney General under Section 342A of the Criminal Procedure Code (18 0(2021) [20221 SCCA 40 (19 August 2022) in agreement that the Seychelles Court of Appeal concurred that it is 'evidential' rather than legal burden that falls on the accused. [201] Consequently, there is no need for this Court to engage with the issue of whether the accused has an evidential or legal burden. Nevertheless, it should be reiterated again that, at this stage it is not the defence of the accused that is being considered, but submission of no case to answer. If the Prosecution establishes prima facie case at this stage, the submission of no case to answer fails. [202] The 1st Accused reiterates the arguments regarding the authorization from President Rene as discussed previously in relation to Count I. The 1st Accused submitted that such authorization exempted him from obtaining a firearms licence pursuant to section 44 of the Firearms and Ammunition Act: "44. General exemptions Notwithstanding anything elsewhere contained in this Act a firearm licence shall not be required to be taken out in respect of firearms or ammunition by:- (a) any person in the Defence Force or in the police force or prison service of the Republic, and by any member of any rifle association approved by the Minister in respect of any firearm kept, or carried, or used exclusively for the purposes of such force, service or association; any person or class of persons especially exempted by the President from taking (b) out such licence; [203] It was submitted further that three of the alleged co-conspirators were members of the SPOF at all material times, therefore, the exemption under section 44(a) of the Act applies to them; and the exemption under 44(b) applies to the l " and 2nd Accused. Hence, the l " Accused submitted that, as a conspiracy is charged, there can be no agreement for unlawful possession involving parties covered by a lawful exemption. In the alternative, it was submitted that it would be a reasonable excuse for an accused to have believed President Rene had asked them to import and possess the firearms and ammunition, that opinion being formed as of I March 2004 when President Rene was in office and Commander-in Chief of the SPDF. Further, it was submitted that the authority of the then-serving President, as a matter of law, persists until it is revoked; and that there is no evidence that such authority from President Rene, while he was in office, was ever revoked. The Ist Accused argues that authority is granted by the office, not the office holder. [204] The Prosecution, in reply and for the reasons already discussed in relation to Count I, submitted that the Ist Accused did not have the authority to possess the firearms and ammunition (President Rene was no longer in office, testimony of former President Michel, and 2021 Amnesty). [205] With regard to the possession element, the 1st Accused submitted that during specified period under the Count at least part of the discovered firearms were safely stored in a SPDF armoury (first at Barbarons camp and from March 2019 in the general armoury at Bel Eau camp, fully under control of the SPDF. [206] Regarding the element of intent, the ISI Accused submitted that, since the charge IS a conspiracy charge, the intent remains subjective and there is no reasonable presumption open to the Court. It is the position of the Defence that the Prosecution has not given any particulars of how firearms and ammunition were intended to be used in a manner or for a purpose prejudicial to public order. On the assumption the use is that given in Count I, for the reasons already discussed in relation to Count I, the First Accused submitted there is no evidence of intent. [207] In response, the Prosecution referred to RepubUc v Jimmy Azemia [2021] SCSC 604, submitting that it was held that possession of "knives, machetes, daggers, samurai sword, tear gas, air flares, two handguns and 80 bullets" was prejudicial to public order. It was further submitted that the required intent behind the weapons can be inferred from the evidence already discussed above: the nature and quantity of weapons, the fact that the vast majority of weapons were hidden or 'off books', digital material, classified intelligence documents, Nelson Flore's firearm, and the timing of importation. [208] In summing up the evidence (paragraphs 102-106) the Prosecution stated that involvement of Mr and Mrs Valabhji, and Leslie Benoiton is the same as in relation to Count 1; and the involvement of Leopold Payet and Frank Marie is based on their role in facilitating the importation of firearms and ammunition in 2004 and 2006, using their respective positions in the SPDF to sign End User Certificates in circumstance where they knew that the firearms to be imported would not be used in the terms set out in the End User Certificates signed. The involvement is further evidenced by the agreement to pick up the weapons from airport in the manner described by Bernard Cafrine in evidence, and in relation to Frank Marie, as accepted in his statement under caution. The Prosecution stated that it can be inferred from the evidence that both men agreed to play a role in receiving and distributing the firearms and ammunition in a manner inconsistent with the terms of the End User Certificate they signed, knowing they would be kept 'off books' and/or stored in secret hidden locations in the home of civilians. Count 2 - Analysis in relation to the yd Accused [209] On behalf of the ycl Accused it was submitted that the Prosecution is relying on circumstantial evidence; and arguments advanced in relation to Count I are adopted as well as arguments at paragraphs 6.9-6.42 of the submissions in relation to Count 6 (lawful authority to possess firearms; addressed below). [210] The Prosecution in reply adopted its arguments in relation to Count I. Count 2 - Analysis in relation to the 4th Accused [211] In respect of the 4th Accused, it was submitted that the Prosecution is relying on evidence of him signing End User Certificate in 2006 and flight clearance certificate in 2004 importations; and that he was present when the weapons and ammunition were collected at the airport in 2004. The Defence adopted arguments advanced in relation to Count 1 with regards to issues of alleged illegal importation (at paragraphs 3.17-3.29) and submitted that importation was done in open and transparent manner. [212] In reply, the Prosecution submitted that despite defence's observation that the case against the 4th Accused is limited to his signature on End User Certificate and the flight clearance certificate, the evidence shows that he played an integral part in facilitating both the 2004 and 2006 importations (reference to schedule Annex B). It was submitted that those weapons were not used or kept in accordance with the End User Certificates. Further, that at least some of the weapons imported were addressed to the 4th Accused ended up in the home of 1st and 2nd Accused, private citizens (boxes with weapons addressed to the 4th Accused ended up hidden in Hide 2 at Morne Blanc). The Prosecution submitted that it is clear from evidence of James Michel, Brigadier Rosette and Barry Allisop that arms and ammunition should not have been in the home of private citizens. [213] In reply to the Prosecution, it was submitted on behalf of the 4th Accused (submissions dated 22nci July 2024) that the Prosecution is seeking to rely on assumption to prove its case. There is no evidence that the 4th Accused has been involved in the distribution of the weapons and ammunition imported in 2006 or that he was involved in the collection of the said weapons and ammunition. Count 2 - Analysis in relation to the 5th Accused [214] Submissions on behalf of the 5th Accused referred to Dugasse & Drs v R (SCA 25, 26 and 30 of2010) [2013J SCCA 6 (3 May 2013) at [32]-[34] (already cited above). [215] It was submitted that agreement is the essence of conspiracy and in order for two or more persons to be convicted of conspiracy, each of them must be proved to have a shared common purpose or design, rather than merely similar or parallel criminal purposes, and to be aware that they are party to such common design (reference was made to Shillam [2013J EWCA Crim 160 (at [19]-[20]); and Blackstone Criminal Practice 2014 at para A5.46, Annex 1). It was argued that proof of conspiracy is a matter of inference from certain criminal acts of the accused parties (Murphy (1837) 8 C & P 297). [216] The submissions on behalf of the 5th Accused stated that the Prosecution's case against the accused rests on the propositions that the End User Certi ficate and a letter of May 2004 addressed to the supplier of weapons were found in the study and computer of l " and 2nd Accused. [217] It was submitted that the statement under caution given by the 5th Accused is not inconsistent with the evidence tendered by the Prosecution (paragraphs 16-17 of his Submissions). The submissions state that the exhibits were not addressed to the 5th Accused in his personal capacity but to the President's Private Office Seychelles and the People's Defence Force; the importation was made above board and was not illegal. Therefore, it cannot be established that the accused had an unlawful agreement with other accused of other people to import firearms and ammunition. [218] It was submitted that there is no evidence of the 5th Accused having 'a shared common purpose or design' in the alleged possession of firearms and ammunition with any of the accused persons as alleged under Count 2 and neither can it be inferred that there is an evidential basis for the propositions. Further, the evidence establishes that no weapons and/or ammunition were retrieved from or found in possession of the accused person. It was also submitted that the discovery of a document signed by the accused and found in possession of the I st and 2nd Accused does not establish a shared common purpose or design in which all had joined, rather than merely having similar or parallel ones. According to the submissions, the Prosecution must establish that the documents show the course of conduct that was to be pursued by the accused in pursuance to a shared criminal purpose or design. Therefore, it is submitted that the Prosecution failed to establish the actus reus of the offence. [219] With regard to mens rea it was submitted that the Prosecution must show that the 5th Accused intended to be a party to an agreement relating to a criminal enterprise or purpose. The submissions refer to the decisions in R v Anderson [1986] lAC. 27, H. L where it was held that the necessary mens rea is only establ ished if it is shown that the accused "intended to play some part in the agreed course of conduct in furtherance of the criminal purpose which the agreed course of conduct was intended to achieve ". It was held that nothing less will suffice and nothing more is required. The submissions further cited Yip Chiu-Cheung v R (1994) 99 Cr App R 406 and Dugasse & ars v R (SCA 25, 26 and 30 of20 I0) [2013] SCCA 6 (3 May 2013) already cited above. [220] It was submitted that evidence tendered by the Prosecution confirmed that the 5th Accused acted lawfully and in no way intended to form part of an overt criminal act with any of the accused persons or persons unknown. The 5th Accused was a Commanding Officer of the PSU, member of the SPDF and as such he was expected to execute the documents and to be part of the correspondence related to the documents. The submissions further referred to testimony of Brigadier Rosette, who, among other things, testified that the President as Commander ofthe Defence Forces has absolute power over all matters relating to defence forces, including allocation of weapons to units, importation, and the exclusion of class of members or members from any policy relation to the arm forces. It was submitted that ex Brigadier Roseline confirmed that the President can give command or instructions to any member of the Defence Forces, whether written or oral; no member of Defence Forces is permitted to go against an order given by the Commander-in-Chief; and the 5th Accused had to execute the documents contained in the Exhibits. Further, it was submitted that Albert Rene had an armoury on his premises at Barbarons; he could instruct to import firearms for use of his PSU unit; and as Commander-in-Chief he could have made the decision to store the weapons away from the main SPDF armoury and he also might not have informed the accused about the location of the imported weapons. Reference was also made to testimony of Jossy Cedras in relation to boxes being brought to a room at a small house which the PSU occupied at Barbarons; that the contents of the boxes were not known to anyone of them in the unit; and it was confirmed that the accused, at the time of his retirement and handing over to him, did not remove any of the boxes. [221] The submissions conclude that, looking at the evidence of Brigadier Rosette, ex Brigadier Roseline and lossy Cedras, it cannot be said that the 5th Accused had an intention to agree to any criminal course of conduct between him and accused persons under the Count, nor can it be said that the Prosecution has established that there was an agreement on the part of the accused to a shared common purpose or design. According to Defence, the evidence clearly shows that at all material times the accused acted lawfully and within the authority bestowed to him by virtue of being the Commander of the PSU of the late Mr Rene and as an officer of the SPDF. Therefore, the Prosecution has failed to establish prima facie case on Count 2 against the accused. [222] The Prosecution, in reply, submitted that the arms and ammunition that were subject to End User Certificate dated 2nd March 2004 signed by the yh Accused were not, as required by the said certificate, used exclusively by the Security Personnel ofthe President's Private Office as some of them were found at the residence of the 15t and 2nd Accused, and others were alleged to have been held off-books. It was further submitted that arms and ammunition were imported after President Rene had stepped down in April 2004. The Prosecution submitted that it is clear that the 5th Accused agreed to play some part in the agreed course of conduct. Without his signature on the End User Certificate it would have been difficult, if not impossible, to import the arms and ammunition into Seychelles. [223] With regard to mens rea, it was submitted that it is evident that the yh Accused had the intent to sign the End User Certificate to facilitate the importation of arms and ammunition. Annex B shows that he played an ongoing role in the importation. Moreover, and importantly, the 5th Accused also signed at least six blank End User Certificates, dated 2 March 2004, found in the home of l" and 2nd Accused. These blank End User Certificates in the possession of other co-conspirators give an insight into the role the 5th Accused agreed to play. It was submitted that he agreed to provide blanket authority, in the form of blank End User Certificates, to ensure that other conspirators could irnport arms and ammunition. [224] It was further submitted that evidence shows that the yh Accused collected the arms and ammunition when they arrived in the country and, as such, played a role in their onward distribution. [225] [t was submitted that involvement of the 5th Accused is by virtue of his role in facilitating the importation of firearms and ammunition, using his positions in the Defence Forces to sign End User Certificates in circumstances where he knew that the firearms to be imported would not be used in accordance with the terms set out in the End User Certificates he signed and further involvement in collecting the arms and ammunitions. The evidence in support of the manner or purpose prejudicial to public order that the weapons would be used is the same as were set out in relation to Count I (The nature and quantity of weapons; The vast majority of weapons were hidden or 'off books'; Digital materials; Classified intelligence documents; Nelson Flore firearm; Timing of importations). Count 2 - Determination [226] As submitted by the 15tAccused, the intention under Count 2 is different from Count 1 but evidence is the same. It is also observed that the firearms and ammunitions subject to both Counts are also the same. Three of the Accused are charged on Count 1and all five Accused are changed on Count 2. The evidence in support of establishing the manner or purpose prejudicial to public order is the same as were set out in relation to Count 1 (The nature quantity of weapons; The vast majority of weapons were hidden or 'off books'; Digital materials; Classified intelligence documents; Nelson Flore firearm; Timing of importations). For the reasons already addressed in relation to Count I, I find that the Prosecution has established prima facie case against l", 2nd, and yd Accused on Count 2 also. [227] With regards to the 4th Accused, although he was not found in possession of firearms and ammunition, I observe the finding in Dugasse & Ors v R (SCA 25, 26 and 30 of 2010) [2013] SCCA 6 (3 May 2013) in relation to offence of conspiracy, that "So far as mens rea of the offence is concerned it needs be established that the accused, when he entered into the agreement intended 10 play some parI in the agreed course of conduct in furtherance of the criminal purpose which the agreed course of conduct was intended 10 achieve". The Prosecution argued that the 4th Accused's involvement in the conspiracy was by virtue of his signing the End User Certificate and the flight clearance certificate, facilitating both the 2004 and 2006 importations. These weapons were not used or kept in accordance with the End User Certificates and at least some of the weapons addressed to the 4th Accused ended up in the home of the I5t and 2nd Accused, who are private citizens. This Court is mindful that the 4th Accused being a member of the SPDF could have signed the End User Certificates as part of his duty. Although, some of these weapons were found at a civilian's home, it has not been established that the 4th Accused was responsible for this. [228] It is my determination that evidence adduced is not sufficient to establish necessary elements of the offence against the 4th Accused. There is no further evidence indicating that the 4th Accused was signing the relevant documents for reasons other than in due course of his duties at the Defence Force. Therefore, I find that the 4th Accused has no case to answer in relation to this count. [229] With regard to the 5th Accused, In the view of this Court, the Prosecution has also established the link between the 5th Accused and the alleged co-conspirators by virtue of arms and ammunition, as well as documents signed by the 5th Accused being found at the I st and 2nd Accused residence. Such link may indicate that there was an agreement between the parties. It is not necessary for the 5th Accused to be found in possession of arms and ammunition. Evidence of his agreement to play some part in the agreed course of conduct in furtherance of the criminal purpose that the agreed course of conduct was intended to achieve is sufficient to establish mens rea. Further, it would be sufficient for an alleged conspirator who had full knowledge of the plan to have agreed to playa minor role by way of assistance (Dugasse & Ors v R (SCA 25, 26 and 30 of 20 I0) [2013] SCCA 6 (3 May 2013) at [33]-[34]). [230] The evidence in support of the manner or purpose prejudicial to public order that the weapons (The nature and quantity of weapons; The vast majority of weapons were hidden or 'off books'; Digital materials; Classified intelligence documents; Nelson Flore firearm; the Timing of importations) have been addressed above. [231] The Court is mindful that the End User Certificates were signed in March 2004, when President Rene was still in office (stepped down in April 2004), however, the actual importation of arms and ammunition materialized after April 2004. The Court is also mindful of 5th Accused submissions regarding the Commander-in-Chiefs powers to give orders and instructions as well as SPDF member's obligation to comply with the orderS. Nevertheless, the blank End User Certificates found in the residence of the I st and 2nd Accused are not expressly explained in the submissions. In any case, submissions in relation to no case to answer are also not evidence adduced in support of defence of the 5th Accused. [232] The determination regarding the 5th Accused is distinguished from finding in relation to the 4th Accused, mainly due to the evidence of blank end-user certificates. This Court is of the view that it is questionable whether signing blank certificates may amount to acting in the due course of one's duties. A rebuttable presumption has been established that there may be other reasons for doing so and the Iink between the 5th Accused and the Ist and 2nd Accused is established by virtue of these documents being found at the residence of the l" and 2nd Accused. The 5th Accused therefore has a case to answer. Count 3 and Count 5 (Possession of Terrorist Property) - the }St and 2nd Accused [233] The l" and 2nd Accused are charged on Count 3 and 5. Count 3 is possession of terrorist property contrary to section 7(b) of Prevention of Terrorism and Count 5 is possession of firearms and ammunition contrary to Section 84(1) of the Penal Code. Firearms and ammunition that are subject matter in the particulars of the offence are the same on Count 3 and 5. [234] It was submitted by the l " Accused, with submissions adopted by the 2nd Accused, that Count 3 is the substantive version of the "inchoate offence set out in Count J" and that Count 5 is the substantive version of the "inchoate offence set out in Count 2 ". It is argued that no election has been made by the Prosecution as between conspiracy and substantive count. This issue has already been addressed earlier in this Ruling. The l" Accused and 2nd Accused referred submissions in relation to Count 1 and Count 2. The Prosecution has also relied on the same submissions made in relation to Count I and 2. Counts 3 and 5 - Determination [235] This Court has already addressed the possession and intention elements of the offences in relation to Counts 1 and 2. For the reasons already stated in determination on Counts I and 2, I find that there is also evidence to prove the essential elements in the alleged offence on the prima facie basis on Counts 3 and 5. I also find it cannot be said that the evidence adduced have been so discredited or is so manifestly unreliable that no reasonable tribunal could safely convict on their evidence. Consequently, I hold that the Prosecution has established z primafacie case against both accused. Count 4 and Count 6 (Possession of Terrorist Property)- the 3rd Accused [236] Count 4 and Count 6 are against the 3rd Accused. Count 4 is possession ofterrorist property contrary to Section 7(b) of Prevention of Terrorism Act and Count 6 is possession of firearms and ammunition contrary to Section 84(1) of the Penal Code. Firearms and ammunition that are subject matter in the particulars of the offence are the same on Count 4 and 6. [237] It was submitted on behalf of the 3rd Accused that the Prosecution has failed to establish prima facie case that weapons and ammunition in Count 4 were terrorist property and that they were likely to be used to commit terrorist acts. The Defence's main argument is that the 3rd Accused being a member of the Defence Force was in lawful possession of the said weapons. The arguments in relation to lawful possession already addresses under Count I and further arguments under count 6 were adopted. [238] The Prosecution in reply adopted its arguments in relation to issue of possession of firearms and ammunition by the 3rd Accused under Count I; specifically: weapons not properly held in his home, having been subject of Disciplinary Process in relation to a firearm in his home in 2014; no proper reason for him to retain firearms after the PSU was disbanded, and after Albert Rene had died in 2019; and email correspondence requiring him to return the weapons. [239] The Prosecution submitted that there was no proper basis for the yd Accused to retain the weapons, as there would have been no need for him to retain personal weapons for his role in the Seychelles Coast Guard. If and when firearms and ammunition were required to discharge that role they should have been obtained from the SDF in the usual way. The same arguments were adopted in relation to Count 6 addressed below. [240] In relation to Count 6 (possession contrary to s.84(1) of the Penal Code) it was submitted on behalf of the 3rd Accused that in terms of section 84 the proof of lawful authority rests with the 3rd Accused, and the burden to establish it is merely an evidential burden. It was submitted that the Penal Code does not define the term lawful authority or reasonable excuse and submissions referred to section 1 of the Prevention of Crime Act 1953 of England; Bryan vs Matt 62 Cri App R 71, DC (held that lawful authority is referencing people who carry offensive weapon as a matter of duty); and R vis Morel & Anal' (] 972- 1973) SLR 38 (held that lawful authority meant authority supported by law; and that excuse has been held to include authority). Therefore, it was submitted that since it is merely an evidential burden on the accused, there is sufficient evidence to raise the issue of lawful authority or reasonable excuse, and it is for the Prosecution to prove the charge against an accused person. [241] The submissions ofthe yd Accused thereafter address circumstances of possession and the issue of lawful possession. It was submitted that the Prosecution has failed to adduce evidence in relation to the element of the offence, namely, circumstances which raise a reasonable presumption that such firearms and ammunition were intended to be used in a manner or for a purpose prejudicial to public order. [242] The eleven 9* 19mm rounds of ammunitions found at the 3rd Accused residence were ammunition for Glock pistol, which the Accused did not have possession of at the time of discovery of the said ammunition. Further the accused voluntary showed ammunition in the drawer in his bedroom. [243] The 12.7* 108mm sing round was confirmed by the ballistic expert to be aircraft ammunition and Officer Chirchir confirmed that ammunition could not be fired from any of the firearms which were submitted to him for examination in respect of the case. [244] Alleged weapons and ammunition found at the 3rd Accused office safe at NISCC and safe at the dormitory at Seychelles Coast Guard had been in possession of the 3rd Accused for a lengthy period and never been used for any illegal purposes. [245] It is argued that such circumstances of possession are strong evidence that these circumstances could not raise a reasonable presumption under the Count and section 84( 1) of the Penal Code. The Defence further submits that 3rd Accused informed his superior of possession of weapon and ammunition; and was in lawful possession, in support of argument that reasonable presumption cannot be raised in such circumstances. [246] With regard to lawful authority, it was submitted at paragraphs 6.21-6.27 that the 3rd Accused was working at the Seychelles Coast Guard and was part of Presidential Security Unit of President Rene; as well as discharging his role of telecommunication officer to the President of Seychelles. It was submitted that the weapons and ammunitions were issued in the years of 1999, 2001 to the 3rd Accused by the yh Accused, in his capacity as Commanding Officer of the PSU, which has such power to issue weapon and ammunition to soldiers (it was submitted that this has been confirmed by Colonel Roseline and Brigadier Rosette). With regard to AK74 riffle it is submitted that the issuance was further confirmed by testimony of Bernard Cafrine. [247] In relation to circular dated 8 September 1994 (Exhibit P327) issued by the 4th Accused in his capacity as the Chief of Staff, which requested that except for Commanding Officers, all officers of the Defence Forces, were to return their pistol to the Defence Headquarters. It was the Prosecution's argument that based on the circular the 3rd Accused Person should not have been in possession of the weapons and ammunition found on 21 November 2021. It was further submitted that from testimony of Colonel Roseline and Brigadier Rosette it was confirmed that the Commander-in-Chief has the power to exempt any member of the Defence Force from any circular or order. Moreover, all the firearms and ammunition subject to Count 6 were issued to the yd Accused after the publication of the circular in 1994. Therefore, there is compelling evidence that weapons and ammunition had been issued legally and by way of exemption to the 1994 circular. [248] Further, it was submitted that record of issuance of Makarov pistol, Smith and Wessin revolver and Glock Pistol was officially reordered and is part of the records of the Defence Force (Exhibit 022, 08), therefore it was done in transparent manner. The records in relation to Glock pistol were disclosed to the Board of Investigation investigating the loss of the said pistol by the yd Accused. The issuance of AK74 was authorized by the Commanding Officer of the PSU, by the SIh Accused. Bernard Cafrine, according to submissions, testified that the issuance of the weapons at the PSU was not always maintained properly. It was submitted that the issuance of the weapons would also come with the issuance of its ammunition, some of which was particularized in Count 6. [249] With regard to the Prosecution's case relying on the Board of Investigation Report in respect of the Glock Pistol, and recommendation made that 1994 circular be adhered to, it was submitted that this is nonsensical: (i) there is no evidence that report was disclosed to the 3rd Accused; (ii) Glock Pistol is not subject matter of the charge; (iii) all the weapons and ammunition were issued to the 3rd Accused after 1994 circular. [250] In respect of chain of email in February 2020 relied on by the Prosecution between the 3rd Accused and Brigadier Rosette, the Chief of Staff at that time, requesting him to vacate the room occupied by him at the Seychelles Coast Guard and to return the weapons and ammunition, it was submitted that the matter of handing over in the safe in the room did not reach a conclusion and neither Colonel Roseline nor Brigadier Rosette took any further steps to ascertain whether the 3rd Accused had returned the said weapons and ammunition. The submissions of behalf of the ycl Accused referred to the following extract from his email raising point of importance of keeping the room: "[Ijts about security a/documents and other things,for the weapons ill give back all the ammo and others to HQ as it was not SCC that issued these details. I understand the requirement a/Col Dine but at this moment, until I destroy all the documents I would like to bring the attention a/the C IN C the importancea/keeping the room". [251] In conclusion, with respect to this Count, it was submitted that whether based on an evidential burden or a legal burden (on the balance of probabi Iities), the yd Accused has elicited evidence from Prosecution witnesses to establish that he had the lawful authority to be in possession of the weapons and ammunition as a member of the Defence Force. Therefore, the Prosecution has failed to establish eprimafacie case. [252] The Prosecution in reply addressed both Count 4 and 6 together, already discussed above. [253] Further submissions in reply to Prosecution on behalf of the 3rd Accused have been in relation to possession of weapons (in relation to both conspiracy and possession charges) - submitted that after passing of Albert Rene, the accused was still a member of the Defence Forces and the Prosecution has not adduced evidence that the 3rd Accused was obligated to return the weapons because he has ceased to be part of the PSU. Counts 4 and 6 - Determination [254] While the possession of the particularized weapons and ammunition is not disputed by the Prosecution and Defence, the issue in dispute is whether the ycl Accused was in lawful possession of the firearms and ammunition. Considering the evidence from the email chain in 2020, the request to return the firearms may be considered as rescinding the authority for the lawful possession of the said firearms and ammunition. It is the view of this Court that it was up to the 3rd Accused to return the weapons as requested and not leave the matter without conclusion as pointed out in his submissions. The consequences of him not abiding by the request resulted in the charges of unlawful possession of the firearms and ammunition. [255] With regard to intention under Count 4 and 6 (likely to be used to commit a terrorist act (Count 4); and intended to be used in a manner or for a purpose prejudicial to public order (Count 6», if one considers evidence under Count 4 and 6 in isolation from the rest of the Counts it can be argued that the Prosecution has not establ ished prima facie case as even at this stage of the case, prima facie it may appear that the 3rcl Accused intended to return the weapons, he did not hide their existence in his custody but for whatever reasons failed to return them. Such evidence may be sufficient to establish prima facie case for unlawful possession, however, to establish intention under Counts 4 and 6 even on prima facie basis, in the view of the Court there should be some more evidence indicating the intention for the reasonable tribunal to convict. The evidence adduced in relation to Count 4 and 6, however, cannot be considered in the isolated manner in light of the rest of the evidence pertaining to other Counts against the 3rd Accused. Consequently, considering the evidence taken as a whole, a rebuttable presumption has been established that such arms and ammunition discovered in possession of the yd Accused may have been likely to be used to commit a terrorist act (Count 4) and/or intended to be used in a manner or for a purpose prejudicial to public order (Count 6). The 4th Accused have a case to answer on both Counts and may rebut the said presumption in his defence. [256] I find that there is also evidence to prove all essential elements in the alleged offence on Counts 4 and 5, on the primafacie basis, and I also find it cannot be said that the evidence given have been so discredited or is so manifestly unreliable that no reasonable tribunal could safely convict. Count 7 (Possession of a Flare Pistol) & Count 21 (Possession of Mondial Flare Gun) - the 1st and 2nd Accused [257] The 1st and 2nd Accused are being charged for possession of flare pistol and flare gun on Counts 7 and 21, possession contrary to section 4( I) ofthe Firearms and Ammunition Act. The relevant provision states: 2. "firearm" means any lethal barrelled weapon 0/ any description .from which any shot, the discharge bullet, spear or other missile can be discharged or which can be adapted/or of any shot, bullet, spear or other missile, and any weapon 0/ whatever description designed or adapted/or the discharge of any noxious liquid, gas, spear or other thing, and includes the barrel, bolt and chamber, and any other essential component part, 0/ any such weapon as aforesaid, but does not include anyth ing which may be declared by regulations made by the President not to be afirearm " 4. (1) Subject to the provisions ofthis Act, no person shall purchase, acquire or have in his possession any firearm or ammunition unless he holds a firearm licence in force at the time. [258] The l" Accused submitted that there is no case to answer on Count 7 for the following reasons: (i) the Prosecution did not adduce evidence that the Webley-Scherrnuly is a 'firearm' as defined in section 2 of the Firearms and Ammunition Act; and (ii) there is no evidence of the item being found in situ or the chain of custody, nor is there any forensic evidence linking this item to the l" Accused. [259] Submissions in relation to Count 21 also address the Issue of whether flare gun is a 'firearm' as defined in Section 2. Therefore, these Counts will be analysed together on this Issue. [260] With regard to the issue of whether the Webley-Scherrnuly Flare Gun is a 'firearm' the l" Accused submitted that the Court cannot make its own assessment but must apply the facts adduced in court to the definition. Further, it was submitted that in court it became a matter of expert evidence of Mr Alex Ch irchi r who provided the expert report. Similar arguments were made in relation to Count 21. [261] The main contention of the Prosecution and Defence in relation to issue of definition is in relation to expert testimony and Report. The Prosecution in reply stated that Mr Alex Chirchir and Alex Mdindi Mwandawiro Report concluded that all firearms, including Webley-Scherrnuly Flare Gun were firearms within the meaning of the Act and that Mr Alex Chirchir's oral evidence must be read in combination with his Report. It was submitted that the Defence has no basis to assert that a flare gun is not 'lethal'. The Prosecution reiterated the same Submissions in relation to Count 21. [262] The Defence further disputed the element of possession by challenging the chain of custody and submitting that there is no evidence of Webley-Scherrnuly Flare Gun being found in situ at the l" and 2nd Accused's house and there is no forensic evidence linking the item to the accused (on Count 7). Consequently, it is impossible for the court to know where the item came from. It was argued that the absence of finding officer means the chain of custody is broken from the start. The issue of the item not being found in situ or chain of custody, nor forensic evidence issue were raised by the 15t Accused in relation to Count 21. [263] It was accepted by the Prosecution that there is no evidence of where the firearm was specifically found in the house, however, seized by Cpt Lucas in the kitchen at Morne Blanc. It was plainly found, as alleged in Count 7, in Morne Blanc. Therefore, there is prima facie evidence of this and there is therefore a case to answer. [264] The Ist Accused's further submissions in reply to Prosecution, dated 19th July 2024 raised the issue of reversal of burden of proof, submitting that Prosecution wrongly seeks to reverse the burden of proof, by putting the onus on the Accused to disprove that the flare guns are 'firearms' as defined in the Firearms and Ammunition Act (paragraphs 13-17 of the submissions). This issue has been addressed under Count I and I reiterate my findings in relation to Count 7 and 21 . Counts 7 and 21 - Determination [265] To reiterate the finding in R v Sou(fe & Ors (CO 52/2013) [2016] SCSC 457 (23 June 2016), "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". For this reason, I find the issue in relation to chain of custody as already stated earlier in the Ruling, is better left to be decided at the end of the trial. The same is applicable to determination on expert evidence in relation to whether flare gun is a firearms pursuant to section 2 of the Firearms and Ammunition Act. I find that on prima facie basis at this stage of the trial, the Prosecution established the elements of the offence. Counts 8 to 20 (Possession of Firearms) - the 1st and 2nd Accused [266] Counts 8-21 are possession charges contrary to section 4( I) of the Firearms and Ammunition Act. The 1st Accused's submissions in relation to these Counts are similar and at this stage would be considered together. Firstly, it is argued that the element of possession was not established by the Prosecution. Reference was made to earlier submissions already addressed in relation to Count 1, specifically issue of ' control'. [267] Secondly, it is argued that the authorization argument and exception under section 44 of the Firearms and Ammunitions Act apply to firearms and ammunitions, importation of which was established in shipment evidence (according to the pt Accused's submissions: Count 8, 10-20). With regards to Count 9, the l" Accused submitted that the Prosecution has not provided evidence linking the rifle to the 2004 and 2006 shipments and is therefore put to strict proof that the item was part of the shipments. In the event that the Prosecution is able to prove it, the JSt Accused states that the authorization argument applies. [268] Thirdly, the 1st Accused addressed the issue in relation to the chain of custody with regards to Counts 8, 10-20. [269] The prosecution, in reply, submitted that in relation to Count 8, it is accepted that there is no evidence of where in the house the firearm was actually found, but it was found 'in the house' as alleged in Count 8. In relation to Count 9, the Prosecution submitted that it is irrelevant whether the item formed part of the shipment, the allegation is that the 1st and 2nd Accused were in possession of the item at their home. In relation to Counts 10-12 the Prosecution referred to evidence highlighted at paragraph 11 of their submissions stating where the weapons were found. With regard to Count 13 the Prosecution submitted that there is simply a typographical error in serial number of the weapon, which cannot be the basis of no case to answer. In relation to Counts 14-18, the Prosecution referred to paragraphs 12-13 of their submissions with regard to location in the house where weapons were found. Tn relation to Count 13, the Prosecution referred to paragraph 14 of their submissions with regard to location in the house where weapons were found. In relation to Count 20, reference was made to paragraph 15 of their submissions with regard to location in the house where weapons were found. [270] On the issue of authorization, the Prosecution submitted the same reasons as already discussed above in support of their argument that the 1st and 2nd Accused did not have the authorization. Counts 8 to 20 - Determination [271] The issue of authorization, possession, and chain of custody has already been addressed by this Court in detail and the same reasoning applies in relation to these counts. I find that that on prima facie basis at this stage of the trial, the Prosecution established the elements of the offences under section 4(1) on Counts 8-20. Counts 22 to 25 (Possession of Firearms) - the yd Accused [272] The 3rd Accused is charged for possession of firearms contrary to Section 4(1) of the Firearms and Ammunition Act on Count 22-25. With regard to the Counts for possession, the 3rcl Accused raised arguments in relation to lawful possession already addressed under Counts 4 and 6 above. The Prosecution in reply also adopted its arguments in relation to Counts 4 and 6. Counts 22 to 25 - Determination [273] For the reasons already addressed under Counts 4 and 6, specifically, in light of the email evidence, it is determination of the Court that the )ld Accused has a case to answer on Counts 22-25. Count 26 (Abuse of Office) - the 5th Accused [274] The 5th Accused has been charged with abuse of office contrary to section 96 of the Penal Code on Count 26. Section 96 states: 96. Abuse ofauthority 0/ office Any person who, being employed in the public service, does or directs to be done, abuse of the authority of his office, any arbitrary act prejudicial to the rights of another is guilty of three years. If the act is done or directed a misdemeanour and is liable to imprisonment/or to be done for purposes of gain he is guilty 0/ a felony, and is liable to imprisonment for five years. A Prosecution for any offence under this section or section 94 or 95 shall not be instituted except by or with the sanction of the Attorney General. [275] The submissions on behalf 5th Accused advanced arguments already discussed under Count 2 in relation to 5th Accused. To summarise, the arguments are that executing the End User Certificate was in line of an instruction given to him by the Commander-in-Chief at the time, President Rene. Therefore, the 5th Accused was acting lawfully and with the authority of his position as the Commander of the PSU unit of [ate Albert Rene and as an officer of the SPDF. The same argument was also advanced in relation to SOP not existing in 2004 and 2005. It was submitted, therefore, that the Prosecution has failed to prove the essential elements of the offence, namely, 'abuse of the authority of office'. [276] The Prosecution, in reply, submitted similar argument to those on Count 2. In summary, the arms and ammunition subject to the End User Certificate signed by the accused were not used as required (weapons found at residence of the l" and 2nd Accused; 'off-books' weapons and far greater in number than the number of soldiers in the PSU). The End User Certificates were not complied with, and the yh Accused was responsible for that. This establishes an abuse of the 5th Accused's authority in office, was arbitrary and prejudicial to the rights of another. The yh Accused while in public service, was further involved in the importation of these firearms and ammunition (was in correspondence with Delta G with regards the purchase of such weapons on 3 May 2004, 11 May 2004, and by signing a letter confirming the order and offer dated 12 May 2004 [Annex 8)). Further, it was submitted that the testimony of Cafrine confirms that the 5th Accused was involved in organizing the collection of firearms and ammunition from the airport in the country. Moreover, abuse of office is demonstrated by the fact that the Accused signed blank End User Certificates (dated 4 March 2004). The Prosecution submitted that in doing so he created an opportunity for others to fill such certificates, potentially without his knowledge and control, to import and distribute firearms and ammunition in a totally unregulated manner. It was submitted that this amounts to a clear further abuse of his office. Such action was arbitrary and prejudicial to the rights of another in that it allowed dangerous weapons to enter the country and be distributed in a manner without supervision or oversight by the relevant authorities. With the consequence that they could be used in a manner adverse to the people and population of the country. For the said reasons, the Prosecution submits that the Accused have a case to answer. Count 26 - Determination [277J For the reasons already stated in relation to the yh Accused under Count 2, this Court is of the view that it is questionable whether signing blank certificates may amount to acting in due course of one's duties. A rebuttable presumption has been established that the 5th Accused may have abused the authority of his office. The prima facie case therefore has been established and the Accused have a case to answer. Count 27 (Abuse of Office) - the 4th Accused [278] The 4th Accused has been charged with abuse of office contrary to section 96 of the Penal Code on Count 27. [279] It was submitted on behalf of the 4th Accused and agreed by the Prosecution that the elements of the offence are: (i) an employee in public service, (ii) abuses his authority or sanctions an act, (iii) such act is arbitrary, and (vi) is prejudicial to the rights of another. [280] The submissions on behalf of the 4th Accused referred to Kenyan case Karas and Republic [2022] KEHC 10250 which defined 'arbitrary' as "based on random choice or personal whim"; and concluded that "where an action is not founded on law or predetermined procedure, the action is said to have been done arbitrarily". The Prosecution need to prove that accused's actions were done according to his will or whim without due regard to the legal requirements or procedures. [281] The case against the 4th Accused is based on allegation that he facilitated importation and distribution of firearms and ammunition without following the required protocol and procedure. It was submitted on his behalf that, firstly, from the Prosecution's evidence it was established that in 2006 there was no established protocol and procedure in 2006 and the first protocol issued by the Defence Force was in 2021. [282] Further, it was submitted that the End User Certificate of 2006 was executed by all the necessary authorities; and arguments in relation to the alleged illegal importation addressed on Count 1 against the yd Accused, were adopted in support of no case to answer submission on Count 27. Further, it was submitted that there is no evidence that the Accused was involved in distribution; acted according to his will or whim without due regard to legal requirements or procedures; and there is no evidence that the act of the Accused was prejudicial to right of another. [283] The Prosecution, in reply, submitted that the 4th Accused signed End User Certificate which stipulated that the weapons were for the exclusive use of the SPDF, yet some of the weapons, importation of which, he facilitated were found at the Mr and Mrs Valabhji's residence, one weapon was found in a property overlooking the home of then opposition leader, now President, Wavel Ramkalawan; and one pistol is still missing. It was submitted therefore that the End User Certificate, used to facilitate the importation of the arms and ammunition, signed by the 4th Accused, in his capacity as the Chief of Staff, was not complied with. Accordingly, such action was arbitrary and prejudicial to the rights of another in that it allowed dangerous weapons to enter Seychelles and be distributed in a manner without supervision or oversight by the relevant authorities, in particular enabling weapons to be hidden in the home of private citizens, and be missing. With the consequence that they could be used in a manner adverse to the people and population of Seychelles. Count 27 - Determination [284] I find that there is no further evidence indicating that the 4th Accused was signing the relevant documents for reasons other than in due course of his position at the Defence Force. Therefore, it is the determination of the Court that the necessary elements of the offence has not been established by the Prosecution with regards to this count. Consequently, the 4th Accused has no case to answer with regards to count 27. FINAL DETERMINATION Abuse of Process [285] In the circumstances of this case and for the reason stated in this Ruling, I find that the abuse of process justifying the stay of proceedings has not been established and the trial shall proceed. No case to Answer [286] To conclude, having carefully considered the submissions of the parties before the Court with a view of finding out whether the evidence taken at its highest, is such that a reasonable tribunal could properly convict the accused upon it, I did this with special emphasis given to the essential elements of the offences charged. In my analysis of the evidence I am conscious of the need for this court to be circumspect and not to apply the proof beyond a reasonable doubt test at this moment in time. [287] Having carried out this exercise, I am of the view that on evidence led before me, taken objectively as a whole, a reasonable tribunal having properly directed itselfmight convict the 151, 2nd, 3rd and 5th Accused. I therefore find that the Prosecution has established a prima facie case against the 151, 2nd, 3rd and 5th Accused on all the charges against them and, therefore, the submission of no case to answer fails to succeed and is dismissed. I hold that four accused have a case to answer in respect of the charges framed against them and I proceed to call for a defence from the 151, 2nd, 3rd and 5th Accused. [288] I find that the case against the 4th Accused on all counts (Counts 2 and 27) has not been made out and pursuant to section 183 of the Crim inal Procedure Code the 4th Accused is hereby acquitted for reasons of no case to answer. 84