R v Valentin (CO 68/2016) [2017] SCSC 967 (4 December 2017)

IN THE SUPREME COURT OF SEYCHELLES CriminalSide: C068/2016 r2017] SCSC 12.. 0<1 THE REPUBLIC versus EV ANIO VALENTIN Accused Heard: Counsel: 2 November 2017 Mr. K. Karunakaran, State Counsel for the Republic Mr. A. Juliettefor the accused Delivered: 5 December 2017 JUDGMENT Vidot J The Charge [1] The Accused stands charged with one count of trafficking in a controlled drug, namely heroin (Diamorphine), contrary to Section 9(1) read with Section 19(1)(c), and punishable under Section 7(1) and the Second Schedule of the Misuse of Drugs Act. [2] The particulars of offence are that on the opt December 2016 at around 1O.00hrs. at Cote D'Or, Praslin, the Accused was found in possession of a controlled drug, namely heroin (Diamorphine), having a total weight of 23 grams, giving nse to the rebuttable presumption of having possessed the said controlled drug with the intent to traffic Prosecution's Case [3] The Prosecution called 2 witnesses, namely, PC Carlos Malbrook, a Police Officer with the Respond Service within the Police Force and PC Vincent Orphee who was an Agent of the now defunct National Drug Enforcement Agency (NDEA). [4] They both testified that on 25th November 2016, they together with other officers were sent to Praslin under instruction to assist the Crime Combat Group (CCG) to suppress a rise in crimes on that island. They carried out mobile patrol particularly in hot spots where drugs related crimes were suspected to be happening. [5] PC Malbrook testified that opt December 2016, he accompanied by PC Ferley and PC Ernesta on mobile patrol in a vehicle, whilst they were supported by officers in another vehicle. In that other vehicle were Cpl. Doudee, PC Vincent Orphe, WPC Vidot and Officer Dubignon. They had proceeded in an area next to the beach at Cote D'Or within the vicinity of 'AI shop' near the beach where they had noticed a group of 5 people in that beach area and they suspected that drugs' related activities were taking place. The group in which PC Orphe was in came from the upfront towards the group whilst his group went around coming from the beach area in order to circle and surprise the group. [6] He further testified that when he was some 8 to 10 meters from the group of people who was facing away from him, he observed the Accused throw an item to the ground with his left hand which he described as a "clear plastic". The area was circled. The officers then accosted the Accused. PC Orphe picked up the clear plastic. He is alleged to have said that he had found something and showed it to the Accused. PC Orphe had then continued to search where he discovered another 2 plastics similar to the first. The Accused was searched by Cpl. Doudee and nothing illegal was found on him. [7] Whilst PC Orphe recounted the incident he referred to instruction to go to Praslin and the incident involving the Accused. He contradicted PC Malbrook by insisting that when his team approached the group of people there were only 2 other persons present apart from the Accused. He said that he saw the Accused throw an item to the ground and later he picked it up and in the same area another 2 similar items were discovered. Cpl. Doudee held and searched the Accused. The Accused's Constitutional rights were read to him. [8] PC Orphe proceeded to keep the exhibit whilst the Accused was brought to the Baie Ste. Anne Police Station. The exhibits were kept in his custody and on the same day brought them down to the SSCRB for analysis. Later he obtained Certificate of Analysis from Forensic Analyst J. Bouzin. The certificate confirms that the items were heroin. Defence's Case. [9] The Defence does not dispute that the items that were analysed was heroin. They dispute that it was the item that the Accused was allegedly seen throwing onto the ground. The defence further argued that if indeed the Accused was seen throwing what was sometimes described as an object and at others, a clear plastic, he could not be charged with trafficking in all the 3 items that were found on the ground. The prosecution could not identify to court which of the 3 items (Exhibits P3(a), P3(b) and P3(c) ) was that which the Accused threw on the ground when the officers approached him. Mr. Juliette for the Accused reminded Court that in order to establish the offence, the Prosecution needed to show that the Accused had possession of the items and that requires that the Accused had control and knowledge of the items. [10] The Defence, though not objecting to the production of the exhibits challenged the chain of custody. They dispute that as the Prosecution invited Court to believe, it was PC Orphe who recorded on the evidence envelope. In fact the Defence in pushing forward its case for an acquittal argued that the Prosecution evidence is so tenuous that it cannot be relied upon for a safe conviction. The Law [11] In order to establish the charge the Prosecution needed to show that the items that were recovered were indeed controlled drug. That is not in dispute. The Prosecution needed to establish that the Accused has possession and control over the drugs and once that is established that the Accused had knowledge of its illicit nature. It was held in R v Albert r1997J SLR 271 that in establishing a case of trafficking in a controlled drug, it must be established that the accused has both possession and knowledge. Circumstantial evidence may be admitted from which a reasonable inference that the possession was for the purpose of trafficking can be made. [12] The Accused may raise a legal doubt in the Prosecution's argument in regards to his state of mind, if it can establish that he did not have knowledge of the drugs or the illicit nature. [13] In this case the amount of drugs recovered is of such an amount that it gives rise to the presumption of being in possession of the same with intent to traffic as per Section 9 (1) of the Misuse of Drugs Act. This is a rebuttable presumption. It shifts the legal burden on the accused once it is established that the Accused possessed the prescribed quantity of controlled drug for the purpose of trafficking. When that legal burden shifts on the accused the standard of proof is the balance of probabilities; see R v Bouchereau [2008J SLR 361 and R v Francois [2000] SLR 103. The drugs in this case exceeded the mandatory minimum for mere possession. [14] Any discrepancy in weight of the controlled drug is material. The Prosecution needs to explain that discrepancy. Such discrepancy may be considered reasonable explanation if it is the result of an inadvertent mistake; see Robert Rioux v Republic [1997] CA No.lt. Evaluation of facts and Law [15] Of the 2 Prosecution witnesses, I found the evidence of PC Malbrook reasonably credible, though at times he was clearly being untruthful. I cannot vouch the same for PC Orphe. PC Orphe was in most parts being evasive and economical with the truth. To put it bluntly, was continually lying. I strongly discourage police officers to adopt such approach. It shows a lack of respect for the court and the uniform they wear. If officers of the force adopts such behaviour, the credibility of the police is compromised. [16] There was contradiction in the 2 prosecution witnesses as to who the Accused was facing when the officers approached him. PC Malbrook even contradicted himself when giving evidence. Be that as it may, I don't consider such contradictions material. There was also contradiction as to which hand was used to throw the item to the ground. PC Orphe at some point stated it was left and at other the right hand. PC Malbrook maintained it was the left hand. That again is not a material contradiction. However, I do find the former's testimony that he only watched the item being thrown down but not observe where it fell as a total fabrication in an attempt to satisfy other evidence he was going to adduce. That contributed to cast doubt on the veracity of PC Orphe's testimony. [17] I also totally disbelieve PC Orphe when he testified that he recorded the entries on the evidence envelope. The handwriting on the envelope is similar to that of his statement which he confirmss was recorded by a woman police officer. The exercise carried out by Mr. Juliette for the prosecution clearly showed that the handwriting on the envelope is without doubt not his. I do acknowledge that this Court does not have expertise in comparing handwriting but the difference here was stark. The averment by PC Orphe that he uses different forms of handwriting is an absolute lie. This again casts doubt on the veracity of his testimony. [18] The difference in handwriting on the evidence envelope and that of PC Orphe suggests a break in the chain of custody of the exhibits. This further casts doubt on the evidence of the Prosecution. Even PC Orphe until he was made to cut opened the evidence envelope suggested that there was only one item he brought for analysis. It was only when the same was brought to his attention that he mentioned that there were 3 items. This is a material consideration, though I tend to believe that it is highly probable that he submitted 3 items for analysis at the SSCRB. [19] Both witnesses allege to have seen the Accused throw one item on the ground. PC Orphe stated; "I saw him throw a small plastic from his left hand". PC Malbrook corroborated that evidence when he testified "He threw one plastic ..... Isaw one ...... it was one plastic bag". He further added; "absolutely no mistake, I saw him throw one packet ...... like I I've said, I saw only one "; there is no doubt that there could not have been 3 packets. They both said they saw him throw a clear plastic. I view this evidence with caution. I find it difficult to accept that from the distance these witnesses were from the Accused, they could identify at that stage that it was a clear plastic, particularly when the content of the plastics as produced are brown. Had they said the saw an item that appeared brown, that would have been more plausible. [20] Despite being seen throwing one item to the ground, the Accused was charged with trafficking with all 3 items recovered. In fact, it is clear from the evidence of PC Malbrook that the witnesses, in particular, PC Orphe would have been able to identify it had he kept the item he saw being thrown out separate from the others. He testified that when he found the item that was thrown down he "picked it up in the presence of Evanio Valentin". However, this evidence is weakened because he testified that he did not see the item hit the ground. PC Malbrook stated that PC Orphe searched the area where the item was thrown and picked up a plastic. PC Orphe showed it to the Accused and then he continued to search and found the other 2 items. This suggests, contrary to what the witnesses stated, that the items were not found next to one another. [21] The Prosecution needed to satisfy Court that the Accused had possession of the drugs. That as above mentioned requires proof of the elements of control and knowledge. Knowledge can be imputed from the act of the throwing away of the items upon the officers approaching the Accused. Control becomes more difficult to establish because there were other persons present at the scene where the Accused was located. According to Malbrook, there were five. The Accused had no control over that area. There is no indication that the Accused threw all 3 items. At the most he threw one. [22] In a case of drugs weight is material. The Prosecution has suggested that Court could still convict for possession of one of the packets that was found. That is an impossibility. How does the Court choose which packet the Accused is deemed to have thrown down when the witnesses themselves could not do that. In failing to identify the particular item the Prosecution has failed to establish the case with an acceptable degree of certainty necessary in a criminal case to warrant a conviction; vide Robert Rioux v Republic (Supra). For these reasons it will be totally unsafe to convict the Accused as charged. [23] Therefore, I proceed to dismiss the case against the Accused. Signed, dated and delivered at Judge of the Supreme Court 7