Rene v R (SCA 2 of 1996) [1996] SCCA 42 (30 October 1996)

~.. ....-- IN THE SEYCHELLES COURT OF APPEAL SELBY RENE APPELLANT THE REPUBLIC RESPONDENT Criminal Appeal No.2 of 1996 Mrs. N. Tirant-Gherardi Mr. A. Fernando for the Respondent for the Appellant JUDGMENT The appellant was charged on a complaint that on 24th August 1995 he trafficked in a controlled drug, namely Cannabis, by having in his the said Cannabis. He possession 470 grammes 700 miligrammes of pleaded not guilty. He was convicted and sentenced to the minimum mandatory sentence of 8 years imprisonment. He now appeals against his conviction on the following grounds - 1. 2. 3. facts adduced the Appellant should not Upon the Prosecution, law have been convicted of as charged. the in the offence by to be trafficking The Learned Trial Judge erred in law in . finding the Appellant in view of the fact the only evidence of that trafficking was the presumption which in a position to the Appellant was not rebut having denied the fact that he was in possession of the same. consideration The Learned Trial Judge failed to qive the material due discrepancies in the evidence of the main prosecution witnesses. to the Appellant submitted that the Appellant was trafficking the 1st Mrs. Tirant who appeared for it was not averred in the indictment and 2nd grounds of appeal, judge erred in law and that that She in that or words to that the words "thereby trafficking", held the view that effect, should have been included in the statement of particulars of the offence. rested on a legal presumption. the finding of trafficking the trial under under the material discrepancies Learned counsel submitted, view of Prosecution there was the possibility unsafe to convict physical possession of the controlled drugs at the time of his arrest. in in the evidence adduced by the it was found In of a mistaken identity the more so as he was not the third ground of appeal, the Appellant, that The indictment preferred against the Appellant read as follows - the 24th day of August, "That on or about in 1995 at Pointe Aux Sel Mahe did traffick controlled drug namely Cannabis by having in your (the miligrammes underlining is ours) said Cannabis." possession grammes the of indictment 'trafficking'. If it were otherwise, On the other hand, is clear that under that the Appellant had been charged It from the it was also clear with the prosecution was relying on the legal particulars of the offence that there would have been no necessity presumption. to make reference to more than 25 grammes - the for the indictment level at which the legal presumption arises. The prosecution on the other hand, proved facts which were strictly in accordance with those the Appellant was set out in no way misled and was fully alive to the charge, and the particulars thereof, which he had to meet. We therefore dismiss the first two grounds of appeal. in the statement of particulars. We hold that As regards the third ground of appeal, Learned Counsel drew our It was attention to what she considered to be material discrepancies. however not disputed that a man dropped a bag containing cannabis and ran away on seeing the police. It Three of That man w.as in physical possession of the bag immediately before he is immaterial whether 3 or five policemen were then dropped it. present. they had known the Appellant and they were able to identify him as being the man who dropped the bag as they were at a distance of about 10 metres when they saw him. the policemen gave evidence that been running. judge found to be a truthful witness, gave Mrs. Lajoie, whom the trial the Appellant was walking normally and did not show evidence that signs of having It was urged that her evidence cannot be reconciled with the evidence of the police officers who ran after the man who had dropped the bag and who must have been out of breath when Mrs. Lajoie spoke to him. justified as police witness Doudee did give evidence that he saw the Appellant running but afterwards he walked normally down the road. There is thus no inconsistency between the evidence of Mrs. Lajoie and police witness Doudee. This submission is not On the evidence before him the trial come to the conclusion containing trafficking in the indictment. judge was fully justified to have it was the Appellant who dropped 470 grammes thereby in a controlled drug as averred in the statement of offence 700 miligrammes of Cannabis, that The appeal is dismissed with costs. \ ~ r;/". Lt~LV,__-ttl\.(V ................ ~ E. O AYOOLA Justice of Appeal . .......~~ H. GOBURDHUN President . ••••.. ol....h. V,,,.; /h" ~-k- L. E. VENCHARD Justice of Appeal •.•..•.•.• ·• D I· e rvere d on t hi J.[)rl d IS ;-)...• '. ~ ay 0 f OC 7C/SL~; 1996 \. . --