Government of Seychelles v Delpech & Anor (MA 184/2021) [2021] SCSC 1000 (24 September 2021)

SUPREME COURT OF SEYCHELLES Reportable [2021] SCSC 6f20 MA 184/2021 (Arising in MC23/2021) In the matter between: THE GOVERNMENT OF SEYCHELLES (rep. by Nissa Thompson) Applicant and DAVE DELPECH SHARON MARIE (rep. Basil Haareau) 1sf Respondent 2nd Respondent Neutral Citation: Before: Heard: Delivered: Gav of Sey v Delpech & Anor (MA184/2021) September 2021) Burhan J 14thSeptember 2021 24th September 2021 [2021] SCSC ORDER This Court makes Order that in hearing the Interlocutory Application MC 23 0[2021, this Court will proceed to consider whether to issue an Order pursuant to Section 8 of the Proceeds of Crime (Civil Confiscation) Act, appointing Inspector Terence Roseline, to be a Receiver of all or part of the property to manage, to keep possession or dispose of or otherwise deal with any other property in respect of which he is appointed in accordance with the Court's directions. It follows that the prayer to appoint Mr. Prinsloo as Receiver as set out in the Interlocutory Application MC 23 of2021 is accordingly amended. The application for the evidence of Mr. Hein Prinsloo to be taken by way of video link is granted. RULING BURHAN J [1] On the 2nd of August 2021, the Applicant filed a Notice of Motion seeking that the matter be taken up urgently during the court vacation in order to seek inter-alia an order that Mr. Hein Prinsloo be granted permission to give evidence via video link pursuant to section 11 C of the Evidence Act of Seychelles and inter-alia an order appointing Mr. Terrence Roseline as Receiver of the said property. [2] The reasons for such an application are set out in paragraph 5 of the Application. The main ground urged being that Mr. Hein Prinsloo's contract of employment has ended at the end of April 2021 and due to the prevailing Covid 19 situation, he is unable to come back to Seychelles for the purpose of giving evidence which would be prejudicial to the case of the Applicant. [3] Learned Counsel Mr. Hoareau's contention is that as there is an application seeking the appointment ofMr. Prinsloo as Receiver and the Applicant cannot now come before court in another application while that is pending and seek that another Receiver be appointed. Either they should have withdrawn the Application or amended the Application. It is his contention that this is procedurally wrong and amounts to an abuse of process. [4] It is clear when one peruses the contents of the new Notice of Motion, the Application moves court that Mr. Terence Roseline be appointed as the Receiver to the property referred to in the Interlocutory Application. Learned Counsel is correct when he states that the earlier Application to appoint Mr. Prinsloo to the same property should have been withdrawn or a request should have been made to amend the earlier application and to appoint Mr. Terence Roseline as the new Receiver. However I am inclined to disagree with learned Counsel for the Respondents' contention that this amounts to an abuse of process. [5] Lord Lane CJ and Sir Roger Ormrod in the case ofR v Derby Magistrates' Court, ex parte Brooks [1985] 80 Cr App R 164 set out circumstances in which an abuse of process can occur. It was held - "In our judgment, bearing in mind Viscount Dilhome's warning in DPP v Humphreys [/977J AC 1 at 26 that this power to stop 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, that the power of the justices to decline to hear a summons is "very strictly confined," the effect of these cases can be summarised in this way. Thepower to stop aprosecutionarises only when it is an abuse ofthe process ofthe court. It may be an abuse of process if either (a) the prosecution have manipulated or misused the process o[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 ofprobability the defendant has been, or will be, prejudiced in the preparation or conduct of his 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. [6] In this instant case it cannot be said nor is it even the contention of learned Counsel Mr. Hoareau that the Applicant has manipulated or misused the process of the court, so as to deprive the Respondent of a protection provided by law neither can it be said that prejudice has been caused to the Respondent in the preparation of the defence by unjustifiable delay by the prosecution. Therefore it is clear that no prejudice has been caused to the Respondents and as such learned Counsel for the Respondents submission in respect of a resulting abuse of process bears no merit. [7] In the body of this application MA 84 of 2021 and submissions learned Counsel for the Applicant has clearly intimated to court that it is their request that Mr. Terence Roseline be appointed as Mr. Prinsloo has left the jurisdiction at the conclusion of his contract. Paragraph 12 of the affidavit of Mr. Roseline dated 2nd August 2021 supporting the application, seeks "an Order that Inspector Terence Roseline OR such other person as this court shall direct be appointed as a Receiver ". Therefore it is clear that this application is not an application to jointly appoint Mr. Roseline with Mr. Prinsloo. All the facts taken in its entirety, clearly indicate that the new application MA/84 of2021 dated 2nd August 2021 is for the appointment of Mr. Roseline as the new Receiver of the specified property in respect of the Interlocutory Application and not Mr. Prinsloo already appointed in the earlier Interim Application due to the reasons given in paragraph [2] herein. [8] As no prejudice has been caused to the detriment of the Respondents, I dismiss the objection. This Court therefore makes Order that in hearing the Interlocutory Application MC 23 of 2021, this Court will proceed to consider whether to issue an Order pursuant to Section 8 of the Proceeds of Crime (Civil Confiscation) Act, appointing Inspector Terence Roseline, to be a Receiver of all or part of the property to manage, to keep possession or dispose of or otherwise deal with any other property in respect of which he is appointed in accordance with the Court's directions. This Court will not proceed to consider Mr. Prinsloo as a·¥eceiver as his contract of employment has expired. It follows that the prayer to appoint Mr. Prinsloo as Receiver as set out in the Interlocutory Application MC 23 of 2021 is accordingly amended. [9] Learned Counsel for the Respondents Mr. Hoareau did not object to the application for the evidence of Mr. Hein Prinsloo to be taken via video link. Therefore the appl ication for the evidence of Mr. Hein Prinsloo to be taken by way of video link is granted. This concludes MA 84 of2021. [10] A date is given for the filing of further reply/objections to the Interlocutory Application MC 23 of 2021 if necessary following the aforementioned amendment. Signed dated and delivered at lie du Port on 24th September 2021 Burhan J 4