Weston Noel v Republic (SCA 11 of 1984) [1984] SCCA 3 (5 October 1984)

IN THE :::;1!;YCliliIwES COUR'l1 OF APPEAl., Weston Noel v. The Republic Criminal Appeal No. 11 of 1984 Mr. Esparon i-or the appellant Mrs. Moulinie-Georges for- tne Repu'o Li.c JUDGMBN'l' OF T1i~ COURT Thit:lis an appeal by Weston Noel against his convic"Gion on an informa,;ion which cnarged him wi"h possession on ~4t;h November, 1983 at Rock Lane I Mahe of danger-ous drugs, namely, 1 gm , BeO mg. of cannabis without Lawt'uL authority contrary to SSe 4, 5, 25(1) and (1) or:the Dange;.-ousDrugs Act Capo 186. The evidence in support 01 the case for tne prosecution, which tin e learned ,;rial Judge believed, was to this e~fect. Ar-ound 10.30 avm.; on 2Li-t.hNovember, 1983, Sgt. Forte and Pulice Cunstables Esparon, BelLe antiElizabeth, uresseu as civi. Lians, .began uo keep watch on a house occupieu by the For this purpose family at Rock Laneo appe~~ant ~nahis they concealeu themselves under an 010. house about 15' from Revolution saw about 10 perso-ns going Between that time ana 2.,0 p.m. they into and c onn.ng ou-t fJ:om tone Avenue. - --'- house at short ~ntervals. Ai; about 2.30 p.m., a man known to the .l-'ol~ceas Roland Orphee, went in-c;othe appellant's house ana came out,five md.nutie s later followed by the appellemt. They "t;h~tthe appellant; was tinen.we ar-Lng a pair of jeans and had' his I-ight hand ansaue pellaut and then turned around to retur-n to it. ~ . As he pr-oc eededcro uo so Sgt. Forte and his men cam" out of hiding from under the "house and we'nt towards the appelLant's house. ,Theap- i'rol!l his house the pocket of ha s tzrouser-e, saw Orphee of't' on the tr-ack leading observed The appellant saw them as thElY got to about 5' ,from him and immediately he removed his r,ight hand f-rom his pocket P. C. BeLle thereupon and :f>lacedsomething in his moutho moved in on the appellant and helu him. With his right hand P. C. Belle clawped the appellan-c;'sjaw and chin, While P. C. Esparon held onto Eliza"p'eth,tile other. one of nis arlllSand P. O. A struggle ensued in .the course of which a .small.ball: was expe i r.edi-rom thl:>appe Ll.arrt's mout Ir, of macer-a.ai. Forte picked l.t up, and took it; toth ••Government Anal:ys" George Lai Lam on 2o\,n November, 19b3 for examina"t;ioj..l. Sgt 0 I f I I-I Th" ,Anaiyst examined it; and r-et.ur-nec it; to Sgt. Forte on the aame day witii his cert;ificatt:: verifying that "tJle materia~ ana that nandea to him by ~gt. Forte w~ightd ~g. 88u mg. it was cann~biti There was a funuamental riaw in the prvs~cution res~n. case however arid i.t ar ose in this way,o secution c i ai.n at t ue t~'~aJ. tu ••t 'tue ma'(;er~a. L exp e.iLed In proof 01.' the pl"O- trom tue appellant I s mouth was cannabis resin, the Analyst' ~i ctlrtil'icat;e ana an enve i ope with its conven •.s wtlre tendereu. and aamit;t;ea J.n tlviaenc". An app Li.c ab.i on was t ner eupoa made and gr-ant eu for tne attendance 01' tIle Analysi,; lor c z-oss-exanunavi on; i'he ce.i.'- tifica'te ""t; triat stage hac an endcr-seuenu on it sf.gneu by the Analyst cer'tirying that "tile materJ. ••.l was returned to ~gt. For"te on ~ti November 1~j, but below that under- the s.i.gnacur-e of Sgt. J.c'orte t hea-e appeared endorsewent anotrh er- endor~ement n30/'1 1/e3 n. ackliowJ.euging tha"t he receiveu the ma1;eriaJ. on The Analyst had z-e tuz'ned tiie mat;",rial in a se"J.ed envelope to egt. Fortt::. Whell nowever it wa~ aumitteu in evidence there wa~ no writing in Court anti opened, there wa~ materi~ in it, but or endorsement on the envelopetc iaentify it with the euvelope which tne Analys'(; handec to Sgt;. Furte on .::8 November ar cr-esea,u , On b.,lng cross-examined exhibit the returned the Analyst swore that he to Sgt. ~orte on c:8 November anu that tue w,.:itrt en enaor-semenf tne.r'eon stating that it was r-ecea ved 'by Sgt. ~orte on n:;'U/11/ti,," Wclti a miSl;akeo Wuen he was' ~hohn the enveJ.o~c and further quest;ioned he had this ~o say: env eLopa 1 have my :4J,itial exrri.ba t 1 on ti.l.e 20th. set:: any ini'(;lal 1 a.iwa s ut m init1o.l "I gave back the the this nor ai; (emphaS1S addeti). the datto one I tio not the oaCK 01 the envelone on tile back, UsualJ.y on but on on i •., and (si~.) ana the date ~t. The record "Q. A. Q. A. of m s re-examina •.ion a s &.0 'the ceri;i:fiaa't.e You saia t.u.e exh. that; (sic.) was r-et uz-ned un tile 2~tn. the, rollowing e,(I:ect: is ua't.ed ::lUl. U but Yes. courc ~t happen that leu tne errve Lope but you ovez-Loczeu? you t.hougln, you have initial- (s. Lc.) If ~t uoes, situa'tion anu aate ~t 1S tne first time I overlOOK such because I ao maKe sure i"t ana. seal . L"t 1n l'rontoJ. that ~' sign it ,"tne 2&'1;."(sic.) There was tihus a break in the chain of evidence linKing And as the case fOl:' the tne exhibit produceu in court with tne substance expelled from the appe Ll.arrc IS mo uuh , prosecution couLu not have been established without the pr-oduc tdcn 01 the original. material or without proof of its existence by secondary eviaence if tne absence of tne original was satLaracc cc-a Ly accountea lor, tne case ougnt to have been dismlssea. A.lthougllthis flaw remiiined uncorrected, tneprosecuuion The appe1.lant was thereupon called to cLo sed its case. answer the CHarge atter being auvisec1 of his options. gavE: evidence on oath vigorously denYlng in his mouth, or tnat anything was expelled from it, or that th~ SUbstance produced in court was in his possession as claimed by tne prosecution. was severely beaten up by tne police without cause or jus- tification. but th~ learned trial judge rejected his evidence and that 01' his witnesses as untrue. He called t_hreewitnesses to support his story He allegea in aUdition tnat he He - he had anyt;hlng In the reasons given by tne learned judge for convf.c t Lng tne appellant he referrecispecifically the Analyst and ec ateu , Lrrt er- ali"", as .follows: to the evidence of The explanations sUi;gesttidby t;he learnea trial judge The first possi"oility· were, with great respec'C, no't;only speculative but it was impermissible for him to suggest any. was not supported by the eviaence or by the condition of the envelope which we ourselves had an opportunity to examine and indeed "CueAnalyst himself who examined the envelope in court nevez- suggested second possibility suggested by tIle learned. trial judge tne Analyst expressly discoun"tea it as one which was "very ::;lim". Buell a possibility. And as to tlle The only point argueo. by l'1r. Esparon for the appellant; wa$ that the prose~ution raiLed to estabLish that the subs- tance contained in the envelop~ (Exhibit 1) was the SUDti- t ance found on tIlE:appeLiant;antiwas in ract cannabis resina The po i.rrt.; in our view, was we L; taken. Georges sought; to save the day 1'or the pr-oaecuta on by Mrs. Moulinie- ~'T1lf1f~~'!""""i""~."",,~,~I"?i'~": '".,!" .••"'"'rf'~I'I"''''''''''~'''''''~:~I'i'Ii\!t~:'' coritending 'that the identity .or the material expelled ,n:'9ID the appellant I s mou t h , with the contents contained int!),~ envelope, was established by t:igt. J!'orte 1 s evidence, "he, c Led.med that the envelope he produced in court Ln whicil oozrt ad.n eu : the contents wh i.cn the Ana.lyst had examined and. returnE)d',to, "him. But as previously no t ed, ,it was a,' claim whf.cn' the,': Ani:11yst on examining the envelope in Court round hilllf?e1:t'.> , unable to support. -. I. For these reasons we hold that in 'the case for the prosecution , tner,eof it was Dot establisned the appellantiwas buted to him.. We accordingly in possession there was ,a fatal'l'law',':: inconsequence:' ,beyond r-e as onabLe doubt and that, that '" ' ',' of the cannabis att;ri":'" allow the appeal. and set,af?ide resin the conviction and s ent enc e imposed. on him. -'--.' Before par(;ing with this appeal, wef'ina it necessary. to express our profouna. concern over the improper with the original of' tile Ana Lys t, certificate tamperipg Thismu~t:;. '" have occurrea. between the conviction tne hearing appe aL, of this At'Che trial, of the appe Lj.ant and." a t was clear r r-om tne answe.cs gaven by t11e Analyst the date of receipt endorsed. on th~ certificate unde.crt ne in cross-examination, that signature ox 01:),1;. Forte W1:1. S"30/1'l/ojl.l, but on tlie copi~s'of tnerecords to members of supplied z-ec ea.pu vapp ear-eu to be "2tl/11/ojll. this c9urt, .<-' the aate~f' On our inspection of:,:...: -. !' the;; original traced. certificate over 130/11/bj" we oDserveutllat "28/11/83 W1:1. S in a.nk that was oi.rr e.cenr from the orlginal -si.gnatrur-e of Sgt. Forte 0 and that the Si:1IDeink was used to trace OVer tne This was an unwarranted interf'erence exhibi"t occurred in tile cuscouy of tine court and we trust in thil:::icase wil.l nevez- be repea·I;~ti.. ,with an originb.1. that what llateu this '2vrl ~ a.ay of October 19840 t"J,-~~" •••••••• 0 •••• (A. Mustafa) , -f)..- •.~·President ' , M{(aw~~',' r:»:... Jus'Clce of 'Appeal <. 0 •••••••• (Sir~ ..~ (Sir ••••.•••••• Jus~ice of Appeal Isaac Hya'Cali) , ' ,! ' .. : !-~: It has since come to our knowledge that the alteration of the date in the analyst's report Exh.2 was made by Police Sgt. Henry Forte during the course of the trial. It would seem that he corrected what he thought was a genuine mistake in the belief that he was. entitled to do so. clearly in error, which he now recognises. He acted in good faith, This unfortunate incident reflects no discredit of any kind on the Court Registry. /'1 1. C-- t-\..-: Yh. U"'-C~ (A. l'1ustafa) President of the Court of Appeal . , Dated this §;th day of October, 1984