Eteria v R (SCA 11 of 1993) [1994] SCCA 32 (22 August 1994)

LI IN THE SEYCHELLES COURT OF APPEAL Before: Mr. Justice H. Goburdhun Mr. Justice A. M. Silungwe Mr. Justice E. O. Ayoola President J. A. J. A. YDRA III NAFTIKI ETERIA Appeliants (HYDRA III MARITIME COMPANY) V. THE REPUBLIC Respondent Criminal,appeal No 4/193 • Mr. B. Georges for the appellants Mr. De Livera for the Respondent Reasons for Decision of the Court Mr. Sebastien Murangira was captain of a motor vessel called, and hereinafter referred to as Malo, but registered as M. V. Maria, carrying at the material time arms K._„) ) of war and munitions of war. On 5th March 1993 the motor vessel sailed into Port Victoria, Seychelles with its cargo. As a result of that event Murangira together' with one Ilias Durdunis and one Vassildos Karatzias who were respectively Chief Officer and Chief Engineer was charge in two counts with the offences, respectivel y , of importing into Seychelles, arms of war without permit, and importing into Seychelles munitions of war without a permit both contrary to section 26(1) and section 26(3) proviso of the Firearms Act 1973 read Karatzias, with section 23 of the Penal Code. Durdunis and charged respectively as second and third accused, were acquitted of both charges by Alleear Ag. C. J. (as he then was), before whom they He convicted Murangira and sentenced him to a term of imprisonment and made orders of forfeiture pursuant to section 151 of the Criminal Procedure Code and section 34 of the Firearms and were charged. Ammunition Ordinance 1973 respectively in respect of the vessel Malo and the arms and ammunitions. before his appeal could be heard. Murangira appealed from his conviction but he died On an application by the owners of the vessel Maio, Ydra III Naftiki Eteria (Hydra III Maritime Company) ("the owners"), opposed by the Republic, the owners were granted leave to appeal out of time with reasons to be given later. The appeal which was heard by this court was the appeal of the owners who have appealed Murangira and forfeiting the from the decision convicting vessel and the arms and ammunition to the State. Murangira having died before his appeal was heard his appeal abated. After hearing Mr. Georges counsel for the owners and Mr. De Livera State Counsel on behalf of the Republic this court in its entirety and reserved dismissed the owners' appeal We now state our reasons for that decision till later. reasons for granting leave to the owners to appeal out of time and for the decision to, dismiss the appeal. • The a •lication •f the owners for enlar o ement of time within which to appeal. Murangira was convicted on 9th December, 1992. The owners' application for leave to appeal out of time was filed on 9th March 1994 even though the time within which an appeal ought to have been lodged expired on 23rd December 1993. Murangira who was February 1994. and had pursued his appeal the owners would probably have convicted and had appealed died on 27th It is evident that had Murangira not died been content to safeguard whatever rights they claim to have -3- by seeking to quash the forfeiture orders through Murangira's since the conviction of Murangira is central to the appeal, • because validity of the forfeiture orders with which the owners are primarily concerned. Seeking to fight their battle through Murangira was probably imprudent, but in the circumstances of this case in which Murangira's appeal could not be pursued not Murangira had voluntarily abandoned it but because his death over which neither he nor the owners could had any control, had intervened, it was just to exercise have a discretion to grant an enlargement of time to the owners to appeal, provided they have a right of appeal. which, therefore, whether the owners have a right of appeal. The question was central to the owners' application was In Durdunis v. The Republic (Criminal Appeal No. (Unreported judgment of 20th March, 1994) we of 1993) considered whether and in what circumstances a person who has in a criminal proceeding can appeal-from not been convicted conviction in the light of section 120(2) of The The Republic of Seychelles 1993 ("the the Constitution Constitution") which provides thus: of as "Except this Constitution or an act otherwise provides there shall be a right of Court of Appeal from a appeal judgment, direction, decision, declaration, decree, writ or order of the Supreme Court." the to liberty and section 329 of the Criminal Procedure Code (Cap. 45) appeal from the Supreme Court to the which gave to " any person Court of Appeal in criminal proceedings to convicted on a trial held by the Supreme Court." in that case came to the conclusion that the wider right of This court appeal granted by Article 120(2) cannot by implication be circumscribed can only be excluded by express statutory provision. and further held that notwithstanding that fact however, standing section 329 of the Criminal Procedure Code We by is essential to the right to invoke the appellate jurisdiction of this court in the absence of a specific provision in the Constitution prescribing the person by whom the right of appeal it confers should be exercised. The broad principles of Durdunis are applicable to this case and the question in this case is whether the owners have a standing. As was said in Paddington Valuation Officer ex parte Peachey Property Corporation Ltd. (1966) 1 Q. B. 380,400-1 per Lord Denning: court would not listen body who was interfering "The busy which did not concern him. listen affected by what has been done to a mere in things But it will whose interests are anyone to The owners in this case are not busybodies as there is no gainsaying the fact that their interests are affected by the forfeiture of the vessel M. V. Malo to the State. Notwithstanding that the decision appealed from is in criminal proceeedings, where, as in this case, an order in the proceedings directly affects the interests of a person, such a person should not' be denied a liberty to appeal. This is but a general proposition exceptions to which have to be worked out case by case. the owners were sufficiently In this case the interests of and directly affected by the We granted decision. They have locus standi to appeal. them leave to appeal out of time accordingly for these reasons. Some objections were raised to the owners' on the grounds that Mr. Georges had not shown application that he was properly instructed and that there was some doubt as to the correct name of the owners. These are inconsequential objections in the circumstances of this case and they are not worthy of any detailed consideration. suffices to say that sufficient materials are placed before It us to justify the conclusion that Mr. Georges had been properlyinstructed and to fix the identity of the owners by the names given in the title of this appeal. The Substantive Issues The substantive issues in this appeal are (i) whether the learned Ag. Chief Justice adequately and properly evaluated the evidence before he came to a decision convicting Murangira. (ii) Whether in law an "importation" Seychelles of arms and munitions of war has been into established, and (iii) whether the vessel Maio is liable to forfeiture pursuant to section 151 of the Criminal Procedure Code. These issues we now consider separately. Did the learned Ag. Chief Justice adequately and properly evaluate the evidence. Most of the background facts of this case were not in dispute. by the The vessel Malo was observed on a routine patrol Seychelles Coast Guard sometime on 4th March 1993 moving very slowly in the Exclusive Economic Zone of Seychelles (E. E. Z) at about 12.10 p.m. Upon a report made of the observation to the headquarters a major naval patrol involving two vessels was sent to verify the target. On 5th March 1993 one of the vessels, named Salmar, made contact with the vessel which was identified by its captain as M. V. Maid. It was questioned as to its intention and the captain explained its intention. At that time the M. V. Malo was 47.5 nautical miles of Mahe. Suspecting that the M. V. Malo had been fishing illegally in the EEZ the vessel was boarded by the coastguard officers. The M. V. Malo thereafter came into Port Victoria where it was carrying a cargo of arms and ammunition of war. stated, consequent upon this discovery, Murangira was charged to have been As earlier, discovered with importation of arms of war and munitions of war into Seychelles without permit. The main controversial issue of fact in this case circumstances in which the vessel Male sailed According to the prosecution while the concerned the into Port Victoria. vessel 47.5 nautical miles West of Mahe the captain of his intention and he had the vessel was questioned as replied that the vessel was awaiting a new crew and supplies was to from Mahe. with supplies at that distance Upon being told that it could not be provided the captain asked for to assistance so that he could come to Mahe get them. Questioned as to the vessel's cargo, the captain had told the was carrying coast officers vessel guard that the One Major then communicated with Headquarters and advised them The request was Mercedez-Benz spare parts and building materials. Ciseau of the captain's request for assistance. granted, whereon Major Gertrude decided to leave a coast guard officer and some sailors on the vessel to help guide it safely to Port Victoria as the Maio had no navigation vessel had been navigated for some charts. When the had asked for a tug to tow the Malo so distance the captain that it could being accordingly. informed by Major Ciseau, port before dark and, on Headquarters arrangements were made reach The version given by the defence was summarised by the learned Ag. Chief Justice in his judgment. Further summarised, that while the defence on the controversial issue of fact is the vessel had remained virtually stationary for 18 hours somewhere 80 or 60 nautical miles from Mahe on about 4th March 1993 awaiting fresh supplies and a new crew from -7- Mahe promised by the owners, the vessel was on 5th March 1993 boarded by heavily armed coast guard officers ostensibly to inspect the vessel's refrigerators for fish. Upon disclosure of the true nature of the vessel's cargo to Major Ciseau, the Commanding Officer of the Coast Guards, by the captain, Major Ciseau had gone into the hold of the ship to verify for himself the said cargo which were arms and munitions of war Following the verification of the cargo the Coast Guard Officers had arrested the vessel Malo and forced the three accused persons to proceed to Port Victoria under heavy armed escort. destined for Somalia. was whether It is thus that • the main controversial issue of fact the vessel was arrested and brought into port under armed escort as alleged by the defence, or, as alleged by the prosecution, it was assisted to port at the request of the captain of the vessel. Justice had On the main issue of fact the learned Ag. Chief It is evident rejected the defence version. that one of the reasons he gave for rejecting that version is that the vessel was in dire need of fresh water and fuel and upon learning that it could, not obtain fresh supplies at 47.5 nautical miles the captain had out of frustration requested assistance of the Coast Guard Officers for safe navigation to Port victoria. He rejected the contention that the vessel The reasons given by was arrested at 47.5 nautical miles. the learned Ag. Chief Justice form the main thrust of the criticism of the judgment by counsel for the owners. The main grounds of criticism of the judgment advanced by counsel on behalf of the owners, if we may summarise them, are: (i) that the learned Ag. Chief Justice rejected the defence version without accepting the prosecution version and therefore misplaced the burden of proof; the prosecution case against the defence version; that he did not weigh the relative strength of defence version were not valid; that the reasons he gave for rejecting the (iv) that on the facts, doubt should have been created in the mind of the learned judge. A general dismay was expressed about the brevity of the in comparison with the volume of evidence. judgment without saying It goes that a judgment cannot rightly be criticised for its brevity if clear conclusions have been arrived at upon a proper evaluation of the evidence. In this case it learned without accepting the prosecution's version of the events. Ag. Chief Justice rejected the defence cannot be rightly held that the version trial judge did not use the set phrases: Even though a "I believe" or "I disbelieve" or "I accept" or "I do not accept" in regard to the prosecution's case, if on the totality of it is evident that he had accepted the the prosecution's case on its own merits and not because he judgment rejected merely because the defence such judgment should not be faulted set phrases were riot used showing which In this case the learned Ag.:Chief was accepted. evidence Justice accepted the prosecution's case and stated reasons why the evidence in support of the prosecution's case is credible finding support for that view from the evidence of The learned judge reached a conclusion on an the defence. issue of primary fact based on the credibility of the witnesses when made a request to the Coast Guard Officers as alleged. he found that the captain of the vessel Malo The criticism that the learned Ag. Chief Justice did not weigh the relative strength of the cases seems to us, at the end, to be nothing but criticism as to the form of the judgment rather than its rightly criticised for failing to controversial have testified, stating which is preferred. It suffices if on reading the judgment it is clear which way the controversial A judgment cannot be set side by side every issue of fact on which the parties substance. issues of fact have been resolved. amply demonstrated by made that the vessel In this case that is that the request was the conclusion be helped to gain entry to Seychelles and be helped to Port. These are conclusions which could not have been arrived at if the prosecution witnesses had not been believed. Scrutinizing prosecution case. the evidence, Mr. Georges tried to fault Justice for giving the reasons given by the Ag. Chief credence to the In substance it was submitted that he misdirected himself on several facts.such or not the vessel was in dire need of fuel, .as whether whether the crew attempted to avoid detection by changing the whether a first rejection of a tug by name of the vessel, the captain,was indicative of his being in charge of the boat captain , could reasonably have expected to and whether the without going into port at a distance of 60 Some regard to the pilotage book. receive supplies nautical miles having issue was also made of a press release whose source had not been established. that the Ag. doubt in the case by reason of the press release. It was argued by counsel for the owners Chief Justice ought to have entertained some On the evidence, these criticisms were not justified. that the case was was it one which turned on inference to be drawn from the Besides, these criticisms overlooked the fact not based on circumstantial evidence nor -1.0- facts. the coast The evidence of the request made by the captain to officers was direct and not at all guard circumstantial. The evidence of the circumstances in which the request was made, that is, that it was upon the captain being told that he could not receive supplies at the distance the vessel Chief Justice accepted this evidence. was also direct. is evident tho the Ag. He als, riglitly, in probative or consequential refused to ascribe a press release whose source has not been our view, value established. to This re-hearing. court does not embark on an appeal such as this by way of What should be decisive is whether there is evidence to support the conclusions of fact made by Ample support for those the learned Ag. Chief Justice. on a careful reading of the evidence and conclusions found that of Murangira himself which v:e need not repeat. that We learned Ag. Chief Justice adequately. and even hold properly evaluated the evidence. the The QUestion of Importation Victoria The established facts are that the vessel sailed into carrying without permit arms and munitions of Learned destined for Somalia. war which were allegedly Port counsel for the owners made some interesting submissions concerning the various definitions of the territorial area of the Republic of Seychelles in the 1976 and 1979 Constitutions compared with the definition contained in The Interpretation General and prosecution's case and the conviction of Murangira had not Since, however, the Provisions Act. been based on the presence of the vessel within the EEZ but on its presence in Port munitions of war, the definition of the area of the Republic Victoria with a cargo of arms and of Seychelles is of purely academic interest in this case. Of more significance is the question whether for there to be "importation" the goods must have been landed; that is to say, brought ashore. Section 26(1) of The Firearms Act, 1973 under which Murangira was charged and convicted provided as follows: No person shall import or export any firearm or ammunition save under and in accordance terms of an import and export with the permit, as the may be, issued by an authorised officer:" case By section 29 the "Licensing Authority" may inter alia grant transit permits for the importation or exportation, or the removal within or transportation through Seychelles to any place outside Seychelles. The Firearms Act does not contain a definition of the word - import", but the Interpretation and General Provisions Act 1976 defines "import" as meaning "to bring or cause to be brought into Seychelles." Section 49 of the Penal Code to which learned counsel for the owners referred in the course of his argument defined "import" for the limited purpose of specified sections of the Code as including: "(a) to bring into Seychelles, and (b) to bring within the territorial waters of not the publication is Seychelles brought ashore, and whether or not there is an intention to bring the same ashore." whether or Counsel for the owners, Mr. Georges, argued that only that cargo which is off loaded onto the wharf is cargo which is imported absurdity, he argued that it cannot be logically correct to Arguing on the basis of Seychelles. into hold that cargo on board vessels in transit through Seychelles is imported into Seychelles. conceived to be the mischief which the Firearms Act was Arguing on what he -12- argued that the Act was designed to arms and ammunitions into Seychelles designed to meet, he prevent persons taking for use in Seychelles submitted the definition without permit. It was further that when the legislature had intended to widen to include bringing a importation of particular article within the territorial waters of Seychelles whether with or without intention to bring it ashore, it had expressly so provided, as was done in section 49 of the Penal Code. Such express definition would not be necessary, it was argued-, if the definition of importation Interpretation and General Provisions Act had had in the that same meaning, in its ordinary sense. In our view it is of very limited value to attempt to the definition in section 49 of the Penal Code as a clue use to the meaning of "import" in the Firearms Act since one statute is not an exposition of the other. is Interpretation and General Provisions Act. The Penal Code an exposition of the Firearms Act or of The Although a not subsequent Act may be resorted to for the interpretation of is on condition that both laws are on an earlier Act, Importation of seditious publications the subject. same this dealt with in section 49 of, the Penal Code is not the same as importation of arms and munitions of war dealt with by the Firearms Act. The Judicial Committee of the Privy Council in Re. Samuel 11913) AC 514, 526 (per Lord Haldane L. C) said: "It is not a conclusive argument as to the construction of an earlier Act to say that unless it be construed in a particular way a later Act would be surplusage. The later Act may have been designed, ex abundanti cautela, to remove possible doubts." In the same vein, condescension to details in an earlier Act, done apparently ex abundanti cautela, should not lead to a restricted interpretation of a word which in its natural -13- meaning includes that meaning mentioned in that earlier act. which has been specifically We have been referred M2. he Livera, learned State Counsel, to decisions of some courts in the Commonwealth in which consideraLion has been given to the words "importation" and "import". Some of these cases are No Min Cheung and another v. Public Prosecutor (1992) 2 S. L. R. 87, R. v. Hancox 1990 LRC Crim 5N, and R.v. Smith (Donald) 1973 2 All E. R., 1161. Where such cases depend on particular definitions in the relevant enactments they are to be treated with caution offer limited assistance. as they However, where such ordinary meaning of words which we decisions deal with the now have to interprete in its ordinary meaning they are of highly persuasive value. In ho. Hung Cheung's case applying the definition of "import" in section 2 of the Interpretation it was held that the drugs in question in Act of Singapore that case were imported into Singapore regardless of whether In R. v. or not Singapore Hancox the Court ordinary in from abroad or to cause to be brought in from abroad." meaning of "import" which is "to introduce or bring of Appeal of New Zealand considered the was their ultimate destination. In that case, applying the ordinary meaning of "import" it was held that: "The element of importing exists from the.' time the reach their immediate destination." goods enter New Zealand until they A passage in the judgment of Dickson J. in the Canadian case of Bell v. R. (1983) 3 DLC 4th 385, 392 was cited with approval in R. v. Hancox - Dickson J. said "The elements of an offence of importing are present as soon as the g oods cross the border " (Emphasis ours). In the ordinary sense, "import" means the act of -14- bringing goods and merchandise' into a country from a foreign (see Black's Law Dictionary 5th Edn. p.80). That is also reflected in The Interpretation and If the view is taken that country. definition General Provisions Act 1976. whatever is contained.as cargo in a ship that has sailed into Seychelles has been brought into Seychelles then there is no doubt that the cargo on the vessel Maio has been "imported" into Seychelles notwithstanding that it was claimed to be originally destined for Somalia and that it has not been brought ashore. However it was argued on behalf of the owners that since the goods were destined for Somalia they were not "imported" into the Seychelles. In our view, quite apart from consideration of law, that argument is based on faulty factual basis in view of the evidence that although the cargo at the point of loading was destined for Somalia, at a point in time in the course of the voyage it had no clear destination. The evidence that it was to be offloaded in Mombasa given by Murangira and that later the vessel had to be drifting at sea with instructions of the owners to go "to the area of Seychelles" bears this to Seychelles or out. facts weak indeed. The argument based on the fact of transit is on the ordinary Besides, importation is capable of being conceived in terms either as importation for use within the country or for transportation to another country. The policy of the statute, in this case, is that permit should be obtained whenever arms and ammunitions are brought into the country whether they are for use in the country or in There dois nothing absurd in that policy which we transit. venture to think, is reasonable not only in the interest of state security but also in the interest of the safety of the public. In our judgment, having regard to the purpose of the -15- Firearms Act, the arms and ammunitions of war carried in the vessel Malo were imported into Seychelles notwithstanding that they have not been brought ashore. The Forfeiture Question Section 151 of The Criminal Procedure Code pursuant to which the vessel M. V. Malo was forfeited reads - addition "In to any forfeiture specially provided for by this Code or any other law, the corpus delicti, where it is the property- of the offender, and all the things produced by the offence or which may have been used or were intended to ,be used for committing an offence on the conviction of the offender become forfeited to the State." shall The main reason why the learned Ag. Chief Justice had forfeited the vessel to the state is that the captain's acts or omission must in the circumstances of this case be taken to be acts of the owners. However, on this appeal Mr. Georges for the owners has, rightly, based his submission on what he urged should be the true ambit of section 151 and the classification His argument, in relation to that section. that the vessel was part of of encapsulated, is the vessel the corpus delicti and therefore could not be forfeited as it was not the property of the convicted offender, Murangira. It was further submitted that the vessel was not something which was used for committing an offence but something used in the commission of the offence and was thus its corpus delicti. • The definition of corpus delicti has been rather elusive terminology has been used in a penal statute. it is disconcerting that such an elusive In J<owitt's and Dictionary of English Law corpus delicti was defined as- "the facts which constitute an offence. It does not mean the body of a murdered man, or a thing which has been stolen or • anything which has been the subject-matter of a crime...." -16- Such definition which makes corpus delicti intangible is hardly appropriate for the purpose of section 151 which deals mainly with forfeiture of tangible objects. We use the word "mainly" because it may be argued that there are probably intangible things such as chooses in action which may be More appropriate in our opinion is the forfeited. defihition in Black's Law Dictionary (5th edn. p.310) of corpus delicti as including, "the body or substance of the crime, which ordinarily includes two elements: the act and the criminal agency of the act." We venture to think that if "criminal agency" is to be given a specific meaning, something used merely in the commission offence is not corpus delicti unless there is of criminality in the use of it as to make its use an integral thing can however be "used for the offence. part of an A of criminality. committing an offence" without its use itself bearing such In R. v. MacDonald and Anor 1967 51 taint App. 359 where the victim of a sexual offence was seized Cr. and abducted in a car to the scene of the offence. An order of deprevation of the car made upon conviction of the was upheld under" S43 of the English Powers of offender Criminal Courts Act 1973 which empowers the court to make a deprevation order, inter alia, of property which "has been used for the purpose of committing, or facilitating the commission of, any offence." Seychelles A vessel used in bringing arms and ammunitons of war permit is a thing "used for into committing an offence." into Seychelles without been used as vehicle of such importation is liable to permit is an offence and what has To bring arms and ammunition of war without forfeiture not as corpus delicti but under the "user" clause -17- concealed We have come to this conclusion not without of the submission that injustice the owner of the thing used was not the On the of section 151. some anxious consideration might result if offender or acting in complicity with the offender. the instant case no injustice arises. Not only did facts of the owners create the occasion for the captain of the vessel to request entry into Seychelles, but also knowing the true nature of the cargo which the vessel was carrying they had it from the Captain at the initial stages of the The facts of this case are far different from the voyage. hypothetical case given by learned counsel in the course of an innocent owner whose property has been his argument of In such hypothetical case used for the resilience of the judicial process, in the absence of express statutory provision, may not be wanting in fashioning Be that as it may, in Justice was right in a relief our judgment the learned Ag. Chief making a forfeiture order. of Murangira as standing "on a highly technical ground" is a to the exercise of the power of factor which relates more pardon by the President pursuant to section 60 of the Constitution than to the legality of the forfeiture order which in terms of section 151_ is mandatory. That he described the conviction for the innocent claimant. committing an offence. As regards the forfeiture of the arms and ammunitions carried by the vessel Malo, the owners of the vessel have not been shown to be the owners of the cargo or to have interest As regards in the cargo affected by the forfeiture order. and ammunitions the arms In the result such of the argument by counsel for the owners that relate to forfeiture of the arms and ammunitions must be they have no standing to appeal. discountenanced. It was for the reasons herein given that we dismissed -18- the appeal of the owners in its entirety. H. GO:LIDHUN, P. A. M. SI tUillagAtn— E. O. AYOOLA, J. A. tt, A - Ywv