andrew Lusta v The Republic (SCA 6 of 1988) [1989] SCCA 9 (24 April 1989)

IN THE SEYCHELLES COURT OF APPEAL Andrew Lusta Appellant v. The Republic Respondent Criminal Appeal No. 6of 1988 M. Juliete for appellant Mr. A. Derjacques for respondent JUDGMENT OF THE COURT This appeal arises out of a conviction of appellant on 23rd August 1 1988, by the Supreme Court of attempt to commit an arson contrary to section 319(b) of the Penal Code. Appellant was sentenced to 3 years impri- sonment. The particulars of the offence are that appellant, a tyre-fitter, of Mahe on the 26th day of May 1988 at the SPTC depot, New Port, wilfully and unlawfully set fire to a Tata bus seat situated in an SPTC store such seat being so situated that the SPTC store was likely to catch fire from it. The prosecution adduced evidence to the effect that appellant on the relevant day was working with three co- workers in the SPTC store wherkhere were some 36 new and — 50 partly worn tyres. but the supports of the roof of wood. store were two Tata bus seats very near to each other and The wall of the store was. In a corner of the of brick a wooden box. The tyres were also near the bus seats. The store closes at 4 p.m. On the relevant day at about 4.15 p.m. smoke was discovered coming from the store. It was opened and a hot plate stove was found on one of the 4 There was dense smoke inside the building and bus seats. a smell of burnt rubber. The hot plate was switched off and at the same time when this was'done the seat on which -2- the hot place was burst into flame. The fire was extin- There is also evidence of guished. Lespoir, to the effect that- the store would have caught fire had the fire not been extinguished in time. is no eye witness to identify the person who placed the expert witness There hot plate stove on the bus seat. The prosecution called several witnesses with a view to establish that the fire could only have been set by appellant. But as the learned Chief Justice chose not to rely on their evidence, we need not examine it. Basing himself solely on the incriminatory statement of appellant and the evidence of the expert witness Lespoir the learned Chief Justice found appellant guilty of the charge and convicted him of the offence. Appellant is challenging the judgment of the learned Chief Justice on the following four grounds as listed in his memorandum of appeal: The learned Chief Justice erred in finding that the prosecution have proved that it was the Appellant who set fire to the bus seat in that there was insufficient admissible evidence to establish the guilt of the accused. The Learned Chief Justice erred in finding that the statement Exh. 2 was made voluntarily in that he failed to properly consider the evidence relating to the said statement and gave no feasons for his finding. The Learned Cheief Justice erred in convicting the Appellant after he had found that there was no corroboration of the statement Exh. 2 that implicated the accused in the crime. The Learned Chief Justice erred in accepting the evidence of Simon Lespoir (P. W.12) as an expert witness as P. W. 12 had not actually examined the scene of the fire at the relevant time and was therefore not in a position to testify about it and his opinion was founded upon hearsay. We will consider grounds 2 and 4 first. Ground 2 relates to the statement to the Police made by appellant in which he incriminated himself. During K_ -3- the trial appellant repudiated his confession saying that it was not voluntarily made, the statement was fabricated by the police and he was made to sign it. a trial was held and the learned Chief Justice ruled that the statement was voluntary and was admissible. learned. Chief Justice had only to choose between the version A trial within The of the police and that of appellant. He chose that of the police and ruled that the statement was voluntary. We do not find any fault with the ruling. In the circums- tances of the case it was not necessary for the learned Chief Justice to give any reason for his ruling. 2 fails. Ground Ground 4 relates to the evidence of the expert witness. 'The evidence of an expert is evidence of opinion and not He is His opinion can always be challenged. of fact. liable to cross examination on his opinion. It is per- fectly proper and permissible for him to give an opinion on the basis of certain facts put to him. It is true wit- ness Lespoir had not act ually examined the scene of the fire at the relevant time but this does not mean that he is precluded from giving his opinion on the basis of certain facts put to him. The relevant facts of the case were fully and clearly put to him and on the basis of those facts the expert was of the opinion that it was very likely that the fire from the seat would have spread to the SPTC store as a whole had it not been detected and put out in time. We do not find anything wrong in his evidence. Ground 4 fails. We also find no substance in grounds 1 and 3. is true that the learned Chief Justice looked for cor- It roboration and did not find any, but corroboration was not necessary in virtue of the specific finding of the learned Chief Justice that the confession of appellant cannot but be t rue. We do not find any fault with the learned Chief Justice for the conclusion he reached. All the grounds of appeal having failed we dismiss the appeal•'4 124tH t A. Mustafa President Of Court of Appeal . H. Goburdhun Justice of Appeal C. d'Arifat Justice of Appeal Dated this :./ c day of April, 1989