R v Marengo & Ors (CO 11/2003) [2004] SCSC 33 (6 April 2004)

The Republic v Marengo & Ors (2004) SLR 116 Ronny GOVINDEN Counsel for the Republic Danny LUCAS Counsel for the First Accused Alexia ANTAO Counsel for the Second, Third and Eighth Accused Pesi PARDIWALLA Counsel for the Fourth Accused Frank ALLY Counsel for the Fifth and Sixth Accused Somasundaram RAJASUNDARAM Counsel for the seventh Accused Ruling on submission of no case to answer delivered on 6 April 2004 by: PERERA J: In this case, the First to Seventh Accused were originally charged with 5 counts, but subsequent to the Prosecution withdrawing counts 2, 3 and 5, they presently stand charged with Counts 1 and 4. Count 1 relates to unlawful possession of turtle meat and Count 4 with the killing of a protected bird. The 8 th Accused stands charged with Count 6, namely for possession of turtle meat. At the end of the Prosecution case, Learned Counsel appearing for all the eight Accused made separate submissions of no case to answer in respect of their respective Accused. The Practice Note, reported in (1962) 1 AER 448, as followed in R v Stiven (1971) SLR 137 provides that a submission of no case to answer may properly be made and upheld in two situations. (a) When there has been no evidence to prove an essential element in the alleged offence (b) When the evidence adduced by the Prosecution has been so discredited as a result of cross examination or is so manifestly unreliable, that no reasonable tribunal could safely convict upon it. The note further goes on to direct that that – Apart from these two situations, a tribunal should not in general be called on to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If however a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit, but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on evidence so far laid before it, there is a case to answer. Hence the primary consideration at this stage of the case is to consider whether the Prosecution, has established a prima facie case against the accused persons, sufficiently to require them to make a defence. It is therefore purely an objective consideration, and a step in the procedure. In the case of Treffle Finesse v R the Seychelles Court of Appeal followed the 2nd guideline provided in the case of R v Galbraith that- 2(a) Where the Judge comes to the conclusion that the Prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (c) Where, however, the Prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability or other matters which are generally speaking within the province of the jury, and where on one possible view of the facts there is evidence upon which could properly come to the conclusion that the Defendant is guilty, then the Judge should allow the matter to be tried by the jury. The Prosecution evidence against the Accused consists of: (1) a statement made by them to the Police under caution, which this Court after holding voire dire admitted them in evidence on the basis that they were made voluntarily; (2) evidence of Mr. Selby Remy, the Expert who testified regarding exhibits of turtle meat and bird meat produced in the case; (3) two witnesses, who testified regarding the presence of some of the Accused in the case at Providence, where the boat carrying the alleged turtle meat and bird meat, was moored on 30 of January 2003; (4) Evidence of Police Officers engaged in the investigation. The Evidence of the Expert Learned Counsel for the First Accused, with the other Counsel agreeing submitted that the evidence of Mr. Selby Remy, the Expert witness for the Prosecution was imprecise and should not be acted upon in deciding whether there is a case to answer as, he was unable to satisfactorily establish that the exhibits produced in the case were turtle meat, and that the birds alleged to have been killed were of a protected species. Mr Remy testified that there were three types of “Boobies” in Seychelles, the masked booby, the red-footed booby, and the brown booby, but he stated that although he was certain that the meat seen by him in the gunny bags belonged to the "Booby" family, he could not state as to which of the three species they belonged, as they were cleaned, cut and salted. The Second and the Seventh Accused referred to the meat as that of birds called "Fou". Mr Remy stated that a "Booby" is also a "Fou". Adrian Skerett in his book Birds of Seychelles gives the creole name of the masked Booby as "Fou Zenero", that of the red footed Booby as "Fou Bef or Fou Rozali" and the brown Booby as "Fou Crispen". As regards turtle meat as well Mr Remy stated that the meat was undoubtedly that of a green turtle which had only one claw on its flipper. This was observed on inspection of the exhibits at Providence and in Court. This view is confirmed in the IUCN/SSC Marie Turtle Specialist Group Publication under the Title "Research And Management Techniques For The Conservation Of Sea Turtles" at page 26. As was held in the case of Treffle Finesse (supra): Whether his evidence (that of an Expert) was reliable or not was not a matter for the trial Court to determine on a submission of "no case". It sufficed that there was evidence which if accepted could support a conviction. At that stage of the proceedings, it was not for the trial Judge to accept: or reject evidence. I am satisfied that the evidence of Mr. Remy without furthermore, could support a conviction in the case. Before I examine the other relevant evidence, I propose to consider the law relating to confessions of a co-Accused, upon which a substantial part of the Prosecution case is based. It is a fundamental evidential Rule that an out of Court admission or one Accused in the absence of another Accused was not evidence against that other Accused. This does not mean that the same Act committed by one person should be considered as not having been committed by the other. It only means that such admission can be proved only against the maker and not against the other. However, two recognised exceptions to this Rule are – (1) Where the co-Accused by his words or conduct accepts the truth of the statement, so as to make all or part of it a confession statement of his own. (2) In the case of conspiracy or any crime which, according to the case for the Prosecution, was committed in pursuance of a conspiracy; statements or acts of one conspirator in the execution or furtherance of the common design are admissible in evidence against any other party to the conspiracy provided that there is some other evidence of the common design. Before the Accused were called upon to plead, the defence raised a preliminary objection to Counts 2 and 5 of the original charge which contained charges of conspiracy to commit the substantive offences contained in counts 1 and 4, on the ground that those counts were improper, unfair and undesirable as they added nothing to the substantive counts. Alleear CJ in a Ruling dated 12 March 2003 upheld that objection partly, and held that although counts 2 and 5 could not be laid as substantive counts, they could be laid as alternative counts and ordered accordingly. However before the pleas were taken, the Prosecution withdrew counts 2 and 5. Hence the 2 nd exception cannot be applied in the present case. But could the 1 st exception apply? The statements of the seven Accused, which have been held to be voluntary statements have therefore to be considered individually, as evidence, to the extent of their own incrimination, but not as evidence against the other co-accused, except so far as they have themselves, by words or conduct accepted the truth of those statements. At this stage of the case, the Court is concerned only with the quality of the Prosecution Evidence adduced to maintain the charges. Hence an in depth consideration of the individual statements for the purpose of the first exception set out above need not be made. However the statements made by the First, Second, Fourth to Seventh Accused, taken as against themselves, contain admissions that each one of them went to sea on a fishing expedition on 11th January 2003, and returned on 30th January 2003. There is evidence that the Police Officers found the First and Second Accused on board the Vessel wherein they were in the hold where gunny bags identified as containing turtle meat and bird meat, were stored. The statements also contain admissions that they had knowledge that the gunny bags contained salted turtle and bird meat. It was contended by the defence that the retracted statements would need corroboration. The retracted statements, which on a voire dire were found to be voluntarily made, were those of the First, Second, Fourth, Fifth and Seventh Accused. The Third Accused's statement was admitted without objections and the statement of the 8 th Accused was challenged only on the ground that there was non-compliance with the Judges' Rules. As regards corroboration required in a retracted confession, the Seychelles Court of Appeal, in the case of Pool v R 1974 SCAR 88 held that each case must depend on its own circumstances, but that in general the need to took for corroboration, in Seychelles, will arise in retracted confessions, while in the case of a repudiated confession, it will depend entirely on the circumstances whether corroboration should be regarded as the essential element. In the case of R v Jose Pillav (Criminal Side 8 of 1986) (unreported) Seaton CJ found no corroboration in a retracted confession. However considering the case of Pool (supra) as a Rule of prudence stated – But, while bearing all this in mind, the Court is of the view in all the circumstances of the case, that the statement is true and may safely be acted upon. I have come to that conclusion after carefully considering the evidence and of seeing the demeanour of the witnesses, including the Accused as they gave evidence. In this respect, Seaton CJ approved the dicta in the East African Court of Appeal case of Tuwamoi v. Uganda (1967) E. A. 84, wherein that Court stated inter alia that- ......... corroboration is not necessary in law, and the Court may act on a confession alone if it is fully satisfied after considering all the material points and surrounding circumstances that the confession cannot, but be true. The established Rules regarding a retracted confession are – (1) A confession is not to be regarded as involuntary merely because it is retracted. (2) As against the maker of the confession, the retracted confession may form the basis of a conviction if it is believed to be true and voluntarily made. (3) As against the Co-Accused, both prudence and caution require the Court not to rely on a retracted confession without independent corroborative evidence. The corroboration should not only confirm the general story of the alleged crime, but must also connect the Accused with it. (Law of Evidence - Ratnalal and Thakore 4th Edition, 88). It was submitted by the Prosecution that, as for corroboration, the statements of the First, Second, Fourth, to Seventh Accused contain admissible evidence as regards the presence of turtle and bird mat on the boat in which they admittedly went to sea on 1101 January and returned on 30 January 2003, the presence of Clubs and Harpoon- like implements that could have been used to capture and kill the turtles and birds, and independent oral evidence regarding their presence at Providence where the boat was moored. Such evidence prima facie implicates these Accused with the offence of possession contained in count 1. In this respect, the statement of the Third Accused contains a complete denial of the trip made by the other Accused. Although the First, Second, Fourth, Fifth, Sixth and Seventh Accused implicated him as one of those on that particular trip, and in fact as the captain of the boat, that would not be evidence against him. Even the 1 st exception does not apply against him. In his statement he stated that on 31 st January 2003, around 9 a.m. he went to Robert Souris' place at Providence to get fibre glass. The 8 th Accused also stated that he saw him by the roadside near Souris' place. Robert Souris, the boat builder saw him with the 4ih Accused on 30 January 2003 around 6.30 p.m. While the Fourth Accused came from the boat, the Third Accused was not with him. Joliff Juliette who was also working with Souris, saw both the Third & Fourth Accused at about the same time. Only the Fourth Accused spoke with Souris. Both the Third and Fourth Accused then left towards the road, with the Fourth Defendant carrying a gunny bag on his shoulder. There is therefore only circumstantial evidence regarding his presence in the area where the boat was moored. In the absence of a charge of conspiracy or of common intention, such evidence alone would be insufficient to call upon the Third Accused to present a defence to a charge of unlawful possession of turtle meat under count 1. Accordingly I find that he has no case to answer under count 1. As regards the 8th Accused, he stated in his statement under caution that he undertook to transport "salted fish" for the Fourth Accused. He went on board the vessel, and returned to the shore. He told the Police Officers that there were people in the boat. He claimed that it was then that he noticed a gunny bag in his pick-up. A Police Officer told him that the bag contained turtle meat. Mrs Antao, Learned Counsel for the 8th Accused contended that possession involved both the mens rea and actus reus, and that the 8 th Accused had neither. However, testifying on oath at the voire dire, the 8th Accused stated that he told the Police Officers that the "gunny bag belonged to the fishermen". In his statement he had admitted agreeing with one of the Accused to transport "salted fish". Hence he had knowledge about the gunny bag in his pick up. But was he in possession, in the sense of knowing the contents which was in his custody and control? In the case of Warner v Metropolitan Police Commissioner [1969] 2 AC 256, it was held inter alia that- A person who accepted possession of a Parcel, normally accepted possession of the contents, but that inference could be disproved or shaken by evidence that although a person was in possession of a Parcel, he was completely mistaken as to its contents and would not have accepted possession had he known what kind of thing the contents were. A mistake as to the quality of the contents, however, did not negative possession. If the Accused knew that the contents were drugs or tablets, he was in possession of them, though he was mistaken as to their qualities. Again if, though unaware of the contents, he did not open them at the first opportunity to ascertain what they were, the proper inference was that he was accepting possession of them. (It would be otherwise if a person had no right to open the Parcel). Again if a person suspected that there was anything wrong about the contents when he received the Parcel, the proper inference was that he was accepting possession of the contents by not immediately verifying them. The Privy Council in the Jamaican case of DPP v Brooks [1974] AC 862, stated: In the ordinary use of the word "possession" one has in one's possession whatever is to one's own knowledge, physically in one's custody or under one's physical control. This is what was intended to be prohibited in the case of dangerous drugs……… These technical doctrines of the civil law about possession are irrelevant to this field of Criminal Law. Lord Pearce in Warner (supra) stated that - One must therefore, attempt from the apparent intention of the Act itself to reach a construction of the word "possession" which is not so narrow as to stultify the practical efficacy of the Act or so broad that it creates absurdity or injustice. In the present case, the Accused stand charged with offences under the Wild Animals and Bird Protection Act which has been enacted in the pursuit of legitimate social policy and Environment objectives to maintain the rhythm and harmony in the natural world. In this respect, the legislation has a similar public policy objective as legislation enacted to control the misuse of dangerous drugs. Environment Protection Legislation is largely marine ecosystem oriented. In this respect the "precautionary principle" is one of the essential features of sustainable development. This principle means that the State and other statutory authorities must anticipate, prevent and attack the causes of environment degradation. The protection of wild animals and birds is one field in this system. Environment and wildlife protection offences are based on strict liability. The principle is to punish the event and not the intent. In R v Waller (1991) Cr. L. Review 381, the Accused was given a box by a friend for safekeeping. He removed a plastic bag from that box without examining it. The next day, the Police seized the bag and found a sawn - off shotgun with cartridges. The Accused stated that he did not know what the bag contained but thought there might be a crowbar inside. He was charged with possessing a firearm. The Court took into consideration the public policy involved in the Act and construed the offence as an absolute one, where the state of mind was irrelevant. Accordingly it was held that the Prosecution need not prove that the Accused knew what was in the bag. In the present case, the statement of the 8th Accused contains an admission that he went on board the boat and saw people there. Although he stated that one of the Accused told him to transport salted fish, when the Police Officers questioned him, he told them that he did not know anything about the gunny bag in his pick up. There is evidence on record that the bag had a peculiar odour and that a greenish oily substance was oozing therefrom. Hence there was sufficient reason for the 8 th Accused to suspect that what was in the bag was not salted fish. In these circumstances the evidence available against the 8th Accused is sufficient to call upon him to present a defence under count 6. Accordingly I rule that the First, Second, Fourth, Fifth, Sixth and Seventh Defendants have a case to answer in respect of the offence charged under count 1, and the Eighth Accused under count 6. Count 4 relates to the offence of killing a protected bird contrary to Regulation 4(1) of the Wild Birds Protection Regulations of 18th April 1966. In the particulars, it is alleged that the First to Seventh Accused unlawfully killed approximately 40 "Boobies", a protected bird. In the case of Robinson v. Everett & W F. C. Bonham & Sons (1988) Cr. L. Rev. 699, the Court decided on the basis that where the Accused failed to establish on a balance of probabilities that a stuffed and mounted bird found in his possession was not killed by him, there was an inference of killing. In the present case however there is a specific charge of killing the birds. The Prosecution, withdrew the charge under count 4 as against the Third, Fourth and Fifth Accused for lack of evidence of killing of the birds. As regards the other Accused, although the First Accused did not expressly admit to any killing of birds, he stated that he salted the birds brought by the Second Accused. There is therefore sufficient evidence to call upon him to present a defence in respect of count 4. The Second Accused stated "we killed about 50 birds (Fou)". Admittedly a "Booby" is a "Fou". The word "we" in the plural includes the singular. Hence there is an admission of killing by the Second Accused, and accordingly he has a case to answer on count 4. The Sixth Accused in his statement stated that two others killed about 10 "Fou" birds, and salted them. He admitted to packing the salted turtle and bird meat in gunny bags. There is sufficient evidence adduced by the Prosecution to call upon him to present a defence under count 4. The Seventh Accused in his statement, admitted going in search of birds. While two others killed the birds, he cleaned them and put them in a gunny bags. Then he stated "we killed about forty birds which we later salted on board the boat. There is therefore sufficient evidence to call upon him to present his defence to the charge in Count 4. In summary therefore, I rule that the Prosecution has established a prima facie case against the following Accused persons in respect of the counts indicated below- 1st Accused 2nd Accused 4th Accused 5th Accused 6th Accused 7th Accused 8th Accused counts 1 and 4 counts 1 and 4 count 1 (count 4 withdrawn by the Prosecution). count 1 (count 4 withdrawn by the Prosecution) counts 1 and 4 counts 1 and 4 count 6. Accordingly I call upon them to present their defences. Pursuant to Section 184 of the Criminal Procedure Code, the Third Accused is acquitted on counts 1 and 4. Record: Criminal Side No 11 of 2003