In the Court of Appeal |22 April 2014

Man proven innocent after spending three years in jail

The Court of Appeal which had been sitting from March 31 to April 11, last week rendered its verdict on 13 cases – four criminal and nine civil.

The Court which was presided by Justice Fernando helped by Justices Twomey, Msoffe and Jja, reversed the Supreme’s Court decision in one criminal case, altered conviction and sentence in another and confirmed the Court’s decision for the other two.

Among the criminal cases which has most caught the ears of the public and which has been the talk of the town during the Easter weekend is that of Haron Ordicho Sagwe, a Kenyan teacher who had been convicted for drug trafficking and who was finally released after spending almost three years behind bars.

Evidence produced in Court shows that a Leah Wanjiru Kingu who had arrived in Seychelles on a Kenya Airways flight from Nairobi in the afternoon of June 26, 2011, was the next day instructed by National Drugs Enforcement Agency (NDEA) agents to proceed to the Casualty Unit of the Seychelles Hospital in order to make a “controlled delivery” to a “fat lady”.

This after Kingu had previously been instructed to wait, in the presence of NDEA agents, at the Berjaya Beau Vallon Bay and Coco d’Or hotels and in the Immaculate Conception Cathedral, where she had always been accompanied by NDEA agents. At one point during their presence at the Coco d’Or hotel, a female NDEA agent had decided to play the role of Kingu as the protagonist handing over the drugs to an expected collector.

She indeed did so before attempting to arrest the receiver who somehow managed to escape, accidentally dropping his mobile phone in the process and leaving it behind.

In his police and dock statements, Sagwe, who was once chairman of the local Kenyan Association, refuted the accusations stating that he had received a phone call from a Kenyan friend, asking him to help another female compatriot who was sick at the Seychelles Hospital. He claimed that the supposedly compatriot who was in fact the NDEA agent, tried to arrest him with the help of a pistol after handing him a plastic bag.

He was arrested by NDEA agents while reporting to work at the Pointe Larue secondary school the next day.

In their judgment, Judges Fernando, Twomey and Msoffe remarked that where there is a reasonable doubt to the probability of a witness’ version, an appellant court should not hesitate to ascertain whether that casts a doubt over the guilt of the convict. They stated that when the investigators’ attempt to bolster their cases by supplementing facts to prove knowledge conflicts with reason, the prosecution case is put in serious doubt.

The three judges remarked that Sagwe could have not mistaken the NDEA agent for Kingu as she in no way resembled the former and despite the case being a “trap case”, there was no witness to collaborate the evidence of the agent. Also, no one had heard their conversation of which there was no record, and of which the agent herself could not reveal the details as she claimed the appellant spoke to her in a language she could not even understand.

They have thus questioned the fact that the convict would have continued to talk to her interlocutor and go on to take the plastic bag from her, while he was supposed to know that it contained dangerous drugs and he was aware at that time that she was not Kenyan. They have also questioned the fact that he would start to run even before the agent had shouted out “police”.

The court also established that the Kenyan teacher had no knowledge of the arrival and presence of Kingu in Seychelles. Although his mobile phone had been kept as evidence, no proof of any telephone conversation with Kingu was neither presented.

It was also never established what happened to the “fat lady” who was in the first place supposed to collect the items from Kingu, raising suspicions that the mentioned “Kenyan friend” – having become suspicious of the police presence – could have sent forward the representative of the Kenyan community as a guinea pig.

The Appeal’s judges concluded that the case was full of anomalies and that all information provided by Kingu had been admitted in breach of the rule against hearsay. They expressed their surprise that “this double-hearsay evidence came to be admitted by the Court”.

They also ruled that the version given by the female NDEA agent as to the receipt of the items by the appellant defies reason, and consequently, the assumptions made by the Trial judge “are incorrect and the inferences drawn by him are faulty”.

Kingu, who had also appealed against her sentence of 10 years’ imprisonment for importation of heroin, has however lost the appeal.  

In the case of Justin Sirame on whom a jury had imposed a life sentence for the murder of Tessia Mousbé in June 2011, his conviction has been amended to that of manslaughter and his sentence reduced to five years imprisonment.
 
With the remand he is due to benefit from, Sirame is expected to be a free man by October this year.

Sagwe was represented by lawyer Nichol Gabriel while Basil Hoareau had stood for Sirame.

The civil cases had involved mainly breach of contract property and lease, purchase or financial disputes. Two appellants won their case against the then Ministry of National Development and Planning which had originally claimed that they had built a walkway without the permission of the Seychelles Planning Authority.

Whereas in the case of Lumomir Podlipny from whom cash amounting to 100 000 euros had been forfeited upon his arrival at the Seychelles International Airport on March 14, 2009 under the present Anti-Money Laundering Act, he has failed in his attempt to recover the money.