Court of Appeal delivers judgments for second session of the year |03 September 2019

The Court of Appeal delivered its judgements regarding a number of criminal and civil appeal cases from Supreme Court decisions on August 23.

The court started hearing the appeal cases on August 8 in its second session for the year, most of which have been dismissed.

Criminal appeal cases

Jean Paul Eugenie vs The Republic

This was an appeal arising out of six cases wherein the appellant, a habitual offender, stood charged with various offences including housebreaking, stealing and criminal trespass. Through the appeal, Mr Eugenie’s legal counsel had been seeking for a more lenient sentence. However, the Justices of Appeal were of the view that the appellant is not a fit and proper candidate for a lenient sentence.

His past conducts played a critical role in the justices’ decisions since Mr Eugenie was convicted in 2012 and 2013 for the offences of housebreaking and stealing and was given relatively short sentences. However, he offended again in February 2016 after only having been liberated a few months prior in October 2015, following which he was placed on probation and required to do community service.

‘‘The subject matter of the present appeal pertains to offences committed in the months of September and October 2016. Therefore, it appears clearly that the appellant did not heed to the leniency showed towards him in the past,” the judgement reads.

L.J vs The Republic

L.J, a teacher, was convicted on his own guilty plea of sexually assaulting a 13-year-old child, having engaged in sexual intercourse with the teenager at his home in Mont Buxton. He was appealing both his conviction and the Supreme Court’s sentence of 10 years imprisonment.

His legal counsel argued that his client had not fully appreciated the nature of the charge against him at the time of entering his plea.

The court, however determined that there was no indication that the appellant did not understand the charge or his plea and therefore found no merit in these grounds of appeal.

The appellant had also appealed his sentence of 10 years on the ground that the sentence was harsh and excessive and that the judge had failed to appreciate the probation report, whereby the family of the victim had forgiven for the offence. But after considering the facts of the case and set precedence, the court upheld the 10-year sentence.

Michael Julienne vs the Republic

Another appeal case which was dismissed by the Court of Appeal was that of Micheal Julienne who appealed against his sentence of five years imprisonment after his conviction for trafficking in heroin. The drug had a net weight of 17.7 grams, which contained a pure heroin substance of 10.5 grams.

At his trial before the Supreme Court, the appellant had also been sentenced to a period of three months imprisonment after his conviction for cannabis resin possession. Both sentences had been ordered to run concurrently and with a pronouncement that he would be entitled to remission on the sentences.

At the time of his arrest the appellant was found with, in addition to the drugs, a digital case, a penknife, a piece of partly burnt glass and money amounting to R17,106. Although Mr Julienne’s counsel provided various arguments using similar drug cases, the Court of Appeal observed that the qualities of drugs involved in some of these cases were very much less and in none of those cases had the accused been arrested with paraphernalia used for trafficking in drugs.

F.M. vs The Republic

The appellant is a 75-year-old man, referred to as F. M in the judgement, who was charged before the Magistrates’ Court with the offence of sexual assault. He was found guilty of sexually assaulting an eight-year-old girl on multiple occasions in her aunt’s home and was sentenced to a term of eight years in prison.

Nichol Gabriel, counsel for the appellant, appealed against his client’s conviction stating that F.M. did not receive a fair trial since he was shielded from the eight-year-old victim during the trial and hence could not observe her demeanour during her testimony.

It is to be noted that the Magistrate had accommodated the child witness in the giving of her testimony in open court by having a screen placed between her and the appellant since she was being protected as a vulnerable witness, as per the Evidence Act.

The Court of Appeal therefore rejected this ground for appeal stating that the screen protected the child from having to confront the appellant which might have caused psychological and emotional injury to the child. It was further noted that the appellant’s legal counsel had agreed to that arrangement.

The appellant, through his appeal, further took issue with the fact that the complainant had failed to promptly report the incidents to anyone. However, the Court of Appeal strongly stated that this view provided by the appellant’s counsel is a myth that has been debunked through research and added that both judges and lawyers should remain updated on social research. Research has found that child victims of sexual assault will expect negative consequences such as familial disruption or punishment and are less likely to disclose sexual abuse promptly. The Court of Appeal stated that it remained satisfied with the credibility of the child.

The Court of Appeal also took the liberty of admonishing certain ‘insensitive tactics and language used by defence counsel in child sexual assault cases in general’.

In this present case, the Magistrate had noted that the ‘defence counsel attempted to shame [the victim] at numerous points during the cross-examination’.

In regards to the appeal against his sentence, which he felt was ‘harsh and excessive’, the Court of Appeal stated that a term of eight years is not proportionate to the life sentence that this child victim will now be serving and does little to repair the trauma and harm caused.

The court even considered increasing F.M’s sentence to at least ten years but refrained from doing so after being informed of the appellant’s medical condition.

The appeal was, once again, dismissed in its entirety.

Court of appeal remits civil matter back t Supreme Court for referral to Constitutional Court

The Court of Appeal has ordered a civil appeal matter pertaining to property amongst siblings be remitted back to the Supreme Court with a further order that the Supreme Court refers two constitutional questions raised to the Constitutional Court for their determination.

The judgment delivered on August 23 by Justice of Appeal Anthony Fernando makes reference to two constitutional questions;

“The restriction in the Civil Code on the free disposal by a person of property belonging to the person during the person’s lifetime by providing a reserved portion of that property for children contravenes the right to property in Article 26 of the Constitution.

Any reversal of the right of free disposal of property through the doctrine of disguised donation contravenes the right to property in Article 26 of the Constitution and is unconstitutional insofar as it is not a restriction prescribed by law.”

Furthermore, Justice of Appeal Fernando stated that while the Court of Appeal has a role to decide on individual cases and to determine principles of law applicable to future cases, there is a danger in establishing a misleading precedent.

The appellant in this matter, Wavel Ramkalawan appealed the decision of the Supreme Court in a matter in which his sister and half-brother sued him claiming their shares in land transferred to Mr Ramkalawan by deceased family member (Eva Ramkalawan) prior to her passing.

Both then-plaintiffs claimed that the said transfer was in reality a disguised donation. On January 26, 2016, the Supreme Court ruled in favour of the then-plaintiffs before Mr Ramkalawan entered a Notice of Appeal against the decision on February 24, 2016. The appellant, Mr Ramkalawan stated two constitutional questions as the grounds for appeal.