Court of Appeal proves itself as safeguard of democracy |19 August 2014

• Calls for change in some laws

As the highest Court of the land, the Seychelles Court of Appeal is the citizens’ last legal resort and as such an indispensable safeguard of justice and democracy, more than just a symbol.

This was proven last week when in their second sitting for this year, the Court President Francis MacGregor and four other members – Justices Domah, Fernando, Twomey and Msoffe - delivered their verdict on appeals against sixteen judgments of the Supreme Court and one of the Constitutional Court.

In some judgments, they even called for a review of certain laws.

The only constitutional case was that of Bernard Sullivan against the Attorney General. Charged for criminal defamation by the Magistrate’s Court after he had allegedly paraded the disfigured portrait of a local politician on his vehicle, Sullivan had first made a referral to the Constitutional Court claiming that his right to free speech had been abused. As it was ruled that his constitutional right had not been contravened and his referral was dismissed, he had re-appealed to the Appeals’ Court.

The latter dismissed his case on three grounds: That he had acted against an existing law, knew he was acting unlawfully and that is was premature for the said Court to allow the appeal as the appellant had not yet been convicted.

However, the judges were in agreement with lawyer Anthony Derjacques that there was no necessity for criminal laws to limit freedom of expression.

On this note, they judged that the legislation will have to be scrupulously reviewed based on current international laws and in view of freedom of expression.

The Court also pointed out that the elements of the offence were based on British Common Law, under which the offense of criminal defamation has long been abolished.

Another appeal dismissed was the one of the Seychelles government, against the heirs of Philibert Julienne. Julienne died following surgery at the Seychelles Hospital and his children had won a case for medical negligence before the Supreme Court, which had ordered the Ministry of Health to pay SR225,000 as compensation. The Court of Appeal ruled that there was no merit of appeal and that the Attorney General (AG) should have rather brought the Ministry of Health to task. The Court reminded that in a democracy, the AG’s Office is not a ministry and should not be treated as such.

In other cases, Excel Jean lost his appeal against the Republic and had his nine year sentence for criminal trespass, house breaking and theft confirmed.

Robert Passenji’s seven-year prison sentence for drug trafficking was also maintained, although the Court noted that his lawyer had not been present for most of the trial and witnesses had not been cross examined at all or properly.

As Passenji is physically handicapped, the Court of Appeal has advised him to put a case before the Constitutional Court in case he is not satisfied with his detention conditions.

The Court of Appeal made more and direct reference to democracy and fundamental rights in its long and interesting judgment concerning the criminal case involving the fishing boat ‘Charita’ which was intercepted while allegedly carrying illegal drugs, turtle meat and an automatic rifle. In this case, the Court of Appeal did not hesitate to release boat owner George Michel and crew member Kenneth Esparon on conditional bail, after this had been refused by the Supreme Court.
 
Though the verdict contradicted the one pronounced against Sullivan as neither Michel nor Esparon had been convicted, and though the constitution restricts the right of appeal to only a convicted person, the ruling stated that for the Court of Appeal to declare itself incompetent before any decision of any court would cast doubt on our democracy. It insisted that bail is a norm in every democracy and that the person can be released even if accused of murder, as long as the Court is satisfied that he or she will not escape the jurisdiction and will be present on trial day. The Court concluded that bail reflects the type of democracy we have and that we need to ensure that the principle is not reversed to become “jail” instead of “bail”.

Like in the case of criminal defamation, the Court of Appeal is of the view that there should also be a judicial review on bail.

As of the merits of the appeal, the appeal Judges observed that the lower Court had not been sufficiently enlightened on bail and so could have not been able to focus on the principles which should have been applied. They consequently ruled that at the time of their trial which has known a couple of false starts, Michel and Esparon would have stayed twenty one months in custody and would have thus been denied the right to a hearing within a reasonable time after having taken their plea. The length of remand would also have been inconsistent with the charges which are conspiracy to commit other charges for Michel, and possession of firearms for Esparon. It should be noted that the latter has been held in custody for more time than the one year maximum sentence his charge may carry.

However, the other crew members who are the main accused in the same case have been denied bail as their charges have been ruled to be more severe. Their release will only be possible if their trial fails to take off on the set date.

The Court of Appeal has also altered the Supreme’s Court decision in two other criminal cases. Rahim Jumaye who had been handed a life sentence for the murder of a Chinese immigrant worker and fifteen years for robbery on the same person has seen his murder charge changed to manslaughter and the related sentence reduced to fifteen years. As the two sentences will run concurrently, he will now spend only fifteen years in prison. The appeal of his accomplices Brian Louise and Freddy Oreddy against their twelve-year sentence for robbery has however been quashed.

The other case concerns Pascal Fostel whose ten-year prison sentence for sexual assault has been reduced by two years. While his appeal against conviction was dismissed, the Court was satisfied that as his case took nine years to unfold, he had been denied right to a fair trial within reasonable time.

After the verdict, some lawyers present in Court expressed their disappointment on this particular case, feeling that Fostel should have been handed a lighter sentence.

“The Court agreed that his complaint had merit and that his trial had lasted too long. I feel that his sentence should have been reduced by at least half,” one lawyer commented.

The third session of the Court of Appeal for this year is set for the month of December.