In the Court of Appeal - Mervin Jezabel Barbe loses gender case |14 August 2017

Mervin Jezabel Barbe’s appeal case to have the gender record on his identity card from male to female has no merit and was dismissed by the Court of Appeal on Friday.

Born and registered as a male and recorded as such on a birth certificate issued by the Civil Status Office in Seychelles in 1972, Mervin, by a medical surgery operation in 2003, changed his sex to become a female and was issued with a medical certificate to that effect. As he was residing in Italy, he applied to a court in Florence to be recognised as female and the application was objected by the civil authority.

In its judgment on June 19, 2007, the court made a declaration of the recognition of that change of sex and on October 2, 2007 Mervin obtained an identity card from the Italian authority.

In 2009, Mervin applied to the Civil Status Office in Seychelles for a change of name of his middle name from Jackson to Jezabel and this was approved in a marginal entry of the birth certificate dated April 12, 2010.

Mervin then applied to the Civil Status Office to change the gender record in his birth certificate from male to female and this was refused. He filed a plaint in the Supreme Court seeking the change and again his request was met with a refusal as the court declared that the Civil Status Act does not provide for this.

Defended by Kelly Louise and Bernard Georges, Mervin thus appealed against the judgment of the Supreme Court.

The Court of Appeal acknowledged Mervin’s plea and plight to have his change of gender recognised but Seychelles’ legal system does not permit such rectification of birth certificate to acknowledge a new sexual identity. It recommended the legislature to consider whether in the Seychelles of today there is a justification for the recognition of gender change, at least in conformity with the Charter of Human Rights in our Constitution.

Convicted and sentenced to nine years imprisonment by the Magistrate Court on October 9, 2014, for sexually assaulting Gabrielle Nourrice, a 14-year-old, on June 29, 2010 at Carana, North East Point, Rupert Suzette’s sentence has been reviewed downwards to four years and six months.

At the time of the incident, Gabrielle was attending the same school where Suzette was teaching and it came out that she planned how she would meet Suzette, organised her own way to North East Point and back to Victoria to join her schoolmates at the annual Inter-School Athletics Championship. She shared with her colleagues what had happened to her but did not complain to her mother who only came to know about it after checking her telephone. It was her mother who initiated criminal action against Suzette but Gabrielle was not keen on doing so and in her evidence before the court four years later, she still indicated that she had no cause of complaint against the science teacher for what happened. A first offender, Suzette was 26 years old when he committed the offence.

Prison warden Jules Labrosse had his appeal against a six-year imprisonment term dismissed. Labrosse was convicted in the Magistrate Court on July 24, 2013 of the offence of possession of controlled drug. It was on December 22, 2012 at the Montagne Posée prison that Labrosse was found in possession of 1.43 grammes of heroin diamorphine and 20.3 grammes of cannabis resin.

The 12 and 15-year sentences on Mike Vital and Steve David were not disturbed by the Court of Appeal which dismissed the appellants’ requests to have them shortened.

They were convicted of the offence of robbery with violence. The incident happened on August 7, 2013 at Port Glaud when the two men, armed with a machete, stole various items made of gold including bangles, chains, rings, studs, two mobile phones, one tablet and a sum of R3,000 in cash altogether amounting to R320,000. The items and money belonged to Mr Venkatarajan and Mrs Abhinaya Pillay.

Sentenced to life imprisonment for the murder of his wife Rita Alphonse, Narajan Alphonse appealed against the verdict, but the court dismissed it.

Rita’s badly decomposed naked body containing at least 27 laceration and incision wounds together with dislocation of her right eye, fracture of her skull and her cervical spine was discovered in a marsh at Anse Boileau, a short distance from her home on December 7, 2013.

As Narajan had been convicted before this case of another murder for which he was pardoned, the court is of the view that pardon should never be considered in this case. It has also forwarded a copy of the case to the Pardon Advisory Committee.

Convicted by the Supreme Court on a trial by judge before a jury for the murder of his nine-year-old son Alister Labrosse who died by drowning at sea on January 13, 2015, Neddy Labrosse has been sentenced for a period of five years. The period of two years and seven months spent in custody shall be deducted from this sentence.

Sentenced on June 10, 2013 to two terms of imprisonment for 12 years and four years respectively by judge Samia Govinden after pleading guilty for the offences of housebreaking and stealing, Gerard Volcy was to serve 42 years in prison as he was already serving time in prison for other offences.

After a first appeal when the court reduced the term of 42 years imprisonment to a term of 21 years imprisonment, Volcy appealed once again saying the 21 years sentence is still too harsh.

The Supreme Court on Friday set aside the 21 years sentence and substituted it with a 10-year sentence and the time he has spent in remand custody will count towards the sentence. Volcy will also have to compensate in kind or in monetary terms of R29,265 the owner of the stolen items.

Isaac Bacco and Dario Delcy appealed against what they termed “a manifestly harsh and excessive” sentence of 8 years imprisonment for one count of housebreaking and 1 year for the count of stealing from a dwelling house. Their sentences were to run consecutively, but the Court of Appeal decided they should now run concurrent to previous sentences.

Jean-Francois Adrienne and Terence Servina appealed against their sentences of life imprisonment after being convicted of trafficking in 47,435.1 grammes of cannabis and conspiracy to commit the said offence. Their appeal was dismissed by the court.

Contesting the validity of a holographic will made by a testator who had no issues of his own bequeathing all his properties to a person outside the lineage of descendants and ascendants of his family, appellants Camille Rene Hoareau, Calixte D’offay, Jennifer Payet née D’offay and Joseph Précy Hoareau lost their appeal against The Estate of Emile Serge Hoareau, sole surviving heir of Emile Selmour Hoareau.

Francis Ernesta, Brian Mothé and Kevin Quatre had their appeal against the Supreme Court refusing them bail dismissed. The case of the three men charged with importation and trafficking in 477.66 grammes of pure heroin and conspiracy to commit the offences of importation and trafficking is still pending before the Supreme Court.

Emile Esparon’s appeal following his dismissal from the Credit Union was found to be partly successful and the court found that his dismissal was not justified and that his awards of benefits had been wrongly computed. The court also pointed out the exact sum to be paid out to him.

Hilda Chetty appealed a Supreme Court decision to award Dan Ponan a sum of R4,404,000 including R50,000 for moral damages after R4,450,000 was transferred into her account following the sale of two land parcels. Instead the money should have been transferred to Mr Ponan’s bank account. Mr Ponan was married to Mrs Chetty’s step daughter Lindy Charlette and they have since divorced.

On dismissing Mrs Chetty’s appeal, the Court of Appeal said she was committing daylight robbery.