IN THE SUPREME COURT OF SEYCHELLES

Criminal Side: CO 67/2012

[2016] SCSC 326

THE REPUBLIC

versus

WINSLEY CEDRAS

Heard: Counsel: 1St, 2nd, is" and 21st April, 14 September, 2015, 25th January, 2016.

B. Confait, State Counsel for the Republic

A Derjacques for the accused

Delivered:   13 May, 2016

JUDGMENT

Dodin J.

[1]  The accused Wins1ey Cedras, stands charged with the following counts:

Count  1

Statement oj offence

Robbery with Violence contrary with Section 280 and punishable  under Section 281 oj the Penal Code Cap 158 read with Section 23 oj the Penal Code.

Particulars of offence

Winsley  Cedras  on the 1ih day of November  2012 at Anse  Royale.  Mahe, with common intention with  Fred  Emmanuel, whilst being armed with a knife, stole  SR1000/- being the property of Roch Richard Low and at the time of the robbery or immediately before or immediately  after the time of the robbery, used actual violence on and injured one Jean  Claude  Low.

Count  2

Statement  of offence

Aiding and abetting the offence of Robbery with Violence contrary to

Section 22 (b) punishable under Section 281 of the Penal Code Cap 158

Particulars  of offence

Winsley Cedras on the 17/17day of November 2012 at Anse Royale. Mahe, aided and abetted  Fred Emmanuel to commit the offence of robbery with violence against Jean Claude Low.

Count 3

Statement of offence

Conspiracy to commit a Felony contrary 10 and punishable under Section

381 of the Penal Code Cap 158

Particulars  of offence

Winsley Cedras on the 1ih day of November 2012, at Anse  Royale, Mahe, conspired with Fred  Emmanuel to commit a felony namely the offence of robbery with violence of the sum ofSR1,000.

[2] The prosecution witnesses testified as follows. Dr B V K Rao testified that on the 17th November,  2012, he examined  the victim Jean-Claude Low at Anse Royale Hospital. The victim had  a small  wound  below the left eye, another above the right eye and a further wound on the scalp. He was treated, the scalp wound sutured, then released.

[3]   Mikaaeel  Alibhaye testified  that he installed the CCTV cameras and recording facilities at Richard  Low's shop and Jenita Barra produced copies of recordings made of the incident showing the scene  inside and outside the shop. Dorothy Edmond testified that vehicle registration number S9474 was registered as owned by the accused Winsley Cedras.

[4]  ASP Christelle Marie testified that on the 17th November, 2012, at Anse Royale police station she arrested the accused who agreed to give a statement after he had been duly cautioned. The accused had also declared that his car had been stolen on that day. On the same day she accompanied the accused to his residence at Anse Boileau where several items were taken and produced as exhibits These included  a black cap, a pair of sunglasses, a car key with tag S9474, 2 mobile phones, 2 Airtel starter packs and 2 Airtel SIM cards.

[5]   On the is" November,  2012, she also accompanied Jenita Barra to Sweet Escot to download the cctv footage. She also issued warrants to Cable and Wireless to produce call logs for telephones 2548050 and 2548658, which were produced by Mr. Georges

D'Offay.

[6]  Inspector Octobre and ASP Justin Dogley testified that they accompanied the accused and ASP Marie to search the accused's  house at Anse Boileau where the items were seized. Inspector Octobre also took a statement from the accused. Inspector Dogley also testified that on the 17th November, 2012, he witnessed the accused driving car S9474 going in the direction of Anse Royale around 10.55am.

[7]  Jean-Claude  Low  testified  that  on  the 17th November,  2012,  he  was  attending  to customers in the shop at Sweet Escot when a man now identified as Fred Emmanuel, jumped  over  the  counter  and  assaulted  him  and  took  some  money,  approximately RsI000/-  from the till before making his escape when another man, Unfred Sedgwick entered the shop and raised the alarm. He suffered injuries to the face and head and was taken to Anse Royale Hospital for treatment. He maintained that it was not the accused who attacked him and he did not see the accused in or outside the shop on that day.

[8] Guyto Valmont  who was a customer at the shop identified  the attacker  who was loitering near the shop  from  the cctv footage  and was certain that it was not the Accused. He did not see the accused  in or outside the shop that day either.

[9]  Unfred  Sedgwick  testified  that  on the 1th November,  2012,  at about  11 am he rode  his bicycle to Richard Low's shop at Sweet Escot. As he reached the shop, he heard a scream and  when  he  went  inside the shop he saw a man hitting Jean-Claude Low behind  the counter.  He shouted  at the man and the man jumped over the counter in his direction and ran out to a car that  was parked  on the Sweet  Escot Road facing Anse Royale. The car left as soon as the man got inside. The car was driven  by a man wearing sunglasses. He advised Jean-Claude  Low to seek medical  help and to call the police.

[10]  Phillip  Larue  testified  that on the day in question he recovered  a small blade from the floor behind the counter of Jean-Claude Low's shop and the same was kept as exhibit.

[11]  Phillip  Esparon  testified  that  on  the  17th  November,   2012,  he  was  offered  a ride  in a Daihatsu  Charade  by Fred Emmanuel  who was sitting  in the front passenger  seat. He did not know the driver at the time  but he now knows him to be the accused.  They  stopped at some  shops  along  the way to Anse  Royale  and at each  stop  it was Fred  Emmanuel  who went to the shop while  he and the accused  remained  in the car. Whilst  he was in the car he did not hear the accused  and Fred Emmanuel  speak about committing  any robbery.  He testified  that when  Fred  Emmanuel  had gone  into a shop at Sweet  Escot  he had a small kitchen  knife  with  him  but when  he returned  he only  had  the handle  and  he also  had a towel  which  Fred Emmanuel   opened  later and it contained  money  in notes  of 25 and  50 rupees.

[12]  The witness  testified  that  Fred Emmanuel  rushed  into the car after a man  who came on a bicycle  had  entered  the  shop  and  when  Fred  Emmanuel got in the  car  Fred  Emmanuel told  the  accused  to  drive  off  quickly  as he was  being  attacked.  The  accused  drove  off quickly  towards  Anse  Royale  and  he heard  Fred Emmanuel   tell the accused  to hide  his car and himself  for 2 weeks.  During  the time that Fred Emmanuel  had gone  to the shop the  accused  was  observed typing  a  message  on  his  phone  but  otherwise he  appeared normal. The witness  got off at the Anse  Royale junction   leaving  Fred Emmanuel  and the accused  in the car.

[13]   In his defence,  the accused  testified  that he joined  the police  force  at the age of 22 years and  had  a  long  carrier with  the police without   any  disciplinary issues although he admitted  that at the time of this incident  he was on suspension  with  ~  salary  for a matter totally  unrelated  to the present  case.  During  the time  he was  on suspension,  he used his vehicle as an unlicensed  taxi (taxi pirate).

[14]  He testified  that on the day of the incident,  he had gone for a haircut  and on the way back he had a carton  box to deliver  when  he met Philip  Esparon  and gave him a lift. Later on he met Fred Emmanuel   and also picked  him up. Both  passengers  were  on the  back seat. He testified  that  Fred  and  Philip  were  chatting  in  low  voices  until  they  reached  Jean­ Claude Low's  shop when  Philip told him to stop and Fred got out and went into the shop. There were other people  in the area walking  about or playing  dominos.

[15]  He testified  that suddenly  he saw Fred run and got into the car and told him to drive away as people  were  fighting  and  somebody   wanted  to  harm  him.  He  drove  towards  Anse Royale  Catholic  Church  then towards  Takamaka  hoping  to get to Baie Lazare  as the fuel was low but the car ran out of fuel. He then took a bus to Anse Boileau  and then he went to Anse  Royale  Police  Station  where  he was interviewed  by 5 police  officers.  He gave a statement  in  which  he reported  his car  had  been  stolen  but  he maintained   that  he only stated that because  he was in a panic and confused.

[16]   Later,  his place  at Anse  Boileau  was  searched  and  the  items  admitted  as exhibits  were seized. He denied  that he took part in the robbery  or that he conspired  to do so. In cross­ examination  he maintained  that he did not know Fred Emmanuel  before  that incident  and maintained  that the statement  he made was totally untrue.

[17]   Philip  Uzice  testified  that   he knew  the accused  and  helped  him  with  fuel in return  for services conveying  water and other items.

[18]   Vincent  Payet testified  that he was the manager  of Baie Lazare Petrol  Station  and that the accused  was a client who was supplied  with fuel for his vehicle  and paid at the end of the month.

[19] Andre  Valmont   testified   that  during  his  time  as  a  long  service  police  officer,  he  had known the accused  to have  been a very respectful,  loyal and motivated  police  officer  but the witness  was no longer  in the force at the time of the incident  and only became  aware that the accused  was on suspension  when he heard the news of the incident.

[20]  Dan  Bonte  testified  that  he had  known  the  accused  during  the time  the  accused  was  a serving  police  officer  on  Praslin  and also  when  the accused  returned  to  Mahe  they  had remained  on good terms.  He had known  him to be a good person  but was  aware that he had been suspended  from the police.

[21]   Fred Emmanuel who had  been charged and convicted  for the same  offences  on his own guilty  pleas,  testified  that  he did not know  the accused  until  the day of the  incident  and that he never  discussed  anything  with the accused  whom  he believed  to be a taxi driver. He admitted in cross-examination that in his statement  under caution  it is stated that  he had  known  the  accused  and that  they  had  spoken  on the phone before  the  incident. He maintained  that the content  of his statement  was not true and that  he had been tricked by Inspector Octobre  to give a statement  implicating the accused and that at the time he was a heroin addict  and  had been promised that if he signed  the  statement he would  be released.

[22]  The Court also conducted a  locus in  quo  at  the   instance of  the  accused and  the prosecution and the accused  and  two  prosecution   witnesses showed the  Court  various spots  at  the scene which they believe to  be  pertinent in supporting their respective testimonies.

[23]  In her fmal  submission,   learned  counsel  for the  prosecution   submitted  that  the offence was committed  on Jean  Claude  Low  in a shop at Sweet  Escot,  Anse  Royale  and that at the time  of the  robbery  one  of the perpetrators,  Fred  Emmanuel  used  a knife  to hit and injure Jean  Claude  Low  and then  made  off with a sum  of approximately   Rsl000/-.   She submitted  that the testimony  of Jean Claude  Low was corroborated   by the testimonies  of Unfred  Sedgwick  and  Guy to  Valmont and video  footage  which  were  admitted.  Further, the defence   witness  Fred  Emmanuel admitted  to  and  was    convicted of  the  offence  of robbery  with  violence.  The  only  outstanding   issue  is whether  the  accused acted with common  intention  with Fred Emmanuel.

[24] Learned  counsel  submitted   that  common  intention  can  be inferred  from  the  acts  of the accused  immediately   before,  during  and  after  the commission   of  the  offence.  Learned counsel  submitted   that  the  elements  of  the  offences  with  which  the  accused  has  been charged  have been established  by the evidence  of the prosecution  to the satisfaction  of the Court.  She submitted that the criminal  intent of the accused  has been proved  by the fact that the accused  drove his vehicle  registration  number  S9474 to the shop of Richard  Low where Fred Emmanuel  committed  the robbery but even if he stayed  in the vehicle  as soon as Fred Emmanuel returned  he drove  off very fast and  when he was advised  to hide  his car he made  a false  complaint to the police  that  his car had  been  stolen.  She submitted that this  showed  that  the accused  had knowledge  of the act that was committed  by Fred Emmanuel  and not only  is he an accomplice  but also properly  charged  for the offence  of robbery with violence  read with section  23 (common  intention)  of the Penal Code.

[25] Learned  counsel  submitted  that the offence  of aiding  and abetting  the offence  of robbery with violence  has also  been  established  beyond  reasonable  doubt.  She submitted  that the accused assisted  Fred Emmanuel  by way of providing  transport  to take  him to the scene of the crime and  to  take Fred  Emmanuel  away  from  the  scene  of  the  crime  after  the commission  of the crime .. She submitted  that the accused  performed  the  material  act of illegally facilitating  the commission  of the offence.

[26]  With regards  to the offence  of conspiracy,  learned counsel  submitted  that the prosecution has proved  all the elements  of the offence  beyond  reasonable  doubt.  She submitted  that the  evidence   showed   that  there  was  an  agreement   between   Fred  Emmanuel   and  the accused  to  carry  out  an unlawful  act  and  the  unlawful  act  was  robbery  with  violence. Learned  counsel  submitted   that  the  testimony  of  Phillip  Esparon  and  the  exchange  of telephone  calls  between  Fred Emmanuel  and the accused  during  the month  leading  up to the commission   of the  offence  are strong  evidence  supporting  the  fact  that  the accused and Fred Emmanuel  had agreed that the offence was to be committed.

[27] Learned  counsel  hence  moved  the Court  to find the accused  guilty  of all three counts  as charged  and to convict  him accordingly.

[28]   Learned  counsel  for the accused  submitted  that the prosecution  has not proved  the counts against  the accused  beyond  reasonable  doubt and that the 2nd and 3rd charges against the accused are defective. Learned counsel submitted that the only person who witnessed the accused in the  vehicle  was Phillip  Esparon who  testified  in  favour of the  accused. Learned counsel submitted that all the witnesses who testified did not at all implicate the accused in the robbery carried out by Fred Emmanuel. The accused was an innocent driver who was placed in this unfortunate situation.

[29] Learned counsel submitted that the accused was a high ranking police officer who was on suspension and was receiving a mere percentage of his salary. He therefore used his vehicle S9474 as an illegal taxi to supplement his salary. He only gave a ride to Philip Esparon because Fred Emmanuel who was a fare-paying passenger asked him to. He had no knowledge that Fred Enunanuel was going to commit a robbery and he only drove off after Fred Emmanuel got into the car and shouted at him to drive off. He only realised that something was wrong when Fred Emmanuel dropped some money in the vehicle and told him to hide his vehicle. The accused made a false declaration that his vehicle had been stolen because he was in a panic but he reported himself to the police station.

[30] Learned counsel moved the Court to find that the Republic has failed to discharge its burden of proof to the required degree and acquit the accused accordingly.

[31] It is not in dispute that the accused was the driver of vehicle S9474 and that he remained in the vehicle throughout the whole incident and that the physical act of robbery was made by Fred Emmanuel. The accused is charged with having common intention with Fred Emmanuel in the commission of the crime as well as being an accessory to the crime.

[32] Common  intention  would  exist where two or more  persons  form an intention  in common to carry out an unlawful  purpose  and to assist each other therein  and anyone   of them,  in carrying  out  the  common   purpose,  commits   an  offence  which  each  of  them  knew  or ought   to   have   known   that   the commission  of  the   offence   would   be   a  probable consequence   of carrying  out the common  purpose.  The  prosecution   must  prove  beyond reasonable  doubt  that the accused  was a participant  in the commission   of the crime  even if the  accused  only  drove  the  vehicle  and  never  left  the  vehicle  to  assist  the  principal offender.

[33] However,  to  establish   common   intention,  the  prosecution   must  prove  that  the  accused actually  assisted  in the  actus reus which consists the crime. If two or more people are directly responsible for the actus reus, they can be charged as joint principals. Otherwise, the accused becomes  a  mere accomplice and can only  be charged  with  aiding and abetting or conspiracy. The test to distinguish a joint  principal  from an accessory is whether the  accused  independently contributed to  causing the  actus reus rather than merely giving generalised and/or limited help and encouragement. In other words an active presence on the part of the accused is required.

[34]   In this case I find that the prosecution has at the most managed to establish that the accused gave assistance by driving the vehicle to the location where the robbery took place and then drove the principal away from the scene of the crime but did nothing more. Consequently, I find that the  lSI    count of robbery with violence has not been proved to the satisfaction of the Court. The accused is therefore acquitted of the Ist count accordingly.

[35] With regard to the 2nd  and 3rd  counts, I do not subscribe to the contention of learned counsel for the  accused  that  the charges are defective. Article  111 of the  Criminal Procedure Code states:

111. Every charge or iriformationshall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person  is charged, together with such particulars  as  may be necessaryfor giving reasonable information as to the nature of the offence charged.

I  find  both  counts   to  have  met  the  requirements   of  the  law  and  contains   sufficient particulars  to allow the accused  to mount his defence.

[36]  Aiding  and  abetting   is  defined  as  assisting   in the  commission   of  a crime  or  to  be an accomplice   in  the  commission   of  a crime.  It involves  a plan  to  commit  a crime  or  to commit  acts, the probable  consequences  of which are criminal.  An accomplice  may assist or encourage  the  main  offender  with  the  same  intent  to  have  the  crime  committed   but need  not  be present  when  the  crime  is actually  committed.   However,  it is important  to note  that  without  sharing  the  criminal  intent,  a  person  who  is merely  present  when  a crime occurs  and stands  by silently  is not an accomplice  and cannot  be said to have aided and abetted  the commission   of the crime  by his mere presence.  Aiding  and abetting  must involve  knowledge  of the crime  in addition  to advice or assistance  to the criminal.

[37]  Mere presence  at the scene  of a crime  is not enough,  even  where  the accused  remains  at the scene  to watch  the crime  being committed.  In R v Coney  (1882) 8 OBD 534, where  a crowd  watched   an  illegal  prize  fight,  it was  held  that  there  must  be  active,  not  mere passive,   encouragement.    Hence,   even  though   the  fight  would   not  have  taken  place without  spectators  prepared  to bet on the outcome,  the spectators  were acquitted  because their presence  was accidental.

[38]   The  accused  must  intend  to  do  the  acts  which  he  knows  will  assist  or  encourage  the principal  to commit  a crime  of a certain type. In the case of  R v Bainbridge (1960) I QB

129 the accused  supplied  cutting  equipment  not knowing  exactly  what  crime  was going to be committed,   but he was convicted  because  the equipment   supplied  was  used in the ordinary  way but for a criminal  purpose.  The accomplice  must also know all the essential matters  that  make  the  act  a crime,  but  need  not  know  that  the  act  would  amount  to a crime because  of the principle  of ignorantia  juris non excusat.

[39]  In this  case  the  evidence  shows  that there  were  telephone  communications   between  the accused  and Fred Emmanuel  before the commission  of the offence.  Although  the accused denied the same,  Fred Emmanuel  admitted  that the telephone  number  in question  was his.

The accused  was therefore  not being truthful.  There  is evidence  that Fred Emmanuel  was in the car with the accused  prior to Philip Esparon  being  given  a lift. Again,  the accused was not truthful  when  he maintained  that  it was Philip  Esparon  who  asked  him the give Fred Emmanuel  a lift. There  is evidence  that after the robbery,  the accused  drove the car away  from  the  scene  at speed  although  he maintained  that  he only  did that  because  he was  asked  to  do  so  by  Fred  Emmanuel.   There  is  evidence   that  the  accused   falsely declared  that his vehicle  had  been  stolen  although  the accused  maintained   that  he made the declaration   in a panic.  Even  at the locus  in quo,  the accused  showed  the position  of his vehicle  in a markedly  different  place  to that showed  by Unfred  Sedgwick  and Jean­ Claude  Low.

[40]  I am satisfied  that  the actions  of the accused  before and after the robbery  shows  beyond doubt that he had knowledge  of the fact that Fred Emmanuel  was embarked  on a criminal venture  and that he willingly  assisted  by driving  him to and away from the scene. I reject entirely  the  evidence   of  the  accused   as  being  too  inconsistent   and  indeed  not  at  all credible.  I am therefore  satisfied  that the prosecution   has established   all the elements  of the offence  of aiding  and  abetting  the commission   of the offence  of robbery  as charged and I convict  the accused  on that count accordingly.

[41]  On  the  3rd  count of conspiracy, the prosecution must prove that there was agreement between the accused and Fred Emmanuel to commit the offence in question. Conspiracy is an offence the elements of lie in the agreement that is reached, rather than what is actually done to carry out the agreement itself. When the parties to the conspiracy enter into the agreement the offence of conspiracy is complete. It is not necessary for any action to be performed in pursuance of it. If no agreement is reached or can be proved then a charge of conspiracy must fail. However once the agreement is made it is no defence to a charge of conspiracy that the accused did not take an active part in the actus reus of the crime..

58. As stated in the case of R v Anderson (William Ronald) [19861 AC 27,  (Lord Bridge) the prosecution must prove an intention by the parties to enter into the agreement to do an unlawful act, with an intention by the parties

"of playing   some  part  in the agreed  course  of conduct  in furtherance    of the criminal  purpose   which the agreed  course  of conduct  was intended  to achieve. Nothing  less will suffice; nothing more is required".

[42]  From  the  evidence  as  rehearsed  above,  I  am  satisfied  that  the  accused  and  Fred Emmanuel had agreed well in advance before Phillip Esparon got in the vehicle on what they were about to do and their respective roles. I reject the accused's contention that he was a simple driver of an illegal taxi and was following the directions of Fred Emmanuel. After all the accused is a very experienced police officer and I do not subscribe to the contention that he was foolishly led by Fred Emmanuel. As I found above his testimony is too inconsistent and unbelievable.

[43]  I am therefore satisfied that the prosecution has proved all the elements of the 3rd count of conspiracy to commit a felony as charged. I find the accused guilty of that count and I convict him accordingly of that count as charged.

[44]  Signed, dated and delivered at lie du Port on 13th May, 2016.

G Dodin
Judge of the Supreme Court