Court of Appeal closes first session for the year with landmark ruling |22 August 2020
Justice Fernando flanked by Justices Twomey and Robinson (Photo: Thomas Meriton)
Collin and Gina Forte were yesterday granted their freedom back after the Court of Appeal delivered a ruling to quash all drug related convictions and sentences imposed on them, on numerous grounds including a “fundamental flaw in the prosecution case” and an err in judgment by the trial judge.
In delivering the ruling, one of two dozens as the Court of Appeal closes its first session for the year, President of the Court of Appeal Justice Anthony Fernando, who was accompanied by Justice Fiona Robinson, highlighted numerous issues with the chain of evidence and chain of custody pertaining to the evidence in the matter, 1336.5 grammes of heroin which the appellants were accused of importing into the country in October 2014, adding that the prosecution failed miserably and were unfair in prosecuting, convicting and sentencing the pair to 30 years for importation of the controlled drug, and 27 years for aiding and abetting a third person to import a controlled drug.
During the lengthy judgment, Justice Fernando further highlighted discrepancies and inconsistencies in the prosecution’s case, noting doubt as to the date of importation of the controlled drug by the Prosecution and doubt as to whether the drugs found in the ‘Anlene’ tin at Roche Bois on November 7, 2014 were the same drugs that the prosecution had alleged the pair had caused to be imported in the country.
“I am as concerned as anyone else with the increasing drug menace in this country which is destroying our youth and the future of this country, and thus should take firm action with everyone involved especially in the importation and trafficking in dangerous drugs. I am however unable and unwilling to sacrifice the sacrosanct principles of this court, when the investigation has failed miserably in its duty, the Prosecutor has been unfair in conducting the prosecution and the learned Trial Judge had erred in his judgment,” Justice Fernando noted.
Legal representative for Mr and Mrs Forte, Basil Hoareau, who represented both clients in the appeal case, noted numerous grounds for appeal, including the break in the chain of evidence.
“We sought to prove the break in the chain of evidence. The drugs reached Seychelles on October 11, 2014 and when they arrived, the evidence indicates that this was supposedly in an ‘Anlene’ tin. The person accused of bringing in the drugs said she delivered it to an unknown man. On November 7, 2014, officers of the then National Drugs Enforcement Agency (NDEA) find an ‘Anlene’ tin in Roche Bois and claims that this was the said drugs. We sought to show that there is no connection that it was indeed the same drugs, there was a break in the chain of evidence as the man to whom the drugs were allegedly delivered is unknown. It is also possible that between those 21 days, from when the drugs was imported from Dubai, the contents of the tin could have been changed and Prosecution were unable to prove that the contents were the same,” Mr Hoareau argued.
“Another major defence on which we relied is refreshing memory. We are saying that the judge allowed the prosecution’s main witness, who was supposed to have brought the ‘Anlene’ tin into the country, to refresh her memory with a statement made 40 days after the incident. You can allow a witness to refresh memory but on certain condition, including that the statement must have been made as close to the incident. Generally, in case law, English law does not allow for refresh memory if a statement is made 40 days after the incident. In this case, the statement was not written by the witness but rather by an NDEA officer and the witness never testified that she verified what was written, so the conditions were not met to allow her to refresh her memory,” Mr Hoareau stated.
Mr and Mrs Forte were convicted and sentenced in 2017 after being extradited from Kenya the same year, for being wanted by the NDEA since 2015.
The second case in which the appeal against sentence succeeded was that of Abison De Giorgio. Justice Fernando noted that Mr De Giorgio’s appeal against conviction on all counts is dismissed while his appeal on sentence, the appeal is allowed with regard to count 5. The Appellant is therefore sentenced for count 2, a term of 5 years’ imprisonment and a fine of R25,000, in default of payment of the fine 6 months’ imprisonment; for count 3, a term of 8 years’ imprisonment and a fine of R25,000, in default of payment of the fine 6 months’ imprisonment; for count 5, a term of 2 years’ imprisonment and a fine of R25,000, in default of payment of fine 6 months’ imprisonment. The sentences are to run concurrently, but the 6-month terms of imprisonment imposed for each offence for non-payment of fine is to run consecutively.
Charges were brought against the Appellant, a Complaints and Communications manager at the Anti-Corruption Commission of Seychelles (ACCS), as a result of a complaint to the police by former Minister Dolor Ernesta.
Subsequent to the complaint by Mr Ernesta, the police arrested the Appellant who was convicted following trial for, Count 2 for corruptly soliciting or attempting to obtain gratification for oneself as Reward, Count 3 for extortion and Count 5 disclosing without the written consent of or on behalf of the Anti-Corruption Commission, otherwise than in the course of that person’s duties, to any unauthorised person, the contents of a document or information, which document or information relates to or has come to the knowledge of the person in the course of that person’s duties under the Anti-Corruption Act contrary to section 14 (1) of the Anti-Corruption Act 2016 (Act 2 of 2016).
He was sentenced for count 2 to a term of five years’ imprisonment and a fine of R25,000, in default of payment of the fine to a term of six months’ imprisonment. For count 3, he received a term of eight years’ imprisonment and a fine of R25,000, in default of payment of the fine six months’ imprisonment. For count 5, he was sentenced to a term of five years’ imprisonment and a fine of R25,000, in default of payment of the fine to six months’ imprisonment.
The Court of Appeal maintained decisions against sentences in the majority of cases, most of which were drug-related.
Due to travel prohibitions brought about by the Covid-19 pandemic, eight cases were heard by video conference as Justice Tibatemwa was unable to travel to Seychelles from Uganda. This is in keeping with court rules and procedures and the Constitutional provision for cases to be heard within a reasonable time, Justice Fernando said, adding that the judiciary must adapt to fit society and challenges.
Newly sworn in Justice Dr Oagile B.K. Dingake was also welcomed to the court by Justice Fernando, Justice Robinson and Justice Mathilda Twomey prior to the rulings. Justice Dingake was officially welcomed by the three fellow justices and representatives of the Bar Association of Seychelles.
