In the Court of Appeal Francis Bakas’ conviction for murder and sentence of life imprisonment quashed |12 May 2021

The Court of Appeal delivered judgments in both civil and criminal appeal cases on April 30, after concluding its first session for the year.

Criminal appeals

Francis Bakas V The Republic

Appellant Francis Bakas had his conviction for murder and the sentence of life imprisonment quashed, and substituted for a conviction for manslaughter and a sentence of 10 years’ imprisonment, with the time spent on remand and after conviction in prison to be deducted from the 10 years.

Bakas had been sentenced by the Supreme Court on September 17, 2019, after it was found through medical evidence that the deceased died at the hands of Bakas, as the result of an assault on her. During the trial, Bakas maintained that the injuries on the deceased had been caused by a fall, although this had been rejected by the doctors who testified in the case and it had been their view that the deceased had been hit with a hard object or her head hit against a wall.

In considering the facts of the case and the appeal, President of the Court of Appeal Anthony Fernando noted that “the appellant’s conviction shows that the jury had placed reliance on the evidence of the doctors” and the fact that the unlawful act on the part of the appellant can only be inferred from the medical evidence as there are no eye-witnesses to the incident.

Delivering the Court of Appeal’s judgment, president Fernando highlighted an interesting question that arises in this case; does the rejection of the appellant’s version of the incident automatically make him guilty of murder?

“This was a case based entirely on circumstantial evidence. The circumstantial evidence in this case points to the fact, that the appellant by an unlawful and wilful act, with malice aforethought, caused the death of the deceased. However, I find that the learned trial judge, the prosecutor, and the defence counsel, had completely overlooked one essential fact in this case, namely, whether there was any form of provocation which could have made the appellant act in the way he did. It is to be emphasised that there are no eyewitnesses to the incident and the only persons present in the house at the time of the incident were the deceased and the appellant,” said Justice Fernando.

“The circumstantial evidence in this case does not necessarily lead to the inescapable conclusion that this was an unprovoked attack. The inculpatory facts are not necessarily incompatible with some form of provocation at the hands of the deceased and are not incapable of explanation upon any other reasonable hypothesis than that of guilt of the appellant for the offence of murder. An explanation that it was one of manslaughter is always a reasonable hypothesis. In this case in view of the absence of evidence as to what took place in the house of the deceased between 1.30 and 2am, there are co-existing circumstances which weakens the inference that the appellant is guilty of murder based on the circumstantial evidence that is available. It had not been possible for the prosecution to exclude the possibility of some form provocation from the deceased in the circumstances of this case as emerges from the evidence, which could be considered in favour the appellant,” president Fernando stated.

In addition, he said there is no evidence whatsoever that the appellant had attacked the deceased with whom he had been in concubinage for 11 years on the day of the incident, in the way the prosecution argues he did.

President Fernando went on to outline the circumstances in the case which court took into consideration in quashing the conviction, namely the fact the Bakas sought help immediately after the incident and accompanied the deceased to the hospital in the ambulance, as well as the fact that provocation is a partial defence to murder and the burden of proving provocation is not on the defence.

As per Cascoe [1970) and Bullard V The Queen [1957], the jury must be clearly told that once there is evidence capable of supporting a finding that the accused was provoked, the burden is on the prosecution to prove beyond reasonable doubt that the case is not one of provocation.

It must be noted that Bakas had not raised the issue of provocation not as a ground of appeal. However, it is courts’ duty to when an appeal is lodged, to entertain any matter however arising according to rule 31(1) of the Seychelles Court of Appeal Rules 2005, which shows that the decision of the court appealed from is erroneous, and to prevent miscarriage of justice, president Fernando said.

Jean Yves Dodin V The Republic

Court dismissed the appeal of Jean Yves Dodin against a seven-year imprisonment sentence for the offence of robbery with violence, contrary to section 280 of the Penal Code.

Dodin, was convicted and handed the seven-year sentence by the Supreme Court along with two others in 2018, on the basis that they, having common intention, attacked Mr Anbazhagan Ramasamy and Mr Chanrasekaran Prakash at the Maruthi Store situated at Grand Anse Mahe and robbed the store of the sum of R7,000.

The probation report called for by the sentencing judge revealed that the appellant was a drug user at the time of the commission of the offence and that the offence had been committed in pursuance of this habit. The sentencing judge also stated that “violence and the concerted action of the convicts are aggravating factors to be considered” in determining the sentence to be imposed and that court should strive to find a balance between punishment and rehabilitation of offenders, whilst also protecting society at large from the harm caused by such unwarranted and criminal acts.

Having considered both the aggravating and mitigating factors of the matter, president Fernando concurred with the sentencing judge that society must be protected against criminal acts of the manner, dismissing Dodin’s appeal. It must be noted that Dodin is the only one of the three convicts who appealed against the sentence.

“It is trite law that an appellate court will not interfere with a sentence imposed by the trial court unless there are the, often repeated 4 established grounds for doing so. This court had also pronounced that it would not interfere with a sentence unless it is ‘manifestly harsh and excessive’. In this case I am of the view that the appellant who was liable to have been given a sentence of life imprisonment, had got away lightly,” Justice Fernando stated.

Civil appeals

James Valentin V Planning Authority, Public Utilities Corporation and Attorney General

In a civil appeal between appellant James Valentin against the Planning Authority, the Public Utilities Corporation (PUC) and the Attorney General, court ordered that the appeal be dismissed with no order for costs.

Valentin appealed against a judgment of the Constitutional court, which dismissed his petition in which he was seeking a declaration that the respondents breached his right to dignity under article 16 of the Constitution and his right to peacefully enjoy his property under article 26 of the Constitution, that PUC be ordered to relocate the electricity lines and wires so that he may complete construction work on his property and that the Planning Authority lift or vacate the stop notice.

According to the facts of the case, Valentin was seeking to build an extension by way of a second storey to his dwelling house and had applied to PUC to divert the electricity lines over his property, since according to him, the extension would intrude against the electricity wires. Towards the end of 2015, PUC had carried out diversion works. Since the relocated electricity pole and wires continued to obstruct the extension to the dwelling house, PUC had advised Mr Valentin to apply and pay for a second diversion, which he did. It had been the complaint of the appellant that despite numerous correspondences and site visits, PUC had failed to divert the electricity line.

As per the petition Mr Valentin submitted to the Constitutional Court, when the extension works were almost completed and was near the electricity lines, the Planning Authority had in July 2017 issued a stop notice and subsequently directed the appellant to demolish parts of his construction works and complete it in such a manner so as not to intrude upon the electricity lines. The appellant had averred in his petition that the above actions had violated his right to dignity under article 16 of the Constitution and his right to peacefully enjoy his property under article 26 of the Constitution.

It must be noted that at some point, the appellant was informed by way of letter that PUC would be unable to complete the work due to objections from the landowner adjacent to his own property, requesting he seeks permission for erecting the pole and routing the electricity lines across the properties of the adjacent landowners; and that if permission is not granted, they will be unable to divert the line, and the application will be rendered void and the money paid refunded.

Despite relying on four grounds of appeal, all were dismissed by court, who found that there was no evidence to support the appellant’s claims that directives were issued for the demolition of part of his house, and the only directive, dated July 31, 2017 is to stop construction works with immediate effect. Furthermore, noted president Fernando, a stop notice or request to complete construction works in such a manner so as not to intrude with electricity lines cannot be said to violate Mr Valentin’s right to dignity, nor his right to property, in the absence of any allegation of malice or abuse of authority.

Laura Pillay