Court of Appeal concludes final term for the year |20 December 2022

The Court of Appeal on Friday delivered a series of judgments and concluded its final term for the year.

The Court is presided over by five Justices of Appeal, namely, President Anthony Fernando, Justice Mathilda Twomey, Justice Fiona Robinson, Justice Llillian Tibatemwa-Ekirikubinza and Justice Samia Andre.

For the final term, the court heard a number of criminal and civil appeals, two relating to sexual assault, two appealing against disposal orders in favour of the government of Seychelles, as well as a number of decisions imposed by the Supreme Court in civil property disputes.

This term also saw several appeals against judgments in matters related to construction companies.

The following are some of the cases which the court dealt with during this sitting;  

Steve Esparon V The Republic

Court dismissed the appeal of 34-year-old Steve Esparon, upholding both the conviction and sentence imposed by the Supreme Court. Esparon was charged with sexual assault (rape) of a 13-year-old girl, with the incident occurring in February 2019.

Esparon was found guilty in January 2022, and was sentenced to fifteen years imprisonment.

He appealed against the sentence on eight grounds, the first two being material irregularities in the judgment, and the cogency of the complainant’s evidence.

Furthermore, Esparon’s appeal questioned the reliability of the alibi defence, and in his final appeal ground argued that the sentence imposed is manifestly harsh and excessive.

Justice of Appeal Mathilda Twomey stated that in any case, a child cannot consent to intercourse, and noted that there has been an increase in such cases before the courts.

“It is even worse when it is a person in a relationship of trust that commits the offence. Whether a complainant has had sexual intercourse before is not a consideration to be taken into account in cases of sexual assault,” Justice Twomey said.

“I am aware that a sentence of fifteen years was severe and at the higher end of the scale. It was, however, neither wrong in law nor in principle. It was not manifestly harsh or excessive, given the offence, the maximum penalty imposable, and the particular circumstances of this case and the considerations of public interest,” Justice Twomey said.

Radomir Prus and others V The Government of Seychelles

Prus and others, namely Sandra Prus, Exelsior Dreams and Free Sun Limited appealed against the disposal order made by the Supreme Court on September 14, 2020, in favour of the government of Seychelles, for the disposal of a 4-bedroom en-suite Maison on Eden Island worth over R14,250,000 and a 2.8 metre-long yacht by the name of Dream Angel, worth over Euros (€) 200,000.

The appeal was however dismissed by the Appeal court.

The order was made pursuant to the Proceeds of Crime (Civil Confiscation) Act of 2008 as amended, following an application by the Financial Crime Investigation Unit (FCIU) of the Seychelles Police Force, with the assistance of the Office of the Attorney General.

The owners of the two properties, a Czech national and Polish national were allegedly involved in subsidy fraud, resulting in the detriment to the financial interests of the European Union (EU) equivalent to €10,2020,449, and a further sum of equivalent of €1,800,432 to the detriment of the Czech Republic. The fraud involved part of the subsidy to be paid for new technology and machinery associated with waste management in the Czech Republic, Hungary and Poland for the benefit of a Czech group of companies Excelsior Group Ltd, to be supplied by a UK company, FPR Engineering Limited (a shell company) being diverted to the appellants in Seychelles. According to court, this amounted to money laundering.

In the initial case, it was also stated that an international warrant was issued for the arrest of Mr Prus by the Czech authorities, but this was subsequently removed to allow him to travel back to the Czech Republic to face trial for the fraud offences.

Despite numerous applications before the Supreme Court, all were dismissed in favour of the government. The FCIU as the Receiver of the said properties at the time stated its intentions to sell the seized properties, thereafter transferring the proceeds of sale to the government’s coffers.

The case has been in court since 2016.

Peter Roselie V Government of Seychelles

Peter Roselie also failed in his appeal against the interlocutory ruling and orders of the Supreme Court arising under the Proceeds of Crime (Civil Confiscation Act), and court ordered that the orders of the Supreme Court are upheld.

The Supreme Court on September 7, 2020 delivered its verdict in favour of the government of Seychelles, represented by the FCIU, granting two interlocutory orders, the first of which prohibited former tax auditor Roselie from “disposing of or otherwise dealing with whole or any part of the properties, all BMW X5 XDrive 40e, with a total value of R4,750,000”.

The vehicles were believed to have been bought using illegitimate funds, and it was held that Mr Roselie failed to show on a balance of probabilities that the properties retained were not from illegitimate sources.

In his appeal, Roselie stated that then Chief Justice Mathilda Twomey disregarded proof of the source of funds, and that she erred in her findings that the funds were acquired in whole or partly due to criminal conduct.

As such, he was seeking that the Supreme Court’s decision be set aside.

Considering all the evidence, Justices Tibatemwa-Ekirikubinza, Robinson and Andre came to the conclusion that the findings of the trial judge “cannot be faulted”, thus ordering that the orders of the Supreme Court are upheld.

Laura Pillay