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The Prosecution in Seychelles of Piracy Committed on the High Seas and the Right to a Fair Trial

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Abstract

In Seychelles, the general rule is that domestic courts do not have jurisdiction over offences committed abroad. However, there are exceptions to that rule and one of them relates to the offence of piracy committed on the high seas. Section 65(1) of the Seychelles Penal Code creates the offence of piracy which is committed “within Seychelles or elsewhere” and section 65(2) provides that “the courts of Seychelles shall have jurisdiction to try an offence of piracy…whether the offence is committed within the territory of Seychelles or outside the territory of Seychelles.” On the basis of section 65, many suspected pirates have been prosecuted in Seychelles. Closely related to the issue of prosecuting suspected pirates is the question of whether their trial was fair. The right to a fair trial and public hearing is provided for under Article 19 of the Constitution. There are many piracy cases in which Seychellois courts have dealt with the issue of the right to a fair trial. The rights which have featured prominently are: the right to be tried by a competent court and the jurisdiction of Seychellois courts to try piracy committed on the high seas; the right against double jeopardy; the right to examine witnesses and challenge evidence; right to remain silent; the right to be presumed innocent until proved guilty; and the right to be informed in detail of the nature of the offence. The purpose of this article is to assess the jurisprudence in question and, where appropriate, suggest ways in which Seychellois courts could better protect the right to fair trial of those accused of committing piracy.

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Notes

  1. See Financial Action Task Force, Organised Maritime Piracy and Related Kidnapping for Ransom(July 2011) para 7. Available at http://www.fatf-gafi.org/media/fatf/documents/reports/organised%20maritime%20piracy%20and%20related%20kidnapping%20for%20ransom.pdf (accessed 19 January 2020).

  2. See for example, section 19 (read with Schedule 2) of the Anti-Money Laundering Act, No.6 of 2005 (Sierra Leone); Proceeds of Crime and Anti-Money Laundering Act, Cap 59B (Kenya) (piracy is one of the offences included in the broad definition of predicate offence under section 2); The Prohibition and Prevention of Money Laundering Act, Act No. 14 of 2001 (Zambia) (piracy is one of the offences included in the broad definition of “illegal activity” under section 2) and the Anti-Money Laundering Act 2006 (Seychelles) (piracy is included in the definition of criminal conduct under section 3).

  3. As at the end of 2014, the following number suspected pirates had been captured by the countries or partnerships in question: 41 (Seychelles); 66 (captured by the following countries on behalf of the European Union: France, Spain, United Kingdom, Netherlands, and Denmark); 15 (United States of America); 8 (Denmark); and 17 (Netherlands). See Piracy in the Indian Ocean and the Horn of Africa: Manual for Prosecutors (2014) 309–316. Available at http://www.piracylegalforum.org/wp-content/uploads/2015/03/Piracy-manual-final-version-8.pdf (accessed 21 October 2019).

  4. It is reported that by 2014, Seychelles had “signed agreements relating to the transfer of suspected pirates with the following nations and partnerships – Australia, China, Denmark, the European Union, Norway, the United Kingdom, the United States of America, and Japan.” See Piracy in the Indian Ocean and the Horn of Africa: Manual for Prosecutors (2014) para 15.9. Available at http://www.piracylegalforum.org/wp-content/uploads/2015/03/Piracy-manual-final-version-8.pdf (accessed 21 October 2019).

  5. On the question of the responsibility of European countries under the European Convention of Human Rights in cases where persons are under their control and outside their territorial jurisdiction, see generally, European Court of Human Rights, Guide on Article 1 of the European Convention on Human Rights: Obligation to respect human rights – Concepts of “jurisdiction” and imputability (31 August 2019). Available at https://www.echr.coe.int/Documents/Guide_Art_1_ENG.pdf (accessed 21 October 2019).

  6. These strategies have included signing memorandums of understanding with Seychelles to the effect that the rights of the suspected pirates shall not be violated should they be transferred to Seychelles for trial.

  7. Others include Kenya (Merchant Shipping Act, 2009), Sri Lank (Piracy Act, No. 9 of 2001), and Mauritius (The Piracy and Maritime Violence Act, Act No. 39 of 2011).

  8. Section 6 of the Penal Code, Chapter 158, provides that “The jurisdiction of the courts of Seychelles for the purpose of this Code extends to every place within Seychelles and any place over which the Republic has jurisdiction.”

  9. See for example, section 7 of the Penal Code. Section 10(b) of the Misuse of Drugs Act (Cap 133) provides that a person shall not “do any act preparatory to, or in furtherance of, an act outside Seychelles which if committed in Seychelles would constitute an offence under the Act.” In R v Dubignon (CO 3/1998) [1998] SCSC 17 (27 October 1998), the Supreme Court of Seychelles held that it had jurisdiction over drug-related offences committed in Kenya (importation of controlled drugs into Seychelles).

  10. Such as the International Covenant on Civil and Political Rights (Article 14). Seychelles acceded to this treaty on 5 May 1992. See https://treaties.un.org/Pages/ViewDetails.aspx?chapter=4&clang=_en&mtdsg_no=IV-4&src=IND (accessed 21 October 2019).

  11. Such as Article 7 of the African Charter on Human and Peoples’ Rights. Seychelles acceded to this treaty on 13 April 1992. See https://au.int/sites/default/files/treaties/7770-sl-african_charter_on_human_and_peoples_rights_2.pdf (accessed 21 October 2019).

  12. Generally, Seychelles follows a dualist approach in international law but courts have referred to treaties which are yet to be domesticated in Seychelles when interpreting the Bill of Rights. For a discussion of the status of international law in Seychelles and also instances where courts have referred to international human rights treaties in interpreting the Bill of Rights or other pieces of legislation, see MD v BL (CA 26/2016 appeal from Family Tribunal Decision 141/2016) [2017] SCSC 196 (01 March 2017) paras 14–22; Vijay Construction (Proprietary) Ltd v Eastern European Engineering Ltd (Civil Appeal SCA 15 & 18/2017) [2017] SCCA 41 (13 December 2017) at paras [96] and [108]; Alcindor v R ( SCA 28/2013) [2015] SCCA 7 (17 April 2015) at para [14]; Ponoo v Attorney-General (5 of 2010) [2010] SCCC 4 (16 November 2010); and Dugasse & Others v R (CR SCA 25, 26, and 30 of 2010) [2013] SCCA 6 (03 May 2013) at para 25; R v Nancy (CN 73.2012) [2014] SCSC 396 (28 October 2014) at para 5; R v Charles (CN 33.2013) [2014] SCSC 347 (25 September 2014) paras 15–17.

  13. Roble & Others v R (SCA CR 19/2013) [2015] SCCA 24 (28 August 2015) para 43.

  14. For example, all the accused have been represented by lawyers and had interpreters during the trials. The issue of whether pirates had a right to legal representation arose in Kenya. In Republic v Hassan Jama Haleys alias Hassan Jamal & 5 Others [2010] eKLR pp. 2–3, in which the magistrate had ordered the Attorney General to provide legal representation to the accused (six suspected Somali pirates), the High Court referred to Article 77 of the Constitution (which provides for the right to legal representation) and held that “[i]t is clear therefore that the decision on whether to act in person or to engage legal counsel lies squarely with the accused person. This is not a decision that a court ought to make on a suspect’s behalf. The only class of suspects who are provided with legal counsel at the cost of the State are suspects in murder trials. The law does not extend this right to any other category of accused persons. Whilst it would be desirable to have a Legal Aid Scheme in place in this country to cater for suspects who may be unable to engage legal counsel for themselves, unfortunately at this present time no such system exists…Having said that and before I end I must note that the “piracy trials” have presented a unique challenge to the Kenyan legal system. We cannot ignore the fact that these are suspects who having been arrested by foreign naval forces on the High Seas are brought to Kenya for trial. They are strangers in the country, do not understand the legal system, may not know what their rights are and do not understand the language. With such barriers it would in my view be crucial that the Kenyan Government and the International partners supporting these trials put in place a system to provide free legal representation for the suspects in these piracy trials. This is the only way that their rights to a fair trial can be guaranteed.”

  15. The Grand Chamber of the Court of Justice of the European Union has observed that before any European country transfers a person suspected of committing piracy to Tanzania, it has “ensure that the treatment of the persons transferred complies with the requirements of international human rights law.” See Parliament v Council (Judgment) [2016] EUECJ C-263/14 (14 June 2016) para 52.

  16. R v Fostel (CR SCA NO. 19 OF 2012) [2014] SCCA 24 (14 August 2014) para 16.

  17. Poonoo v Attorney-General (SCA 38 of 2010) [2011] SCCA 30 (09 December 2011).

  18. Ibid, p.14.

  19. Dhanjee v Mr. James Alix Michel & others (CP 03.2014) [2014] SCCC 6 (15 July 2014), p. 24.

  20. Bradburn v Government of Seychelles & Another (Constitutional Case No.06 of 2008) [2013] SCCC 1 (26 March 2013); R v Choppy (Revision Side No. 07 of 2012) [2013] SCSC 61 (25 March 2013); R v Bibi (CO 38/1999) [1999] SCSC 14 (06 December 1999) p. 2;

  21. R v Choppy (Revision Side No. 07 of 2012) [2013] SCSC 61 (25 March 2013).

  22. Ibid at para [2].

  23. R v Dubignon (CO 3/1998) [1998] SCSC 9 (23 July 1998) p. 2.

  24. R v Brioche and others (SCA NO CR 2 of 2013) [2013] SCCA 18 (28 October 2013).

  25. Ibid, p. 5. See also R v Ernesta & Others (CO 22/2016) [2017] SCSC 166 (24 February 2017) para 8; Republic v Hoareau (CR SCANo: 28/2010) [2011] SCCA 23 (01 September 2011) para 19; Francis Ernesta & Others v R (Criminal Appeal SCA07/2017) [2017] SCCA 24 (11 August 2017) para 23.

  26. R v Krishnamart & Co (Pty) & Another (CO 29/2009) [2011] SCSC 105 (03 June 2011) p. 2.

  27. R v Esparon and others (SCA No: 01 of 2014) [2014] SCCA 19 (14 August 2014).

  28. R v Ahmed & Others (CO 69/2017) [2018] SCSC 866 (28 September 2018).

  29. Ibid, para 2.

  30. Ibid, para 3.

  31. See Republic v Dahir and Others (51 of 2009) [2010] SCSC 81 (25 July 2010); Republic v Ali & Ors (CO 14/2010) [2010] SCSC 99 (03 November 2010).

  32. In Francis Ernesta & Others v R (Criminal Appeal SCA07/2017) [2017] SCCA 24 (11 August 2017) para 22, the Court of Appeal observed that an “issue as to the jurisdiction of the courts of Seychelles arose when our courts had to consider dealing with piracy cases committed outside our territorial waters. Prior to the amendment to the Penal Code in 2010 the jurisdiction of the courts of Seychelles was one of a territorial jurisdiction. The fact that piracy is a crime against humanity [sic] was not sufficient cause to invoke the principle of universal jurisdiction and this necessitated an amendment to the Penal Code to give our courts jurisdiction to try offences of piracy committed outside the territory of Seychelles.”

  33. Roble & Others v R (SCA CR 19/2013) [2015] SCCA 24 (28 August 2015).

  34. Ibid, para 3.

  35. Ibid, para 6.

  36. Ibid, para 25.

  37. Ibid, para 26.

  38. Ibid, dissenting Judgement of Judge Fernando, para 9.

  39. Ibid, para 9.

  40. Ibid, para 6.

  41. Ibid, para 13.

  42. Ibid, para 14.

  43. MN Shaw, International Law (6th edition, 2008) 398.

  44. Ibid, 615.

  45. See for example, J Kraska, Contemporary Maritime Piracy: International Law, Strategy, and Diplomacy at Sea (2011) 132–134; PR Ramdhass, Universal Jurisdiction under International Criminal Law. A Critical Analysis (2018) 8–11

  46. Republic v Dahir and Others (51 of 2009) [2010] SCSC 86 (25 July 2010).

  47. Ibid, para 57.

  48. LFE Goldie, “Terrorism, Piracy and the Nyon Agreements” in Yôrām Dinšṭein (ed) International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (1989), 225–248, at 227–228.

  49. Democratic Republic of the Congo v Belgium – Arrest Warrant of 11 April 2000 – Judgment of 14 February 2002 – Separate opinion of President Guillaume (English Original Text) – Judgments [2002] ICJ 62 (14 February 2002) para 5, here the judge referred to Article 105 of the Convention and held that “under the Convention, universal jurisdiction is accepted in cases of piracy because piracy is carried out on the high seas, outside all State territory.”

  50. Democratic Republic of the Congo v Belgium – Arrest Warrant of 11 April 2000 – Judgment of 14 February 2002 – Joint separate opinion of Judges Higgins, Kooijmans and Buergenthal – Judgments [2002] ICJ 55 (14 February 2002) para 61.

  51. Malaysia/Singapore – Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge – Judgment of 23 May 2008 – Separate opinion of Judge ad hoc Sreenivasa Rao – Judgments [2008] ICJ 99 para 24.

  52. See for example, Hassan M. Ahmed v Republic [2010] eKLR (convicted and sentenced to seven years’ imprisonment for committing piracy on upon the High Seas of the Indian Ocean); Abdirahman Mohamed Roble & 10 others v Republic [2013] eKLR (sentenced to five years imprisonment for committing piracy on the High Seas in the Indian Ocean); Abdiaziz Ali Abdulahi & 23 others v Republic [2014] eKLR (High Seas in the Gulf of Oman); Republic v Chief Magistrate’s Court, Mombasa Ex-parte Mohamud Mohamed Hashi & 8 others [2010] eKLR (Indian Ocean); and Barre Ali Farah & 6 others v Republic [2013] eKLR (Gulf of Aden).

  53. In Director of Public Prosecutions v Ali Abeoulkader Mohamed & Others, 2015 SCJ 452 (18 December 2015), p. 7, the Supreme Court of Mauritius held that “the accepted definition of the high seas in international law is that it includes the EEZ for the purposes of repressing and prosecuting piracy. The high seas therefore start outside the territorial seas i.e at a point that is 12 NM from the baseline of the coastal state.” The Court added that Somalia only claimed the Exclusive Economic Zone (where the offence was committed) after the offence had been committed and therefore the offence was committed on the high seas and Mauritian courts had jurisdiction.

  54. United States of America v. Ali Mohamed ALI, also known as Ahmed Ali Adan, also known as Ismail Ali, No. 12–3056 (11 June 2013). Available at https://caselaw.findlaw.com/us-dc-circuit/1634232.html

  55. Ibid, p. 3.

  56. Ibid, p. 3.

  57. Ibid, p. 4.

  58. Ibid, p. 5.

  59. Ibid, p. 5.

  60. Ibid, p. 1.

  61. Likewise, the Supreme Court of Singapore held that “[u]nder customary international law, the crime of piracy has long been recognised as one over which all States may exercise jurisdiction provided that the alleged offender was apprehended either on the high seas or within the territory of the State exercising jurisdiction. The arresting State may also legitimately punish the pirates. This rule of customary international law is reaffirmed in Art 105 of UNCLOS which provides that “every State may seize a pirate ship … or a ship … taken by piracy and under the control of pirates, and arrest the persons and seize the property on board.”” See Bayswater Carriers Pte Ltd v QBE Insurance (International) Pte Ltd [2005] SGHC 185, para 37.

  62. See generally United States of America v. Ali Mohamed ALI, also known as Ahmed Ali Adan, also known as Ismail Ali, No. 12–3056 (11 June 2013). For a critique of this argument see, E Edege, “Piracy and the East African Region” in P Koutrakos and A Skordas (editors), The Law and Practice of Piracy at Sea: European and International Perspectives (2014), 249–266, at 251.

  63. Simeon v R (9 of 2003) (9 of 2003) [2005] SCCA 12 (19 May 2005) para 9. See also R v Savy (CO 51/1998) [1999] SCSC 1 (05 February 1999).

  64. Azemia v R (SCA 02/2015) [2015] SCCA 35 (17 December 2015).

  65. Beeharry v R (CR SCA No: 28 of 2009) [2012] SCCA 1 (13 April 2012).

  66. Ibid, p. 30.

  67. R v Simeon [Rehearing] (CO 9/2002) [2003] SCSC 15 (03 July 2003).

  68. Ibid, p. 3.

  69. Ibid, p. 4.

  70. MM El Zeidy, The Principle of Complementarity in International Criminal Law: Origin, Development and Practice (2008) 285–288; G Werle and F Jessberger, Principles of International Criminal Law (2014) 286; S Wharton, “Defences to criminal liability” in CC Jalloh, KM Clarke and VO Nmehielle (editors) The African Court of Justice and Human and Peoples' Rights in Context: Development and Challenges (2019) 920–921.

  71. K Ambos, Treatise on International Criminal Law: Volume 1: Foundations and General Part (2013) 398.

  72. K Ambos, Treatise on International Criminal Law: Volume III: International Criminal Procedure (2016) 1742. Emphasis in the original.

  73. R Cryer, D Robinson, and S Vasiliev, An Introduction to International Criminal Law and Procedure (2019) 85.

  74. K Ambos, Treatise on International Criminal Law: Volume 1: Foundations and General Part (2013) 398–401.

  75. Hassan Thaliil Ahmed & Ors v R (SCA 06-13/2015) [2016] SCCA 32 (09 December 2016).

  76. Ibid, para 29. Emphasis in the original.

  77. Ibid, para 28.

  78. Ibid, para 29.

  79. See Memorandum of Understanding between the Government of the Republic of Seychelles and the Government of the Kingdom of Denmark on the conditions of transfer of suspected pirates and armed robbers and seized property to the Republic of Seychelles (30 March 2011). Cited in Piracy in the Indian Ocean and the Horn of Africa: Manual for Prosecutors (2014) 205. Available at http://www.piracylegalforum.org/wp-content/uploads/2015/03/Piracy-manual-final-version-8.pdf

  80. Hassan Thaliil Ahmed & Others v R (SCA 06-13/2015) [2016] SCCA 32 (09 December 2016) para 29. Emphasis removed.

  81. Ibid, para 30. Emphasis removed.

  82. Ibid, para 31. Emphasis removed.

  83. Ibid, para 32.

  84. Ibid, para 32.

  85. Ibid, para 32.

  86. GA Sweetser, “The dual sovereignty' (1927) 7(1) Boston University Law Review 36–45; JE King, “Providing limits on the powers of two states to prosecute for the same crime” (1990) 12(1) Criminal Justice Journal 1–12; D Frohnmayer, “New look at federalism: The theory and implications of dual sovereignty” (1982) 12(4) Environmental Law 903–920; R Zobel, “Tribal courts, double jeopardy and the dual sovereignty” (1978) 13(2) Gonzaga Law Review 467–492; WG, Ross, “The perils of selective abandonment of dual sovereignty” (1995) 26(1) Cumberland Law Review 57–62; GS, Schneider & GJ Chin “Double trouble: Double jeopardy’s dual sovereignty exception and state immigration statutes” (2011) 28(2) Arizona Journal of International and Comparative Law 363–382; MA Dawson “Popular sovereignty, double jeopardy, and the dual sovereignty doctrine (1992) 102(1) Yale Law Journal 81–304.

  87. United States of America v All Assets of G.P.S. Automotive Corp., Real Property and others, Docket 94–6115 (5 December 1995) para 42.

  88. MA Dawson “Popular sovereignty, double jeopardy, and the dual sovereignty doctrine (1992) 102(1) Yale Law Journal 8, 294

  89. See MA Dawson “Popular sovereignty, double jeopardy, and the dual sovereignty doctrine (1992) 102(1) Yale Law Journal 81–304 (and other articles referred to therein).

  90. JE King, “Providing limits on the powers of two states to prosecute for the same crime” (1990) 12(1) Criminal Justice Journal 1, at 8; MA Dawson “Popular sovereignty, double jeopardy, and the dual sovereignty doctrine (1992) 102(1) Yale Law Journal 81, at 295–297.

  91. AJ Colangelo, “Gamble, Dual Sovereignty, and Due Process” (2018–2019) Cato Supreme Court Review 189–214, 203–204.

  92. Ibid, 211.

  93. Ibid, 211. Footnotes and references omitted.

  94. Ibid, 211–212. Footnotes and references omitted.

  95. United States v Furlong Hobson [1820] USSC 9; 18 US 184; 5 LEd. 64; 5 Wheat. 184 (1 March 1820) para 11.

  96. AJ Colangelo, “Gamble, Dual Sovereignty, and Due Process' (2018–2019) Cato Supreme Court Review 189–214, 195–196.

  97. Hassan Thaliil Ahmed & Others v R (SCA 06-13/2015) [2016] SCCA 32 (09 December 2016).

  98. MN Shaw, International Law (6th edition, 2008) 397.

  99. In Ali & Others v R (SCA 22/2012) [2014] SCCA 34 (12 December 2014), para 11, the facts of the case show, inter alia, that “There were 25 suspected pirates and to facilitate dealings with them they had been given a number. Seychelles had agreed to accept 4 of the suspected pirates and Kenya 4, for prosecution. At the trial the Prosecutor had informed Court that the balance 17 had been released as there was no jurisdiction that was prepared to accept them. Suspects numbered 20–23 were the ones who were brought to Seychelles. Larsen [the main prosecution witness and commanding of officer of a Danish ship that was involved in arresting the appellants on the high seas] does not offer any reason for the basis or choice for the selection of the 8 suspected pirates for prosecution in the Seychelles and Kenya.”

  100. Kosrae v Tosie [1989] FMSC 9; 4 FSM Intrm. 061 (Kos. 1989) (31 May 1989), p. 3.

  101. Re Colonel Aird [2004] HCA 44; 220 CLR 308; 209 ALR 311; 78 ALJR 1451 (9 September 2004) para 132.

  102. See Piracy in the Indian Ocean and the Horn of Africa: Manual for Prosecutors (2014) para 23:1, where it is stated that “The principal problem that has arisen so far is securing the attendance of witnesses who are overseas – which, in a piracy case, will normally be all of the witnesses, other than the Seychellois police officers. There is no way to compel a witness who is overseas to come to Seychelles for trial, and so their attendance is wholly dependent on their goodwill and cooperation. It is therefore vital to make early contact with witnesses, and to keep in regular contact with them in the approach to the trial.” Available at http://www.piracylegalforum.org/wp-content/uploads/2015/03/Piracy-manual-final-version-8.pdf

  103. Article 14(3)(c).

  104. Article 8(2)(f).

  105. K Ambos, Treatise on International Criminal Law: Volume III: International Criminal Procedure (2016) 1739

  106. R v Agathine (CO 38/2005) [2007] SCSC 128 (21 June 2007).

  107. Ibid, p. 2. See also Republic v Marie (2/2007) [2008] SCCC 1 (02 June 2008).

  108. Republic v Marie (2/2007) [2008] SCCC 1 (02 June 2008).

  109. Ibid, p. 3.

  110. PJ Schwikkard and SE Van der Merwe, Principles of Evidence (4th edition 2015) 134.

  111. In Seychelles, the police use police informants and undercover operations to detect and combat complex criminal activities such as drug trafficking. See Republic v Servina (74 of 2008) [2009] SCSC 82 (30 March 2009); Ernesta v Commissioner of Police (CS 348/2001) [2002] SCSC 13 (07 October 2002).

  112. PJ Schwikkard and SE Van der Merwe, Principles of Evidence (4th edition 2015) 134.

  113. For example, section 132 of the Criminal Procedure Code provides that “(1) Save a provided in subsection (2), the wife or husband of the person charged shall not be a competent witness for the prosecution in any inquiry or trial.

    (2) The wife or husband of a monogamous marriage shall be competent witness for the prosecution in the following cases only: (a) in any case where the wife or husband of a person charged may, under the Common Law of England, be called as a witness without the consent of such person; (b) in any case where such person is charged with bigamy or with an offence under Chapter XV of the Penal Code; (c) in any case where such person is charged in respect of an act or omission affecting the person or property of the wife or husband of such person or the children of either of them.

    (3) For the purpose of subsection (2) a monogamous marriage means a marriage which is by law necessarily monogamous and binding during the lifetime of both parties unless dissolved by a valid judgment of a court.”

  114. See for example, sections 38(2) and 41(4)(b) of the Data Protection Act, 2002. In Hackl v Financial Intelligence Unit (FIU) & Another (1 of 2009) [2010] SCCC 1 (02 June 2010), p. 19, the Court referred to different privileges (both state and private).

  115. In S v Dladla 2011(1) SACR 80 (KZP) para 10, the South African High Court held that “[a] witness is competent if he or she may lawfully give evidence…A compellable witness is one who is competent and in addition can be forced to testify under the pain of punishment…”

  116. Republic v Marie (2/2007) (NULL) [2008] SCCC 1 (02 June 2008).

  117. Ibid, p. 5.

  118. Simeon v R (9 of 2003) (9 of 2003) [2005] SCCA 12 (19 May 2005). In this case one of the witnesses was too ill to appear before court and give evidence and the other witness was in the UK and declined to come to Seychelles.

  119. Azemia and Others v R (4 of 2004) (4 of 2004) [2005] SCCA 8 (19 May 2005).

  120. Hackl v Financial Intelligence Unit (FIU) & Another (1 of 2009) [2010] SCCC 1 (02 June 2010).

  121. Marengo v R (Criminal Appeal SCA 29/2018) [2019] SCCA 28 (23 August 2019).

  122. See for example, Roble & Others v R (SCA CR 19/2013) [2015] SCCA 24 (28 August 2015) paras 48–56.

  123. Mohammed Ali Hussein & Others v R (SCA 05-09/2016) [2016] SCCA 33 (09 December 2016).

  124. Ibid, para 19.

  125. In Hedge Funds Investment Management Ltd v Hedge Intro International Ltd (MA 309.2014) [2014] SCSC 404 (22 October 2014) para 2, the Supreme Court held that “[section] 11 C of the Evidence Act applies only to criminal matters. It is so evident that 11(1), 11(2)A refers to a person. The term “person” should be interpreted to accord with the meaning conveyed by the term used in the previous sub-sections, which refers to an “accused person”.”

  126. Hedge Funds Investment Management Ltd v Hedge Intro International Ltd (MA 309.2014) [2014] SCSC 404 (22 October 2014) para 3.

  127. Hassan Thaliil Ahmed & Others v R (SCA 06-13/2015) [2016] SCCA 32 (09 December 2016) para 24.

  128. Ibid, para 24.

  129. FIU v Contact Lenses Limited & Others (MA 364/2016 and MA 367/2016 arising in MC 95/2016 MC 94/2016 MA102/2016 arising in MC 40/2015) [2017] SCSC 19 (19 January 2017).

  130. Ibid, para 17.

  131. Ibid, para 26.

  132. Poiret & Ano v Seychelles Pension Fund & Ano (CS 15/2018) [2018] SCSC 938 (11 October 2018). See also R v Albert & Anor (CO 27/2015) [2018] SCSC 131 (14 February 2018) in which a video link was used for the witness to give evidence from the United Kingdom. However, in this case, the Supreme Court does not state the principles which should guide it when dealing with video link evidence.

  133. R v Albert & Another (CO 27/2015) [2018] SCSC 131 (14 February 2018) para 5.

  134. FIU v Contact Lenses Limited & Others (MA 364/2016 and MA 367/2016 arising in MC 95/2016 MC 94/2016 MA102/2016 arising in MC 40/2015) [2017] SCSC 19 (19 January 2017) para 6(2).

  135. Poiret & Ano v Seychelles Pension Fund & Ano (CS 15/2018) [2018] SCSC 938 (11 October 2018); Hedge Funds Investment Management Ltd v Hedge Intro International Ltd (MA 309.2014) [2014] SCSC 404 (22 October 2014).

  136. This is one of the issues that arose in Marengo v R (Criminal Appeal SCA 29/2018) [2019] SCCA 28 (23 August 2019) in which the appellant argued that his right to a fair trial had been violated when the magistrate did not allow him to observe the demeanour of a child witness who was giving evidence from behind a drawing board. In dismissing the appeal, the Court of Appeal held that “the Appellant was not prejudiced as a result of the special arrangement made to accommodate the child witness. The Appellant’s submissions state, “only the bench, the prosecutor and Counsel for the defence had the chance to watch the witness…The Appellant could not observe the victim when she made allusions to him and body movements behind the board.” However, the Appellant could hear the witness’s testimony clearly, and the few gestures she made were replicated by the interpreter for his benefit. Furthermore, the Appellant’s counsel was able to view the demeanour of the witness and to cross-examine her on the Appellant’s behalf.” See para [19].

  137. R v Ise & Others (75 of 2010) [2011] SCSC 37 (30 June 2011) para 11.

  138. See for example, Republic v Murugan and Another (50 of 2006) [2010] SCSC 49 (23 September 2010); Mondon v R (4 of 2005) (4 of 2005) [2006] SCCA 3 (18 May 2006).

  139. In R v Savy (CO29/2017) [2018] SCSC 410 (05 April 2018) para 5, the Supreme Court held that “Judge’s Rule 2(1) was not sufficient in that regard, being under arrest he could not have had access to a Counsel either of his own choice or one provided by the Republic. Judge’s Rule 2(1) does not inform the accused of the offence he was suspected of committing and it also does not inform the accused of his right to Counsel. This Rule which predates the Constitution only cover the right to remain silent which is only one right under Article 18(2). As such I find that this statement under caution taken from accused Benny Marcus Savy on the 22nd of June 2017 by ASP Leon to be inadmissible as a result of it being taken contrary to the Constitutional Right of the said accused person. As a result it will not be admitted in evidence.” An argument along the same line was made by the accused’s lawyer in R v Saffrance (CO30/2018) [2019] SCSC 430 (18 April 2019) at para [39]

  140. Seychellois courts use these terms interchangeably. See Mike Vital & Another v R (Criminal Appeal SCA 23 & 24/2015) [2017] SCCA 29 (11 August 2017) para 38.

  141. Roble & Others v R (SCA CR 19/2013) [2015] SCCA 24 (28 August 2015).

  142. Ibid, para 4.

  143. Ibid, para 6.

  144. Ibid, para 57.

  145. Ibid, para 13.

  146. Ibid, para 57.

  147. Ibid, paras 58–61.

  148. Ibid, para 58.

  149. Ibid, para 62.

  150. Ibid, paras 59–61. See also The Republic v Savy & Another ([2018] SCSC 398) [2018] SCSC 398 (09 April 2018); Republic v Lesperance (29 of 2008) [2009] SCSC 101 (07 May 2009); R vs Lesperance (CN 53.2013) [2014] SCSC 350 (26 September 2014); Republic v Hoareau (61A of 2008) [2009] SCSC 79 (05 March 2009); R v Emmanuel v Another (CO 62/2017) [2018] SCSC 555 (14 June 2018); R v Brioche (CO 57/2017) [2019] SCSC 894 (14 October 2019) para 16.

  151. Republic v Lozaique (86 of 2005) [2007] SCSC 85 (23 May 2007).

  152. R v Brioche and Others (CO 02/2013) [2015] SCSC 171 (29 May 2015); Etheve v Harikrishna Builders (Proprietary) Limited (CC 34/2013) [2016] SCSC 979 (01 December 2016).

  153. R v Ernesta & Others (CO 22/2016) [2017] SCSC 51 (30 January 2017); R v Saffrance (CO30/2018) [2019] SCSC 430 (18 April 2019).

  154. Republic v Radegonde (7 of 2009) [2010] SCSC 47 (31 January 2010).

  155. Alphonse v R (Criminal Appeal SCA 14/2015) [2017] SCCA 19 (11 August 2017) para 36; R v Lagrenade & Others (CR53 /2015) [2017] SCSC 141 (17 January 2017).

  156. Roble & Ors v R (SCA CR 19/2013) [2015] SCCA 24 (28 August 2015) paras 9–10, “The commanding officer had pictures of the occupants of BN taken from a helicopter. He observed that at least one person on board was armed with a AK47 and another one armed with a launcher for RPG. He ordered that they surrender, and be arrested. When they hesitated, warning shots were fired and they eventually surrendered and were arrested. Before they were arrested, passengers the BN were observed throwing down weapons into the sea. All the suspected pirates were taken on board Rotterdam and the crew to the BN stayed on board BN. Statements of all the suspects were also taken.”

  157. The facts of the case show that “[a]fter two weeks, instructions were given from the Netherlands to take the suspects to Seychelles for trial. They were therefore transferred to Seychelles. Upon arrival in Seychelles, all the suspects were re-arrested.” See Roble & Ors v R (SCA CR 19/2013) [2015] SCCA 24 (28 August 2015) para 11.

  158. Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty 

    OJ L 294, 6.11.2013, pp. 1–12.

  159. Decree of 20 February 2017 establishing the entry into force of the Act of 17 November 2016 implementing Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities (OJ L 294) (Bulletin of Acts and Decrees. 2016, 475) and of the Decree on the establishment and order of police interview (Bulletin of Acts and Decrees. 2017, 29). Available at https://eur-lex.europa.eu/legal-content/EN/NIM/?uri=celex:32013L0048

  160. See sections 41–41 of the Code of Criminal Procedure.

  161. Republic v Ali and others (Criminal Side No. 14 of 2010)(Ruling) (27 September 2010).

  162. R v Farad Ahmed Jama and others (Criminal Side No: 16 of 2012) [2013] SCSC 17 (05 November 2012)

  163. Ibid, para 27.

  164. Piracy in the Indian Ocean and the Horn of Africa: Manual for Prosecutors (2014) para 15.6.

  165. There are cases in which courts in Seychelles have taken evidence with caution. See, for example, Ernesta & Others v R (SCA 27/2018 (appeal from CR 22/2016) ) [2019] SCCA 39 (17 December 2019) para 29 and Labrosse v R (SCA 27/2013) [2016] SCCA 35 (09 December 2016) at para [10] (evidence of identification); R v Ahmed & Others (CO 69/2017) [2018] SCSC 866 (28 September 2018) at para [19] (witnesses who have been interfered with); R v Emmanuel & Anor (CO 85/2003) [2006] SCSC 70 (18 October 2006) (track dog evidence); R v Anna (CO 41/2006) [2007] SCSC 129 (03 July 2007) (a confession).

  166. K Ambos, Treatise on International Criminal Law: Volume III: International Criminal Procedure (2016) 1734.

  167. Ibid, 1734. In Nicholas Brian Julie v R (Criminal Appeal SCA21/2017) [2018] SCCA 18 (31 August 2018) at para 29, the Court of Appeal held that “[w]e cannot close our minds to the well-known principle that the benefit of any doubt has to go in favour of the accused, especially when the overall picture arising from those doubts creates a reasonable doubt as to the guilt of an accused person.”

  168. R v Marengo & Others (CO 11/2003) [2003] SCSC 3 (10 February 2003); Financial Intelligence Unit v Mares Corp (SCA 48 of 2011) [2011] SCCA 33 (09 December 2011). See also Beeharry v R (CR SCA No: 28 of 2009) [2012] SCCA 1 (13 April 2012) (submission by one of the lawyers).

  169. R v Jumaye (23 of 2002) [2005] SCSC 36 (29 May 2005), p. 6.

  170. Simeon v R (SCA 23/2009) [2010] SCCA 7 (13 August 2010), p. 6.

  171. Ibid, p. 6. The Court held that “The objects and reasons for enacting Stringent Exchange Control Laws in this country is to conserve and regulate the foreign currency received, and to channel them to authorized dealers and banking institutions, thus preventing “black marketing”. In this pursuit, the burden of proving that he is in lawful possession of foreign currency has been placed on the accused person.”

  172. Section 14(c) of the Misuse of Drugs Act states that “[a] person who is proved or presumed to have had in his possession more than 2 grammes of diamorphine (heroin) contained in a controlled drug, shall until he proves the contrary, be presumed to have had the controlled drug in his possession for the purpose of trafficking in the controlled drug contrary to section 5.” Cases in which courts have invoked the reverse onus in section 14(c) include: Simeon v R (SCA 23/2009) [2010] SCCA 7 (13 August 2010); R v Marengo & Others (CO 11/2003) [2003] SCSC 3 (10 February 2003), p. 2.

  173. Ali & Others v R (SCA 22/2012) [2014] SCCA 34 (12 December 2014) (this was a concurring judgement by Justice Fernando but the other two judges did not dispute his holding on the issues discussed here).

  174. Ibid, paras 6–16.

  175. Ibid, para 17.

  176. Ibid, para 22.

  177. Ibid, para 22.

  178. Ibid, para 23.

  179. Ibid, para 23.

  180. Ibid, para 24. See also Shire & Others v R (SCA CR 31–37/2014) [2015] SCCA 25 (28 August 2015).

  181. In exercising this right, the accused is free to refuse to give any evidence under oath or to make a dock statement. See Nicholas Brian Julie v R (Criminal Appeal SCA21/2017) [2018] SCCA 18 (31 August 2018) para 19. The accused is also at liberty not to give to adduce any evidence or many any statement or call any witness, see R v Hussein & Others (COCR6/2014) [2016] SCSC 400 (10 June 2016) at para 25; R v Padayachy (Cr: CO 58.2013) [2014] SCSC 298 (11 August 2014) para 23; R v Poris (CO 23.2013) [2014] SCSC 301 (13 August 2014) para 23.

  182. Alphonse v R (Criminal Appeal SCA 14/2015) [2017] SCCA 19 (11 August 2017) para 30.

  183. Hoareau v R (SCA 16/2012) [2015] SCCA 38 (17 December 2015) para 6.

  184. In R v Francois (CO 34/1998) [2000] SCSC 11 (26 July 2000) the Court referred to case law from Canada in which the Court of Appeal of Ontario declared unconstitutional and invalid a provision which is similar to section 14(c) of the Misuse of Drugs Act (Seychelles) and held that “Section 14(d)of the Misuse of Drugs Act appears to be similar in scope. Although the evidentiary presumptions in sections 15 to 19 of that Act may be consistent with the recognized derogation in article 19(10) of the Constitution, the presumption of trafficking contained in section 14 may, in an appropriate case before the Constitutional Court, be declared to be inconsistent with article 19 of the Constitution. A person's fundamental rights may be restricted, but they cannot be denied to him either expressly or impliedly.”

  185. See generally, Moyo v Minister of Justice and Constitutional Development and Others; Sonti v Minister of Justice and Correctional Services and Others 2018 (8) BCLR 972 (SCA); [2018] 3 All SA 342 (SCA); 2018 (2) SACR 313 (SCA) (Supreme Court of Appeal, South Africa).

  186. Jumbe and Another v Attorney General (1of 2005, 2 of 2005) [2005] MWHC 15 (21 October 2005).

  187. See Emmanuel Dumisani Hleta v Swaziland Revenue Authority (22/15) 2016 SZHC 22. In Sibandze v The Prime Minister of Swaziland and Others (28/2017) [2018] SZHC 04 (18 April 2018), para 7, the High Court referred to the relevant case law and held that “It is trite law in this jurisdiction that a reverse onus provision violates the rights of an accused to a fair trial, and, in particular the presumption of innocence as well as the right to remain silent and not compelled to give evidence incriminating oneself; the exception is where it is shown that the application of the reverse onus is reasonable in an open and democratic society.” See also Nsibande v Director of Public Prosecutions (32/2017) [2017] SZHC 73 (20 November 2017).

  188. Isaac Robert Murambi v Attorney General & 3 others [2017] eKLR.

  189. Attorney-General of Namibia v Minister of Justice and Others (P.12/2009) [2013] NASC 3 (04 April 2013); Gomes v Prosecutor-General of the Republic of Namibia and Others (A61/2012) [2013] NAHCMD 240 (09 August 2013).

  190. The State v Sheka Sahid Kamara (001) [2019] SLHC 27 (11 October 2019) (the High Court held that a reversal burden is justified in corruption cases).

  191. Ali & Others v R (SCA 22/2012) [2014] SCCA 34 (12 December 2014) (Judgement by Twomey and Msoffe) para 21.

  192. K Ambos, Treatise on International Criminal Law: Volume III: International Criminal Procedure (2016) 1735.

  193. Hackl v Financial Intelligence Unit (FIU) & Another (1 of 2009) [2010] SCCC 1 (02 June 2010).

  194. Criminal Procedure Code, Chapter 54. Section 111 provides that “Every charge or information shall 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 necessary for giving reasonable information as to the nature of the offence charged.”

  195. Graham Pothin v R (Criminal Appeal SCA 13/2017) [2018] SCCA 17 (31 August 2018).

  196. Ibid, para 7.

  197. R v Micock & Another (CO 07/2017) [2018] SCSC 214 (05 March 2018) para 50. In R v Cedras (CO 67/2012) [2016] SCSC 326 (13 May 2016) para 35, the Court held that the charge should contain “sufficient particulars to allow the accused to mount his defence.”

  198. Dorasamy v R (CR SCA No: 5/2011) [2013] SCCA 1 (03 May 2013) para 14.

  199. Dubois & Others v Republic (SCA07, 12 & 13/2014) [2017] SCCA 6 (21 April 2017) para 16. See also R v Savy (CO 51/1998) [1999] SCSC 1 (05 February 1999).

  200. Section 181(1) of the Criminal Procedure Code.

  201. Waye v Republic (1 of 2004) [2004] SCSC 12 (05 December 2004), p. 4.

  202. Ibid, p. 4.

  203. Pillay v R (CN 12/2011) [2013] SCSC 57 (23 May 2013) para15.

  204. K Ambos, Treatise on International Criminal Law: Volume III: International Criminal Procedure (2016) 1735.

  205. Article 18 of the Constitution provides that “[3] A person who is arrested or detained has a right to be

    informed at the time of the arrest or detention or as soon as is reasonably practicable thereafter in, as far as is practicable, a language that the person understands of the reason for the arrest or detention, a right to remain silent, a right to be defended by a legal practitioner of the person’s choice and, in the case of a minor, a right to communicate with the parent or guardian. [4] A person who is arrested or detained shall be informed at the time of the arrest or detention or as soon as is reasonably practicable thereafter of the rights under clause (3). [5] A person who is arrested or detained, if not released, shall be produced before a court within twenty-four hours of the arrest or detention or, having regard to the distance from the place of arrest or detention to the nearest court or the non-availability of a judge or magistrate, or force majeure, as soon as is reasonably practicable after the arrest or detention.”

  206. For a detailed discussion of this issue, see JD Mujuzi, “The admissibility of evidence obtained through human rights violations in Seychelles” (2019) 32(1) South African Journal of Criminal Justice 1–27.

  207. Barre & Others v R (SCA No. 7 /2013) [2015] SCCA 2 (17 April 2015).

  208. Ibid, para 10.

  209. Ali & Others v R (SCA 22/2012) [2014] SCCA 34 (12 December 2014).

  210. Ibid, para 25.

  211. Mohammed Ali Hussein & Others v R (SCA 05-09/2016) [2016] SCCA 33 (09 December 2016).

  212. Ibid, para 9.

  213. Roble & Others v R (SCA CR 19/2013) [2015] SCCA 24 (28 August 2015) para 45.

  214. Graham Pothin v R (Criminal Appeal SCA 13/2017) [2018] SCCA 17 (31 August 2018) para 7.

  215. Cases in which the Supreme Court has allowed the prosecution to amend defective charges include: Republic v Scholes and Another (46 of 2009) [2009] SCSC 140 (29 October 2009); Republic v Payet and Others (20 of 2009) [2009] SCSC 92 (30 August 2009).

  216. In Jules v R (11 of 2005) (11 of 2005) [2006] SCCA 8 (28 November 2006) para 8, the Court referred to section 114 of the Criminal Procedure Code and held that “[w]here a defect is detected in a charge or information, then a trial court may make the necessary amendments in the interest of justice.” See also Tirant v R (CN 68/2014) [2015] SCSC 251 (03 June 2015) in which the Supreme Court referred to section 187 of the Criminal Procedure Code on the power of the magistrate to amend a charge.

  217. R v Emmanuel & Anor (CO 85/2003) [2006] SCSC 70 (18 October 2006).

  218. Beeharry v R (SCA 28/2009) [2010] SCCA 12 (10 December 2010); R v Amelie Builders (Pty) Ltd (CR SCA NO. 14/2012) [2013] SCCA 31 (06 December 2013); Pool & Hoareau v R (SCA 02 & 04/ 2013) [2015] SCCA 43 (17 December 2015); R v Leon (Case No: CR 10 of 2010) [2013] SCSC 65 (05 April 2013); R v Albert (CO 4/2006) [2008] SCSC 2 (24 January 2008) (conviction not set aside); R v William (CN 60.2013) [2013] SCSC 86 (18 November 2013) (conviction set aside).

  219. Barre & Others v R (SCA No. 7 /2013) [2015] SCCA 2 (17 April 2015).

  220. Ibid, para 9.

  221. Barre & Others v R (SCA No. 7 /2013) [2015] SCCA 2 (17 April 2015) para 9.

  222. R v Farad Ahmed Jama and others (Criminal Side No: 16 of 2012) [2013] SCSC 17 (05 November 2012) para 3.

  223. Interpretation and General Provisions Act, Chapter 103.

  224. Merchant Shipping Act, Chapter 127A.

  225. Section 2(1) of the Merchant Shipping Act, No. 4 of 2009, defines a ship to include “every description of vessel used in navigation” and a vessel includes “any ship, boat, sailing vessel, or other description of vessel used in navigation”

  226. This is the case with non-piracy cases also. See for example, R v William (CN 60.2013) [2013] SCSC 86 (18 November 2013).

  227. Sayid v R (SCA 2 of 2011) [2013] SCCA 24 (06 December 2013); Ali & Others v R (SCA 22/2012) [2014] SCCA 34 (12 December 2014).

  228. Article 19(2)(g).

  229. Article 19(2)(h).

  230. K Ambos, Treatise on International Criminal Law: Volume III: International Criminal Procedure (2016) 1734.

  231. Ibid, 1734.

  232. Roble & Others v R (SCA CR 19/2013) [2015] SCCA 24 (28 August 2015).

  233. Ibid, para12.

  234. Ibid, para 13.

  235. Ibid, para14. The Court held that “A confession is generally described as “an unequivocal acknowledgement of guilt, the equivalent of a plea of guilty before a court of law”. On the other hand an admission is referred to as “a statement or conduct adverse to the person from whom it emanates.””

  236. Ibid, para 15.

  237. Olad v R (SCA 19/2015) [2015] SCCA 40 (17 December 2015) para 6, the Court observed that “The Appellant and the other accused persons chose not to adduce evidence at the trial but remained silent when they were called upon to put up a defence. Under the law in Seychelles (Article 19(2) (h)) of the Constitution) no adverse inference should be drawn for the exercise of their constitutional right to remain silent.”

  238. R v Osman & Ors (CO 19/2011) [2011] SCSC 74 (12 October 2011).

  239. Republic v Ali & Ors (CO 14/2010) [2010] SCSC 99 (03 November 2010) para 23.

  240. R v Ise & Ors (75 of 2010) [2011] SCSC 37 (30 June 2011) para 19.

  241. Mohammed Ali Hussein & Others v R (SCA 05-09/2016) [2016] SCCA 33 (09 December 2016).

  242. Ibid, para 13.

  243. Barre & Others v R (SCA No. 7 /2013) [2015] SCCA 2 (17 April 2015).

  244. Ibid, para 13.

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    Jamil Ddamulira Mujuzi

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Professor, Faculty of Law, University of the Western Cape, Cape Town, South Africa. I collected some of the cases and materials used in writing this paper when I was a visiting researcher at the University of Seychelles in 2017 and 2018. I am grateful to the University of Seychelles for the invitation and to the Chief Justice of the Supreme Court of Seychelles (Dr Mathilda Twomey) and to the Registrar of the Supreme Court of Seychelles for all the assistance they gave me during my research visit. I am also indebted to the Attorney General of Seychelles, Mr Frank Ally, for the discussion we had on the prosecution of piracy in Seychelles. The usual caveats apply. Email: djmujuzi@gmail.com

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Mujuzi, J.D. The Prosecution in Seychelles of Piracy Committed on the High Seas and the Right to a Fair Trial. Crim Law Forum 31, 1–48 (2020). https://doi.org/10.1007/s10609-020-09383-0

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