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THE REPUBLIC OF SEYCHELLES
IN THE SUPREME COURT OF SEYCHELLES
(HoldenAt Victoria, Mahe Island)
THE REPUBLIC
VS.
MOHAMED AHMED ISE & FOUR (4) OTHERS
Criminal Side No. 75 of 2010
Mr. Micheal Mulkerrins for the Republic
Mr. Joel Camille for all the 5 Accused persons
JUDGMENT
Gaswaga, J
[1] The five accused persons are Somali nationals and stand charged on three
counts.
Count 1
Statement of offence
Piracy contrary to section 65 of the Penal Code read with section 23 of the
Penal Code and punishable under section 65 of the Penal Code.1
Particulars of Offence
Mohamed Ahmed Ise (A1), Abdullah! Yousuf Hirsi(A2), Ahmed AN Osman
(A3), Adow Ali Osman (A4) and Ahmed Ali Said (A5) together with others
unknown on the '17th November, 2010 on the high seas with common
intention, committed an illegal act of violence or detention or an act of
depredation committed for private ends against persons on board another
ship namely 'The Cap Ste Mar/e'by unlawfully firing weapons aimed at the
said vessel.
Count 2
Statement of Offence
Piracy contrary to section 65 of the Penal Code read with section 23 of the
Penal Code and punishable under section 65 of the Penal Code.
Particulars of Offence
Mohamed Ahmed Ise (A1), Abdullahi Yousuf Hirsi (A2), Ahmed Ali Osman
(A3), Adow Ali Osman (A4) and Ahmed Ali Said (A5) together with others
unknown on the 17th November, 2010 on the high seas with common
intention, committed an illegal act of violence or detention or an act of
depredation committed for private ends against persons on board another
ship namely The Talenduic' by unlawfully firing weapons aimed at the
said vessel.
Count 3
Statement of Offence
Piracy contrary to section 65(4) (b) of the Penal Code read with Section 23
of the Penal Code and punishable under Section 65 of the Penal Code.
Particulars of Offence
Mohamed Ahmed Ise (A1), Abdullah! Yousuf Hirsi (A2), Ahmed Ali Osman
(A3), Adow Ali Osman (A4) and Ahmed Ali Said (A5) together with others
unknown on the 18th November, 2010 on the high seas with common
intention, committed an act of piracy namely voluntary participation in the
operation of a ship with knowledge of facts making it a pirate ship.
[2] These charges stem from the facts constituting of evidence adduced by
twelve prosecution witnesses. Briefly, it had been deposed by Yves-Jean
Vincent Marrec (PW1), the Captain of a French registered fishing vessel,
the 'Talenduic', that on the morning of 17th November, 2010 the said vessel
was attacked by armed men aboard two speeding attack skiffs. At the time
of the attack, the Ta/enduicwas near another vessel, the 'Cap. Ste. Marie'
which had been incapacitated due to a broken propeller. That Nicolas
Kostrazwa (PW5) a member of the French navy on board the Talenduic
had sighted the attack skiffs first at 04:00 GMT while on the lookout from
the observation post and alerted the others on board.
'[SJVincent Marrec ordered for the engine to be accelerated to its maximum
capacity to avoid the skiffs catching up with them. After giving chase for
some time, the skiffs, which were moving at a speed of about 20 knots
abandoned their pursuit and left in the eastern direction. During the chase,
the skiffs fired several times at the Talenduic with automatic rifles and
Rocket Propelled Grenades (RPG). Jacque Charrier (PW4) the officer in
charge of the team protecting the Talenduic stated that the skiffs followed
them over a distance and after a short time they started firing on them. But
the attack had stopped when the five marines on board the Talenduic fired
back around and over the bow of the skiffs.
[4]AII these events had unfolded in the clear view of Ludovic Fantino (PW2) the
chief of the mariners charged with the duty to offer protection to the crew on
board the Cap. Ste. Marie. Ludovic Fantino had received information on
radio that skiffs were approaching their vessel and they took combat
positions. Just like Vincent Marrec, Ludovic Fantino had gone out on the
deck and used a pair of binoculars to see the vessels coming towards them.
It was the evidence of both witnesses that the weather was very clear that
morning to allow good viewing and they managed to see two attack skiffs
moving side by side close to each other at a high speed of about 20 knots.
That one was white while the other was blue with some white patches at the
front part. The skiffs were quite close to the vessels, about 1.7 nautical
miles and four people could be seen on each one of them.
4
] Ludovic Fantino corroborated Vincent Marrec's testimony that as the skiffs
were about to catch up with the Ta/enduic, they separated and one went on
the starboard side while the other remained on the portside. This was
however short lived. The assailants got repulsed by fire from the Ta/enduic
when, following the rules of engagement at sea, flares and warning shots
were fired in their direction. At that time, the witnesses further stated that
they could not see the firearms apart from the fire which according to their
familiarity and expertise with arms was coming from automatic weapons
and RPG's.
[6] The skiffs quickly turned back and sped off towards the Cap Ste Marie at
05:45 GMT. However, the warning shots fired by Norberry Geniez (PW3),
one of the mariners on board, repelled the skiffs about one nautical mile
away. They retreated and regrouped at some distance before returning,
again at a very high speed to launch a second attack on the Ta/enduic.
They continued firing automatic weapons and RPGs to which fire the
Ta/enduic retaliated. Once overpowered by the Ta/enduic they tried a fresh
attack on the Cap Ste Marie at 06:10 GMT. Ludovic Fantino again ordered
for warning shots to be fired and Geniez fired one in the air and another in
the water. It was the evidence of the witnesses that at that point the skiffs
abandoned the whole exercise, retreated and maneuvered in the westerly
direction. This was at 06:17 GMT.
JUpon receiving a report of the attack by the Seychelles Coast Guard
headquarters in Port Victoria, Mahe Island, the Andromache- a war ship
was dispatched to the area of interest. Ferdinand Laporte (PW7), Captain of
the Andromache slated that he had cast off on the 17th of November, 2010
and headed for the high seas at a position located 240 nautical miles from
Mahe Island whose coordinates were: latitude 06 31 S and 050 53 E.
Arriving at these coordinates the following day (18th November, 2010) at
11:00 am (local time), the Andromache found nothing of interest.
[8] At 01:30 pm (local time) the same day, the EUNAVFOR marine patrol
aircraft, with which the Andromache coordinates coast guard activities
especially anti piracy missions, provided new grid references, latitude 06
12 S and longitude 050 02 E, at which position the Andromache found a
Piracy Action Group (PAG) consisting of one empty attack skiff tied onto a
mother skiff, all dead in water and drifting. It had taken them half an hour to
cover this distance of six to seven nautical miles between the first location
and the second position where they caught up with the skiffs. The
Andromache was further informed that before their arrival one attack skiff
with five people on board had fled the scene at a speed of 20 knots to the
north. This was also confirmed by 2nd Lt. Alex Serret (PW6) the second in
command of the Andromache when he testified that one skiff was detected
on the radar motoring northerly at 20 knots.
As is always the procedure, flares and warning shots were fired in the
direction of the skiffs whereupon all the five people aboard the mother skiff
raised their arms in the air. Keeping a safe distance of 1.7 nautical miles,
the Andromache dispatched their 'Zodiac team' (boarding party) to disarm
and also fetch the five men who now stand before this court as A1 to A5.
[10]No arms were found on the skiffs. Neither were any fish nor fishing
equipment. As shown in the photographs (PEG and PE1), there were
barrels of fuel, fresh water, a tarpaulin, food etc on the mother skiff which,
following further instructions from the Coast Guard operations centre, was
sank and the attack skiff brought to Mane. The Andromache then left
immediately to join up with the Topaz- a sister coast guard ship for another
mission about 200 nautical miles away, a journey which took the
Andromache 18 hours to cover.
[11]On the 22nd of November, 2010 the Andromache docked in Port Victoria
from where PC Dave Jeanne (PW11), with the assistance of a Somali/
English interpreter, received and read the accused their constitutional
rights before formarly arresting them. Sub-Inspector Jimmy Barra (PW12)
recorded the accused's statements (PE8).
[12]lt was also the prosecution's case that William Matley (PW8) and Yvan
Delfs (PW9) are systems operators with CAE aviation, an entity engaged in
the detection of piracy activities over the Indian Ocean. They are
7
responsible for the surveillance systems or the camera system (gimbal)
with exceptionally high resolution on board the maritime patrol aircrafts
which is used to take good quality pictures from a distance of several
miles.
[13]On the 17th of November, 2010,William Matley, aboard the maritime patrol
aircraft, set out on a surveillance mission. Before taking off, they were re-
tasked to an incident west of Mahe Island involving the Talenduic and the
Cap Ste Marie. The maritime aircraft first spotted the mother skiff towing
two attack skiffs at 07:14 GMT in position 06 32 S and 050 54 E. At 07:16
GMT a closer picture was taken of the PAG clearly showing three Persons
On Board (POB) the mother skiff, four on the first attack skiff and three on
the other. The photograph taken four minutes later at 07:20 GMT from a
closer distance of 2.2 nautical miles is even clearer. It shows the blue and
white attack skiffs pulled next to the mother skiff and all the persons joining
the mother skiff before getting underway. The last photograph of the PAG
that day was taken at position 06 30 S and 050 43 E at 09:42 GMT, and
the PAG was moving at a speed of 6 knots. The aircraft broke off
surveillance due to fuel shortage. (See IMINT Report No.1, of PE3).
[14]Yvan Delfs had started his surveillance on the 18th of November, 2010 and
first detected the PAG of two attack skiffs tied onto the mother skiff dead in
water at location 06 12 S and 050 02 E at 09:53 GMT. The mission lasted
about five hours and 3Q minutes during which time the activities of the PAG
8
were being recording and communication with the Andromache, Cap Ste
Marie, Talenduic and other concerned assets was maintained. At 10:48
GMT one attack skiff with five POB was seen disengaging and leaving the
mother skiff. It was later seen escaping at a very high speed in the north
western direction and photographed at 11:45 and 12:16 GMT. (See IMINT
Report No.2, of PE3).
[15]The hard disk and USB containing the recordings of the 17th and 18th
November surveillance information were passed on by Matley and Yvan
Delfs upon each one's arrival on Mahe to Christophe Rossignol (PW10)
who is an experienced Imagery Intelligence (IMINT) analyst of 18 years'
standing with the French army. He has also prepared about 350 reports of
this nature, whose purpose is to explain what happens during the marine
surveillance flights. The witness explained that he gets very accurate
photographs and or videos from the hard disks submitted by the sensor
operators and prepares a report for each mission flight wherein certain
characteristics akin to piracy activities are highlighted. Reports in respect of
the above missions were accordingly prepared and compiled. (See IMINT
Report PE3).
[16]Regarding the skiffs, witness Marrec had stated that he saw the skiffs
clearly as and when they came closer. He confirmed in cross examination
that he was certain they were the same skiffs showed to him in IMINT
report 1, page 5 and each had four persons on board. Just like Marrec,
witness Fantino saw a white skiff and a blue skiff only that the blue one had
white patches at the front. Witnesses Geniez, Charrier and Kostrazwa had
seen the skiffs carrying four persons each. That the skiffs were 4 to 5
meters long. Jacque Charrier used the bigger binoculars on the ship to see
the skiffs and could view up to 10 to 20 nautical miles. The Weather and
visibility was clear and he was able to see one man standing in front of the
white skiff with an RPG on his shoulders. The exchange took 2-3 minutes.
After the first attack, the witness had seen them re-group together and
communicate for around 10 minutes. Nobody was injured. There was also
no damage to the vessels.
[17]The IMINT report No. 3 shows similarities between the mother skiff
detected on 17th November and that of 18th November such as a blue
painted mark on top of the bow, green piece of cloth on front left side seen
in same place on both days, blue painted mark on the rudder, blue hull with
the inside painted green, and white on top, and wooden poles with same
shape at the front and back of the skiff connected with a piece of cloth.
Apart from the mother skiffs being of the same shape and size, the
arrangement of barrels on both sides at the rear was the same. Four yellow
barrels were lined up along the right side of the mother skiff while five
others in the colors of red, yellow, yellow and blue, red or orange, and
brown were lined up on the left side.
10
f18]The attack skiff which escaped on the 18th November also appears in the
photos of the 17th November, with similar features such as size and shape,
two white marks at the top rear corners, white hull, blue top bow and a
green inside. For the remaining attack skiffs, apart from the size and
shape, the other similarities were a blue hull, top white and a green inside.
Rossignol concluded that the PAG's seen and photographed on the 17th
November were the same as those seized by the Andromache on the 18th
of November. The court believes this evidence and conclusion, and fully
endorses it.
[19]A prima facie case having been established with this evidence in respect of
each accused on all the counts, the accused persons were accordingly put
on their defence, pursuant to section 184 of the Criminal Procedure Code,
Cap 54. All the accused chose the option to remain silent. With regard to
their choice, no negative inference was drawn by the court. See Article 19
(2) (h) of the Constitution. The accused also adduced no further evidence
from witnesses. Instead, they relied on their statements made to the police
upon arrest and the submissions made by their counsel.
[20]For their defence, the accused gave almost a similar story in their
statements. They all admitted to being of Somali origin and that they are
fishermen from different areas of Somalia. That during their arrest, they
were fishing and had not done anything illegal. They also stated that
Mohamed Ahamed Ise, A1, (also known as Geecey) was their leader. The
11
accused categorically denied having any knowledge or being involved in
any piracy activities. They denied having been in possession of weapons.
However, there were some contradictions with regard to the number and
colour of the boats they were sailing in. Whereas Mohamed Ise talked of
two boats, one white and the other blue, Abdullah Yousuf Hirsi, Ahamed Ali
Osman and Ahmed Ali said that they were travelling in one white boat.
Adow Ali Osman stated that they were travelling in one boat then just
happened to find another on their way and ended up with two, one white
and the other blue. When these pieces of independent evidence are
considered together, one will find that the description they gave fits all the
three skiffs already described herein above by the prosecution witnesses.
[21]The issue in this case appears not to be that there was no attack on the
two vessels but rather, if there was, none of the five accused were
responsible for it. Therefore identification of the accused and their
placement onto the scene as well as the identification of the skiffs would
be very crucial.
[22]lt may be worth noting, and it is not in dispute, that the attacks were
committed by non-Seychellois against French registered vessels carrying
French nationals upon the high seas. It has long been settled under
customary international law, that a pirate is no longer a national but hostis
human/ generis (enemy of humanity) when the Privy Council, vide- In re
Piracy Jure Gentium, 1934 page 586, stated that a person guilty of piracy
12
at the high seas places himself beyond the protection of any state. See
also Grotius (1583-1645) "De Jure Belli ac Pads? Vol. 2, cap. 20,...40.
This universal jurisdiction makes it possible for the arresting State, like the
Republic of Seychelles in this case, to freely prosecute suspected pirates,
from anywhere in the world, and punish them if found guilty under the
municipal law, since the crime of piracy Jure gentium is considered to be a
contravention of jus cogens (compelling law), a conventional peremptory
international norm that States must uphold. See Halsbury's Laws of
England, fourth edition as revised in 1977 Vol. 18 at 787 -789.
[23]These principles, together with some provisions of the United Nations
Convention on the Law of the Sea, 1982 (UNCLOS) have been adopted
and are clearly reflected in our law. The Seychelles Penal Code, Cap 158
as amended by Act no. 2 of 2010, Section 65 (1), (4), (5), (7) thereof state:
"65. (1) Any person who commits any act of piracy within
Seychelles or elsewhere is guilty of an offence and liable to
imprisonment for 30 years and a fine ofR1. Million.
(4) For the purposes of this section "piracy" includes -
(a)any illegal act of violence or detention, or any act of
depredation, committed for private ends by the crew or
13
the passengers of a private ship or private aircraft and
directed -
(i) on the high seas, against another ship or aircraft, or
against persons or property on board such a ship or
aircraft;
(ii) against a ship, an aircraft, a person or property in a
place outside the jurisdiction of any State;
(b) any act of voluntary participation in the operation of a
ship or an aircraft with knowledge of facts making it a
pirate ship or a pirate aircraft; or
(c) any act described in paragraph (a) or (b) which, except for
the fact that it was committed within a maritime zone of
Seychelles, would have been an act of piracy under either
of those paragraphs.
(5) A ship or aircraft shall be considered a pirate ship or a pirate
aircraft if-
14
(a)it has been used to commit any of the acts referred to in
subsection (4) and remains under the control of the
persons who committed those acts; or
(b)it is intended by the person in dominant control of it to be
used for the purpose of committing any of the acts
referred to in subsection (4).
(7) Members of the Police and Defence Forces of Seychelles
shall on the high seas, or may in any other place outside the
jurisdiction of any State, seize a pirate ship or a pirate aircraft,
or a ship or an aircraft taken by piracy and in the control of
pirates, and arrest the persons and seize the property on board.
The Seychelles Court shall hear and determine the case against
such persons and order the action to be taken as regards the
ships, aircraft or property seized accordingly to the law.
[24]Section 23 of the Penal Code, Cap 158 has been added for purposes of
having all the accused persons charged together on each of the three
counts. It states:
"When two or more persons form a common intention to
prosecute an unlawful purpose in conjunction with one
another, and in the prosecution of that purpose an offence
15
/5 committed of such a nature that its commission was a
probable consequence of the prosecution of such
purpose, each of them is deemed to have committed the
offence."'
[25]The case for the prosecution is that the five men before court now,
together with others unknown committed the offences herein. The
/ evidence on record is to the effect that eight men did the attack but no
witness could tell exactly who fired the automatic weapons or RPG and
from which skiff. It was stated in R Vs Nur Mohamed Aden & 9 others,
Supreme Court of Seychelles, Cr Side No. 75 of 2010 (the Faith case) that
while applying section 23 'common intention' to the evidence "guidance
can be sought from among other things, the manner in which the accused
arrived at and left the scene, and the way in which they executed the
alleged crime, whether severally or collectively, since the presence of
, accomplice gives encouragement, support and protection to the person
actually committing the act". Reference was made to Archbold 2011
Edition, paragraph 18-15, Ratanlal and Dhirajral's Law of Crimes 23rd
Edition page 336.
[26]lt does not appear to be in dispute that on the 17th there was an attack on
the Cap Ste Marie and the Talenduic by two skiffs with four men on each.
The eye witnesses; Geniez, Fantino, Marrec, Charier and Kostrazwa
narrated how the skiffs attacked, from the same direction, moving at the
16
same speed, side by side close to each other and separating at some point
when they approached the Talenduic, one going on the left and the other
on the right side of the Talenduic, and thereafter advancing towards the
Cap Ste Marie. It/lore planning and coordination of the whole exercise is
exhibited not only in the manner in which they retreated after defeat in the
first attempt but also when they regrouped at some distance, spoke to each
other for a short time before speeding off for a second attack on both
vessels. This was a concerted effort.
[27] Again, common intention of the assailants is reflected in the fact that they
had fired at the same time and object, ceased the attack at once and left
the scene together in the same direction. None of them returned. This was
at about 06:17 GMT and shortly thereafter, at 07:14 GMT, the maritime
patrol aircraft spotted a mother skiff towing, as already established, the
two attack skiffs that had just finished attacking the Talenduic and Cap Ste
Marie. Photograph No. 9 of Report 1 shows attack skiffs pulled closer and
some men getting off and boarding the mother skiff.
[28]The act of the mother skiff towing the two skiffs within less than 57 minutes
immediately after the attack was not innocent. It cannot be believed, as
one of the accused had stated and wanted the court to believe, that they
found the second boat just along the way and used it. This would be too
much of a coincidence. The skiffs had fled in that direction well knowing
that the mother skiff, as is a/ways the case, was waiting and observing the
17
attack from a safe distance. Although it did not reach the scene, the
persons in dominant control of it were fully aware of the planned attack,
aided the attack skiffs and formed, at all material times, part and parcel of
that piracy action group. In the case of Barendra Kumar Ghose Vs The
Emperor, 1925 A.I.R (P.C) 1, the Privy Council held that "even if the
appellant did nothing as he stood outside the door, it is to be remembered
that in crimes as in other things, they also serve those who only stand and
wait".
[29] The above arrangement, size and number of skiffs fits the classic make up
and description of a typical piracy attack group. That is why the witnesses
opined that it had all the relevant characteristics. Witnesses herein,
consisting of sailors and experts have stated that a PAG usually consists
of the mother skiff, two smaller attack skiffs, and at times, a mother ship
especially if they have already captured one. Rossignol said that the
mother skiff carries fuel, food and other supplies on which all the group
depends. That it has an inboard engine and usually travels at a speed of
around 10 knots. It tows the attack skiffs with a rope and frees them when
going to attack, as it holds off at a safe distance. It was also Rossignol's
testimony that attack skiffs have an outboard engine and are pretty fast
with a speed of between 20 and 25 knots. The occupants of the attack
skiffs execute the actual attack and carry weapons including automatic
rifles and RPG's, ladders with hooks used to climb on the ship, fuel cans
etc. A PAG would consist Of usually a minimum of ten people who travel
18
on the mother skiff and only maneuver the attack skiffs at the time of
attack. Each attack skiff would have four armed persons, as was seen in
the case at hand, and the rest remain on the mother skiff. Case law clearly
demonstrates this arrangement. See Rep, v Abdi Ali & Ten Others
(Supreme Court of Seychelles) Criminal Side No. 14 of 2010-paras 13-15
(the Intertuna II case) , Rep, v Nur Mohamed Aden & Nine Others
(Supreme Court of Seychelles) Criminal Side No. 75 of 2010 (the Faith
case), Rep, v Mohamed Aweys Sayid & Eight Others (Supreme Court of
Seychelles) Criminal Side No. 19 of 2010(the Galate case), and Rep, v
Mohamed Dahir & Ten Others (Supreme Court of Seychelles) Criminal
Side No. 51 of 2009(the Tbpazcase).
[30]Having taken note of the general circumstances: such as lighting and
visibility; and the flow of events during a surprise combat action at the
scene of attack under which the identification of the skiffs by the witnesses
was done; and considering the IMINT report containing a description and
comparison of the skiffs photographed at or shortly after the point of attack
and those at the place of arrest; the expert opinion of witnesses
Rossignol, Matley and Delfs, in addition to the evidence that there were no
other PAGs seen or detected in that area before the 17th or after the 18th
of November; I am satisfied beyond doubt that the skiffs seen at the place
of attack and later photographed on that day are the very same skiffs
found, photographed and subsequently impounded on the 18th of
November by the Andronjache. This includes the skiff that escaped.
19
[31] Does it therefore follow that the men who were found in the mother skiff
must have been part of the PAG that attacked the Cap Ste Marie and the
Talenduic? The prosecution submits that by virtue of being found in the
skiff, the accused must have been part of the assailants and that those
persons unknown to the prosecution were the five men who escaped on
one of the attack skiffs shown in Report No.2 photo 10. The bedrock of the
defence case is that none of the witnesses could identify any of the
accused persons in and or out of court nor place them at the scene.
Further, that the evidence adduced talks of four men on each skiff yet at
the time of arrest, the five accused were on one skiff.
[32] In order for one to find an answer to this question, it must be noted that
there was no direct evidence adduced with regard to the identification and
placing of the accused on the scene of the attack. The defence concedes
on the matter. Criminal law requires that a concrete nexus between the
alleged crime and the accused be established first, if a conviction is to be
entered. It is therefore imperative that in addition to the above evidence,
the following circumstances are also examined;
i. Time taken by the skiffs from the point of attack to the place of first
detection was 57 minutes during which the skiffs had covered a
distance of six nautical miles. The Andromache had taken 30
minutes to cover the same distance.
20
III.
IV.
The eye witnesses in the vessels (Cap Ste Marie and Talenduic]
were able to view an expanse of the sea, within a radius of 13 to 14
nautical miles in each direction and did not see any other PAG
within thfs area. The crew of the spotter plane too (with the
Airborne Warning and Control [AWACs] surveillance system with a
range of 150-200 square kilometers), on the 17th and 18th
November, did surveillance over a wider area of the sea, detected
no other PAG in the area apart from the one in issue. The
Andromache which was dispatched from Port Victoria, on the 17th
November, to the point of attack and to the place of arrest on the
18th November, before leaving for another destination, covered a
wide distance of 200 nautical miles within 18 hours but did not
encounter any other PAG in the vicinity of the attack.
The movement of the two skiffs 25 nautical miles westwards from
the point of attack to the position where they were first detected
being towed by the mother skiff and the place where one of the
skiffs escaped and the other two were later apprehended (See
IMINT Report No. 1, Pages 3 and 12 and IMINT Report No. 2,
Page 4).
Lack of options for possible hiding places in the vast and open sea
as compared to the ordinary crime of robbery on land. The main
difference between the crime of piracy and ordinary robbery
offences is that, whereas in robbery the perpetrators can run,
escape on land an$ easily merge into the surrounding environment
21
(bushes, buildings and crowds), after abandoning their means of
transport, the environment in which pirates operate does not
present such options. Pirates can run or flee the scene of attack
but can riever hide on the open seas; neither can they abandon all
their vessels (skiffs). In addition, in the piracy theatre, even when
they flee, they have a limited travel range and therefore can only
cover so much distance in a given timeframe. This works against
them. In the instant case, the PAG covered a short distance and
was unable to escape the vicinity of the attack.
[33] In the case of Teper v R (the Appeal Cases, page 490), it was held that:
"... where the evidence is wholly circumstantial, what has to be
considered is not only the strength of each individual strand or cord
(piece of evidence) but also the combined strength of these strands
when twisted together to form a rope. The real question is: Is the rope
strong enough to hang the prisoner?"
See also Chan Chwen Kong v Public Prosecutor, 1962 MLJ 307.
[34]Each one of the above circumstances or pieces of evidence when
assessed as a whole would lead one to the inevitable conclusion that the
accused persons, though not identified and placed at the scene, were or
formed part of the PAG in question. In these circumstances, the only
22
5g/cal explanation that can hold is that the eight men seen on the attack
skiffs joined the mother skiff shortly after the incident and continued further
westwards up to the point of arrest. The other two men must have
remained on trie mother skiff, holding off at a safe distance, which is a
common practice in piracy operations. This is why photographs taken at
17:16 and 17:20 GMT show a different configuration of the skiffs, each
with POBs and later all the ten POBs moving on to the mother skiff. It is
(./ not surprising therefore that at arrest; five were found on the mother skiff,
the other five having escaped. It also holds to say that there was sufficient
opportunity for the POBs to effect several changes with regard to the
occupation of the skiffs but had no opportunity at all, to get rid of all the
skiffs. Another plausible explanation could be that since the accused saw
the spotter plane and the Andromache approach, they must have either
thrown the weapons and ladders overboard or loaded them onto the skiff
that escaped, otherwise, they should have been found on the mother skiff.
i
[35]The defence submission of 'innocent association' pursuant to section 10 of
the Penal Code, that the acts herein occurred independently of the
exercise of the accused's will or accidentally, is hereby rejected. There is
overwhelming evidence to show that all the accused were willing, rather
than, involuntary participants in the crime herein otherwise they would
have said so at the earliest opportunity. The accused could not have been
fishermen at sea as they claimed because there was neither evidence of
possession of any fishing gear whatsoever nor fish caught in the skiffs.
23
Sead, paraphernalia akin to piracy had been sighted in the skiffs before
"tfie accused were arrested.
[36] In addition, I found the prosecution witnesses' evidence to be credible and
reliable, the same having withstood the rigours of cross-examination.
Rossignnol's I Ml NT Reports were also found to be accurate by the court.
The chronological order of events before, during and after the attack
renders the prosecution's case more credible and coherent. The
witnesses corroborated each other and their testimonies were supported
by the IMINT reports which tallied with the photographs.
[37] This cogent and incriminating circumstantial evidence irresistibly points to
all the accused's common intention to prosecute an 'unlawful purpose' or
'unlawful object' i.e. by use of weapons to violently attack, detain and take
control of the two vessels upon the high seas. The said acts did not only
put the lives of the occupants of the said vessels in danger but also
instilled fear in them and were compelled to defend themselves by firing
back. It is immaterial if the prosecution does not point out who specifically
did what from the PAG, as long as it is proved that an accused was party
to the joint accomplishment of this criminal object, and that his will
contributed to the wrong doing which in law makes him responsible for
the whole crime as though performed by himself alone. Basically the
evidence shows that there was a division of labor, but all aimed at one
common result and for private ends. Others were maneuvering the skiffs
24
'hile some were firing, and those on the mother skiff taking care of the
supplies and keeping a lookout to avoid any surprises. Therefore, each is
equally culpable for the actions of his confederates. See J.P Bishop on
Criminal Law, Vol 1 (3rd Edition) page 439
[38]This court, having warned itself of the danger of convicting on circumstantial
evidence, finds that these inculpatory facts are incompatible with the
innocence of each one of the five accused and are incapable of explanation
upon any other reasonable hypothesis than that of guilt. I am satisfied that
this inference of guilt has not been in any way or by any other
circumstances weakened or destroyed and, it is further held that any other
alternative possibility, if any, that might point to the innocence of the
accused persons has been fully explained and excluded by the prosecution.
See Sauzier V/s Rep (1956-1962) S.L.R, Rep V/s Hoareau (1984) SLR and
Onezime V/s Rep (1978) S.L.R.
[39]l am fully satisfied that the prosecution has proved all the elements of the
offence of piracy against each one of the accused persons beyond a
reasonable doubt. One may be tempted to argue that although there was
firing of rifles, the alleged acts of violent attack or detention or depredation
did not succeed, no one was injured and no vessel was damaged in the
attempt. It was held in Re Piracy Jure Gentium [1934] A.C. 586 that "an
actual robbery is not an essential element of the crime. A frustrated attempt
to commit to commit a piratical'robbery will constitute piracy jure gentium".
25
jrdingly, I find all the accused persons guilty and convict each one of
lem as charged on Count 1 and Count 2.
)Jlt is now fully settled that the skiff on which the accused were arrested on
the 18th November 2010, had already been used to commit acts of piracy.
The court has also concluded that all the five accused who were in
dominant control of the said skiff had participated in the attack already
proved herein. It cannot be said that the accused had no knowledge of the
said piracy attacks, neither can one say that they involuntarily participated
in the operation of a ship with knowledge of facts making it a pirate ship, as
defined in Sections 65 (4) (b) and 65 (5) (a) of the Penal Code. I find the
prosecution to have proved the ingredients of Count 3 beyond a
reasonable doubt. The accused are therefore found guilty and convicted as
charged on Count 3.
Judgement read and signed in open court in the presence of the Prosecutor,
all the five accused persons and their Counsel this 30th day of June 2011 at
Victoria, Mahe Island.
r>
DUNCAN &ASWAGA
JUDGE
Interpreters: English/Somali lnterpreters:English/Creole/French
(i) Abdullahi Yerrow Salat (i) Lisa Louange
(ii) Said Sheikh Abdirahaman (ii) Katrina Souffe
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