Original language

English

Country
Seychelles
Date of text
Type of court
National - higher court
Sources
Court name
Supreme Court of Seychelles
Reference number
Criminal Side No 11 of 2003
Tagging
Evidence, Liability, Admissibility
Free tags
Legal questions
Fisheries
Sea
Wild species & ecosystems
Justice(s)
Perera, A. R.
Abstract
Eight persons were charged for offences under the Wild Animals and Birds Protection Act (Cap 247). They were accused of unlawfully possessing 1141 Kg of Turtle meat, punishable under Section 3 of the said Act, and of the killing of 40 boobies, the latter being protected birds, punishable under Section 3 of the said Act. The Court started by dealing with alleged irregularities in procedure, namely the submission that at the voire dire, after hearing the evidence of the Police Officers who recorded the statement of the Accused, the Court proceeded to rule on its admissibility without affording an opportunity to him to address Court. Therefore the Counsel for the Accused stated that the Accused was not given a fair hearing. Furthermore, the Counsel for the Accused challenged the legality of the Regulation 5 (3) of the Wild Animals Protection Regulations, on which some of the accusation were based, as being ultra vires the powers vested in the Minister under section 2 (2) of the Wild Animals and Bird Protection Act. It was submitted that the Section empowers the Minister to make regulations, inter alia to “prohibit the shooting, killing, or taking of any wild animal or bird”. Therefore, the prohibition contained in Regulation 5 (3) against possession of turtle meat was ultra vires the Ministers’ powers. The Court held that there was a generality of powers vested in the Minister by Section 2 (2) to include any act connected with the shooting and killing, for the purpose of carrying out the object and purpose of the Act. Thus, Regulation 5 (3) was intra vires the Ministers’ powers. Moreover, the Court dealt with the question whether Environment and Wild Life Protection offences are based on strict liability. It enumerated several criteria in determining whether mens rea was a necessary ingredient of the offences, such as the purpose of the Act, the mischief aimed at and whether the statute related to Public health or Public welfare. In this connection the Court held that the right to a healthy environment had become a fundamental right. Any offence involving pollution of environment would now be an indirect violation of the right to life. Also in this connection the Court was of the view that if an offence is punishable with imprisonment, and the maximum term is severe, then Parliament cannot have intended it to be one of strict liability. The Accused retracted and partly repudiated their confessions, stating that they were obtained by duress and threat of electrocution. The Court held that an unsworn statement from the dock is not evidence in the sense of sworn evidence that can be cross-examined to. On the other hand it is evidence in the sense that the jury can give to it such weight as they think fit. The Court then analyzed the criteria of corrobation taking into account the views of different Courts from Seychelles and abroad and applied the principle onto the statements of the Accused. Finally, the Court also defined the criteria for “possession” under the Wild Animals and Birds Protection Act. In its sentence the Court among others applied the principle of sentencing that it is wrong to impose heavy fines on the assumption that someone other than the offender would provide the means to pay for it.