1)  The Appellants appeal against their conviction on two counts of piracy and the sentence imposed on such conviction by the Supreme Court.

2)  The Appellants were charged as follows:

1. Count 1 

   Statement of Offence

   Piracy contrary to section 65(1) of the Penal Code read with section 23 of the Penal Code and punishable under section 65 of the Penal Code.

   Particulars of offence

   Abdira Nur ROBLE, Abdullahi Sharif IBRAHIM, Mohamed Jama ALI, Mohamed Ahmed ABDULLALI, Mohamed Abdugaadir MOHAMED and Sahal Arten BARE between 10^th August and 14^th August 2012 on the high seas with common intention committed an act of piracy with violence or detention committed for private ends against persons on board another vessel namely BURHAN NOOR by unlawfully taking control of the said vessel whilst armed with fire arms.

2. Count 2 

   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

   Abdira Nur ROBLE, Abdullahi Sharif IBRAHIM, Mohamed Jama ALI, Mohamed Ahmed ABDULLALI, Mohamed Abdugaadir MOHAMED and Sahal Arten BARE between 10^th August and 14^th August 2012 on the high seas with common intention committed an act of piracy namely voluntary participation in the operation of a ship namely the BURHAN NOOR with knowledge of facts making it a pirate ship.

3)  The Appellants had filed the following grounds of appeal:

1. I.  The decision of the Judge that the Appellants were all guilty cannot be supported by the evidence.

2. II.  The Judge erred in relying heavily on purported statements of the Appellants which were only admitted as items and not exhibits.

3. III.  The Judge erred in allowing the prosecution of the 4^th Appellant, a minor.

4. IV.  The Judge erred in making the 2 sentences run consecutively rather than concurrently.

5. V.  The total sentence of 24 years for all the Appellants and the total sentence of 12 years for the 6^th appellant (a minor) is manifestly harsh in all the circumstances of the case.

4)  The law relating to piracy is set out in section 65 of the Penal Code as follows:

5)  According to section 65 of the Penal Code as set out at paragraph 4 above the courts of Seychelles have jurisdiction to try an offence of piracy whether the offence is committed within the territory of Seychelles or outside the territory of Seychelles. The words ‘outside the territory of Seychelles’ as per the provisions in section 65 (4) and 65 (7) of the Penal Code necessarily means, ‘on the high seas or in a place outside the jurisdiction of any State’.

6)  The issue of jurisdiction arises in this case as there is no clear evidence as to where the Appellants “committed an act of piracy with violence or detention for private ends against persons on board another vessel namely Burhan Noor or voluntarily participated in the operation of a pirate ship” as set out in counts 1 & 2 of the indictment. Was it on the high seas or the territorial waters of Somalia? The Prosecuting Counsel had raised this issue in his closing submission when he said: “To conclude, the only point I haven’t address in this submission is the high seas aspects, the pursuit and detention of its crew continued from close to the coast of Yemen across through the high seas and re entering territorial waters when it entered the territorial waters of Somalia. And the offence being a continued offence were ever it started or finished provided as it was performed and some part on the high seas is sufficient.”(verbatim but emphasis added by us) This is a clear indication that the Prosecutor was unsure as to where the alleged act of piracy had occurred and was relying in relation to ‘jurisdiction of the court’, on some part of the piratical activity occurring on the high seas and thus very much conscious of the jurisdictional issue. However, the evidence pertaining to an illegal act of detention or violence against the ‘Burhan Noor’ or its crew, which has been presented to court, was only that of, what was witnessed by the Danish and German naval officers on the 13^th of August 2012 inside the territorial waters of Seychelles, as stated below. There was no evidence that some part of the offence was committed on the high seas. This raises the issue, if the Appellants had committed the act of piracy in the territorial waters of Somalia by illegally detaining the crew of ‘Burhan Noor’, would it amount to an act of piracy under section 65 of the Penal Code.

7)  It is to be noted that the present section 65 of the Penal Code was brought in by way of the Penal Code (Amendment) Act 2 of 2010 which came into effect on the 19th of March 2010 after repeal of the earlier section and as an exception to section 6 and 7 of the Penal Code which only provides the Seychelles courts, a territorial jurisdiction.

8)  Section 6 of the Penal Code specifies that “The Jurisdiction of the courts of Seychelles for the purpose of the Penal Code extends to every place within Seychelles.” By way of qualification to the territorial application of the Penal Code, it is stated at section 7 that: “When an act which, if wholly done within the jurisdiction of the court, would be an offence against this Code, is done partly within and partly beyond the jurisdiction, every person who within the jurisdiction does or makes any part of such act may be tried and punished under this Code in the same manner as if such act had been done wholly within the jurisdiction.” Thus in respect of acts declared as offences under the Penal Code and committed partly within and partly beyond the jurisdiction of Seychelles, it is only those persons who within Seychelles does or makes any part of such act, who may be tried and punished under the Penal Code in the same manner as if such act had been done wholly within the Seychelles.

9)  The 2010 amendment was made to give jurisdiction to our courts to try piracy cases committed outside the territory of Seychelles, namely on the high seas or in a place outside the jurisdiction of any State, since under our legal system as it existed prior to the 2010 amendment, it was considered not possible to apply the international law of piracy and the concept of universal jurisdiction in the Seychelles courts automatically, without having them incorporated into national law. However the 2010 amendment did not grant jurisdiction to our courts to try cases of piracy that have been committed within the territorial waters of another state. Commenting on the 2010 amendment the Supreme Court stated in The Republic VS Nur Mohamed Aden & nine others (SC CR. SIDE NO 75 of 2010) that “This court has jurisdiction to try any piracy crime committed on the high seas…or anywhere else, but outside the jurisdiction of any other state.”

10)  In connection with the relationship of its national law with international law, Seychelles has always applied a dualist system in preference to a monist system. According to the dualist doctrine, international law and the internal law of states are totally separate legal systems. Being separate systems, international law would not as such form part of the internal law of a state, but to the extent that in particular instances rules of international law may apply within a state and they do so by virtue of their adoption by the internal law of the state, and apply as part of the internal law and not as international law. Thus it is the translation of international law into national law which makes it part of national law. The monist doctrine postulates that the two systems of law are part of one legal structure, the various national systems of law being derived by way of delegation from the international legal system. Since international law can thus be seen as essentially part of the same legal order as municipal law, and as superior to it, it can be regarded as incorporated in municipal law, giving rise to no difficulty of principle in its application as international law within states. The act of ratifying an international treaty immediately incorporates the law into national law and there is no need to have it translated into national law.

11)  In regard to application of treaties, agreements or conventions in respect of international relations, the Constitution of Seychelles in article 64 provides:

Article 64(5) of the Constitution also provides:

In view of article 64(5) it is possible to argue that where article 64(5) applies, translation of the treaty to national law does not arise and the act of ratifying the treaty in the international plane, immediately incorporates the treaty into national law. This is somewhat similar to the position under the Constitution of the United States of America. However since the promulgation of the Constitution in June 1993 there has not been a single instance where article 64(5) has been made use of, thus showing a reluctance on the part of government to put into practice a monist doctrine in the relationship of our national law with international law.

12)  Article 64(5) which may be interpreted to give recognition to the monist doctrine has to be understood in terms of article 1 and the Preamble of the Constitution. Article 1 states: “Seychelles is a sovereign democratic Republic”. In the Preamble to the Constitution, the people of Seychelles have solemnly declared their unswaying commitment to safeguard the sovereignty and territorial integrity of Seychelles and have adopted and conferred upon themselves the Constitution as the fundamental and supreme law of their sovereign and democratic Republic. Article 5 of the Constitution has also a bearing on the understanding of article 64(5). Article 5 states: “This Constitution is the supreme law of Seychelles and any other law found to be inconsistent with this Constitution is, to the extent of the inconsistency, void.”

13)  I am conscious of the fact that in order to deal with Somali pirates who took advantage of their geographical location to attack ships in the Gulf of Aden and speedily retreat to Somali territorial waters the United Nations Security Council passed several resolutions which authorized patrolling nations operating in the Gulf of Aden to enter Somali territorial waters and even enter Somali land to chase and capture pirates after having encountered them in the high seas. The resolutions did not modify existing customary rules of international law but only applied to Somalia. (S.C. Resolutions 1816, 1818, 1838, 1844, 1846, 1851, 1897, 1918, 1950, 1976, 2015, 2020 and 2125 during the period 2nd June 2008 to 18^th November 2013). There has not been any ratification of these resolutions by the National Assembly. There is no evidence in this case that the original encounter occurred in the high seas. In fact the evidence suggests that the first encounter with ‘Burhan Noor’ was inside the territorial waters of Somalia.

14)  However the ‘jurisdiction of the courts’ is a matter to be specifically legislated upon by the internal law of each State. It needs to prescribe the extent to which, and manner in which, the State in fact asserts its jurisdiction. This is more so because in connection with the relationship of its national law with international law, Seychelles has always applied a dualist system as stated earlier. This is why the Penal Code (Amendment) Act 2 of 2010 was brought in to give jurisdiction to the Seychelles courts to try offences of piracy on the high seas or in a place outside the jurisdiction of any State. In England the power to try cases of piracy committed on the high seas was granted to the English courts by the Offences at Sea Act, 1536. The Criminal Procedure Code and the Merchant Shipping Act of Kenya has expressly granted jurisdiction to Kenyan courts to try cases of piracy committed on the high seas. The 1978 Judicature Act of Sri Lanka has granted the High Court to try any offence committed by any person on the high seas where such offence is piracy by the law of nations. There would have been no need in these countries to specifically grant jurisdiction to their courts by domestic legislation if piracy on the high seas was an offence which could have been dealt with by the courts of those countries on the basis of universal jurisdiction. The issue in this case is can the Seychelles courts assume a jurisdiction which has not been granted to it by its domestic law, merely based on UN Resolutions? I am of the view that the Seychelles courts cannot make use of article 48(a) of the Constitution which states “This Chapter (i.e. Chapter III which contains the Seychellois Charter of Fundamental Human Rights and Freedoms) shall be interpreted in such a way so as not to be inconsistent with any international obligations of Seychelles relating to human rights and freedoms and a court shall, when interpreting the provisions of this Chapter, take judicial notice of the international instruments containing these obligations.”; to assume a jurisdiction. This is simply because this is not a case involving the interpretation of chapter III, but one of jurisdiction of the courts. Had it been the intention of the Legislature to grant our courts jurisdiction to try cases of piracy committed within the territorial waters of Somalia, they would have so provided for it, in the Penal Code (Amendment Act) 2 of 2010 or the Penal Code (Amendment Act) 5 of 2011, which were enacted after these UN Security Council resolutions had come into effect. To assume jurisdiction to try cases committed within the territorial waters of Somalia by placing reliance on the UN Security Council resolutions may be contrary to articles 1,5, 64(4), and the Preamble of the Constitution and the very clear provisions of section 65(4) and 65(7) of the Penal Code.

15)  It is unfortunate that the jurisdictional issue has not been determined by or properly argued before the Trial Court nor was it raised by the Appellants before us. I have therefore decided not to make a final determination on the matter leaving it to be decided on a future case. I decided to make reference to it as we are presently at a stage of developing our jurisprudence on the law of Piracy. I have therefore decided to determine this appeal on the basis of the other issues raised.

16)  The ‘Statements of offences’ in both counts 1 & 2, referred to at paragraph 2 above, make reference to offences committed under section 65 of the Penal Code and does not make reference to any UN resolutions. As stated earlier section 65 makes reference to offences committed on the high seas or in a place outside the jurisdiction of any state and not offences committed within the territorial waters of Somalia. Further the ‘Particulars of Offences’ in both counts 1 & 2, referred to at paragraph 2 above, make reference to offences committed on the high seas and not in the territorial waters of Somalia. Thus even if the UN Resolutions can be said to be applicable, the Appellants have been convicted of an offence of which, they were not properly charged. In R V Wallwork, 42 Cr. App. R. 153, CCA it was held that there is no necessity to identify in the indictment the place where an offence is alleged to have taken place unless it is material to the charge. Lord Goddard CJ in R V Wallwork in explaining this went on to state: “There are cases……in which it is necessary to indicate a particular place in the indictment, and an illustration [is] the offence of larceny on a ship which was at the time of larceny in a harbour or in a creek or other place of anchorage…..where it would be necessary to show that the theft took place while the ship was in a harbour or some particular creek, and then it would be necessary to mention the name of the harbour or creek……”.Blackstone’s Criminal Practice 2010, D11.38, in reference to Lord Goddard’s statement above states: “The example given in the above passage of instances where the place of offence should be particularized may be anachronistic, but current examples of the same requirement are burglary and dangerous driving. Counts to the former should state the building entered as a trespasser and counts for the latter the roads or other public places where the driving took place. The reason, in both cases, is that, having regard to the definition of offences, the place where the prohibited conduct occurred is an essential ingredient of the crime.” Section 65 makes reference to offences committed only on the high seas or in a place outside the jurisdiction of any state and thus in my view the place of offence is an essential ingredient of the offence of piracy under section 65 of the Penal Code. Article 19(2)(b) of the Constitution states: “Every person who is charged with an offence shall be informed at the time the person is charged or as soon as is reasonably practicable, a language that the person understands and in detail, of the nature of the offence.” Section 114 (f) of the Criminal Procedure Code states that “it shall be sufficient to describe any place,…..which it is necessary to refer in any charge or information in ordinary language, in such a manner as to indicate with reasonable clearness the place,….referred to.” I am of the view that the failure to correctly state the place of offence i.e. even if the UN Resolutions were applicable, as ‘within the territorial waters of Somalia’, was a fatal irregularity that could not be cured under section 344 of the Criminal Procedure Code or under the proviso to rule 31 of the Seychelles Court of Appeal Rules 2005.

17)  The facts in brief as presented by the prosecution before the Supreme Court are set out herein. The Commander of the German Frigate ‘Sachsen’, Andreas Krug, testifying before the Court had stated that on the 11^th of August 2012 they received information from the French vessel “La Faillette’ that was conducting piracy operations in the coast of Africa, “that they went on board another dhow which was named Alsabrie and that the crew of the said dhow reported just before the French boarded team went on board a group of 6 pirates who had left the dhow named ‘Alsabrie’ and changed to another dhow named the Burhan Noor”. There is no evidence before the Court as to why the French authorities termed the group of 6 as pirates, as no one from ‘La Faillete’ or ‘Alsabrie’ had testified before the Court. With the information received from ‘La Faillete’; ‘Sachsen’ had started looking for ‘Burhan Noor’ and were successful in locating it on the morning of the 13^th of August. On approaching the ‘Burhan Noor’, there had been a bridge to bridge conversation between the ‘Sachsen’ and ‘Burhan Noor’, where at such conversation it was reported, that if the crew of ‘Sachsen’ were to board the ‘Burhan Noor’ the crew of ‘Burhan Noor’, who were said to be Pakistanis, will be killed by the armed Somalis on board the ‘Burhan Noor’, and that they will also open fire at the ‘Sachsen’. ‘Sachsen’ had continued to follow ‘Burhan Noor’ which was heading towards Bossaso in Somalia after informing the Danish vessel ‘Rotterdam’ to block ‘Burhan Noor’ from the side of the coast of Somalia as their requests for ‘Burhan Noor’, to stop and permit ‘Sachsen’ to board ‘Burhan Noor’ had proved futile. However at no time had ‘Burhan Noor’ fired at the ‘Sachsen’ during this pursuit.

18)  Roy Razundel, the communications officer and officer of the watch on the bridge of ‘Sachsen’, who was involved with the bridge to bridge communication with the ‘Burhan Noor’, testifying before the Court had stated that the communication had been recorded on an audio system and later transferred to a smart disc. The smart disc had been produced as Exhibit P1 and a written transcript of it had been produced as Exhibit P2. Razundel could only state that he spoke to someone on board the ‘Burhan Noor’, but had not been able to say who that person was. This conversation between Razundel and the unidentified person from ‘Burhan Noor’ had been admitted by the Court as ‘Res Gestae’ evidence. There is no record of the date and time of the conversation in P1 or P2. There is no specific evidence as to whether this conversation took place within or outside the territorial waters of Somalia, a factor most relevant, in view that both charges allege that the offences were committed on the high seas. This gave rise to the question of jurisdiction which I have dealt with earlier. This is a specific question a prudent prosecutor should necessarily have asked, without leaving it to conjecture. Roy Razundel making reference to the transcript and the audio, had stated that the caller from ‘Burhan Noor’ had given the name of the ship as ‘Burhan Noor’ and the name of the master of the ship as Bashir Ahmed. The caller had said that their last port of call was Salalah and the next port of call was Bossaso. As regards the cargo, he had said it was “mixed or general cargo including shoes, milk something like that”. This was the only evidence before the Court as regards the cargo the ‘Burhan Noor’ was carrying, and it cannot be said that this type of cargo is not among the list of usual imports to Somalia. He had said that there are 14 crew members. A perusal of the written transcript (P2) shows that the caller from “Burhan Noor’, had been repeatedly pleading with ‘Sachsen’ to go away, saying that the six Somalis on board the ‘Burhan Noor’, were threatening to kill them; if ‘Sachsen’ were to approach them. According to the caller the Somalis’ were armed and reference had been made to a RPG in their possession. The caller had said that Razundel’s request to the Somalis to throw away their guns had been turned down. However the conduct of the Somalis, the Appellants in this case, in not putting up any form of resistance against the ‘Sachsen’ and surrendering, is not consistent with the threats they are alleged to have made to the crew of ‘Burhan Noor’ as reflected in P1 & P2. Under cross- examination Razundel had said that he does not know whether the caller from ‘Burhan Noor’ was a Pakistani. He had admitted that he had concluded that the Pakistanis were been held as hostages by the Somalis, only because of the threats referred to by the caller. Nowhere in P1 or P2 is stated, that the ‘Burhan Noor’ had been taken over by the Appellants on the high seas by an illegal act of violence, or depredation. Nowhere in P1 or P2 is stated, as to how the Appellants came to be on board the ‘Burhan Noor’. The following questions and answers under cross examination are to be noted.

“Q. At any point during the conversation that you had, did you ask the person what language he was talking with the Somali?

A. No I did not.

Q. So you have absolutely no idea your personal knowledge as to what language the Pakistani was talking with the Somali?

A. No.

Q. But Officer what the person is actually saying you cannot say if it is the truth or if he is lying? You can only record and say this is what he is saying but what he is actually saying you cannot see?

A. That is correct.

Q. And Officer you are recording what is being said but you do not know the motive of the person. Is that correct?

A. That is also correct.

Q. You can also sense, feel that he is afraid but you cannot say why he is afraid?

A. That is also correct.

Q. And Officer you cannot say that the person who is talking to you would have an ulterior purpose for making all these statements?

A. That is also correct.”

19)  This creates a doubt as to the danger of concoction or distortion. In R V Andrews (1987) AC 281 Lord Ackner stated “The primary question which the Judge must ask himself in admitting Res Gestae evidence is: can the possibility of concoction or distortion be disregarded? To answer that question the Judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection.” In Ratten V R [1972] AC 378 the danger of concoction was the basis for the rejection of the statement. In the absence, at the trial, of the master of the ship ‘Burhan Noor’, Bashir Ahmed or any member of the crew of ‘Burhan Noor’, the possibility by the Pakistanis of concocting the story of them being threatened by the Appellants, in order to escape liability for having been detected in the company of Somalis in an area of the sea where there is piracy activities; cannot be excluded. It cannot be said as stated in the case of R V Andrews that “the event was unusual or startling or dramatic as to dominate the thoughts of the victim” as according to the prosecution version the Appellants had taken over the ‘Burhan Noor’ on the 11^th of August, and thus long before the bridge to bridge conversation on the 13^th of August. It is also difficult to conclude that the utterances during the bridge to bridge conversation was an “instinctive reaction to that event giving no real opportunity for reasoned reflection” as much time had elapsed from the start of the pursuit of ‘Burhan Noor’ by ‘Sachsen’, up to the time the conversation had taken place. The 5^th Appellant in his statement to the police in denying the charge of piracy levelled against him had said “If there is good evidence that the boat was going to Oman but we forced it to go to Somalia, then I would accept that we are pirates and robbers. I would ask the Seychelles Government to look for the Burhan Noor vessel and ask them if we forced it to divert to Somalia.” Thus the admissibility of the Res Gestae evidence has also to be considered against the backdrop of this challenge thrown at the Government, even before the commencement of the trial and at a time when it was not known to the prosecution or defence that the captain of ‘Burhan Noor’ will not testify at the trial, and the provisions enumerated in article 19(2)(e) of the Constitution in order to guarantee a fair hearing to the Appellants. Article 19(2)(e) states: “Every person who is charged with an offence has a right to examine, in person or a legal practitioner, the witnesses called by the prosecution before any court,……”.

20)  On the 18^th of March 2013 the Prosecutor had sought an adjournment of the case till the 22^nd of March 2013 for the captain of ‘Burhan Noor’, Bashir Ahamed, who was listed as a witness for the prosecution, to travel to the Seychelles to give evidence. It had been his position “He has been located and he is willing to travel here to give evidence.” On the 22^nd of March 2013 the prosecution had asked for a further adjournment of the case till the 22^nd of April 2013 to lead the evidence of Bashir Ahamed. On the 18^th of April the prosecutor had informed the trial court in relation to Bashir Ahamed, “It would appear that he is taking steps to avoid unwilling to attend to give evidence and therefore the prosecution will seek to continue with the case.” (verbatim) On the 13^th of May 2013 the Prosecutor had formally closed his case after having informed the trial Court that Basir Ahamed “has clearly displayed a reluctance” to attend court. In the case of A-G’s Referene (No 1 of 2003) [2003] 2 Cr App Rep 453 it was held that the court has a discretion to exclude res gestae statements,……if the inability to cross-examine a potentially available witness is likely to render the trial unfair. In R V Andrews, Lord Ackner had said that he would strongly deprecate any attempt in criminal prosecutions to use the doctrine as a device to avoid calling the maker of the statement, when available. In Tobi V Nicholas (1987) 86 Cr App Rep 323 it was stated that a statement is likely to be excluded when a witness is not present owing to the incompetence of the prosecution. The position would have been different if the prosecution had brought evidence to show that they had taken all reasonable steps to secure the attendance of a witness, but he has simply failed to appear. Merely saying that the witness is unwilling or displayed a reluctance to attend, without stating a reason for his reluctance to attend court, in my view does not suffice. It would be totally improper for this Court to attribute any reasons for Bashir Ahamed’s reluctance to attend the trial.

21)  In the absence of Bashir Ahamed and any of the Pakistani crew on board the ‘Burhan Noor’’; Roy Razundel’s testimony as regards the bridge to bridge communication between the ‘Burhan Noor’ and the ‘Rotterdam’, referred to at paragraph 18 above, looses its significance, more so because of the inability of Razundel to identify the caller from ‘Burhan Nooor’, his inability to say whether the caller was speaking the truth or whether the caller had an ulterior motive to say what he said, and Razundel’s inability to say as to why the caller was frightened, even if Razundel had sensed it.

22)  Captain Jan-Hubert Hulsker of the ‘Rotterdam’ had stated that on receiving information from the German frigate ‘Sachsen’ they had positioned themselves from the side of the Somali coast to block ‘Burhan Noor’ that was coming towards the coast pursued by ‘Sachsen’, by launching 4 landing crafts, 4 fast boats and their helicopter ‘Wildcat’. As ‘Burhan Noor’ approached, Hulsker had ordered them to surrender and since they were not cooperating two warning shots had been fired. He had seen a person on board the ‘Burhan Noor’ with a RPG. There was no gun fire from ‘Burhan Noor’. With the firing of the warning shots, the ‘Burhan Noor’ had come to a halt and the Somalis as ordered had come to the front of ‘Burhan Noor’, lied on the floor and put their hands up in the air. The boarding team from ‘Rotterdam’ had then climbed on to the ‘Burhan Noor’. After the Appellants had been brought on to the ‘Rotterdam’ and the evidence was collected, the Pakistani crew on board the ‘Burhan Noor’ was allowed to continue on their voyage. Hulsker had said that the Pakistani crew appeared to be relieved as result of the boarding of ‘Burhan Noor’ by ‘Rotterdam. There is no evidence in this case as to where the ‘Burhan Noor’ finally proceeded, whether towards Bossaso or otherwise, when they were allowed to continue with their voyage. Hulsker had however stated under cross-examination that he was 100% sure that ‘Burhan Noor’ was going to Bossaso. According to Hulsker, the Appellants on orders from the Prosecutor in the Netherlands were taken to Seychelles for trial.

23)  Rob van den Heuvel Mist, Head of the boarding team in “Rotterdam had stated that he had boarded the ‘Burhan Noor’to collect evidence. There were two skiffs on the deck of ‘Burhan Noor’, one belonging to the Somalis and the other to the ‘Burhahan Noor’. The one belonging to the Somalis was cracked and damaged and not sea worthy the other which appeared to be in working order had a Yamaha outboard engine fitted onto it, but there had been no gassing container attached to it. He had found at the bottom of one of the skiffs wrapped in cloth, 40, 7.62 caliber ammunition used in AK 47 guns and a RPG rocket missile. Since it was thought that it was dangerous to carry them, they had been dropped into the water after photographing them. The Yamaha outboard engine had been taken on board the ‘Rotterdam’ and had been produced at the trial. A GPS, a few mobile phones and knives seized from ‘Burhan Noor’ had also been produced at the trial.

24)  SN 0225911 EBE, Team Leader of the Rotterdam and the first party to board the “Burhan Noor’ had said that when they were about 15 meters from the boat the Pakistani crew “had their hands in the sky and were shouting for help”. When boarding the ‘Burhan Noor’ they helped them to board by pulling the ladder up. As regards the six Appellants, they have had their “hands in the air” and on being ordered to lie on the ground they had cooperated and complied and had not caused any problems. He had not seen any weapons in their hands. The witness had said that the Appellants after their arrest had been handcuffed and blindfolded as per usual procedures. He had also said that they had found a RPG, ammunition and a knife inside a skiff. Under cross examination the witness had said on approaching the ‘Burhan Noor’, the Appellants had not fired at them or offered any resistance.

25)  MJS Huisman, Commanding Officer of the Landing Crafts of the Rotterdam, had said that when he was about 500–600 meters from the ‘Burhan Noor’ he saw weapons in the hands of three of the Appellants, one had an AK 47 in the hand, another had an AK 47 on his back and the third person had a RPG. He had said as the Rotterdam approached the ‘Burhan Noor’ he had seen ‘somebody’ throwing an AK 47 type weapon overboard, but cannot identify who he was. It is surprising that after having been able to identify the weapons in the hands of the Appellants at a distance of about 500–600 meters, Huisman was unable to identify whether the AK 47 type of weapon was thrown by one of the Appellants and that at a very much closer distance than 500–600 meters.

26)  Frank Vannus, a member of the Search Team from ‘Rotterdam’ has testified to having seen two skiffs on board the ‘Burhan Noor’ and in one of them found some clothing, ammunitions and a knife. One of the skiffs was in a “very bad condition.” The engine on the skiff belonging to the ‘Burhan Noor’ had been removed and taken on board the ‘Rotterdam’.

27)  Exhibit P 3 shows that a yamaha 60HP outboard engine, 1 Garmin GPS 72H,1 satelite phone and battery, 2 telephones and phone batteries, 3 knives, some clothing and medicine and 4,000 Somali shillings, recovered from the ‘Burhan Noor’, in the two skiffs found therein, had been produced before the trial court as part of the prosecution case. There is no mention by any witness of ladders, the usual paraphernalia found on pirate boats, having been found or seen on the ‘Burhan Noor’ or been thrown into the sea.

28)  The Prosecution had led the evidence of Robert Wijnbergen from the Military Police of the Netherlands who interviewed the Appellants and recorded their testimony in question and answer form. He was assisted in these interviews by Musse kadir who did the translations of the questions from Dutch to the language spoken by the Appellants and the alleged answers of the Appellants to those questions from the language spoken by the Appellants to Dutch. We do not know in what Somali language the translator had spoken to the Appellants. Wijnbergen had admitted under cross examination that he cannot testify as to the correctness of the translations. The Learned trial Judge had noted in relation to the Translator, Musse Kadir “I will put a note that he is one of the witnesses, I do not know whether he will be coming in but he can speak for himself. So I will take what he says with caution.” We see from the proceedings that witness No. 13, Musse Kadir had not testified at the trial and the reason given by the Prosecutor is that “The Dutch Authorities are refusing to release him for security reasons”. At the trial in regard to the contents of the interviews had with the Appellants by Wijnbergen the Learned Trial Judge had noted “And there are 6 statements, so we are going to take the voire dire.” After hearing the arguments of both Counsel, the Learned Trial Judge, as regards to the admissibility of the statements, had made a Ruling dated 15^th March 2013, disallowing a Voire Dire. In that Ruling he had said “In the circumstances, a Voire Dire to determine the voluntariness of the statements recorded on the Rotterdam under Netherland’s laws by a Seychelles Court is not appropriate. In the circumstances, I determine that the documents detailing the interviews made by the crew of Netherland’s ship Rotterdam, prior to the arrest of the Accused persons to be admissible solely for the purpose of proving that the Accused persons were interviewed and a record of each interview were made by the crew of the ship”. Wijnbergen had admitted that he did not inform the Appellants that they have a right to choose a lawyer of their own choice from the Seychelles prior to recording the statements of the Appellants. This is in violation of article 18(3) of the Constitution which states that 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, among other matters of the right to be defended by a legal practitioner of the person’s choice. He had not given any reasons to conclude that this was not practicable. Wijnbergen had failed to answer the question put to him in cross examination, namely: “It is noticeable in the statements you took you did not venture into the relationship between the pirates and the Pakistanis on board the Burhan Noor is there a specific reason for that?”; by stating, “I based it upon the statement of the captain of the dhow.”

29)  In the light of the evidence stated, and the Ruling referred to in paragraph 28 above and the absence of a Voire Dire, I fail to understand how the Learned Trial Judge had made use of the statements made by the Appellants to the Dutch interviewers to the effect:

“I have carefully studied the statements made by all the accused persons to the Dutch interviewers and to the Seychelles police before they were formally charged. Clearly when comparing the statements, the accused persons made previous consistent statements whereby they admitted that they were engaged in piracy activities and that their mission was to capture a dhow for use as a mother ship. They were armed and supplied for the mission by one Bashir and they were expecting considerable rewards for the successful execution of the mission. These admissions were not made in anticipation of their trial to be held in Seychelles. I have no reason to believe that such admissions on the part of the accused persons were not made freely, without any fear of being prosecuted in Seychelles and therefore were truthful statements made to the Dutch interviewers on the Dutch vessel Rotterdam. These statements were also made shortly after they were apprehended and without having had the opportunity to discuss amongst themselves and agree to a common version of events that would have absolved them of the offences charged.”

30)  It is clear that the Learned Trial Judge had relied on these statements to convict the Appellants. Reliance on these statements by the Trial Judge in convicting the Appellants, in my view was a fatal irregularity. I am unable to comprehend whether the Learned Trial Judge would have convicted the Appellants had he not placed reliance on these statements.

31)  The statements made by the Appellants to the Seychelles Police authorities have been admitted in accordance with section 129 of the Criminal Procedure Code of Seychelles without objection from the defence and had thus become an integral part of the prosecution case. In presenting these statements without qualification and challenge, as part of their case, the prosecution had placed reliance on them. The defence then in my view is entitled make use of other items of the prosecution evidence to corroborate their statements to the Seychelles Police authorities in order to prove their innocence. If the statements made to the Dutch authorities were admissible or if there were another set of statements made by the Appellants to the Seychelles Police authorities which were in direct contradiction with the statements that were admitted under section 129, or if the statements made to the Seychelles Police authorities have been clearly shown to be lies by other prosecution evidence, then the prosecution would have been entitled to rely on the statements as lies uttered by the Appellants on the basis of the criteria laid down in the case of R V Lucas, (1981) Q B 720, to prove their case. But this was not the case.

32)  A summary of the statements of the six Appellants is to the effect that they had all been recruited by a person to go to sea to escort an Iranian fishing vessel owned by a Somalian person and bring it ashore to Somalia, because of robberies at sea. The person according to the 3^rd and 6^th Appellants owned several fishing boats in Oman, Iran and Yemen. They had travelled in a small skiff named ‘Leila’. They had a satellite phone, a GPS device, fuel, food and drinking water. They also had with them 3 AK 47 rifles and an RPG. After five days out at sea the skiff developed engine problems and had drifted away until they came across a Somalian boat carrying goats from Somalia to Oman. They had requested assistance and had been given food and water. The captain of the said Somalian boat had also told them that there was a Pakistani boat coming from Iran which was going to Bossaso in Somalia, and that they could travel in that boat. The Appellants’ reference to the two boats finds corroboration in the information given to ‘Rotterdam’ on the 11^th of August 2012 by the French vessel “La Faillette’ that was conducting piracy operations in the coast of Africa to the effect that a “……. group of 6 pirates who had left the dhow named ‘Alsabrie’ and changed to another dhow named the Burhan Noor” as referred to at paragraph 17 above. The Appellants had not seen the boat they set out to escort back to Somalia. They had thereafter boarded the Pakistani boat ‘Burhan Noor’ and their skiff had been pulled up by a forklift with the help of the Pakistani crew. There is corroboration of this fact that the Somalian skiff had been found, badly damaged and unseaworthy, on board the ‘Burhan Noor’, from the evidence of Rob van den Heuvel Mist and Frank Vannus as referred at paragraphs 23 and 26 above. After sometime they had been accosted by two German and Dutch warships about one mile from Bossaso, which had asked them to surrender. They had asked the Pakistani captain of the boat whether the Appellants were “Al Shabab or pirates”. It appears that for the German and Dutch authorities the distinguishing features between the two groups found on ‘Burhan Noor’ in an area of the sea where piracy was rampant, was sufficient to conclude that the Appellants were Al Shabab or pirates. According to the Appellants’ statements, they surrendered and their weapons had been thrown into the water by the Pakistani captain, who was afraid. At paragraph 25 above reference is made to the fact that MJS Huisman was unable to identify as to who threw the AK 47 type weapon overboard. They had been detained, blindfolded and hands tied from the back and had been forced to give a statement to the authorities on board the Danish ship. They had denied the allegation that the Pakistani vessel that they boarded was on its way to Oman and that they had forced the boat to divert to Somalia. They had said that ‘Burhan Noor’ was in fact going to Somalia. This part of their statements finds corroboration in P2 where the caller from ‘Burhan Noor’ had told Razundel that that their “next port of call was Bossaso” and also Hulkser’s evidence under cross-examination that he was 100% sure that ‘Burhan Noor’ was going to Bossaso. The Appellants had denied that they fired on the ‘Burhan Noor’ for it is a vessel well known in Puntland. They had denied that they are pirates. The 5^th Appellant had said that he “would ask the Seychelles Government to look for the ‘Burhan Noor’ vessel and ask them if we forced it to divert to Somalia”. It is to be noted that all 6 Appellants had been questioned, by the Seychelles police on the basis of a suspicion of having committed an act of piracy on the 11^th of August 2012. But all the evidence led by the prosecution at the trial, only disclose an incident that occurred on the 13^th of August 2012.

33)  The Appellants have raised an interesting point in their Amended Heads of Argument, namely that “the Learned Trial Judge erred by convicting/sentencing the Appellants on two counts of the same offence in the same alleged transaction”. In my view the same act cannot constitute 2 separate offences of piracy both under sections 65(4)(a) and 65(4)(b). Section 65(4)(b) is there to criminalize the acts of accessories after and before an act of piracy as defined in section 65(4)(a), is committed. I am in agreement with the submission on behalf of the Appellants that section 65(4) “traces different stages of the transaction of which any stage, on its own, would constitute the offence of piracy”. In this case the Prosecutor has, according to his final submission, sought a conviction of the Appellants under count 1 for committing “an illegal act of detention or violence against the ‘Burhan Noor’ or its crew”. The evidence pertaining to an illegal act, namely, detention that has been presented to court was only that of, what was witnessed by the Danish and German naval officers on the 13^th of August 2012. In the words of the Prosecutor “The Burhan Noor at the time was being used during the time of interception, pursuit and boarding to keep captive under arm guard people not native to the same part of the world as the accused” and “Your Lordship heard evidence of radio telephone conversation between the bridge of Burhan Noor and both the Sachsen and the Rotterdam from which it was clear that the Somalis clearly threatened the Pakistanis…..” and further “they were detained at gun point”.(emphasis added)

34)  In the absence of the testimony of any member of the Pakistani crew of ‘Burhan Noor’, as to what happened when the Appellants first boarded the ‘Burhan Noor’, the only evidence presented before the Trial Court, has been to establish, if at all proof of an illegal act of detention against the ‘Burhan Noor’ or its crew on the 13^th of August 2012, as set out in count 1, which is an offence under section 65(4)(a). I have already held that the same act cannot constitute 2 separate offences of piracy both under sections 65(4)(a) and 65(4)(b). In view of the absence of any evidence showing that it was the intention of the person in dominant control of ‘Burhan Noor’ to use ‘Burhan Noor’ for the purpose of committing any act of piracy, a charge under section 65(4)(b) read with section 65(5)(b) cannot be sustained. The evidence on record both from the prosecution and the defence show that ‘Burhan Noor’ with its mixed cargo of shoes, milk, etc. was on its way to Bossaso in Somalia and at the time of its interception was sailing close to the shores of Somalia. I am therefore of the view that the conviction of the Appellants under count 2 was duplicitous.

35)  The reasoning of the Learned Trial Judge to convict the Appellants needs examination. It is to be found in paragraphs 55 to 62 of the judgment and is reproduced below:

1. “55)  In this case the prosecution led evidence to show that there were two groups of people on board the Burhan Noor and that from their observations the witnesses were of the opinion that one group consisted of captors and they were armed with weapons and the other group were captives and partly hidden away in the hold. Subsequently to the boarding of the Burhan Noor, the prosecution witnesses all maintained that one group consisted of Pakistanis who maintained that they were the captives of the 6 Somalis now the 6 accused persons who were in control of the Burhan Noor.

2. 56)  The evidence further showed that the Burhan Noor did not stop when ordered to do so and only stopped after a second warning shot was fired and the suspected pirates raised their hands above their heads after having discarded several items including weapons overboard whilst the Pakistanis assisted the boarding teams to get on board and to identify the 6 accused persons now on trial.

3. 57)  Despite rigorous cross-examination by the defence, the prosecution witnesses were consistent in their testimonies and no contradictions were apparent in their evidence. The defence maintained that all these happening were innocent activities of a group of Somalis who had gone out in a small skiff to escort a cargo vessel to Somalia and that they were mistakenly intercepted and taken for pirates.

4. 58)  I have carefully studied the statements made by all the accused persons to the Dutch interviewers and to the Seychelles police before they were formally charged. Clearly when comparing the statements, the accused persons made previous consistent statements whereby they admitted that they were engaged in piracy activities and that their mission was to capture a dhow for use as a mother ship. They were armed and supplied for the mission by one Bashir and they were expecting considerable rewards for the successful execution of the mission. These admissions were not made in anticipation of their trial to be held in Seychelles. I have no reason to believe that such admissions on the part of the accused persons were not made freely, without any fear of being prosecuted in Seychelles and therefore were truthful statements made to the Dutch interviewers on the Dutch vessel Rotterdam. These statements were also made shortly after they were apprehended and without having had the opportunity to discuss amongst themselves and agree to a common version of events that would have absolved them of the offences charged.

5. 59)  Subsequently, when the accused persons were informed that they were to be transferred to Seychelles for trial, they gave a different version of their mission to the Seychelles police as related by their statements cited above. In that version they maintained that they were on a mission to escort a ship to Somalia and were mistakenly apprehended as pirates. The major flaw in this account of the accused persons’ mission however is that even if they were acting as escort to a ship that was on its way to Somalia, they were not at anytime acting under the legitimate authority of any recognized government or institution and they would still have been conducting unauthorized armed activities on the high seas.

6. 60)  Nevertheless for the purpose of the charges leveled against the accused persons, I have considered all the evidence relevant to this case and when the same are considered alongside the direct evidence adduced by the prosecution, I come to the inevitable conclusion and left in no doubt that the 6 accused persons, namely Abdirahaman Nur Roble, Adullahi Sharif Ibrahim, Mohamed Jama Ali, Mohamud Ahmed Abdullahi, Mohamed Abdugaadir Mohamed, and Sahal Arten Bare had actually taken control of the dhow Burhan Noor by subjugating the crew of the said vessel through the use of firearms and that the 6 accused persons were actually in control of the Burhan Noor which they intended to take to Somalia for use as a pirate mother ship and they were expecting rewards for the said acts.

7. 61)  I believe the prosecution witnesses entirely and found their evidence to be cogent and credible. I find that the activities of the accused persons whilst on board the Burhan Noor to be most consistent with the act of a fugitive ship or a ship engaged in illegal activities. I have no doubt that the accused persons were in control of the Burhan Noor for the sole purpose of using the vessel as a mother ship to capture other vessels. I therefore conclude that the accused persons had done much more than was necessary to make the captured vessel Burhan Noor a pirate ship under the provisions of section 65 of the Penal Code as amended.

8. 62)  I have also considered the statements of the accused persons admitted as evidence and I find these statements to be most unconvincing in themselves. They do not give rise to any significant doubt with regards to the case presented by the prosecution and to not in the least persuade this court to arrive at any alternative conclusion or to be inclined to agree with the submission of the defence that the accused persons were just on an escort mission.”

36)  As regards paragraph 55 of the judgment it is the Appellants submission that the Learned Trial Judge had not considered that the International Naval Force had actually ordered all Appellants to come on deck on the ‘Burhan Noor’ and move away from the Pakistani crew and in support of this assertion had relied on the evidence of Captain Jan-Hubert Hulsker who had said: “I told them….. that they should go the fore course of the ship and the original crew stay on the aft so there was a separation between the pirates and the original crew”. There was no evidence that the alleged captives, namely the Pakistanis were partly hidden away in the hold. Again the fact that there were two groups on the “Burhan Noor’ is not suggestive of any guilt if one were to consider the Appellants’ version that they, who were ‘Somalis’, had boarded the ‘Burhan Noor’ manned by a ‘Pakistani’ crew with the intention of travelling to Bossaso in Somalia. Obviously the two groups had clear distinguishing features. The Learned Trial Judge was in error to have relied on what was alleged to have been told to the witnesses by the Pakistani crew about their capture as it was hear say evidence.

37)  As regards paragraph 56 of the judgment there is no evidence as to who was piloting the ‘Burhan Noor’ when they were ordered to stop by the Danish and German naval forces. The Appellants had admitted that there were 2 AK 47 rifles and a RPG with them. One has to consider this in the light of the Appellants statements to the Seychelles police, led as part of the prosecution case, without qualification, that they went to sea to escort an Iranian fishing vessel and bring it ashore to Somalia, because of robberies at sea. Again there is no evidence to the effect that any one of the Appellants were seen throwing the weapons overboard. The position of the Appellants in their statements to the Seychelles police, led as part of the prosecution case, without qualification or challenge, had been to the effect that it was Bashir Ahamed, the Pakistani captain, who had thrown the weapons into the water because he was afraid. The fact that the Appellants “raised their hands above their heads” does not prove guilt but compliance with the orders given to them by the Danish and German naval forces who had already judged them as pirates or members of the Al Shabab, as stated in the statements of the Appellants made to the Seychelles police. The so called identification of the Appellants by the Pakistani crew referred to in paragraph 56 of the judgment has no value in the absence of any Pakistani to testify at the trial.

38)  At paragraph 57 the Learned Trial Judge had commented on the consistency in the testimony of the prosecution witnesses and the absence of contradictions in the testimony of the prosecution witnesses. However in my view the fundamental issue in this case is the sufficiency of evidence against the Appellants to substantiate the charges. The only uncontradicted and valid evidence that can be availed of against the Appellants is that they were ‘Somalis’, were found on a vessel said to be belonging to the Pakistanis, going in the direction Bossaso of the coast of Somalia and that three of them were armed. If an inference is to be drawn from an accumulation of facts, the inference will depend on a concatenation of circumstances which point to a particular conclusion. Suspicious circumstances do not establish guilt. Nor does the proof of any number of suspicious circumstances relieve the prosecution of its burden of proving the case against an accused beyond reasonable doubt. The effect of the prosecution’s evidence in its entirety, may raise a probability of the guilt of the accused. But probability, even high probability, does fall short of the recognized standard of proof of a serious criminal charge which has long been a feature of the administration of criminal justice in this country. The Trial Judge’s express preference for one of the hypothesis in a case like this where the circumstantial evidence was equally reconcilable with two hypothesis was dangerous. It will be a travesty of justice to base a conviction against any one of the Appellants on the basis of the evidence in this case.

39)  I have already dealt with the irregularity of relying on the statements made by the Appellants to the Dutch interviewers to convict the Appellants as stated at paragraph 58 of the judgment, and referred to at paragraphs 28, 29 and 30 above. I also find that the statements made by the Appellants to the Seychelles police before they were formally charged, also speak of a common version of events and are consistent with one another just like the statements made by the Appellants to the Dutch interviewers; and I am therefore in a difficulty to comprehend why the Learned Trial Judge preferred to make use of the statements made by all the accused persons to the Dutch interviewers commenting on their “consistency” and “common version of events”; as opposed to the statements made by all Appellants to the Seychelles police; for convicting the Appellants.

40)  Section 65 of the Penal Code, the offence with which the Appellants were charged, does not criminalize “escorting a fishing vessel to Somalia without governmental authority” or “unauthorized armed activities” as stated at paragraph 59 of the judgment. It does not also criminalize “the act of a fugitive ship or a ship engaged in illegal activities” per se as stated at paragraph 61 of the judgment.

41)  I am at a lost to understand what the Learned Trial Judge meant at paragraph 60, when he said “Nevertheless for the purpose of the charges levelled against the accused persons, I have considered all the evidence relevant to this case and when the same are considered alongside the direct evidence adduced by the prosecution…….”; for the only evidence is the direct evidence of the Dutch and German naval officers about the so called bridge to bridge conversation and that three of the Appellants were armed with two AK 47 rifles and a RPG and the finding of the AK 47 ammunition inside a skiff that was on board the ‘Burhan Noor’. I have said that the bridge to bridge conversation loses its significance in view of what has been stated at paragraphs 17 to 21 above. The Appellants in their statements to the Seychelles police had admitted that they were armed with two AK 47 rifles and a RPG and stated that they were on a mission to escort a fishing vessel back home to Somalia in view of robberies at sea. There is no evidence whatsoever from the Danish or German officers who testified before the court that any of the Pakistanis on board the ‘Burhan Noor’ were harmed or restrained in any way by the Appellants or of any damage that had been caused to the ‘Burhan Noor’ by the Appellants, suggestive that the crew of ‘Burhan Noor’ had been subjugated by the use of firearms.

42)  I am of the view that the comment made by the Learned Trial Judge at paragraph 62 of the judgment is a sweeping statement without a proper appreciation of the totality of the evidence led in this case. I am also of the view that the Learned Trial Judge had been quick to disbelieve the defence version as “most unconvincing” and thus been persuaded to convict the Appellants rather than first satisfying himself, whether the prosecution had proved its case beyond a reasonable doubt. This becomes more aggravated because the Trial Judge’s disbelief of the Appellants version has been due to the inconsistencies he found and commented upon between the statements the Appellants made to the Seychelles police authorities and the Dutch authorities. I have at paragraph 30 above stated that placing reliance on the alleged statements made to the Dutch authorities was a fatal irregularity. It is only when the Court has satisfied itself that the Prosecution has proved its case beyond a reasonable doubt that the defence case needs to be looked into. If in viewing the defence case serious doubts were to arise as to the prosecution case then the accused are entitled to an acquittal. It is only when the Court is satisfied that the prosecution case has been proved beyond a reasonable doubt and the defence case is rejected by the court that a conviction of the accused can be maintained. I am of the view the Trial Court had not acted accordingly.

43)  In the case of Ahmed Abdi Barre & another Vs The Republic, CR. Appeal SCA 07/2013 this court in allowing the appeals, stated:

1. a)  “We have to bear in mind that the Appellants were in a foreign land, being prosecuted and defended by foreigners under a legal system unfamiliar to them. Therefore extra care should have been taken in the manner the prosecution was conducted to ensure due process. In short the legitimacy of the verdict should involve fundamental respect for the court process. The quality of proceedings and not merely their product are central to judicial legitimacy. R. Dworkin in ‘A matter of Principle (1986) p 72 states: “The criminal justice system is not merely about convicting the guilty and ensuring the protection of the innocent from conviction. There is an additional and onerous responsibility to maintain the moral integrity of the criminal process.”

2. b)  In R. V A. (No. 2) (2002) 1 AC 45, HL Lord Steyn observed that it is well-established that the right to a fair trial was absolute in the sense that a conviction obtained in breach of it cannot stand. In the Australian case of Davies and Cody V The King (1937) HCA 27 as quoted in Gipp V R (1988) HCA 21, it was held “that the duty imposed on a court of appeal to quash a conviction when it thinks that on any ground there was a miscarriage of justice covers not only cases where there is affirmative reason to suppose the appellant is innocent, but also cases of quite another description. For it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court’s view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled.”

3. c)  In the case of R V Cooper (1969) 53 Cr. App R 82 it was said an appeal court “must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the Court experiences it.”

44)  In this case it is clear from the evidence that right from the onset the Danish and German authorities had pre-judged that the Appellants were pirates and this trend had continued throughout the investigation, the prosecution and even at the hearing. The information ‘Sachsen’ received from “La Faliette’ as stated at paragraph 13 above was that the Appellants were pirates without an iota evidence, that had been led before the court to substantiate this statement. The first question that was asked from the captain of ‘Burhan Noor’ by the Danish authorities when they approached the ‘Burhan Noor’ as stated at paragraph 32 above, was whether the Appellants were “Al Shabab or pirates’. The Pakistanis were allowed to sail without ensuring the presence of anyone to testify at the trial. There has been no serious attempt to get the captain of ‘Burhan Noor’, Bashir Ahamed to testify at the trial. There is a lurking doubt and a general feeling in my mind as to whether an injustice has been done.

45)  In view of what has been stated above I allow the appeals of all 6 Appellants, quash their convictions and acquit them forthwith. I make order that all 6 Appellants be repatriated to Somalia by the necessary authorities.

A. Fernando (J.A)

Signed, dated and delivered at Palais de Justice, Ile du Port on 28 August