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

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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.

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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

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'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".

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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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