In court this week
COURT OF APPEAL REDUCED MURDER CONVICTION TO MANSLAUGHTER
The Appellant, Andy Mondon, was charged with the offence of Murder contrary to section 193 and punishable under section 194 of the Penal Code. He was sentenced to life imprisonment. He now appeals against both conviction and sentence.
1. The facts of the case are as follows: On the 27th day of February 2004 was a birthday anniversary of one Therese Zaccarie, a grandmother of the Appellant. Close relatives and friends were invited to a birthday party. Those attending included the Appellant and one Mervin Anette, the man alleged to have been murdered by the Appellant. Both the Appellant and Mervin, (the deceased) are said to have been good friends and according to the evidence of Salma Nourrice, pw 10, both are said to have come together to Therese’s party at Frichot Estate, La Louise, Mahe, in a pick-up.
2. It is in evidence that during the party, a lot of alcohol was consumed. The Appellant admits to have taken several bottles of beer. Around 11 p.m., Therese Zaccari asked for a birthday song to be played for her because she wanted to dance. Both the Appellant and the deceased were the music operators. It is during this time that a quarrel developed between the two, each blaming the other for messing up the music system. Shortly thereafter the two were involved in strong and obscene exchange of insults. During this time the deceased is said to have been sitting on a loudspeaker in the living room of Therese’s house. The Appellant, who was seated nearby, left the place, went to the kitchen, collected a knife, came out and stabbed the deceased in the left side of the neck. The death of Mervin is thus said to have been a result of the stabbing. A medical report tendered in court by Dr. Zhao Peng (pw 16) states inter alia, the following:-
“… injury is 165 cm length… on the left side of the neck. Kind of injury: puncture would on the left side of the neck 9.5 cm from the sterno-clavicular joint and 8 cm from tip of the mastoid. It was 1 cm in diameter and had a tail of 1.5 cm long going outwards and upwards…sharp nick in the left common carotid artery just above the clavicle.”
3. When cross examined, Dr. Peng described the carotid artery as “a very important artery.” Further that, “if it is cut it will cause bleeding and bleeding very quick because it is a high pressure inside and such bleeding can cause death. It is a very big artery.”
Dr. Peng stated further that the medical report revealed the following particulars:-
“Inside the wound, there was a 2000 ml and blood clots found in the left pleural cavity. The lung was collapsed. Both lungs were pale. The brain was edematous and pale. All the internal organs were pale.”
Therefore, the cause of death is said to be “hypovolaemic shock due to massive bleeding due to stab injury to the neck.”
4. The Appellant was apprehended a few hours later. He was taken to the police station where he gave a Cautioned Statement at 1:15 a.m. Although he confessed in the statement to have committed the offence, it was argued by the defence counsel that the said statement was not voluntary and further, that the Appellant’s rights were not explained to him.
5. The Prosecution called 16 witnesses (pws). The Appellant opted (in the court a quo) to give and unsworn statement from the dock. He called no defence witnesses (dws). In his brief statement from the dock, this is what the now Appelllant had to say:
“I wish to say that Mervin and I were best friends. This argument happened because we were drunk. I had no intention to do this to Mervin. I would like to ask for excuse from the court and from the family of Mervin. I wish to say to his family I’m very sorry for what has happened and that it was not my intention.”
6. The jury entered an unanimous verdict of guilty of murder. He was subsequently sentenced to life imprisonment, as prescribed under the law.
7. The Court of Appeal was highly critical of the Supreme Court judge for allowing a confession to be admitted when the evidence suggest that the statement given by the appellant was not voluntary. The Justices of Appeal criticized the police for taking a statement from the Appellant only two hours after the incident when it was clear that the Appellant was still under the influence of alcohol and in a state of confusion. The Court said that the police could have waited until the next morning to record the statement after the Appellant had had time to rest and clear his head. There was no necessity to precipitate, remarked the Court of Appeal. For this reason the Justices partly allowed the appeal and reduced the sentence from one of murder to manslaughter and sentenced the Appellant to 15 years imprisonment instead. The Appellant was being represented by Mrs Alexia Antao.