Supreme Court of Mauritius, 10 juin 2020, 2020 ROD 32 – POLICE V CUPIDON AURELIO AND ORS

POLICE V CUPIDON AURELIO AND ORS

2020 ROD 32

Cause Number: 1676/2019

THE COURT OF RODRIGUES

In the matter of:-

POLICE

V

AURELIO CUPIDON

JEAN YOHAN CASSAGNE

JERRY PERRINE

JEAN PATRICK HANSLEY PERRINE

Introduction

1. Under the first count, the first three accused, Aurelio Cupidon, Jean Yoyan Cassagne and Jerry Perrine stand charged, with the offence of larceny by night breaking in breach of section 301 (1) and 306 of the Criminal Code, as amended.

2. Under the second count, the first three accused stand charged with the offence of possession of property obtained unlawfully by means of a crime in breach of section 40, 301 (1) and 306 of the Criminal Code, as amended.

3. Under the third count, all four accused stand charged with the offence of larceny by night breaking in breach of section 301 (1) and 306 of the Criminal Code, as amended.

4. Under the fourth count, all four accused stand charged with the offence of possession of property obtained unlawfully by means of a crime in breach of section 40, 301 and 306 of the Criminal Code, as amended.

5. All four accused pleaded not guilty under their respective count of which they were charged and at trial, all four accused were not represented by Counsel.

The trial.

6. To prove its case under all four counts, the prosecution called Jean Christno Begue (“Begue”) who testified that the he was prosecuted, found guilty and was sentenced in relation to the present cases which those four accused are being prosecuted.

7. As regards to the first two counts, Begue testified that he committed the case of larceny in a shop run by Mrs Lisette and went on to say that he committed the present case together with Aurelio Cupidon (“A1”), Yoyan Cassagne (“A2”) and with Jerry Perrine (“A3”).

8. Begue went on to say that he also committed a larceny breaking in a tobacco shop at Dans Bebe which belong to Mrs. Perrine. Begue testified that he committed the larceny breaking together with A1, A2 and A3 and also with Jean Patrick Hansley Perrine.

9. As regards to the four accused, they all made a statement from the dock after they were informed of their constitutional rights.

10. A1 denied of having committed the present offences and stated that he never hangs around with Begue. He stated that he said the truth in his out-of- court statements.

11. A2 denied of having committed the present offences. He stated that he never hangs around with Begue and the evidence adduced by Begue is a complete lie.

12. A3 denied the present charges and denied of having hang around with Begue.

13. A4 stated that everything said by Begue was false and that he never hangs around with Begue.

14. As regards to the statements recorded from all four accused, in short summary, they all denied of having committed the present offences.

The law.

15. The first and third count is one of larceny with aggravating circumstances. 16. Section 301 of the Penal Code Ordinance provides that: “Any person who fraudulently abstracts anything not belonging to himself shall be guilty of larceny…”

17. This article is borrowed from article 379 of the French Penal Code which reads as follows:

“Quiconque a soustrait frauduleusement une chose qui ne lui appartient pas, est coupable de vol.”

18. From a reading of Section 301 of the Criminal Code there must an abstraction; the property must belong to somebody else; the property must be capable of being stolen; and there must be fraudulent intention on the part of the accused. Regarding the first element of the offence as defined by Section 301 in PROCUREUR GENERAL V/S BENCH OF MAGISTRATES OF PORT LOUIS [1884 MR 11] the Court held that the least removal of an article from a place without its owner’s consent amounts to abstraction. Regarding the 2 nd element larceny pre-supposes that the property belongs to somebody else in the sense that somebody exercises some form of control over the property. Regarding fraudulent intention it has been held that the intention for the purpose of larceny should exist at the particular moment when the abstraction takes place.

19. As regards to abstraction, in SARAWON vs THE QUEEN [1956 MR 171] ,it was said that : “French jurisprudence is in accord with the commentators on the Penal Code as to the meaning to be given to the expression “soustraction frauduleuse” in the definition of larceny. It will be sufficient to quote the headnote to one of the decisions which is reported in S. 1929.1.160:

La soustraction frauduleuse, qui est un des éléments constitutifs du délit de vol, n'existe que lorsque la chose a été appréhendée contre le gré et à l'insu du propriétaire”.

20. In the case of Reetoo and Anor v R [1958 MR 297] at page 299, with regard to the element of fraudulent intent in larceny, reference was made to note 358 of article 379 of Garçon's Code Pénal Annoté, 2nd edition which is to the following effect –

“358. En principe général, l'intention est juridiquement réalisée lorsque l'agent commet, avec connaissance, le fait défendu par la loi dans les conditions où elle le défend. Particulièrement, en matière de vol, elle consistera à usurper la possession de la chose d'autrui, animo domini, sachant qu'elle appartient à autrui. Il faut d'abord que l'agent ait su: 1o. qu'il enlevait une chose; 2o. qu'il 1'enlevait contre le gré du propriétaire; 3o. que la chose enlevée ne lui appartenait pas. Mais cette simple connaissance ne suffit pas; il faut encore un dolus specialis, consistant ici dans la volonté de l'agent de s'approprier la chose, ou plus exactement, d'usurper la possession civile de cette chose, animo domini. C'est ce dolus specialis que l'art. 379 a soin de marquer en exigeant que la soustraction soit frauduleuse.”

21. As regards to the aggravating circumstances, section 306 of the Criminal Code provides that:

Any person who is convicted of larceny, committed during the night by means of breaking shall be punished by penal servitude.

22. In relation to second and fourth count, I shall repeat verbatim as it is in our criminal code.

Possession of Property obtained unlawfully

Ceux qui, sciemment auront recélé, en tout ou en partie, ou qui, sans excuse ou justification suffisante, seront trouvés avoir en leur possession des choses enlevées, detournées, ou obtenues à l’aide d’un crime ou d’un délit seront considérés et punis comme complices de ce crime ou de ce délit. Any person who knowingly receives, in whole or in part, or who without sufficient excuse or justification, is found to have in his possession, articles carried off, abstracted or obtained by means of a crime or misdemeanour shall be deemed to be an accomplice in the crime or misdemeanour.

Assessments.

23. I have assessed all the evidence on record.

24. In the present matter, the case for the prosecution rests on the evidence adduced by Begue. He succinctly gave his version of events and which I have considered with great care and caution as he is a self-confessed accomplice and I have given myself a necessary warning. Begue readily admitted of have committed the two cases of larceny breaking and implicated the first three accused in relation to the larceny breaking committed in the tobacco shop ran Jennifer Lisette. Begue. He then went on to implicate all four accused in relation to the larceny breaking committed at the tobacco shop at Dans Bebe. Having heard his version of events and after having heard the questions asked by all four accused in cross examination, I find that I can safely rely on the evidence adduced by Begue. This is being said because after having observed and listened to him during his oral evidence, there was no indication of invention, exaggeration or evasiveness, and that he consistently presented as a witness of truth

25. Now, as regards to the versions of the four accused, they stated in their out – of – court statements that they went to play football on the material day and that Begue was also present. But, this being so, in cross examination, all four accused only put questions to Begue that they never used to hang around and that they did not commit the present offences. The four accused never put any questions related as to where they were on the material day or anything substantive so as to cast doubt in the version for the prosecution. True it is that all for accused did make a statement from the dock but a mere statement of denial cannot outweigh the version given by Begue under oath and which was tested by way of cross examination.

26. Hence from the above, I find for the prosecution and I also find that the all four accused have failed to cast doubt in the prosecution case. In that respect, I find that the prosecution has been able to prove beyond reasonable doubt that the first three accused committed the case of larceny breaking under the first count and that the four accused committed the case of larceny breaking under the third count.

Conclusion.

27. Therefore, for the reasons set forth above, I find the first three accused guilty under the first count and the second and alternative count is dismissed against them. Furthermore, I find all four accused guilty under the third count and the fourth and alternative count is dismissed against all four of them.

D.J.A Dangeot Senior District Magistrate Delivered on 10 June 2020.

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