Supreme Court of Mauritius, 12 juin 2020, 2020 PL2 48 – Pce v Joseph

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Pce v Joseph

2020 PL2 48

POLICE v JOSEPH Marie Noella Sylvana CN: 5784/19

IN THE DISTRICT COURT OF PORT LOUIS (2nd Division)

In the matter of:

POLICE V JOSEPH Marie Noella Sylvana

JUDGMENT

Accused stands charged with the offence of Possession of property obtained by means of a misdemeanour, in breach of sections 40 & 301(1) of the Criminal Code.

Accused pleaded not guilty to the charge and was not represented by Counsel at trial stage.

Prosecution called witness no.4, PC Ramdeen, who read and produced defence statement of accused, marked as Doc A. The witness confirmed that a Judge’s order was obtained in the present matter.

Prosecution then called witness no.3, Mr Gaetan Noel Giovanni Boyaram, who related that a larceny took place at his residence, following which he lost several items, including two phones.

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The case was then closed for the Prosecution.

The accused was informed of her Constitutional rights in creole. The accused made a statement from the dock and agreed that the sim card belongs to her.

The case was then closed for the Defence. The Court has given due consideration to the evidence on record. With regard to the present charge of Possession of articles obtained by means of a crime, the case of Toofany v The Queen [1957 MR 186] had the following to say : “To raise a primafacie case of what is called “unlawful possession” the prosecution need prove two things and two things only; that the articles had been carried off, etc., by means of a crime or misdemeanour, and that they were found in the possession of the accused. Statutory language and intention vary infinitely, but in the particular case of this section (and we speak of no other) the law does not, expressly or impliedly, put upon the prosecution a general obligation to prove mens rea; the obligation is there but the law says that prima facie it will be discharged by proving only the carrying off, etc., and the possession. The law says that once those two things have been proved there is a prima facie case and the defendant must then put forward sufficient excuse or justification. If, when the two bare elements have been proved, he fails to do so (to take the limiting case, if he remains mute) the court must convict. The burden of demonstrating that he has sufficient excuse or justification is, at that stage, upon him.” The case of Jagganna v The State [2005 SCJ 88] had the following to say on the subject: “It is trite law that to be guilty of the offence of PSP under section 40 of the Criminal Code the accused must first have the stolen property in his possession. It is only when possession of the stolen property has been established that the burden shifts on the accused for him to provide a sufficient excuse or justification for his possession. If the accused cannot account satisfactorily for his possession the Magistrate is bound to convict him, for example, if the Magistrate finds the explanation to be weak, prevaricating or untrue – vide Gobin v The Queen [1896 MR 45].”

The Court took note of the following: • The accused admitted that the sim card is in her name.

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• A larceny took place from the residence of Mr Boyaram. • The documents, marked as Doc B and B1, clearly establish that the sim card belonging to the accused was used from the stolen phone. This in itself is enough to conclude that the Prosecution has proven its case beyond reasonable doubt and accordingly finds the accused guilty as charged.

Mrs Manjula Kumari Boojharut (District Magistrate) Delivered on 12 June 2020