Supreme Court of Mauritius, 15 juin 2020, 2020 INT 68 – POLICE VS BAVEUSE LOUIS CLYDE STEPHANO

POLICE VS BAVEUSE LOUIS CLYDE STEPHANO

2020 INT 68

POLICE VS BAVEUSE LOUIS CLYDE STEPHANO Cause Number: 53/19 THE INTERMEDIATE COURT OF MAURITIUS (Criminal Division) In the matter of:- POLICE VS BAVEUSE LOUIS CLYDE STEPHANO JUDGMENT INTRODUCTION The Accused stands charged with the offence of aiding and abetting the author of a crime in breach of sections 38(3), 301(1), 305(1)(a) and 301A(1) of the Criminal Code. He pleaded not guilty to the charge against him and was assisted by Counsel. The particulars of the charge against the Accused are that on the 7 th March 2018, he willfully, unlawfully and knowingly aided and abetted the author of crime, that is, Mr Mavouse, by keeping watch whilst Mr Mavouse was committing the crime of larceny armed with an offensive weapon whilst being masked. It is therefore alleged that by acting as aforesaid, the Accused became an accomplice to the crime of larceny armed with an offensive weapon whilst being masked.

THE FACTS On the 7 th March 2018, Mr Mavouse committed the offence of larceny armed with an offensive weapon whilst being masked. He was prosecution and sentenced before the Intermediate Court for the offence committed. In relation to this case, Mr Mavouse gave a statement to the police which is reflected in the charge put to the Accused. Indeed, “in a criminal case it is normal to assume that the version that is put to an accused party when recording his or her defence is the very complaint that was made by the victim”. (RE: P MARDAY VS THE STATE (2000) SCJ 225).

In the present case, Mr Mavouse told the police that he met with the Accused on the 7 th April 2018 at a shop and they decided to commit a larceny in a house in Camp Ithier. He added that whilst he committed the larceny, the Accused kept watch. It is also the charge against the Accused that after the commission of the offence, both the Accused and Mr Mavouse ran away and sold the proceeds of the crime.

OBSERVATIONS The Accused stands charged with the offence of aiding and abetting the author of crime, that is he kept watch whilst his confederate, Mr Mavouse was committing a larceny armed with an offensive weapon whilst being masked. In so doing, he has been deemed to be an accomplice. The definition of an accomplice has been laid down in Garraud, vol III page 97, as follows: «l 'auteur est celui qui commet les actes matériels constitutifs du crime ou du délit ou ceux qui sont nécessaires à cette exécution: par exemple dans le vol, l'auteur est l'individu qui s'empare des valeurs ou qui aide à 1'effraction du coffre fort … Le complice est celui qui accomplit des actes qui, sans faire partie de 1'exécution du délit on être nécessaires à cette exécution, le facilitent par une aide ou une assistance. Il n'est que complice, par exemple celui qui aide l'auteur d'un vol en faisant le guet ou en tenant une échelle … Les actes d'aide ou d'assistance dans la consommation d'un délit ne sont pas les actes du délit » In the case of ANTONIO J VS THE STATE (2011) SCJ 199, the Court cited in approval the case of GHURBURN VS R (1990) MR 206 , to explain the purport of an accomplice, as follows: “the participation of an accomplice in a larceny as opposed to that of a co- author involves an acte extrinseque which only tends to prepare or facilitate the commission of the larceny (…)”. In the present case, the ‘acte extrinseque’ would constitute of the act of the Accused to keep watch whilst his confederate committed the offence of larceny armed with an offensive weapon whilst being masked. However, when Mr Mavouse deposed in Court, he testified that he went to commit the offence of larceny armed with an offensive weapon whilst being masked, alone. He maintained that there was no one other than him, who was involved in the commission of the crime. He contended that the reason why his statement reflected the involvement of the

Accused was because the police noted this, although he was alone in the commission of the present case. In view of the above, I find that the only implication of the Accused in relation to the present case, was through the allegation of Mr Mavouse in his statement to the police. However, it is clear from Mr Mavouse’s testimony that he failed to implicate the Accused and he failed to come to proof to establish the charge against the Accused. It is trite law that it is for the Prosecution to prove its case beyond reasonable doubt, which the Prosecution has failed to do through the testimony of Mr Mavouse which excluded all involvement on the part of the Accused in relation to the present case.

CONCLUSION In light of the above, I find that the Prosecution has failed to prove its case beyond reasonable doubt. I dismiss the case against the Accused.

Judgment delivered by: M.GAYAN-JAULIMSING, Magistrate, Intermediate Court Judgment delivered on: 15 th June 2020