Supreme Court of Mauritius, 17 avril 2020, 2020 ROD 14 – POLICE V L’ENFLE NOEL JOHN LOUIS

POLICE V L’ENFLE NOEL JOHN LOUIS

2020 ROD 14

POLICE V L’ENFLE NOEL JOHN LOUIS

Cause Number :- 751/2019

THE COURT OF RODRIGUES

In the matter of: –

POLICE

V

LOUIS JOHN NOEL L’ENFLE

JUDGMENT

Introduction 1. Accused stands charged under 3 counts. 2. Under the first count, Accused stands charged with the offence of attempt at cultivating cannabis plants in breach of section 2 and 45 of the Interpretation and General Clauses Act coupled with section 30 (1) (e) (i) and 47 (5) (a) of Dangerous Drug Act. 3. Under the second count, Accused stands charged with the offence of attempt at cultivating cannabis plants in breach of section 2 and 45 of the Interpretation and General Clauses Act coupled with section 30 (1) (e) (i) and 47 (5) (a) of Dangerous Drug Act. 4. Under the third count, Accused stands charged with the offence assaulting an agent of the civil authority causing effusion of blood in breach of section 159 and 160 of the Criminal Code. 5. Accused pleaded not guilty under all three counts and Accused was represented by Mr. Stephen of Counsel at trial. The trial

6. For the prosecution, several police officers posted at the Anti-Drug Smuggling Unit (“ADSU”) who were present during the search which took place at the place of Accused deponed in the present matter. 7. As regards to the first two counts, Police Constable 2521 Flore (W6), the officer who found the two sets of cannabis seeds, was the first main witness who deponed for the prosecution. 8. W6 testified that during the search which was conducted in presence of Accused on 20 September 2017, at Thammes, 34 cannabis seeds were found in wet soil in a plastic bag of black colour. Upon being informed of the evidence against him and after being cautioned, Accused replied: “la grain gandia sa, moi qui ti plante sa”. Further to that, 12 cannabis seeds were also found and same were found in wet soil in a plastic bottle. 9. The version of W6 is supported by Police Constable 9468 Flore (W7) who testified on the same wavelength as W6. W7 testified that during the search at the premises of Accused, W6 firstly found 34 cannabis seeds and after further search, 12 more cannabis seeds were found. 10. As regards to the third count, the main witness for the prosecution was Police Constable Milazar. (W14). He testified that on 20 September 2017, he was on duty and was in the cordoned team whilst W6 and W7 were searching the garden of Accused. W14 testified that he could not recollect at what exact time Accused grew vexed but he saw Accused trying to move away from where the exhibit was secured and he step in front of Accused with the intention to calm him down. However, the latter picked up a stone and dealt him with a blow whist keeping the stone in his hand. W14 testified that he tried to move away but Accused hit him below his right eye and at the level of his neck. W14 attended medical treatment and a medical examination certificate (Doc. C) was produced by the prosecution. In Doc. C, Dr. Genave found that W14 bears a 2 centimetres laceration of 1 millimetre deep with minimal bleeding and this was at the supraclavicular region. The medical practitioner also found a one centimetre laceration of 1 millimetre deep over the mastoid area with minimal bleeding. 11. Both W6 and W7 testified regarding the assault committed by Accused on W14. As regards to W6, he testified that Accused assaulted W14 after the 34 cannabis seeds were found. W6 testified that Accused tried to escape and W14 was injured whilst he was trying to catch Accused.

12. As regards to W7, he testified that after the 34 cannabis seeds were secured, Accused made his reply and when Accused was made aware that he will be arrested, this is when the latter tried to escape. W7 testified that Accused assaulted W14 and was neutralised by other police officers. Analysis and assessments of the evidence. 13. I have assessed all the evidence on record and also the submission of both Counsel. 14. I shall first deal with the first two counts. 15. As already stated above, the first two offences under which Accused is being prosecuted is that Accused attempted to cultivate cannabis plants. 16. It is not in dispute that 46 cannabis seeds which were in wet soil and were found two different containers. 17. For the prosecution, Miss Thakoor submitted that there is a clear admission from Accused regarding the first two counts and hence the case has been proved beyond reasonable doubt. 18. For the defence, Mr. Stephen submitted that Accused should have been prosecuted with cultivating cannabis plants and the charge of attempt cannot stand as no findings of attempt can be made under the present information. 19. To substantiate his submission, Mr. Stephen relied on section 120 of the Criminal Procedure Act and also on caselaw which are Moodoosoodun v The State [2009 SCJ 314], Police v M.S Mootoosamy and Anor [2016 INT 35] and Baharay v The State [2008 SCJ 49]. 20. Section 120 (1) of the Criminal Procedure Act states that: Where, on the trial of a person charged with a crime or misdemeanour, it appears to the jury upon the evidence that he did not commit the offence charged, but only attempted to commit the offence, that person shall not for that reason be entitled to be acquitted, but the jury may return as their verdict that he is not guilty of the crime or misdemeanour charged, but is guilty of an attempt to commit the crime or misdemeanour.

21. Having read the above section, I do not agree with Counsel that for an accused party to be found guilty for an offence of attempt, he has first to be prosecuted under the full offence. 22. Section 2 of the Interpretation and General Clauses Act defines an attempt in relation to an offence as being “a commencement of execution which has been suspended or has failed in its effect through circumstances independent of the will of the person making the attempt”. 23. A “commencement d’exécution” “is an act or acts sufficiently proximate before an offence is consummated and that the unequivocal or irresistible inference is that but for circumstances independent of the will of the accused the offence would have been perpetrated” (See: The State v. Bissessur & Anor [2001 SCJ 202]. 24. Furthermore, it is “le commencement de l’acte même constitutive du délit, et non le commencement, ni même l’accomplissement en entier des actes préliminaires qui y conduisent” (J. Ortolan, Eléments de Droit Pénal: 4e ed., 1875, p. 449, no 1012). 25. Now, as regards to the caselaw referred by Counsel, his line of submission is that Accused should have been prosecuted for the offence of cultivating cannabis plants instead of attempting to cultivate cannabis plants. 26. An attempt as explains by Garçon Code Pénal Annoté, articles 2, 3 at note 51, is : «Certains faits seront clairement préparatoires parce que, bien que tendant au délit, ils sont encore éloignés de ce délit, ils l’annoncent, mais ne le réalisent pas; d’autres seront certainement des actes d’exécution: ce sont tous ceux qui consistent dans l’exécution du délit lui-même. Mais entre ces actes préparatoires et ces actes d’exécution se placent ceux qui commencent l’exécution et qui constituent la tentative à deux conditions: 1o qu’ils tendent directement au délit; 2o qu’ils soient accomplis dans l’intention d’exécuter ce délit». 27. In the present case, there is an irresistible inference that the purpose for Accused to put those seeds in wet soil was with the main objective for the cultivation of cannabis and in my opinion , the prosecution elected to charge Accused with an offence of attempt was because Accused has taken steps towards to committing the offence of cultivating of cannabis plants,

and those steps taken by Accused were more than merely preparatory to the commission of the main offence. 28. Hence, in the light of the above, I find that the act committed by Accused in that of having taken the necessary steps towards the commission of the specific crime, that is Accused has proceeded beyond “actes préparatoires” and has embarked into the executory process of the cultivation of cannabis plants and this was with the intention to cultivate of cannabis plants and the doing of which cannot reasonably be regarded as having any other purpose than the commission of the specific crime, which is the cultivation of cannabis plants. (See: Davey v Lee [1967] 2 All ER 423 at 425, per Lord Parker of Waddington CJ). 29. Now as regards to the third count, Mr. Stephen submitted that the offence under the third count has not been proved beyond reasonable doubt. His line of submission is based on the facts and evidence adduced by the prosecution. Mr. Stephen referred firstly to the discrepancies in the versions of the prosecution witnesses. Second, Mr. Stephen relied on the fact that Accused was cooperative with the police and thirdly, the fact that one blow could not have caused an injury at the eye and also at the neck. 30. Taking the first point raised by Mr. Stephen, I have found that there are indeed many inconsistencies in the version of W6, W7 and W14. 31. First there is the evidence adduced by W6 that W14 was injured at the left eye when in fact he was injured at the right eye. Second, there is contradictory evidence adduced by W6 compared with W14 regarding the timing of Accused in assaulting W14. There is also W7 whose evidence is again in contradiction with the version of W14 regarding the assault which W14 was subjected to. Third, W6 testified that Accused threw the stone at W14 compared to W14 who testified that Accused assaulted him below his eye whist holding the stone in his hand. Fourth, both W6 and W7 testified that Accused assaulted W14 after the first exhibit have been secured and this was after Accused made a reply but W14, in cross examination stated that Accused was cautioned by W6 and to which Accused made no reply and he was then assaulted thereafter. Fifth, W14 testified that Accused assaulted him with a stone compared to the version that he gave in his declaration and in an entry in the Occurrence Book 616/2017 where he never made any reference of a stone. 32. Now as regards to the second point by Mr. Stephen, I again find substance in same. This is being said taking into consideration the fact that W6 testified in cross examination that

Accused cooperated with the police at the beginning and grew vexed when he made his second reply. Hence, taking that piece of evidence in consideration, I find it difficult to comprehend as to how, Accused who was still in a calm disposition when he made his reply and this was after the first exhibit was secured and all a sudden he decides to escape and assault W14. 33. As regards to the third point put forward by Mr. Stephen and after analyzing same, I indeed find it incomprehensible as to how W14 would have been injured at the level of his eye and neck when he was inflicted a single blow by Accused with a stone. True it is that W14 could have been injured at different parts of his body but it would have been difficult for him to sustain injuries only at the eye and the neck with a single blow and not from the eye to the neck. 34. Hence, after having carefully analysed the evidence adduced by W6, W7 and W14, I am of the view that despite the fact that there is a medical examination certificate to show that W14 sustained injuries on that day, I find that in the light of the inconsistent and unsatisfactory nature of the evidence adduced under the third count, Accused should be given the benefit of the doubt.

Conclusion 35. Therefore, for the reasons set forth above, I find that the prosecution has proved its case beyond reasonable doubt under the first and second count and I dismiss the third count against Accused.

Daniel Dangeot Senior District Magistrate Delivered on 17 April 2020.