Supreme Court of Mauritius, 17 avril 2026, 2026 INT 90 – Police v H. Balisson – Ruling

Police v H. Balisson – Ruling

2026 INT 90

THE INTERMEDIATE COURT OF MAURITIUS (Criminal Division) Cause No.: 37/2024 In the matter of: POLICE v HIMESH BALISSON RULING 1. The Accused stands charged with rape 1 , larceny with scaling 2 , possession of property obtained unlawfully 3 and threatening verbally 4 . He has pleaded not guilty and trial has started. This Court must determine the admissibility of the plan of the locus in quo drawn up by witness No. 4, upon the indications of witness No. 10, the complainant. Learned Defence Counsel is objecting to its production on the ground that Accused was never confronted with the said plan. The admission thereof would compel Accused to give evidence, in breach of his constitutional right to silence. The Arguments on the Ground of Objection 2. For the purposes of the Arguments, Inspector Motee (witness No 7), main enquiring officer deposed on behalf of the prosecution. On 13 March 2019 at 10.50hrs and on 26 March 2019 at 11.35hrs, he recorded 2 statements from Accused at Quartier Militaire CID Office,

1 Count 1 2 Count 2 3 Count 3 4 Count 4

whereby all the facts and circumstances of the case were put to him. Accused denied the allegations. The plan drawn up by witness No. 4, upon the indications of the complainant, was not put to Accused at enquiry stage. Normally, police do not put the plan to Accused. It is only when Accused confesses to an offence that he indicates spots for a plan to be drawn up. 3. In cross-examination, Witness No. 7 stated that he was aware of the principles of fairness in a police enquiry and Accused has to be confronted with all the facts and circumstances of the case in order to prepare his defence. Accused has a right to silence which is his sole prerogative to waive. In the present case, Accused was confronted with the FSL Report and the MLR. He further agreed that whatever the complainant said at enquiry stage constitutes incriminating evidence against Accused. He also agreed that Accused has a right to be informed of all such incriminating evidence. 4. Witness No. 7 also agreed that the practice which he underlined differs from the requirements of the law. He also agreed that any evidence of the alleged victim, which is not put to Accused, deprives the latter of an opportunity to make a reply, if any. He has been in the police force for 22 years. He added that as per police procedures, he has never confronted an Accused with a plan in a criminal case. He usually confronts an Accused with the plan in road accident cases only. 5. In this case, whatever the alleged victim said is disputed. Accused denied even being present on the locus on that date. He agreed that there is an absolute necessity in terms of fairness and law to confront Accused with what the victim said, as reflected in the plan, so that Accused has an opportunity to make a reply, if any. 6. This Court has given due consideration to the submissions offered submissions on both sides. Learned Defence Counsel relied substantially on ICAC v S D Kissoonah 5 .

5 [2024] INT 27

The Issues to be determined by the Court 7. This Court must determine the following issues: A. Whether prior confrontation of the Accused with the plan is a condition of admissibility; B. Whether allowing the plan to be adduced in evidence infringes Accused’s constitutional right to silence, and C. Whether the plan should be excluded on the ground of unfairness and prejudice to the Accused.

Governing Legal Principles 8. Evidence which is relevant is admissible 6 , subject to common law and statutory rules on exclusion. At common law, the Court has a discretion to exclude evidence if, in the judge's opinion, its prejudicial effect substantially outweighs its probative value. 7 In the case of R v Sang, Lord Fraser of Tullybelton put it this way at pp. 446-47: The judge in these circumstances has a discretion to exclude the evidence not only if its probative weight is "trifling" – Noor Mohamed v. The King (UK JCPC) [1949] A.C. 182, 192 — but whenever its prejudicial effect would be "out of proportion to its true evidential value"

6 Kuruma v. Reginam, [1955] 1 All E.R. 236, 239 (P.C.) 7 R. v. Sang [1980] A.C. 402 8 Harris v. Director of Public Prosecutions [1952] A.C. 694, 707, Viscount Simon quoting Lord Moulton in Rex v. Christie [1914] A.C. 545. The latter expression means that the discretion can be exercised where the prejudicial value of the evidence would greatly exceed its probative value.

9. English Courts have declined to state how this principle should be applied, and left it to be assessed on a case-to-case basis. 9 However, the following factors have been borne in mind during the exercise: i. The circumstances in which the evidence was obtained; ii. The effect of the admission of evidence on the overall fairness of the proceedings with regard to both the prosecution and defence 10 ; 10. With regards to the evidence being put to the Accused, where the allegations put during enquiry materially differed from the charge, the Supreme Court held that the conviction would be unsafe. 11 However, if Accused knew all along what is being reproached of him, a failure to confront him with the precise charge would not violate his constitutional right to fair trial.

11. This Court is also mindful of the fundamental right of the Accused not to be compelled to give evidence. In the case of Kanda v Government of Malaya 13 , the Privy Council recognised the principle that evidence which directly incriminates Accused should be put to him before being relied upon. A. Whether prior confrontation of the Accused with the plan is a condition of admissibility; 12. To address this issue, this Court has addressed its mind to the fact that a plan in such cases is illustrative of certain factual aspects of a case as alleged by a declarant in a specific time and space. It stands to reason that the admissibility of such document depends on its relevance and evidential value. Such evidential value hinges on

9 Samuel [1988] Q.B. 615; (1988) 87 Cr. App. R. 232: (…) because of the infinite variety of circumstances, it was undesirable to attempt any general guidance as to how the judge’s discretion or his inherent powers should be exercised”, Hodgson J 10 Hughes [1988] Crim. L.R. 519, CA 11 Easton v The State & DPP [2012] SCJ 55 12 DPP v Ducasse [2023] SCJ20 13 [1962] UKPC 23

i. The reliability of evidence of the maker; and ii. The reliability of the information upon which it is based. 13. The plan does not, in itself, establish guilt of the Accused. Its significance depends on the testimony of the witnesses and the inferences sought to be drawn from it. Any potentially incriminating aspect of the locations indicated can be fully explored and challenged in cross-examination. 14. Therefore, after applying the above principles to the present matter, this Court holds that there is no legal basis to exclude the plan of the locus in quo for want of prior confrontation to Accused. B. Whether allowing the plan to be adduced in evidence infringes Accused’s right to silence 15. Both the right to silence and the right not to be compelled to give evidence are components of the broad right to fair trial guaranteed under section 10 of the Constitution. The European Court of Human Rights in Murray v The United Kingdom 14 confirmed that the right to silence is not absolute. At the same time, in Saunders v The United Kingdom 15 , the Court held that the right not to incriminate oneself does not extend to the use of that evidence existing independently of the will of the Accused. For instance, it may have been statutorily mandatory for police to have sought blood or urine samples from Accused. However, any document obtained pursuant to these requests would not violate the right not to incriminate oneself:

14 [1996] 22 EHRR 29 15 [1996] 23 EHRR 313

The right not to incriminate oneself is primarily concerned, however, with respecting the will of an accused person to remain silent. As commonly understood in the legal systems […], it does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purpose of DNA testing.

16. In the present case, the plan was made independently of Accused who, at the outset, denied the allegation. At the time of the enquiry, there was no need for Accused to show any spot on the plan since he said that he was not even on the locus on the material date. Relying on the pronouncements of Saunders(supra), this Court considers that the plan does not even constitute material obtained out of compulsion from Accused. The law protects his right to silence, but does not prohibit prosecution from adducing evidence which it considers relevant. Accused’s denial will be taken into consideration and the burden of establishing each element of the offences beyond reasonable doubt will never shift from the prosecution. This Court’s appreciation of exercise of his right to silence would depend on the whole of the facts and circumstances of the case as presented by the prosecution. 17. At this juncture, this Court finds it apt to refer to Roheman 17 , where the Court observed in such a situation that an accused party who chooses to exercise his right not to give evidence but wishes his unsworn version to be before the court can always state that version in a statement from the dock

16 Saunders, §69 17 Police v A. Roheman 2010 SCJ 415

18. Should the Accused in the present case have anything to say which he wished to have stated to the police in an unsworn statement in relation to the plan, a statement from the dock would be equivalent to such unsworn statement to the police. C. Whether the plan should be excluded on ground of unfairness and prejudice to the Accused. 19. Exclusion of relevant evidence is justified only where its admission would undermine the fairness of the proceedings. 20. Applying all the above principles, the Court has noted that the plan is directly relevant to the location of the alleged offence. Its reliability is contingent upon the quality of the complainant’s evidence. For the defence to challenge its evidential value, Accused need not revoke his right to silence or be compelled to give evidence. The defence will have ample opportunity to cross-examine both the maker of the plan, as well as the complainant, under whose instructions it was drawn. 21. For all the above reasons, this Court accordingly holds that: I. There is no rule of law requiring that a plan of the locus in quo be put to the Accused prior to trial; II. The admission of the plan which was not previously put to Accused does not infringe his right to silence; III. The plan is relevant and admissible, subject to proper proof, and IV. No prejudice will be caused to Accused. 22. The weight to be attached to the plan will be determined after hearing all the evidence in the case. 23. The objection of Learned Defence Counsel is set aside and the plan made by witness No 4 is ruled admissible. The case is to proceed for continuation.

Ms K Poollay Mootien Miss K Soochit Magistrate Magistrate

17 April 2026