Supreme Court of Mauritius, 17 juin 2020, 2020 INT 72 – POLICE VS SOYFOO SAMEER MOHAMED

POLICE VS SOYFOO SAMEER MOHAMED

2020 INT 72

POLICE VS SOYFOO SAMEER MOHAMED Cause Number: 238/14 THE INTERMEDIATE COURT OF MAURITIUS (Criminal Division) In the matter of:- POLICE VS SOYFOO SAMEER MOHAMED JUDGMENT INTRODUCTION The Accused stands charged with the offence of impersonating individual named in a document in breach of section 105(1)(b), (a) of the Criminal Code (Supplementary) Act. The particulars of the charge against the Accused are that on or about the 14 th January 2012, the Accused wilfully and unlawfully falsely represented himself to be the person named in a document issued by lawful authority to another person who was certified in such document to be entitled to a right, namely the Accused, whilst being the driver of goods vehicle bearing registration number 2207 ZM 95, falsely represented himself as Goulvadeen A.R to PS Kassinathdoss by showing an Aviation Security Identification Card (ASIC) bearing serial number 1110 2011 0750 968 Rc 117 which was issued to one Ali Rehza Goulvadeen by the Civil Aviation Mauritius to get access to some restricted areas of the Airport namely Secondary sub zone and South East Primary sub zone.

THE FACTS Lorry number 2207 ZM 95 belongs to the brother to Mr Ali Rehza Goulvadeen (hereinafter referred to as Mr Goulvadeen). According to the records from the Civil Aviation as

evidenced by a letter signed by the Director, Mr Raghoobursing, a vehicle pass was issued in respect of vehicle bearing registration number 2207 ZM 95 on the 17 th July 2011 and the pass expired on the 31 st August 2012. An ASIC bearing serial number 111020110750968 RC 117 was issued to Mr Goulvadeen Ali Rehza on the 11 th October 2011 and the pass expired on the 31 st August 2012. No access pass was issued to the Accused to have access inside the airport compound through the contractor’s gate on the 14 th January 2012. Therefore he was not authorized to use ASIC bearing serial number 111020110750968 RC 117. Mr Raghoobursing added in Court that the vehicle pass and the ASIC are not transferable. On the 14 th January 2012, PS Kassinathdoss was performing extra duty at gate D in Sir Seewoosagur Ramgoolam (SSR) International airport. The gate was opened because access on the tarmac was necessary for construction and repair purposes. He testified that, whilst on duty, he stopped vehicle number 2207 ZM 95 which had gone through the gate. The driver proceeded his way and stopped ahead. PS Kassinathdoss asked the driver, that is, the Accused for his permit, that is an ASIC pass which was mandatory for people going to the tarmac. The Accused showed him the pass but upon verification of same and the name of the Accused, PS Kassinathdoss found that the photo on the permit did not look like the Accused. Also, the name on the pass read Goolvadeen. PS Kassinathdoss informed the Accused that the name and the photo on the pass did not tally with the Accused and asked the Accused for his pass which the latter did not have. PS Kassinathdoss informed the Accused that he committed an offence of impersonation, his Constitutional rights and the reason for the arrest. He then contacted airport police and PS Ramen attended the request. PS Ramen explained in Court that upon attending the request of PS Kassinathdoss, he took the ASIC pass which the Accused produced to PS Kassinathdoss. He questioned the Accused and then sent a letter to the civil aviation which replied that the Accused was not entitled to get inside the security restricted area. Mr Goulvadeen confirmed that on the 14 th January 2012, the Accused drove lorry number 2207 ZM 95 to gate D. He did not give the Accused any permission to use his permit. The version of the Accused is contained in his statement given to the police. He averred that on the material day, he took the wheels of lorry number 2207 ZM 95 after embarkation of materials, outside the fencing of a gate. At that moment, PS Kassinathdoss stopped him and asked for his permit. The Accused produced the permit of the lorry and the ASIC pass of Mr Goulvadeen. It is the contention of the Accused that he did not intend to use the pass to go

through the gate but only produced the documents asked for by the police officer. He denied the charge against him.

OBSERVATIONS I have assessed the evidence on record. The Accused is charged with the offence of impersonating an individual named in a document. It is the contention of the Prosecution that the offence arose when the Accused was driving lorry number 2207 ZM 95 at Gate D to enter a restricted security zone, that is, the tarmac at SSR international airport. In his statement to the police, the Accused contended that he was not proceeding to the restricted area on the tarmac but was beyond the fence.

The facts On this score, I have considered with care the versions of PS Kassinathdoss and PS Ramen. PS Kassinathdoss explained that he stopped the Accused when he went through gate D. PS Ramen averred in cross-examination that when he went on spot, the lorry was at the threshold of the gate. I can safely conclude that the Accused drove the lorry at gate D which provides access to the restricted security zone on the tarmac. I further find that I can safely rely on the versions of PS Kassinathdoss and PS Ramen who intervened in this case in their capacity as police officers on duty, at the material time. I find that by negotiating to reach gate D, the Accused should have had the necessary permit. At the threshold of gate D which leads to a restricted access security zone, the Accused was under an obligation to hold a necessary permit to proceed. I have noted that the Accused averred in his statement to the police that he did not have the intention to enter the restricted security zone. However, when he was stopped by PS Kassinathdoss at gate D, he did not tell PS Kassinathdoss that he did not intend to proceed his way. There is no evidence to that effect. Instead, he produced to PS Kassinathdoss the permit for the lorry as well as the ASIC pass which would have entitled him to proceed his way from gate D onto the restricted security zone on the tarmac. I safely infer that in so doing, the Accused had the intention to enter the restricted security zone, failing which he would not have produced the permit for the lorry and the ASIC card.

I therefore find that, on the facts of the case, the Accused falsely represented himself to be Mr Goulvadeen when he produced the lorry permit and ASIC pass to the police at gate D on his way to enter a restricted security zone.

The charge against the Accused I have considered the line of defence raised by Learned Counsel for the defence as well as his submissions in Law. In cross-examination as part of the defence case, Learned Counsel for the defence put to the main enquiring officer PS Ramen that the Accused ought to have been charged with an offence of entering a restricted area without lawful authority under the Civil Aviation act. However, I do not find substance in the line of defence raised as I find that the offence committed by the Accused is not an unlawful entry in a restricted area. Instead, the Accused used the pass of someone and hence impersonated an individual named in a document to enter a restricted area. I therefore find that charge has been rightfully levelled against the Accused. I have also considered the point of Law raised by Learned Counsel for the defence in submissions, to the effect that the police never put the charge of impersonating individual named in a document to the Accused. Although PC Adhin had to put up a statement in this case as the Accused omitted to sign on his statement, there is no dispute about the contents of the statement given by the Accused to the police. The live issue raised by the defence is that the police did not put the charge of impersonating individual named in a document to the Accused. On this score, I read from the statement of the Accused that the charge put to him is as follows: “Si sa policier la dire ki mo ti pe servi sa pass la pou gagne acces lor gate li pas vrai”. In other words, the charge put to the Accused is that he used a pass to have access to the gate. The Constitution of Mauritius offers a guarantee that every person who is charged with a criminal offence shall be informed as soon as reasonably practicable, in a language that he understands and, in detail, of the nature of the offence under section 10(2)(b) of the Constitution. The question that arises is whether an Accused party ought to be made aware of the charge against him at enquiry stage when his statement is being recorded by a police officer. This is where Rule II of the Judges’ Rules comes into play. Rule II reads as follows:

‘As soon as the police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions, or further questions, relating to that offence. The caution shall be in the following terms: You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence.” The meaning, purport and relevance of Rule II of the Judges’ Rules has been fully canvassed in the case of STATE VS RUHUMATALLY (2015) SCJ 384 wherein the Court, explained the nature and form which a caution should take in line with the offence for which the Accused stands charged. He stated as follows: “But there is one important aspect that cannot and should not be overlooked. The caution is not given generally in a void; rather, it is given in relation to an identifiable offence that the accused is suspected of having committed. The further questioning by the police officer ‘relates to the offence which the person is suspected to have committed’. The person ‘not being obliged to say anything’ once again relates to the offence which he is suspected to have committed. If he has anything else to say which is of a general nature and which can be helpful to the police, he can still do so under his civic duty to help the police in solving crimes. The above situation begs the question: ‘How does a person exercise the rights and privileges afforded to him by the caution if he does not know what offence he is being suspected of having committed?’ An effective interpretation of Rule II would require that we read into it the obvious proposition that a person has to be informed of the nature of the offence he is suspected of having committed so that he may exercise his rights and privileges under the caution in an informed way. This does not mean that he has to be informed of one or more offences in legal language, or of the section/s of the law which have been breached, or of the elements of the offence. But the person must be given an idea which is elaborate enough concerning what is reproached of him and which constitutes a breach of the penal laws of Mauritius and to which he is being asked to answer”. It therefore follows that there is a general principle that an Accused party ought to know the charge against him. It is not necessary that the Accused must know each and every element

of the offence against him or the legal technicalities of the charge, it suffices that the Accused must be generally aware of the charge which he has to answer. In the present case, it is clear from the statement given by the Accused to the police that he was informed of the offence of using a pass belonging to someone else to have access to a restricted security zone. Therefore the Accused was informed of the charge of impersonating an individual named in a document, that is, he misrepresented himself to be Mr Goulvadeen when he produced the lorry permit and ASIC pass of Mr Goulvadeen. In the case of EASTON VS STATE & ANOR (2012) SCJ 55 , the Court found that the Accused was denied an opportunity to give her defence when the precise charge was not put to her since she was called upon to give evidence in relation to other aspects of the case. In the case of JHOOTOO M.E v STATE (2013) SCJ 3 73, the Appeal Court quashed a conviction because the Appellant was never informed that he would be charged with an offence of giving a false statement when he was questioned in relation to a drug case. The Court found that “the appellant had not been given an opportunity to exercise his constitutional rights. The appellant had a right to know in the first place the details of the case regarding the false statement. Nothing shows that it was ever put to him that he would be charged for an offence of giving a false statement in connection with a drug offence”. It is therefore imperative that an Accused party must be informed of the offence against him and the subsequent charge that would be levelled against him. However, the present case is different from the case of EASTON VS STATE & ANOR (cited above) and the case of JHOOTOO M.E v STATE (cited above) since in the present case, the Accused was given an opportunity to give his defence in relation to the charge against him. I therefore find that the Accused was aware of the facts and circumstances which gave rise to the charge against him, for which he has been informed, explained of his Constitutional rights and cautioned. I deem it fit to refer to the case of SEETAHUL VS STATE (2015) SCJ 328 where the Court held as follows: “There is no provision in our law which imposes a duty on the police to actually put the charge to the accused at the enquiry stage. Section 5 of the Constitution relates to the rights of the person who is arrested or detained to be informed of the reasons for his arrest or detention, to be afforded reasonable facilities to consult a legal representative of his own choice and to be brought without undue delay before a Court. Section 10 (2) of the Constitution provides that every person who is charged with a criminal offence

shall be informed as soon as reasonably practicable, in a language that he understands, and, in detail, of the nature of the offence.

It was not incumbant at the stage of the enquiry to put each and every element of the offence to the appellant. It suffices that the version of the complainant was put to him so that he was made aware of the case against him and the evidence on which it is based so as to enable him to prepare his defence”.

In light with the above provision of the Law, I find that it was not incumbent on the Prosecution to put each and every detail of the charge to the Accused. I find the Accused was explained of the offence which he committed under caution and after he was informed of his Constitutional Rights. I therefore find that there is nothing sinister in the charge levelled against the Accused as the latter was aware of the charge which was explained and put to him by the police when his statement was recorded, that is he impersonated an individual named in a document when he misrepresented himself to be Mr Goolvadeen as he presented a card on the name of Mr Goolvadeen.

CONCLUSION In light of the above, I find that the Prosecution has proved its case beyond reasonable doubt. I find the Accused guilty as charged for the offence of impersonating individual named in a document in breach of section 105(1)(b), (a) of the Criminal Code (Supplementary) Act.

Judgment delivered by: M.GAYAN-JAULIMSING, Magistrate, Intermediate Court Judgment delivered on: 17 th June 2020