Supreme Court of Mauritius, 3 mars 2020, 2020 RDR 1 – Police v Sayfoullah Ibn Nasroollah Essoof

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Police v Sayfoullah Ibn Nasroollah Essoof

2020 RDR 1

CN 5665/2017 THE DISTRICT COURT OF RIVIERE DU REMPART (MAURITIUS) In the matter of: Police v/s Sayfoullah Ibn Nasroollah Essoof RULING [1] The accused has been prosecuted under a charge of possession of dangerous drugs. He pleaded not guilty and was represented by Learned Counsel Mr S Oozeer together with Ms Punjoo. After the testimony of witnesses no.1 and 5, Defence Counsel objected to the production of the FSL report on the ground that same had not been put to the accused in the course of enquiry and therefore the accused did not have the opportunity to give his version on that piece of evidence. The prosecution objected to the said motion and the matter was fixed for arguments. A. THE SUBMISSIONS OF THE DEFENCE [2] Defence Counsel submitted that the FSL had not been put to the accused, hence he had been deprived of his right to give his version on same at the level of the defence statement. He further submitted that had the FSL report been put to the accused, he could have challenged same, undertaken a counter exercise and the Court would have been in presence of his version at enquiry stage without him breaching his right to silence. He relied on the following authorities: Police v Arena [2014] INT 90, State v Wayne Roberts CS 16/15. Hence, he submitted that it would be prejudicial for the accused should the FSL be admitted. B. THE SUBMISSIONS OF THE PROSECUTION

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[3] Prosecuting Counsel submitted that at Question 7 of the defence statement, though at that time the FSL examination had not been carried out, the accused was made aware of the charge and the facts of the case against him. Therefore, since the charge in the defence statement reflects the charge in the information, the accused knew the case he had to meet and hence no prejudice would be caused to him should the FSL report be admitted. The prosecution relied on the following authorities: Seetahul v State [2015] SCJ 328 and DPP v Lagesse [2018] SCJ 255.

C. THE COURT’S ASSESSMENT [4] The objection to the admissibility of the FSL report by the Defence is grounded on the fact that the FSL has not been put to the accused in the course of enquiry, with the consequence that the latter did not have the opportunity to give his version on that piece of evidence at enquiry stage. The Court therefore will address the two main issues which emanate from the motion: Firstly, the legal principles that guide us on confronting evidence at investigation stage in relation to a suspect and Secondly, the factual consideration of whether in this matter the FSL was put to the accused or not at investigation stage?

1. The legal principles [5] The motion of the Defence relates to the issue of confronting the accused at enquiry stage with evidence to be used at trial so as to give the accused an opportunity to put his version on that piece of evidence at enquiry stage itself. The motion raises the following questions which ought to be addressed by the Court: [i] the rights of a suspect at investigation stage as compared to rights of an accused party at trial stage; [ii] the legal duties of the police especially the duty of disclosure of evidence vis a vis the suspect at investigation stage and consequences of breach if any.

[i] the rights of a suspect at investigation stage as compared to rights of an accused party at trial stage

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[6] In Police v Roheman [2010] SCJ 415, it was held that that section 10(2) (b) of the Constitution does not refer to the right of a suspect who has not yet been formally charged but to the right of an accused party (a “person who is charged with a criminal offence”) and that this right is satisfied by the reading of the information to the accused at the stage of the plea (Babeea v R [1981] MR 67; Etwaroo v R [1988] MR 19). However, there are certain section 10 rights which apply to an accused at trial stage but would also apply to a suspect at pre-trial (investigation stage) such as the right to silence of a suspect at enquiry stage (which is an extension of the right to silence enjoyed by an accused party (The State v Bundhun [2006] SCJ 254). The question which begs to be asked is how far does the suspect at this stage benefit from section 10 rights, that is, right to fair trial. In Amasimbi v The State [1992] MR 227, the full Bench endorsed Mamode v Queen [1991] MR 223 and held as follows:

“the concept of a fair trial guaranteed by section 10 of the Constitution implies fair and impartial enquiries into allegations of accused parties”. With respect, we feel that, for the sake of completeness, that sentence should have been so worded as to refer to “impartial enquiries into allegations of accused parties which may have a bearing on their innocence or guilt.”

[7] 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 (Seetahul v State [2015] SCJ 328). Despite the distinction between rights of a suspect (under section 5 of the Constitution) and the rights of an accused party (under section 10 of our constitution), not only should the enquiry be conducted in a fair and impartial manner but suspects should also benefit from certain section 10 rights such as the rights to silence. Having assessed the peculiarity of pre- trial and trial stages in relation to an accused party, the Court shall assess the extent of the legal duties of the police especially the duty of disclosure of evidence vis a vis the suspect at investigation stage.

[ii] The legal duties of the police especially the duty of disclosure of evidence vis a vis the suspect at investigation stage.

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[8] In R (on the application of Nunn) v Chief Constable of Suffolk Constabulary and another [2014] UKSC 37, it was held that: [22] The principled origin of the duty of disclosure is fairness. Lord Bingham put it in this way in R v H; R v C [2004] UKHL 3, [2004] 1 All ER 1269, [2004] 2 AC 134 (at [14]), speaking in the context of the proper procedure for handling claims to withhold disclosure on public interest grounds: …There is no doubt that this principle of fairness informs the duty of disclosure at all stages of the criminal process. It does not, however, follow, that fairness requires the same level of disclosure at every stage. [23] The common law of England and Wales has proved capable of adapting the duty of disclosure to the different stages of the criminal process. In R v DPP, ex p Lee [1999] 2 All ER 737, [1999] 1 WLR 1950 the Divisional Court dealt with the position before committal to the Crown Court,…. It held that some disclosure was indeed required at that early stage but not what Kennedy LJ described ([1999] 2 All ER 737 at 749, [1999] 1 WLR 1950 at 1963), as the 'full blown' version applicable under the Act once Crown Court proceedings are under way… That illustrates the proposition that the common law duty did not remain the same throughout. Rather, it was tailored to the needs of the stage of the proceedings in question. In other words, what fairness requires varies according to the stage of the proceedings under consideration. [9] Therefore, the common law duty of disclosure, at pre-trial, is grounded on the constitutional principle of fairness and fairness demands disclosure, then a way of ensuring that disclosure will be made must be found' (R v Brown [1997] 3 All ER 769, [1998] AC 367). The Court shall now lay down the principles as propounded by our Supreme Court. [10] In The Director of Public Prosecutions v Lagesse & ors [2018] SCJ 257 , the Supreme Court sitting on appeal held as follows: As highlighted by the Court in the case of The State v Madelon and Ors [2004 SCJ 129] and Seetahul v The State [2015 SCJ 328], we also have not come across a provision in our Law that imposes a duty upon the Police to actually put the charge to an accused. … The baseline is therefore that the accused must be made aware of the case against him. What effectively does that imply? Quite clearly this will depend on the particular circumstances of each case, but evidently cannot mean the “charges as per the information lodged before the trial court” be put to him at the stage of enquiry.

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[11] Our case law makes it clear that there is no legal provision which obliges the police to put the charge to a suspect at enquiry stage. Nevertheless, in order to ensure proper procedural safeguards of fairness at enquiry stage, the accused ought to be made aware of the case against him. In Seetahul v State [2015] SCJ 328), it was held that ‘It was not [incumbent] 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.’ [12] The test provided by the Supreme Court seem to indicate that it is for the accused to be made aware of the case against him. Though the ingredients of what would successfully satisfy the test of ‘to be made aware of the case against him’ would differ on a case to case basis, our Supreme Court in the matter of Seetahul v State (supra) and The Director of Public Prosecutions v Lagesse & ors (supra) have provided some guidance as follows: [i] Where there is a complaint, it would de facto imply that the suspect has to be confronted with that complaint. He is normally, as he should be, informed of the facts and circumstances against him, or reproached of him (The Director of Public Prosecutions v Lagesse & ors). [ii] and the evidence on which it is based (Seetahul v State (supra)) and if there were additional incriminating evidence gathered during the course of the enquiry those should be put to the suspect (The Director of Public Prosecutions v Lagesse & ors). Obviously, if the police as part of their enquiry do have incriminating evidence, the suspect has to be cautioned and informed of his right to be legally assisted, i.e. right against self- incrimination and right to be legally assisted. Here, it is good to highlight that if the two rights referred to above are to have any meaning, they have to be imparted to the suspect in a language which he understands (The Director of Public Prosecutions v Lagesse & ors).

[13] The rationale behind making the suspect aware of the case against him would be to enable him to prepare his defence. Since case- law, which is a source of law under Mauritian law (DPP v Mootoocarpen [1988] SCJ 502 endorsed by the Judicial Committee of the Privy Council in the matter of Fun World Co Ltd v The Municipal Council of Quatre Bornes [2008] PRV 46), then as per the aforesaid principles, the police have a legal duty to ensure that the suspect at enquiry stage is made aware of the case against him. This includes not only to put the complaint to the accused but also where additional incriminating evidence gathered during the course of the enquiry those should be put to the suspect.

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[14] Having assessed the requirement of our laws on police officers at enquiry stage, the next issue to be dealt with is what would be the consequence of a breach of the aforesaid legal duty. In The Director of Public Prosecutions v Lagesse & ors (supra), it was stated that if there is a breach of a duty by the police at enquiry stage, an assessment will have to be done to analyse whether the extent of the breach would deprive the accused of a fair trial. It must also be borne in mind that not every breach will be considered as fatal (vide A Mohammed v The State [1999] 2 WLR 552 (Privy Council).

[15] In The State v Peter Wayne Roberts CS:16/15, the following principles were laid down: i. In a criminal case the Judge, in the exercise of his overriding duty to ensure the fairness of the trial, has the discretion to exclude even admissible evidence where its prejudicial effect outweighs its probative value; ii. The failure to confront the accused with the evidence or case against him at enquiry stage constitutes a breach of his imperative constitutional rights to be informed of the case against him and to be given an opportunity to respond to what lies against him; and iii. In view of the above, the Judge ought in the circumstances, in exercise of his duty to ensure the fairness of the trial to exclude the evidence.

[16] Having set out the legal principles in case of a breach (as set out by the above mentioned principles), the Court shall deal with another issue raised by the defence to the effect that the accused would be compelled to depone (breach of his right to silence) should the prosecution chose to rely on the evidence which was not disclosed to him at time of investigation. [17] Prior to assessing any potential breach of the right to silence, the scope of same has to be ascertained. In The State v Bundhun [2006] SCJ 254 the Supreme Court held: The right of an accused party to silence is enshrined in section 10(7) of our Constitution and is certainly to be respected but one must be careful not to read too much into it, as indicated in some pronouncements of our courts where it has been made clear that (a) it does not carry with it a right not to have reasonable inferences drawn from such silence (See Ramdeen v R [1985 MR 125], Fullee v R [1992 SCJ 77], Jannoo v The State [2003 SCJ 30]; and (b) it is exercised at the accused’s risk and peril when, at the close of the case for

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the prosecution, a prima facie case has been clearly established (see Andoo v R [1989 MR 241]; D.P.P v Bhaugeerutty [2006 SCJ 158]. The right to silence of a suspect at enquiry stage is really an extension of the right to silence enjoyed by an accused party. [18] Furthermore, the matter of Police v Roheman [2010] SCJ 415, though related to contravention cases, enlightened us on whether the failure to record a defence statement can breach the right to silence under our laws. The Supreme Court held as follows: The question referred to this court by the learned Magistrate is in effect the following: does the practice of the police, at enquiry stage in contravention cases, not to inform the suspect of the complaint made against him and invite him to give a statement, if he so wishes, in that connection – (1) amount to a breach of his constitutional right, as a suspect, to silence? (2) infringe section 10 (2) (b) of the Constitution? (3) preclude him from freely exercising his right to silence as an accused party under section 10(7) of the Constitution? (4) jeopardise his right to a fair trial? All the above questions involve, in our view, the simple application of the rule relating to the right of a suspect to silence and of the right of an accused party to silence. It is to be noted, in relation to subquestion (2) above, that section 10(2) (b) of the Constitution does not refer to the right of a suspect who has not yet been formally charged but to the right of an accused party (a “person who is charged with a criminal offence”) and that this right is satisfied by the reading of the information to the accused at the stage of the plea: Babeea v R [1981 MR 67]; Etwaroo v R [1988 MR 19]. It is also to be noted, in relation to subquestion (3) above, 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. [19] Having ascertained the scope of the right to silence and its application under our laws, the Court shall now assess whether it is unfair for the Court to admit incriminating evidence which had not been put to the accused at investigation stage along with any likely breach of his right to silence. [20] On this co-relationship between breach of duty of disclosure at enquiry stage and the right to silence, reference will be made to the persuasive authority of Regina v Keenan [1990] 90 Cr. App. R.1 in which the admissibility of certain questions and answers in a police station interview were challenged for breaches under Code C under PACE (UK). The Court of Appeal held as follows:

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…the trial judge had been wrong to assume that any unfairness could be remedied by the appellant giving evidence as, not having been apprised of all the facts, the trial judge could not have known the effect of admitting the evidence at the time of his ruling; that if the appellant had intended not to give evidence if the questions and answers had been excluded, then admitting them unfairly deprived him of his right to remain silent; that if the defence was (as it transpired) that the evidence was concocted, it was unfair to admit it as that forced the appellant not only to give evidence but to put his character in issue by attacking the police evidence; that if the defence was that the interview had been inaccurately recorded it was unfair to admit it as it placed the appellant at a substantial disadvantage in that he had had no contemporaneous opportunity to correct any inaccuracies nor any contemporaneous note of what he had said…

[21] In relation to the above, the Court is fully alive to the fact that Mauritius has no law which corresponds to Code C of the PACE (UK). However, in Regina v Christou (1992) 95 Cr. App. R. 264, the Court of Appeal held that the test of unfairness when determining whether to exclude certain evidence is the same whether the discretion to exclude is exercised at common law or under the term of s.78 of the Police and Criminal Evidence Act 1984 (PACE). [22] Since the test of unfairness of the enquiry is an important matter to be dealt with, it is apposite, for the sake of completeness, for the Court to mention the pronouncement in The Queen v C.N. Amasimbi [1991] SCJ 210, Assizes case no. 1 of 1991 (special session), which was as follows:

An unfair enquiry may be followed by a fair trial and a fair enquiry may in its turn lead to an unfair trial. The two notions are different and distinct and it would be a wrong proposition in law to say that there cannot be a fair trial without a fair enquiry. If this were otherwise, all cases of entrapment could not be brought to Court or at least could not lead to a conviction, which is not the case in law as shall soon appear. Counsel for the defence also relied as an obiter in Mamode v R [1991 SCJ 126] which reads as follows: “The concept of fair trial guaranteed by Section 10 of the Constitution implies fair and impartial inquiries into the allegations of accused parties.” One should not read into it more than what it actually says. It does not say that where an enquiry is unfair (with whatever degree of unfairness) there cannot be a fair trial.

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[23] Having set out the legal principles which would guide this Court in determining the objection of the defence in law, the Court shall now analyse the evidence on record. The motion of the defence is based on the factual basis that the FSL report was not put to the accused at enquiry stage. At this stage of proceedings, witnesses no.1, had produced the defence statement of the accused and witness no.5 who interviewed the accused on 15/1/17 and stated that he confronted him with the report. Whether the FSL was actually put to the accused is a question of fact to be decided by the Court after assessing the weight to be attached to the testimony of witness no.5. Assessing the weight to be attached to the testimony of witness no.5 [24] He stated that on 15/1/17 at 11 00 hours, he met the accused at Calcutta Street, Port Louis, informed him of his constitutional rights, the charge against him, confronted him with the FSL report and the accused replied as follows: “Monne fini donne l’enquete ki l’enquete encore aster la dernier fois mo ti fini donner – mo pou garde mo droit de silence.” In fact in his statement (Document C), when the charge was put to the accused that he would be prosecuted for possession of dangerous drugs accused also replied “mo pas d’accord avec sa.” He was asked where he had obtained the passport number of the accused to which he replied that the accused had given same in an earlier statement which is in fact corroborated by Document B (which was produced at the request of the defence). True it is that there was no DB entry in the file indicating his movement on that day but he vehemently maintained that he had met the accused on that day throughout his examination. The fact that he interviewed the accused and confronted him with the FSL was heavily disputed by the defence in cross examination. Despite the searching and strenuous cross examination of the defence in challenging the fact that he confronted the accused the FSL report, the witness maintained throughout that the very purpose of interviewing the accused on that day was to put to him the FSL report. He also maintained he did confront him with same on that day, despite he did not mention same in his statement. Furthermore, despite the handwritings were not similar on documents C and D, he consistently maintained that he was the author and signed Documents C and D. Having had the opportunity to assess the demeanour of the witness, the straight forward manner he deponed and stood the test of cross examination, I find him to be a witness of truth. [25] As seen above, the legal obligation of the police is to make the suspect aware of any incriminating evidence. In this matter the witness no.5, at investigation stage, confronted the accused with that piece of evidence (the FSL report) , and as per Document C 1. interviewed him for a further statement; 2. he was duly cautioned and explained of his constitutional rights;

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3. informed of his right to silence; 4. informed of his right to counsel of his own choice; 5. right to legal aid; 6. after the accused (then suspect) had fully understood the above he informed witness no.5 he would retain his right to silence. [26] Furthermore, in his defence statement in Document A, at question 7, he was already made aware of the charge against him as it was already put to him to him that that the two cigarettes were suspected to contain cannabis. In light of same, the police had fulfilled their legal duty to make the accused aware of the charge against him. [27] Having found witness no.5 to be a credible witness, that he maintained he had confronted the accused with the FSL report and that the accused elected to remain silent, the basis of the motion of the defence (that the accused was not confronted with the FSL report) no longer stands. Therefore, the objection of the defence cannot he upheld. [28] After the aforesaid finding, there is no need for the Court to delve any further in addressing the motion of the defence. Despite having found that the FSL was put to the accused, alternatively, for the sake of completeness would address two further issues raised by the Defence, that is, assuming that the FSL would not have been put to the suspect (which is clearly not the case in this matter after the above finding), same would have prevented the accused from challenging the report and to perform a counter examination at enquiry stage. [29] 'If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him…and then he must be given a fair opportunity to correct or contradict them … '(Kanda (B Surinder Singh) v Government of the Federation of Malaya [1962] AC 322 at 337). Another aspect of the principle of natural justice is that the parties should be given an opportunity to call their own witnesses and to cross-examine the opposing witnesses. As was said by the High Court of Australia in Lee v R (1998) 195 CLR 594 at 602, (1998) 157 ALR 394 at 401: 'Confrontation and the opportunity for cross-examination is of central significance to the common law adversarial system of trial. (Al Rawi and others v Security Service and others [2011] UKSC 34 at paragraph 13). Ultimately,[the Court] ,at trial stage, has the duty to ensure the fairness of the trial and to exercise his discretion to grant a postponement, if need be, to allow the accused to respond to the evidence of the prosecution (State v Maigrot [2019] SCJ 141).

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[30] Unless the contrary is proved, there is nothing so far which prevents the defence from challenging or contradicting the findings in the FSL report by either cross examining the maker of the document or calling their own witnesses. It is to be noted that the accused in his defence statement, when the charge was being put to him, categorically denied the charge and stated that he did not even know where the police got the cigarettes which allegedly contained cannabis. Despite his complete denial in his defence statement, the accused may wish to have his unsworn version on record, then Police v Roheman (supra) provides that 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. Finally, this Court at trial stage, has the duty to ensure the fairness of the trial and to exercise his discretion to grant a postponement, if need be, to allow the accused to respond to the evidence of the prosecution. D. CONCLUSION [31] In light of the aforesaid findings, the Court finds that the FSL report was duly confronted to the accused at enquiry stage and the accused was made aware of the case against him. Taking into consideration the above, the Court sets aside the objection raised by the defence and allows the prosecution to produce the FSL report.

R. Hardowar District Magistrate This 3rd of March 2020