Supreme Court of Mauritius, 5 mars 2020, 2020 INT 51 – POLICE VS RAMCHURN SOURAJ

POLICE VS RAMCHURN SOURAJ

2020 INT 51

POLICE VS RAMCHURN SOURAJ Cause Number: 795/17 THE INTERMEDIATE COURT OF MAURITIUS (Criminal Division) In the matter of:- POLICE VS RAMCHURN SOURAJ JUDGMENT INTRODUCTION The Accused stands charged with the offence of aiding and abetting the author of a misdemeanor in breach of sections 38(3) and 301(1) of the Criminal Code. He pleaded not guilty and was assisted by Counsel. The particulars of the charge against the Accused are that between the 21 st and 22 nd

November 2010, he willfully, unlawfully and knowingly kept watch while one Sandy Curpen was committing a larceny. By acting as aforesaid, the Accused became an accomplice in the misdemeanor.

THE FACTS On the 21 st November 2010, Mr Andoo reported a case of larceny of his motorcycle, which was valued at about Rs 5,000. He never retrieved his motorcycle. In relation to the larceny of the motorcycle, the Accused was arrested by the police. In a statement given to the police, the Accused explained that in the month of November 2010, he was walking with his friend, one Mr Gevin at Sadally when they saw a motorcycle in private premises. They decided to steal the motorcycle and the Accused kept watch whilst Mr Gevin entered the private premises to commit the larceny of the motorcycle. It was

agreed that if someone would turn up whilst Mr Gevin was committing the larceny, the Accused would whistle.

OBSERVATIONS The Accused stands charged with the offence of aiding and abetting the author of a misdemeanor, that is he kept watch whilst his friend committed a larceny. 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 and to whistle if necessary whilst his friend committed the offence of larceny.

The confession of the Accused The Accused made a clear confession to the police that he aided and abetted his friend Mr Gevin whilst the latter committed the larceny of the motorcycle belonging to Mr Andoo. It was PC Bucha who recorded the statement of the Accused and he maintained

without any hesitation under cross-examination, that the Accused gave his statement in presence of Counsel and was never beaten up, such that, he gave his statement voluntarily. Learned Defence Counsel asked for the diary book entries pertaining from the 20 th

June 2011 to the 23 rd June 2011 be produced in Court. A perusal of same reveals that the Accused was explained his Constitutional rights and he made no complaint. At this juncture, I deem it fit to refer to the case of the case of GENEVIÈVE ALAIN STEEVE V THE STATE (2001) SCJ 159 where the Court referred to the case of R V. BALDRY, CROWN CASES RESERVED: 1852, 169 E.R. 568, as follows: “In R v. Baldry, Crown Cases Reserved: 1852, 169 E.R. 568, Pollock C.B. explained in very clear terms the rationale of the rule which excludes a confession induced by threat or promise made by a person in authority. We believe there is a need to remind enquiring officers what that rationale is by quoting a passage from his judgment: "The ground for not receiving such evidence is that it would not be safe to receive a statement made under any influence or fear. There is no presumption of law that it is false or that the law considers such statement cannot be relied upon; but such confessions are rejected because it is supposed that it would be dangerous to leave such evidence to the jury." Therefore a statement is only admissible in Court if that statement is given voluntarily by an Accused party. In the case of THE QUEEN v M. BOYJOO AND R.D. BOYJOO (1991) SCJ 379, the Court referred to paragraph 3(e) of the Introductory notes to the Judges’ Rules which explicitly lays down the principle of a voluntariness of a confession, namely that: “It is a fundamental condition of the admissibility in evidence against any person equally of any oral answer given by that person to a question put by a police officer and of any statement made by that person, that it shall have been voluntary, in the sense that it has not been obtained from him by fear or prejudice or hope of advantage, exercised or held out by a person in authority or by oppression.”

In the present case, I find that the Accused gave his statement voluntarily in presence of Counsel. I have found the diary book entries and the credible version of PC Bucha who deposed in his capacity as a police officer on duty, to support the fact that there is no suggestion of violence, oppression or force having been exerted on the Accused.

In light of the confession of the Accused, I find that the Prosecution has established its case against the Accused. I deem it fit to refer to the case of DPP VS J.P.AUMONT (1989) SCJ 338 wherein the Court laid down as follows: “A voluntary confession by an accused party that was direct and positive and had been satisfactorily proved was the best evidence that could be produced by the prosecution against the accused”.

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 aiding and abetting the author of a misdemeanor in breach of sections 38(3) and 301(1) of the Criminal Code.

Judgment delivered by: M.GAYAN-JAULIMSING, Magistrate, Intermediate Court Judgment delivered on: 5 th March 2020