Supreme Court of Mauritius, 5 mars 2020, 2020 INT 58 – P v Mohamed Hossen & Others

P v Mohamed Hossen & Others

2020 INT 58

CN736/19 THE INTERMEDIATE COURT OF MAURITIUS (Criminal Side)

In the matter of:- Police v/s 1. Mohamed Hossen Sheik Ouzair 2. Payendee Joseph Martial 3. Chirstophe Stephan Desire JUDGMENT The Accused Parties stand charged as follows:

1) Under Count 1: Accused No. 1 (hereinafter referred to as A1) stands charged of Attempt At Larceny, contrary to ss. 2 and 45 of the Interpretation And General Clauses Act (hereinafter referred to as IGCA) coupled with s. 301(1) of the Criminal Code; 2) Under Count 2: A1 stands charged of Attempt At Larceny External Breaking, contrary to ss. 2 and 45 of the IGCA coupled with ss. 301(1) and 309(1) of the Criminal Code; 3) Under Count 3: A1 stands charged of Larceny Committed With External Breaking, contrary to ss. 301(1) and 309(1) of the Criminal Code; 4) Under Count 5: A1 stands charged of Larceny By Night Breaking, contrary to ss. 301(1) and 306 of the Criminal Code; 5) Under Count 7: A1 stands charged of Larceny Committed With Scaling, contrary to ss. 301(1) and 309(1) of the Criminal Code;

6) Under Count 9: Accused No. 2 (hereinafter referred to as A2) stands charged of Aiding And Abetting The Author Of A Crime, contrary to ss. 38(3), 301(1), and 309(1) of the Criminal Code; 7) Under Count 10: A2 stands charged of Knowingly Receiving Articles Abstracted By Means Of A Crime, contrary to ss. 40 and 309(1) of the Criminal Code; 8) Under Count 11: A1 and Accused No. 3 (hereinafter referred to as A3) stand jointly charged of Larceny Committed By Two Individuals, contrary to ss. 301(1) and 305(1)(b) of the Criminal Code.

Counts 4, 6, 8, and 12 were dismissed as alternative Counts.

A1 pleaded Guilty to Counts 1, 2, 3, 5, 7, and 11, and was not assisted by Learned Defence Counsel.

A2 pleaded Not Guilty to Counts 9 and 10, and was not assisted by Learned Defence Counsel.

A3 pleaded Guilty to Count 11 and was not assisted by Learned Defence Counsel.

The Prosecutor conducted the case for the Prosecution.

The Proceedings were held in Creole.

The Prosecution Case The Court will only consider Counts 9 and 10 in detail as regards A2 who pleaded Not Guilty to the said Counts, given A1 and A3 pleaded Guilty to their respective Counts.

It was the case for the Prosecution that on or about 19-04-19, at Dumas Street, Beau-Bassin, in the District of Plaines Wilhems:

1) In relation to Count 9: A2 did unlawfully and knowingly aid and abet the author of a Crime in the means of facilitating the Crime, to wit: A2 kept watch whilst the said A1 was committing Larceny With Scaling.

Complainant further avers that by acting as aforesaid the said A2 did become an accomplice in such Crime; and 2) In relation to Count 10: A2 did wilfully, unlawfully, and knowingly receive an article which had been abstracted by means of a Crime, to wit: one laptop, one laptop bag, one laptop charger, one helmet, one drone, one bag and three perfumes, abstracted by means of Larceny By Night Breaking to the prejudice of Mr. Reshad Mohideen (hereinafter referred to as W9).

The Defence Case A1 In his unchallenged out-of-Court statements (Docs. A, A1, A2, A3, and A4), A1 fully admitted the said charges, explaining in detail therein the circumstances of the present matter, as per the said Counts.

In Court, A1 elected to exercise his Right to Silence.

A2 in relation to Counts 9 and 10 W9 deponed as to the fact that a Larceny had taken place at his residence, whereby windows were broken, and several articles were stolen. W9 further explained that some articles were recovered and returned to him. W9’s testimony remained unchallenged throughout the Proceedings.

In his out-of-Court statements (Docs. B, B1, B2, and B3), A2 fully admitted the charges as per Counts 9 and 10, giving in detail therein the circumstances of the present matter.

In Court, A2 elected to depone under Oath.

A3 In his unchallenged out-of-Court statements (Docs. C and C1), A3 fully admitted the charge as per Count 11, and in Court, A3 elected to exercise his Right to Silence.

Analysis

The Court has duly analysed all the evidence on Record, all the circumstances of the present matter, and the Court has watched the demeanour of the Prosecution Witnesses and that of the A2 with the utmost care.

A1 in relation to each of Counts 1, 2, 3, 5, 7, and 11 The Prosecution case rested essentially on A1’s Confessions (Docs. A, A1, A2, A3, and A4). A1 fully admitted the charges in his said unchallenged out-of-Court statements (Docs. A, A1, A2, A3, and A4), as highlighted above in relation to the relevant Counts. A1 gave a very detailed account of the circumstances of the present matter in the said unchallenged out-of- Court statements.

The Court finds the following extract from the Authority of Janvier v The State [2010 SCJ 129] of relevance:

The learned magistrates further aptly found support from the proposition in DPP v A[u]mont JP [1980 SCJ 338] to the effect that “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.”

In this respect, we also read in R v Mallinson [1977] Crim. LR 161 that “it is only in exceptional cases that English law requires corroboration of particular type of evidence and confessions have never been held to require corroboration either by law or practice.”

The Court in the Authority of Grande Oreille v The State [2017 SCJ 151] stated the following:

As was stated in the case of Lily v The Queen [1900 MR 31], referred to by the trial Court and appellant, where the case rests “almost exclusively upon a solitary extra- judicial alleged confession, it may be, as a rule, safe to convict, if the confession is shown to have been voluntarily made, if free from ambiguity and is fully and strictly proved.” […]

It goes without saying that each case must be decided on its own particular facts and circumstances. We are also in agreement with the basic principle that trial courts are expected to exercise caution and care when assessing the reliability of a confession. On that score, it would be appropriate to state the observations of Lord Kerr in the judgment of Pora v The Queen [2015] UKPC 9, an appeal to the Judicial Committee of the Privy Council from a judgment of the Court of Appeal of New Zealand, more particularly at paragraph 57 of the judgment, and which was cited with approval in the case of Boodhoo v The State of Mauritius [2016 SCJ 258], and which reads as follows – “Any court must therefore be astute to examine the reliability of seemingly straightforward confession of guilt where that comes under later challenge […] it is precisely because of the experience that people confess to crimes that they did not commit that one should be vigilant to examine possible reasons that confessions may be false. […] “judges and juries tend to disbelieve claims of innocence in the face of a confession, and are usually unwilling to accept that someone who has confessed did not actually commit the crime”. In light of that entirely natural and to-be-expected reaction, careful attention should be paid after the confession has been made to reasons given that it was in fact untrue. Indeed, such is the potential potency of confession evidence that particular care is required in examining whether it reflects the true state of affairs.”

In the course of the Trial, the voluntariness of the said out-of-Court statements for A1 was not challenged by A1.

The Court is therefore of the considered view it has been established the said Confessions given by A1, were voluntarily given.

The Court is further comforted in reaching the conclusion that the said Confessions were voluntary, given the sheer details contained in the said Confessions, which could only have been to A1’s personal knowledge.

In light of all the above, the Court is of the considered view that it is safe to act on the said sole uncorroborated Confessions given by A1, and that full weight can be attached to same.

Further, the Court bears in mind a plea of Guilty is “[…] an express and conclusive admission of the offence in respect of which the plea is made, for the purposes of that trial, and dispenses with the necessity of proving the facts alleged in that count of the indictment” (Halsbury’s Laws of England, Criminal Procedure Volume 28, 05 th Edition, para. 659, Judicial admissions).

The Court has noted that no incriminating articles were secured from A1’s place.

In light of all the above, and given A1’s unambiguous Guilty Pleas to the relevant Counts, in light of s. 72(2) of the District and Intermediate Courts (Criminal Jurisdiction) Act, and applying the principles set out in the Authority of DPP v Gaya [1996 SCJ 360], the Court shall find A1 Guilty as charged on the relevant Counts.

A2 in relation to Counts 9 and 10 The Prosecution case rested essentially on A2’s Confessions, in which A2 fully admitted all the charges.

The Court has given due consideration to A2’s denial under Oath. The Court is however of the considered view that A2 contradicted himself, given A2 denied the charges under Oath in Court, and at the same time, in Court under Oath, confirmed that his statements, which are Confessions, were correct. Both these versions are mutually exclusive.

Although the Court has noted the line of cross-examination adopted by A2, which related essentially to the fact that he had not in fact sold the said articles, the Court is, however, of the considered view that the voluntariness of the said statements was not in effect put in doubt, given also A2, in Court under Oath, unequivocally agreed with the contents of his statements.

Further, the sheer details contained in the said statements could only have been to A2’s knowledge. And A2 gave more details as to the circumstances of the present matter in each and every subsequent statement.

In light of all the above, and bearing in mind the principles set out in the Authorities of Janvier (supra) and Grande Oreille (supra), the Court is of the considered view that no doubt was cast on the voluntariness of the said statements, which are found to be “direct and positive and had been satisfactorily proved was the best evidence that could be produced by the prosecution.”

(DPP v Aumont [1980 SCJ 338], and that it is safe to act on the said sole uncorroborated Confessions given by A2, and that full weight can be attached to same, it being the best evidence against A2.

Further, the Court bears in mind that the principle set out in R v Mallinson [1977] Crim. LR 161 cited with approval in Janvier (supra) to the following effect:

“it is only in exceptional cases that English law requires corroboration of particular type of evidence and confessions have never been held to require corroboration either by law or practice.”

Count 9 The following passage from Garraud Vol III page 97 is found to be of relevance:

« …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 l’effraction du coffre-fort; dans l'assassinat, l'auteur est celui qui frappe la victime et lui porte un coup mortel, ou qui paralyse ses mouvements pendant que son compagnon l’étrangle. Le complice est celui qui accomplit des actes qui sans faire partie de l'exécution du délit ou 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. »

The following extracts from Archbold Digital Edition 2015 are also found of relevance:

18-9 […]

It is submitted that the better approach is to give the words their natural meaning; thus an aider and abettor may be present giving active assistance to the principal; he may be some distance away (as in the case of a look-out who watches the householder whilst the principal, with whom he is in contact via a mobile telephone burgles the house); or

his act of assistance could be far removed in time and place (as in the case of the supplier of a gun who knows that it is required for the purpose of committing murder). […] That there is no requirement that the act of assistance or encouragement be contemporaneous with the commission of the offence by the principal was confirmed in R. v. Stringer (Ian Bryan) and Stringer (Ian) [2011] 2 Cr.App.R. 24, CA, in which the court noted that there may be cases where any assistance or encouragement provided is so distanced in time, place or circumstance from the conduct of the principal that it would be unjust to regard the principal’s act as done with the defendant’s encouragement or assistance; but this is a matter for the jury.

18-10

In Ferguson v. Weaving [1951] 1 K.B. 814, DC, it was said that the words “aid and abet” are apt to describe the action of a person who is present at the time of the commission of an offence and takes some part therein. In some subsequent authorities, such as National Coal Board v. Gamble [1959] 1 Q.B. 11, 42 Cr.App.R. 240, DC (post, § 18-14), and Thambiah v. R. [1966] A.C. 37, PC (ante, § 17-72), the words “aiding and abetting” have been used in a wider sense, so as to include acts committed before the perpetration of the actus reus. In Blakely v. DPP [1991] R.T.R. 405, DC, McCullough J. said, at p. 411, that there are many accessories before the fact of whose activity none of the words “counselling, procuring and commanding” would seem to be apt; for example, the man who supplies the equipment for use in a robbery which has already been determined upon by others and at which he will not be present. The words “aiding and abetting” would seem more appropriate to describe such activity. For the reasons given at § 18-9, ante, it is submitted that the latter is the better view.

A2, in his out-of-Court statements, confirmed that he was present at the time A1 went over the wall and went into W9’s House.

A2 was therefore present on the said locus at the said time, and waited for A1 to come back.

As to the issue of to mens rea, Archbold (supra) reads as follows:

It is not necessary that, at the time of any act of assistance, the principal should have formed a settled intention to commit the crime; all that is necessary is that at the time of the act of assistance, the defendant foresaw as a “real possibility” that the principal would commit the crime: R. v. Bryce [2004] 2 Cr.App.R. 35, CA (in R. (Equality and Human Rights Commission) v. Prime Minister; R. (Al Bazzouni) v. Same [2012] 1 W.L.R. 1389, DC, it was pointed out that the expressions “real possibility”, “real or substantial risk” and “real and serious risk” have been used interchangeably in Bryce and other authorities). Where the act of assistance was done in advance of the crime, which was committed in the defendant’s absence, it must be proved that the act in fact assisted the later commission of the crime, that it was done deliberately, that the defendant realised that it was capable of assisting the commission of the offence, and foresaw its commission as a real possibility, and that when doing the act he intended to assist the principal in what he was doing: ibid.

A2 himself explained in the said statements that he did not enquire further into why A1 had gone over the wall instead of using the door, as he was only interested in getting some money from the sale of the said articles.

Also, the fact that A2 saw A1 going over the wall, at the said time of the night, ought to have raised doubts in A2’s mind, and in fact did raise doubts in A2’s mind, given A2’s own version he knew there was something fishy when he saw A1 going over the wall, and eventually admitted that A1 had asked him to keep watch, which he did until A1 came back. Further, A2 being a mature person of about 50 years ought to have had alarm bell ringing loud and clear in his ears in the light of the circumstances of the present matter.

In light of all the evidence on Record, all the circumstances of the present matter, and all the above, the Court is of the considered view that it can reasonably infer that A2 had the requisite mens rea.

The Court has noted that no incriminating articles were secured from A2’s place, and that part of the stolen articles were recovered.

In light of all the evidence on Record, all the circumstances of the present matter, and all the factors highlighted above, the Court is of the considered view that it is safe and reasonable to

infer that A2 kept watch whilst A1 was stealing in the said House of W9, and thereby aided and abetted A1 in the commission of the said Crime, and A2 is further therefore found to have been an accomplice in the said Crime committed by A2, on the said date and at the said place.

Count 10 In relation to the offence of Knowingly Receiving Articles Abstracted Unlawfully, the Prosecution bear the burden of proving beyond reasonable doubt the following essential elements of the said offence, which were set out in the Authority of Veeren v The Queen [1984 SCJ 109] as follows: It is trite law that in a case of knowingly receiving stolen property, under the first leg of section 40 of the Criminal Code, the prosecution cannot merely content itself to prove a possession of property obtained by means of a larceny. The prosecution must go one step further and establish, beyond reasonable doubt, that the accused knew of the tainted origin of the article found in his possession at the time he received same. In the more recent Authority of DPP v Hinga [2014 SCJ 303], the Court set out the three essential elements which need to be established for the said offence of Knowingly Receiving Property Obtained Unlawfully to exist: 1) Tainted origin of the articles subject matter of the charge; 2) Un fait matériel de recel; and 3) L’élément intentionnel.

The Prosecution case rested essentially on A2’s confessions, on which the Court has found that it can safely rely, as highlighted above.

Tainted origin of the articles subject matter of the charge In the Authority of Hinga (supra), the Court referred to Garraud in Traité du Droit Pénal Tome 3 at Note 943:

943. Il faut constater un délit principal et préalable servant de base à la complicité. L’objet du recel consiste dans des choses dont la possession a été obtenue par la voie d’une infraction, c’est-à-dire des choses enlevées, détournées ou obtenues à l’aide d’un crime ou d’un délit”.

A2 himself explained in the said statements that A1 gave him a helmet and a laptop, that he did not enquire further into why A1 had gone over the wall instead of using the door, as he was only interested in getting some money from the sale of the said articles. This shows that A2 was at the very least negligent, in not enquiring further as to the provenance of the said articles.

In light of the above and all the circumstances of the present matter, the Court is of the considered view that it is reasonable to infer that the said articles handed over to A2 by A1 were of tainted origin, bearing in mind also the time at which the said incident took place.

Un fait matériel de recel In relation to the second essential element of the offence, the Court in the Authority of Hinga (supra) referred to Garraud (supra) at Note 944 as to the need to establish “un fait matériel de recel”: “944. Il faut un fait matériel de recel. Dans l’acception grammaticale du mot, recéler une chose c’est la cacher; mais, dans l’acception juridique de l’article 62, c’est simplement la détenir, dans une intention frauduleuse, sachant qu’elle a été détournée. L’existence de la complicité par recel ne nécessite pas une occultation, une latitation de l’objet enlevé, détourné ou obtenu à l’aide d’un crime ou d’un délit. … … Celui qui achète un de ces objets, en connaissance de cause, même au juste prix, est un recéleur, … …”.

A2’s own version was to the effect that he did not enquire as to the origin of the said articles handed over to him by A1, given he was only interested in the money he would obtain from the sale thereof.

A2 also admitted not having asked A1 how much he was looking for from the sale of the said articles.

This coupled with the fact that the said sale was sought to be done in the middle of the night, clearly establishes that A2 was in possession of the said articles with a fraudulent intent.

Further, applying the principles set out in Hinga (supra):

The following passages from Encyclopedie Dalloz de Droit Pénal Tome V, Vo Recel again make it clear that there is no need to prove possession or detention of the stolen articles in order to establish “un fait materiel de recel”: “17. Il n’est pas nécessaire que le receleur soit trouvé détenteur de la chose. … … 18. Il peut, de même, y avoir recel alors que l’on n’a plus la chose entre les mains: la loi frappant ceux qui auront recelé permet d’atteindre ceux qui ont dissipé la chose après l’avoir reçue. …. … 23. Les principes dégagés, supra, no. 18 conduiront à conclure qu’il importe peu que la chose ne soit pas retrouvée en nature chez le receleur … …”

The Court is of the considered view that in light of all the above, that it has been established that A2 was in possession of the said articles at some stage, and must, from all the circumstances of the present matter, have had, at the very least, constructive knowledge, of the tainted origin of the said articles, and hence acted “en connaissance de cause” to commit “un fait matériel de recel”.

L’élément intentionnel

In relation to the third and last essential element of the offence, the Court in the Authority of Hinga (supra) referred to Garraud (supra) at Note 945:

“945. La complicité par recel exige, en effet, que le prévenu ait agi, sciemment, c’est-à- dire ait su que la chose provenait d’un crime ou d’un délit”.

There is no direct evidence to establish that A2 had the requisite knowledge of the tainted origin of the said articles.

“L’élément intentionnel” can however be inferred from all the facts and circumstances of the case, applying the principles set out in the Authority of Hinga (supra):

The following passages from Encyclopédie Dalloz du Droit Pénal (Supra) further explain what constitutes for that purpose “un élément intentionnel”.

“36. Outre la volonté de reçevoir la chose et la connaissance de la réception, il faut, pour que le recel soit constitué, que son auteur sache que la chose provient d’un crime ou d’un délit. La constatation de la mauvaise foi est nécessaire”.

“38. Les tribunaux apprécient souverainement, au vu des éléments de preuve régulièrement soumis aux débats, l’existence de la mauvaise foi du receleur”.

“40. La mauvaise foi peut s’induire de l’ensemble des constatations de fait, appréciées souverainement par les juges du fond, par exemple de la circonstance que le prévenu a donné des indications mensongères sur la source de la chose recelée et n’a pu fournir une explication satisfaisante de son origine”.

The Court is of the considered view that it can reasonably be inferred, from all the evidence on Record, all the circumstances of the present matter, and all the factors highlighted below, that A2 had the requisite knowledge as to the tainted origin of the said articles, for the reasons given below.

Other than seeing A1 go over a wall, and A2’s own version that A1 asked him to keep watch whilst he went over the said wall, no receipts were available for the said articles, and the said transactions were being done in the middle of the night. And A2 conceded not having enquired into the provenance of the said articles, as he was only interested in the money he would obtain from the sale of the said articles. Also, the fact that A2 agreed to take A1 to a place where he could find a Buyer for the said articles, in the middle of the night, speaks volumes about the fact that A2 had the requisite intention.

Further, A2, being a mature person, did not appear in the least intimidated in Court, putting questions to the Prosecution Witnesses in a forceful and outspoken manner, and hence the Court finds that the only reason why A2 did not enquire as to the source of the said articles is precisely because A2 knew of the tainted origin of the said articles, and had the requisite intent.

All these elements taken together ought reasonably to have raised doubts in the mind of A2 at the relevant time.

The Court has noted that no incriminating articles were secured from A2’s place, and that part of the stolen articles were recovered.

A3 in relation to Count 11 The Prosecution case rested essentially on A3’s Confessions (Docs. C and C1).

A3 fully admitted the charge in his said unchallenged out-of-Court statements (Docs. C and C1), as highlighted above in relation to the relevant Count. A3 gave a very detailed account of the circumstances of the present matter in the said unchallenged out-of-Court statements.

Applying the principles set out in the Authorities of Janvier (supra) and Grande Oreille (supra), as highlighted above, in relation to A3, the Court is of the considered view that in the course of the Trial, the voluntariness of the said out-of-Court statements for A3 was not challenged by A3.

The Court is therefore of the considered view it has been established the said Confessions given by A3, were voluntarily given.

The Court is further comforted in reaching the conclusion that the said Confessions were voluntary, given the sheer details contained in the said Confessions, which could only have been to A3’s personal knowledge.

In light of all the above, the Court is of the considered view that it is safe to act on the said sole uncorroborated Confessions given by A3, and that full weight can be attached to same.

Further, the Court bears in mind a plea of Guilty is “[…] an express and conclusive admission of the offence in respect of which the plea is made, for the purposes of that trial, and dispenses with the necessity of proving the facts alleged in that count of the indictment” (Halsbury’s Laws of England, Criminal Procedure Volume 28, 05 th Edition, para. 659, Judicial admissions).

The Court has noted that some incriminating articles were secured from A3’s place.

In light of all the above, and given A3’s unambiguous Guilty Plea to the relevant Count, in light of s. 72(2) of the District and Intermediate Courts (Criminal Jurisdiction) Act, and applying the

principles set out in the Authority of DPP v Gaya [1996 SCJ 360], the Court shall find A3 Guilty as charged on the relevant Count.

Conclusion 1) Under each of Counts 1, 2, 3, 5, and 7: In light of all the evidence on Record, all the circumstances of the present matter, all the factors highlighted above, and A1’s unambiguous Guilty Plea to the said Counts, the Court is of the considered view that the Prosecution has proven its case against A1 beyond reasonable doubt, and A1 is therefore found Guilty as charged on the said Counts; 2) Under each of Counts 9 and 10: In light of all the evidence on Record, all the circumstances of the present matter, and all the factors highlighted above, the Court is of the considered view that the Prosecution has proven its case against A2 beyond reasonable doubt, and A2 is therefore found Guilty as charged on the said Counts; and 3) Under Count 11: In light of all the evidence on Record, all the circumstances of the present matter, all the factors highlighted above, and A3’s unequivocal Guilty Plea to the said Count, the Court is of the considered view that the Prosecution has proven its case against A1 and A3 as jointly charged beyond reasonable doubt, and A1 and A3 are therefore found Guilty as jointly charged on the said Count.

[Delivered by: D. Gayan, Magistrate] [Intermediate Court (Criminal Side)] [Date: 05 March 2020]