Supreme Court of Mauritius, 7 février 2020, 2020 INT 30 – POLICE v SATYAPRAKASH RAMPERSAD

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POLICE v SATYAPRAKASH RAMPERSAD

2020 INT 30

IN THE INTERMEDIATE COURT OF MAURITIUS (CRIMINAL DIVISION)

Cause Number: 160/2018

In the matter of: POLICE v SATYAPRAKASH RAMPERSAD

Judgment

1. Satyaprakash Rampersad (the accused) used to do odd jobs for one Deokaran Jeetun (the complainant), owner of a small vegetable market.

1.1. It is agreed that the accused, had, between 14 October 2016 and 01 December 2016, effected fifteen transactions from a Maestro Card (the card) issued by the Mauritius Commercial Bank Ltd (MCB) in relation to an account jointly held by the complainant and his wife, by withdrawing cash, totalling to Rs.31 500, at an Automatic Teller Machine (ATM) of the MCB at La Tour Koenig.

1.2. The complainant alleges that he was unaware that the card had been used by a third party and still less that money had been withdrawn from his bank account. It was only when he went to effect a withdrawal from the said account, as he had to attend a wedding, that he got the unpleasant surprise of finding that it was empty. The matter was reported to the police and the identity of the person making the impugned withdrawals was disclosed upon viewing the CCTV footage. When the complainant confronted the accused, the latter had threatened the former that he would drag the complainant’s son in the case should he report the matter to the police.

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1.3. The accused for his part pleads that, it was the son of the complainant, who had on all fifteen occasions, given him the card belonging to the complainant together with its pin code, with the instruction to withdraw different sums of money; on each occasion the accused had remitted the bank card and the money withdrawn to the son of the complainant; and the latter bought food for the accused as a token of appreciation for the service rendered.

2. The accused pleads not guilty to an information with 22 counts averring under Count 1, that he had stolen the card; or in the alternative for being found in unlawful possession of the stolen card without sufficient excuse or justification under Count 2 and; under Counts 3 to 22 that he has had unauthorized access to computer data.

2.1. He was not represented by counsel at the trial.

3. The prosecution has relied on the oral testimony of the police constable who had recorded three defence statements from the accused; a senior fraud investigator at the MCB; and the complainant. The prosecution has also relied on documentary evidence consisting of (a) an extract of the current account statement held jointly by the complainant and his wife showing the transactions which took place between 14 October 2016 and 01 December 2016.

4. The accused has for his part elected to remain silent as he was entitled to do.

5. As stated earlier, it is not disputed that the accused had indeed withdrawn money from the account held by the complainant and his wife by using the card issued to the latter and keying in the required pin code.

5.1. The issues to be thrashed out can be summed up as follows:

(a) Has the card been stolen and if in the affirmative whether the accused is the thief who has perpetrated the offence?

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(b) Has the burden of proving that the accused had a sufficient excuse or justification to explain possession of the card, shifted on him; and if in the affirmative, has he discharged the same?

(c) Has the accused made the said withdrawals without the authorization, express or implied, of the complainant as alleged?

A. Larceny 6. There is no direct evidence to establish beyond reasonable doubt that the card had been stolen and/or that the accused had stolen the same. The evidence relied upon by the prosecution to establish its case is substantially circumstantial in nature and is found in:

6.1. The testimony of the complainant which essentially conveys that the complainant has not actually seen the accused tamper and/or take the card at any given moment in time; but he had surmised that it must have been the accused because the complainant used to keep the card in his van and the accused was the only person travelling with him and the accused would sometimes remain in the van to listen to the radio.

6.2. The unchallenged and unrebutted admissions of the accused found in his out of court statement as set out at paragraph 1.3 above and which indicate that the accused was in possession of the card, which he knew belonged to the complainant; on fifteen occasions he had made withdrawals from an ATM using the card; and such transactions had on certain occasions been effected twice in a day and at odd hours.

7. In assessing the credibility and the weight to be attached to the testimony of the complainant, the following shortcomings have been noted in his evidence, namely:

7.1. The complainant has failed to come up with a straightforward version as to the surrounding circumstances which led him to suspect the accused. The Court observes that the version put to an accused party when

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recording his or her statement to the police is presumably the very complaint made by the declarant.

7.1.1. In the present matter, it was inter alia put to the accused that on 08 December 2016, the complainant had allegedly seen him open his van and put back the card which the complainant had stolen and the accused ran away upon seeing the complainant approaching.

7.1.2. It was also put to the accused that it was the son of the complainant who had told his father that he (the son) had seen the accused enter the complainant’s van on several occasions and take the complainant’s ATM card away.

7.1.3. It was further put to the accused that when the complainant came to know that it was the accused who had effected the unauthorized withdrawals and had reproached the accused of the same, the accused had threatened that he would implicate his son by saying that the son had given the accused the card and the pin code to withdraw money, should he report the matter to the police.

7.1.4. However, when the complainant deposed in Court, he came up with an improved version that when he noticed that his bank account was empty, he had questioned the accused; he highlighted to the accused that money was missing in his account and the accused was the only person travelling with him; the accused denied any misdeed and went away. It was thereafter that the complainant decided to go to the police and when the accused heard about such intention of the complainant he had threatened the complainant that he would implicate the complainant’s son as well.

7.2. Now true it is that the complainant discovering that his bank account was empty; his questioning the accused about the same; the reporting of the

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matter to the police; the viewing of the CCTV footage; his allegedly seeing the accused putting back the card in the van; and the son implicating the accused, are of themselves not mutually exclusive. This being said,

(a) The complainant neither gave any indication as to the date he had checked his account and discovered that it was empty nor is there any time line as to the sequence of events set out at the beginning of this paragraph.

(b) The version of the complainant in court expounded in the preceding paragraphs at 6.1 and 8.1.3 and the charge put to the accused as described at paragraphs 8.1.1 and 8.1.2 above, gives a different undertone as to the real circumstances in which and the reasons which led the accused to become the suspect as far as the complainant is concerned. Indeed, the complainant has denied in the course of his testimony that (a) his son knew anything in the said matter and (b) having ever noticed anybody taking or putting back the card in his van; and such inconsistent version of the complainant regarding the total ignorance of his son as far as the present matter is concerned and his having ever noticed anybody tampered with the card from his van, was not explained away.

8. The account in relation to which the card was issued was jointly held by the complainant and his wife; hence she presumably, also had access to the said account. No evidence was however led from either the fraud investigator and/or the complainant as to whether a separate Maestro Card was issued to the wife, for instance. Furthermore, on the own version of the complainant, his wife was also aware of the pin code. Hence, access to the account and knowledge of the pin code was not solely and exclusively to the complainant.

8.1. The Court also observes that besides the impugned withdrawals, other transactions were made on the same account during the same period and included debit card purchases and other ATM cash withdrawals. The

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evidence on record is however silent as to who had effected such transactions.

8.2. The prosecution, has, however, for reasons best known to itself, chosen not to call the wife of the complainant, who was on the list of witnesses for the prosecution. The son of the complainant was not either a witness for the prosecution. 8.3. The Court also notes that the evidence of the fraud investigator is to the effect that a maestro card was issued to a savings account held by the complainant but the extract of the bank statement produced to show the impugned ATM cash withdrawals pertain to a current account jointly held by the complainant and his wife.

9. No independent and/or admissible evidence has been placed before this Court to corroborate the accusations proffered against the accused.

10. This Court is alive to the fact that the unsworn version of the accused found in his out of court statements to the police is only evidence of what the accused may have told the police and it does not constitute evidence in his favour being a self- serving statement not subject to cross examination. This being said, such statement was put in by the prosecution; the whole part of the statement became part of the case for the prosecution; and the court is not relieved from deciding any relevant and live issue which is raised therein 1 .

10.1. The alleged motive of the accused in implicating the son of the complainant has not been substantiated. The out of court version of the son which has been confirmed by the police officer who has recorded the defence statements shows that the son of the complainant knew who had allegedly stolen the card and withdrew the money and he is the one who had reported the same to his father. Such a fact brings water to the mill of the accused and shows that the son is not as blameless as the complainant would want this Court to believe.

1 R v Maloo Dhondee [1958 MR 165] referred to in Director of Public Prosecutions v Fareedun [1993 SCJ 187]

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11. The principle governing the probative value to be attached to circumstantial evidence can be found in Lord Norman’s statement in TEPER v R [1952] AC 480 at page 489 to the effect that ‘it is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.’ Circumstantial evidence ‘works by cumulatively, in geometrical progression, eliminating other possibilities.’

11.1. In the light of all the surrounding circumstances of the present matter considered at paragraphs 8, 8.1, 8.2, and 10.1, it cannot therefore be said that there are no other co-existing circumstances which would weaken or destroy any inference which could potentially be drawn from the evidence linking the accused to the withdrawal of the money as far as the alleged fraudulent abstraction of the card is concerned.

12. Hence, when the evidence led by the prosecution is taken in its entirety including the shortcomings in the evidence of the complainant which have remained unexplained, coupled with the version of the accused found in his statements taken extra judicially, the Court finds that the cumulative effect of the same sheds doubt on the veracity of the complainant’s version, making it most unsafe for this court to rely on his sole testimony to infer that the accused had stolen the card and/or the card had indeed been stolen at a certain moment in time.

12.1. The unsworn version of the accused is not intrinsically unbelievable.

12.2. Hence, the fact that the accused has withdrawn money from an ATM using a maestro card which he knew belonged to the complainant, is of itself, insufficient to prove beyond reasonable doubt and/or to lead to the irresistible inference that he had stolen the same.

2 DPP v Kilbourne [1973] AC 729 PER Lord Simon at page 758

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12.3. The Court therefore holds that the prosecution has failed to prove beyond reasonable doubt that the accused has committed the larceny subject matter under Count 1.

12.4. The accused is given the benefit of the doubt and Count 1 of the information is accordingly dismissed.

B. Possession of Stolen Property 13. In order to prove the charge presently laid against the accused under Count 2, the prosecution must first establish that he was found in possession of the card which had been carried off by means of a larceny. It is only when such larceny and possession have been established that the burden shifts on the accused for him to give a sufficient excuse or justification for his possession.

13.1. For the reasons given earlier coupled with the conclusions reached at paragraph 12 above, notwithstanding the fact that the accused was in possession of the card, it has not been established beyond reasonable doubt that it was a stolen card.

13.2. The prosecution having failed to prove an essential element of the offence, the issue of whether the accused has satisfactorily explained his possession of the card does not arise.

13.3. The Court therefore holds that the prosecution has failed to prove its case beyond reasonable doubt under this Count as well. Count 2 is accordingly dismissed.

C. Unauthorised access to computer data 14. The offence, subject matter of Counts 3 to 22 of the information, is committed ‘on each occasion that a person causes a computer system to perform a function, knowing that the use he intends to make is unauthorised. It shall be unauthorised where there is no consent given to the user, from the person entitled to give

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consent, to make the use of the computer system in order to perform a function of the kind in question.’

15. I do not propose to deal with each count separately given that the modus operandi on all fifteen occasions were the same and there is no evidence of any intervening factor between the impugned withdrawals which would render the surrounding circumstances leading to their commission different.

16. It is not disputed that by making an ATM cash withdrawal, the accused had caused a computer system to perform a function. It is also agreed that accused knew that the card did not belong to the person who instructed him to make the transactions; and he did not have the express authorization of the complainant who is one of the persons entitled to give such authorization, to make the cash withdrawals on an ATM.

16.1. This being said, the unrebutted surrounding circumstances in which he has admitted having used the bank card to make the impugned withdrawals, do not lead to the irresistible inference that the accused knew that the use of the card as instructed by the son of the complainant was unauthorised. Furthermore, the fact that the withdrawals were not isolated ones and on occasions made twice in a day, are of themselves, insufficient to raise such inference. As stated earlier, circumstantial evidence ‘works by cumulatively, in geometrical progression, eliminating other possibilities’, and the evidence on record is such that it cannot be said with certainty that there are no co-existing circumstances which would weaken or destroy any inference which could potentially be drawn from the evidence linking the accused to the withdrawal of the money as far as his knowledge that the use of the card was unauthorised is concerned.

16.2. The prosecution having failed to prove this essential element of the offence, Counts 3 to 22 of the information are accordingly dismissed.

3 Ramsaran v The State of Mauritius [2013 SCJ 446]

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A. HAMUTH (Miss) [Delivered by: A.HAMUTH (Miss), Magistrate Intermediate Court] [Delivered on: 07 February 2020]