Supreme Court of Mauritius, 8 avril 2026, 2026 INT 82 – Police v Ricardo Perrine & Anor

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Police v Ricardo Perrine & Anor

2026 INT 82

The Intermediate Court of Mauritius (Criminal Division)

In the matter of: CN 428/2023

Police

V

1. Ricardo PERRINE 2. Dietmar Kinsley FRANCOIS

Ruling

1. Both Accused are charged with the offence of ‘wounds and blows causing death without intention to kill’ in breach of section 228(1)(3) of the Criminal Code. They have both pleaded not guilty. Accused No 1 is represented by learned defence counsel Mr Bansoodeb and Accused No 2 appears inops consilii. The prosecution was initially represented by Miss Bhagwan, Senior State Counsel and thereafter by Mr Bissessur, Senior State Counsel.

2. On 16 th July 2025, PC 6909 Potou (W4) was absent. Following a statement from the IC that W4 cannot attend court as he is bedridden, learned counsel for the prosecution, Miss Bhagwan, stated that W4 is the draughtsman and should he not be able to attend court, she will move that the plans be produced in his absence. Learned defence counsel for Accused No 1 prayed for some time to take a stand. On 12 th November 2025, W4 was again absent and the prosecution called the IC who stated that the said witness is physically handicapped and cannot move. In the light of such statement, Miss Bhagwan moved that the plans be produced by the police

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prosecutor. This was objected to by learned defence counsel for Accused No 1. Hence, the case was fixed for argument.

3. On 4 th March 2026, Mr Bissessur, learned counsel for the prosecution, submitted that W4 has drawn up 2 plans in respect of this case. The first one was made under the instructions of Inspector Ruttana (W12) and the second one under the instructions of ASP Kallee. Relying on the evidence of the IC on the last occasion, W4 is physically handicapped and cannot attend court. Hence, in his absence, he is moving to have two out-of-court statements of W4, dated 10 th April 2008 and 31 st July 2008 respectively, as well as 2 plans drawn up by him to be produced by virtue of section 188C of the Courts Act which deals with the admissibility of out-of- court statements in criminal proceedings where maker is unavailable. This section of the law has been recently added and it came into operation on 25 th July 2024. It is the submission of the prosecution that no prejudice will be caused to the defence inasmuch as W12 and ASP Kallee are still available to give evidence. The defence will have an opportunity to cross- examine them. Since these documents are admissible by virtue of s188C of the Courts Act, it will then be left to the appreciation of the Court to determine the weight to be attached to such evidence. He therefore invited the Court the rule admissible both out-of-court statements of W4 as well as both plans drawn up by him.

4. On the other hand, learned defence counsel for Accused No 1 submitted that s188C of the Courts Act was initially created in relation to offences under the Piracy and Maritime Violence Act and it was later amended to apply to financial cases. It was further amended in 2024 to extend its scope to all types of criminal cases. It is the contention of learned defence counsel that s188C cannot apply since the present offence was committed before the amendment to s188C to extend its application. It is his submission that the amendment cannot have a retroactive effect and hence it cannot apply to the present case.

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5. Learned counsel for Accused No 1 went on to say that should the Court not agree with the above submissions, he invited the Court to look at the root of s188C and it was inspired from section 116 of the Criminal Justice Act (‘CJA’) of the United Kingdom. Section 116 CJA is similar to s188C of the Courts Act. When looking at s116 CJA, learned counsel’s contention is that the legislator in the UK never intended that it would apply to documents. The intention was restricted to only ‘out-of-court statement’ and this is why the legislator created s117 CJA which deals specifically with the admissibility of ‘business and other documents.’ He went on to say that since in the present matter we are not only dealing with 2 out-of-court statements of W4 but also both plans drawn up by him, and given the fact that the applicability of s188C is limited to out-of-court statements as opposed to documents such as plans, then the plans cannot be ruled to be admissible by virtue of that section. Furthermore, Mr Bansoodeb added that we are here dealing with a multiple hearsay situation in view of the fact that there are several documents. This is a situation not catered for by s188C of the Courts Act. Lastly, learned defence counsel submitted that as part of the conditions to be satisfied by the prosecution under s188C of the Courts Act, there is no evidence to show who is the maker and whether the said documents are accurate. With regards to the argument of the prosecution that W12 and ASP Kallee will testify, learned defence counsel stated that they can only give evidence as to their presence on the material day and as to what they saw. But they will not be able to produce both plans and the out-of-court statements of W4.

6. In reply, learned counsel for the prosecution stated that the person who made the plans is clearly identifiable to the satisfaction of the Court and there is no doubt that W4 drew up both plans. In addition to W4, the instructing officers, namely W12 and ASP Kallee, have both put up their own statements and this deals with the issue of multiple hearsay. Lastly, it was submitted that the amendment to s188C of the Courts Act

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pertains to a procedural matter and the concept of retroactivity does not apply.

7. The Court has duly taken into consideration the submissions of learned counsels for both the prosecution and for Accused No 1. At the outset, the Court notes that initially it was the motion of Miss Bhagwan that only the plans drawn up by W4 be produced in his absence whereas, in his submissions, Mr Bissessur also included both out-of-court statements of W4 to be produced in his absence and to which learned defence counsel objected to. The Court shall therefore determine whether both out-of- courts statements and both plans made by W4 can be ruled admissible by virtue of s188C of the Courts Act.

8. Section 188C of the Courts Act is reproduced below:

‘188C. Admissibility of out of Court statement in criminal proceedings where maker is unavailable

(1) In any criminal proceedings, a statement made out of Court shall be admissible as evidence, with leave of the Court, of any matter stated when – (a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter; (b) the person who made the statement is identified to the Court’s satisfaction; and (c) one of the 5 conditions specified in subsection (2) is satisfied.

(2) The conditions referred to in subsection (1)(c) are that the person who made the statement – (a) is dead; (b) is unfit to be a witness because of his bodily or mental condition;

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(c) is outside Mauritius and it is not reasonably practicable to secure his attendance; (d) cannot be found although such steps as is reasonably practicable to take to find him have been undertaken; (e) or through fear, does not give or does not continue to give oral evidence in the proceedings, either at all or in connection with the subject matter of the statement.

(3) Where a statement is admitted in evidence under subsection (1) any evidence which, if that person had been called as a witness, could have been admissible for the purpose of impeaching or supporting his credibility, shall be admissible for that purpose. (4) In assessing the weight, if any, to be attached to a statement admitted in evidence under subsection (1), the Court shall have regard to all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise.

9. Section 188C of the Courts Act comes as an exception to the hearsay rule. As rightly pointed out by both learned counsels, such exception was initially provided for criminal proceedings under the Piracy and Maritime Violence Act and for financial crimes offences. In 2024, the legislator extended its application to all criminal cases. However, this is no absolute authority given to the prosecution to produce an out-of-court statement emanating from a witness who cannot attend court. For an out- of-court statement to be ruled admissible by the Court where the maker is unavailable, there are a number of conditions to be satisfied by the prosecution beyond reasonable doubt and these are as follows:

(a) Oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter;

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(b) The person who made the statement is identified to the Court’s satisfaction; and (c) One of the 5 conditions specified in subsection (2) is satisfied.

10. With regards to the present matter, the prosecution is relying on the fact that W4 is unfit to be a witness because of his bodily condition as per s188(2)(b) of the Courts Act.

11. With regards to the first 2 conditions, learned counsel for the prosecution did inform the Court on several occasions that W4 is the draughtsman who drew up both plans, as later confirmed by Mr Bissessur in submissions. This is to the Court’s satisfaction that the person who made the statement is identified and it is W4 in the present matter who drew up both plans. Had W4 been present in court, his oral evidence would have been admissible as evidence of that matter. So, the first 2 conditions are satisfied.

12. The third and last condition to be satisfied by the prosecution beyond reasonable doubt is that W4 is unfit to be a witness because of his bodily condition. The only evidence that has been ushered before this Court by the prosecution on this issue is the evidence given by both IC for witness No 4. On 16 th July 2025, the IC for W4, PC 11331 Jumun stated that he personally warned W4 but the latter is paralysed and bedridden. As such he cannot walk. He added that W4 had a medical certificate with him signed by Dr Monvoisin and he was requested to do needful to file same before the Court. Then on 12 th November 2025, another IC, PC 1790 Ramdewarsingh stated that W4 is physically handicapped and cannot move. Even though both PC 11331 Jumun and PC 1790 Ramdewarsingh are police officers who have given evidence under oath as to their personal assessment of the physical state of W4, the Court is of the view that they are not medical experts and the Court is not in presence of any medical

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report certifying as to the bodily condition of W4. It is crucial to state that the burden of proof for establishing that a witness is unavailable for one of the reasons listed in s188C(2) of the Courts Act lies on the party seeking to adduce their hearsay evidence. The standard of proof is beyond reasonable doubt for the prosecution and on the balance of probabilities for the defence. In the absence of any medical evidence certifying as to the bodily condition of W4, the Court finds that the evidence adduced by the prosecution on this issue falls short of reaching that burden and hence it fails to satisfy one of the above 3 conditions under s188C of the Courts Act.

13. For the sake of completeness, I wish to deal with a few issues raised by learned defence counsel during his submissions. The first one is in relation to the fact that s188C of the Courts Act cannot have a retrospective effect since it was brought into existence after the commission of the present case. Ex-facie the information, it is averred that the offence occurred on 28 th January 2008 and the creation of s188C was made in 2024 following amendments brought to the Courts Act.

14. By virtue of section 10(4) of our Constitution it is clear that retrospective criminal or penal legislation is forbidden and there is a presumption against the retrospective effect of such legislation. However, a distinction has to be made between legislation amending the substantive criminal or penal law as opposed to the alteration of evidential or procedural law.

15. In Muktar Ali v R [1988 SCJ 188], the Appellate Court concluded that the learned trial Judge was right in holding ‘that the Criminal Procedure (Amendment) Act 1986 being a procedural law, [it] could have retrospective effect, in that it enabled the Director of Public Prosecutions as from the 25th September 1987 to file before a Judge an information

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regarding any offence referred to in the Schedule to that Act, even if it had been committed before that date.’ (underlining is mine).

16. In Bennion, Bailey and Norbury on Statutory Interpretation, 8 th

Edition, December 2020:

“Section 7.15: Retrospectivity: procedural provisions [7.15] There is a general presumption that changes to procedure apply to pending as well as future proceedings. Comment: There is a line of authority to the effect that, in the absence of contrary intention, procedural changes apply to pending as well as future proceedings. Evidence: Enactments relating to evidence are equated to procedural enactments.

17. In the light of the above, it is undisputed that amendments made to a legislation pertaining to procedural and evidential issues will apply from the date of its commencement to pending as well as to future proceedings. Hence the contention of learned defence counsel on this issue cannot stand and the amendment brought to s188C of the Courts Act, being procedural in nature, does have retrospective effect.

18. The second issue raised by learned defence counsel is that s188C of the Courts Act has been inspired from s116 of the CJA of the UK. His contention is that in the UK s116 CJA has been enacted to deal specifically with the admissibility of ‘out-of-court statements’ whilst s117 CJA deals with the admissibility of ‘documents.’ As such, he is of the contention that the applicability of s188C of the Courts Act is limited to out-of-court statements and not to document. Learned defence counsel’s contention is that both plans intended to be produced by the prosecution qualify as a ‘document’ as opposed to an ‘out-of-court’ statement.’ According to him, since in our law there is no similar provision to s117 CJA catering for the

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admissibility of a ‘document’, s188C of the Courts Act would not be applicable to the admissibility of the plans and hence the prosecution is not entitled to rely on it.

19. A close perusal of both s188C of the Courts Act and s116 CJA indeed show that similar wordings have been used in both sections with regards to the conditions to be satisfied to render admissible a statement made out of court or not made in oral evidence where the person is unavailable for reasons stated. A close reading of s117 CJA, and more specifically subsection (2), clearly show that they pertain to documents obtained in the course of trade, business, profession or other occupation or as a holder of paid or unpaid office. With regards to ‘other documents’ as mentioned in s117 CJA, guidance can be sought from the Crown Prosecution Service which explains that documents admissible under s117 CJA will be wide ranging and include company correspondence, hospital records, a transcript of evidence at a re-trial and a note made by an operator working for a paging company that messages have been left for a customer. Reference was made to the case of Rock [1994] Crim LR 843 which was decided under the previous statutory provisions admitting hearsay from business documents. Learned defence counsel produced before this Court an extract of the CJA which included only ss 116 and 117. However, ‘statement’ as referred to in s116 CJA has been defined in s115(2) CJA as ‘any representation of fact or opinion made by a person by whatever means’ and as per guidelines from the Crown Prosecution Service, it includes a representation made in a sketch, photo fit or other pictorial form. Hence, a plan can fall within the definition of ‘statement’. Given the fact that the s188C of the Courts Act is similar to s116 CJA, the Court is therefore of the view that an ‘out-of-court statement’ as referred to under s188C can include a plan.

20. Lastly, it is the contention of learned defence counsel for Accused No 1 that the present situation is one dealing with multiple hearsay, which is clearly

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not catered for by s188C of the Courts Act, in view of the fact that there are several documents involved, that is, 2 out-of-court statements and 2 plans. The Court has no hesitation in concluding that s188C of the Courts Act does not apply to double or multiple hearsay. Now, multiple hearsay refers to a situation where information is relayed through more than one person before it is recorded, that is where the evidence for the hearsay evidence is itself hearsay. In the present matter, the sole fact that there are several documents involved does not mean that this amounts to multiple hearsay.

21. In conclusion, for reasons set out above, more specifically at paragraph 12, the prosecution has failed to satisfy one of the elements of s188C of the Courts Act beyond reasonable doubt. Hence, the Court rules that both plans and both out-of-court statements made by W4 are not admissible as evidence under section 188C(2)(b) of the Courts Act.

Z.B.Essop (Ms) Magistrate Intermediate Court (Criminal Division) This 8 th April 2026