{"id":1059373,"date":"2026-06-07T16:29:16","date_gmt":"2026-06-07T14:29:16","guid":{"rendered":"https:\/\/kohenavocats.com\/jurisprudences\/supreme-court-of-mauritius-5-mars-2020-2020-int-58-p-v-mohamed-hossen-others\/"},"modified":"2026-06-07T16:29:16","modified_gmt":"2026-06-07T14:29:16","slug":"supreme-court-of-mauritius-5-mars-2020-2020-int-58-p-v-mohamed-hossen-others","status":"publish","type":"kji_decision","link":"https:\/\/kohenavocats.com\/en\/jurisprudences\/supreme-court-of-mauritius-5-mars-2020-2020-int-58-p-v-mohamed-hossen-others\/","title":{"rendered":"Supreme Court of Mauritius, 5 mars 2020, 2020 INT 58 – P v Mohamed Hossen & Others"},"content":{"rendered":"
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P v Mohamed Hossen & Others<\/p>\n

2020 INT 58<\/p>\n

CN736\/19 THE INTERMEDIATE COURT OF MAURITIUS (Criminal Side)<\/p>\n

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:<\/p>\n

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;<\/p>\n

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.<\/p>\n

Counts 4, 6, 8, and 12 were dismissed as alternative Counts.<\/p>\n

A1 pleaded Guilty to Counts 1, 2, 3, 5, 7, and 11, and was not assisted by Learned Defence Counsel.<\/p>\n

A2 pleaded Not Guilty to Counts 9 and 10, and was not assisted by Learned Defence Counsel.<\/p>\n

A3 pleaded Guilty to Count 11 and was not assisted by Learned Defence Counsel.<\/p>\n

The Prosecutor conducted the case for the Prosecution.<\/p>\n

The Proceedings were held in Creole.<\/p>\n

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.<\/p>\n

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:<\/p>\n

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.<\/p>\n

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).<\/p>\n

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.<\/p>\n

In Court, A1 elected to exercise his Right to Silence.<\/p>\n

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\u2019s testimony remained unchallenged throughout the Proceedings.<\/p>\n

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.<\/p>\n

In Court, A2 elected to depone under Oath.<\/p>\n

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.<\/p>\n

Analysis<\/p>\n

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.<\/p>\n

A1 in relation to each of Counts 1, 2, 3, 5, 7, and 11 The Prosecution case rested essentially on A1\u2019s 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.<\/p>\n

The Court finds the following extract from the Authority of Janvier v The State [2010 SCJ 129] of relevance:<\/p>\n

The learned magistrates further aptly found support from the proposition in DPP v A[u]mont JP [1980 SCJ 338] to the effect that \u201ca 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.\u201d<\/p>\n

In this respect, we also read in R v Mallinson [1977] Crim. LR 161 that \u201cit 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.\u201d<\/p>\n

The Court in the Authority of Grande Oreille v The State [2017 SCJ 151] stated the following:<\/p>\n

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 \u201calmost 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.\u201d [\u2026]<\/p>\n

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 \u2013 \u201cAny 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. [\u2026] \u201cjudges 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\u201d. 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.\u201d<\/p>\n

In the course of the Trial, the voluntariness of the said out-of-Court statements for A1 was not challenged by A1.<\/p>\n

The Court is therefore of the considered view it has been established the said Confessions given by A1, were voluntarily given.<\/p>\n

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\u2019s personal knowledge.<\/p>\n

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.<\/p>\n

Further, the Court bears in mind a plea of Guilty is \u201c[\u2026] 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\u201d (Halsbury\u2019s Laws of England, Criminal Procedure Volume 28, 05 th Edition, para. 659, Judicial admissions).<\/p>\n

The Court has noted that no incriminating articles were secured from A1\u2019s place.<\/p>\n

In light of all the above, and given A1\u2019s 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.<\/p>\n

A2 in relation to Counts 9 and 10 The Prosecution case rested essentially on A2\u2019s Confessions, in which A2 fully admitted all the charges.<\/p>\n

The Court has given due consideration to A2\u2019s 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.<\/p>\n

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.<\/p>\n

Further, the sheer details contained in the said statements could only have been to A2\u2019s knowledge. And A2 gave more details as to the circumstances of the present matter in each and every subsequent statement.<\/p>\n

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 \u201cdirect and positive and had been satisfactorily proved was the best evidence that could be produced by the prosecution.\u201d<\/p>\n

(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.<\/p>\n

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:<\/p>\n

\u201cit 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.\u201d<\/p>\n

Count 9 The following passage from Garraud Vol III page 97 is found to be of relevance:<\/p>\n

\u00ab \u2026L'auteur est celui qui commet les actes mat\u00e9riels constitutifs du crime ou du d\u00e9lit ou ceux qui sont n\u00e9cessaires \u00e0 cette ex\u00e9cution: par exemple dans le vol, l'auteur est l'individu qui s'empare des valeurs ou qui aide \u00e0 l\u2019effraction 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\u2019\u00e9trangle. Le complice est celui qui accomplit des actes qui sans faire partie de l'ex\u00e9cution du d\u00e9lit ou \u00eatre n\u00e9cessaires \u00e0 cette ex\u00e9cution, 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 \u00e9chelle\u2026. Les actes d'aide ou d'assistance dans la consommation d'un d\u00e9lit ne sont pas les actes du d\u00e9lit. \u00bb<\/p>\n

The following extracts from Archbold Digital Edition 2015 are also found of relevance:<\/p>\n

18-9 [\u2026]<\/p>\n

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<\/p>\n

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). [\u2026] 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\u2019s act as done with the defendant\u2019s encouragement or assistance; but this is a matter for the jury.<\/p>\n

18-10<\/p>\n

In Ferguson v. Weaving [1951] 1 K.B. 814, DC, it was said that the words \u201caid and abet\u201d 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, \u00a7 18-14), and Thambiah v. R. [1966] A.C. 37, PC (ante, \u00a7 17-72), the words \u201caiding and abetting\u201d 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 \u201ccounselling, procuring and commanding\u201d 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 \u201caiding and abetting\u201d would seem more appropriate to describe such activity. For the reasons given at \u00a7 18-9, ante, it is submitted that the latter is the better view.<\/p>\n

A2, in his out-of-Court statements, confirmed that he was present at the time A1 went over the wall and went into W9\u2019s House.<\/p>\n

A2 was therefore present on the said locus at the said time, and waited for A1 to come back.<\/p>\n

As to the issue of to mens rea, Archbold (supra) reads as follows:<\/p>\n

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 \u201creal possibility\u201d 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 \u201creal possibility\u201d, \u201creal or substantial risk\u201d and \u201creal and serious risk\u201d 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\u2019s 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.<\/p>\n

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.<\/p>\n

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\u2019s mind, and in fact did raise doubts in A2\u2019s mind, given A2\u2019s 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.<\/p>\n

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.<\/p>\n

The Court has noted that no incriminating articles were secured from A2\u2019s place, and that part of the stolen articles were recovered.<\/p>\n

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<\/p>\n

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.<\/p>\n

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 mat\u00e9riel de recel; and 3) L\u2019\u00e9l\u00e9ment intentionnel.<\/p>\n

The Prosecution case rested essentially on A2\u2019s confessions, on which the Court has found that it can safely rely, as highlighted above.<\/p>\n

Tainted origin of the articles subject matter of the charge In the Authority of Hinga (supra), the Court referred to Garraud in Trait\u00e9 du Droit P\u00e9nal Tome 3 at Note 943:<\/p>\n

943. Il faut constater un d\u00e9lit principal et pr\u00e9alable servant de base \u00e0 la complicit\u00e9. L\u2019objet du recel consiste dans des choses dont la possession a \u00e9t\u00e9 obtenue par la voie d\u2019une infraction, c\u2019est-\u00e0-dire des choses enlev\u00e9es, d\u00e9tourn\u00e9es ou obtenues \u00e0 l\u2019aide d\u2019un crime ou d\u2019un d\u00e9lit\u201d.<\/p>\n

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.<\/p>\n

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.<\/p>\n

Un fait mat\u00e9riel 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 \u201cun fait mat\u00e9riel de recel\u201d: \u201c944. Il faut un fait mat\u00e9riel de recel. Dans l\u2019acception grammaticale du mot, rec\u00e9ler une chose c\u2019est la cacher; mais, dans l\u2019acception juridique de l\u2019article 62, c\u2019est simplement la d\u00e9tenir, dans une intention frauduleuse, sachant qu\u2019elle a \u00e9t\u00e9 d\u00e9tourn\u00e9e. L\u2019existence de la complicit\u00e9 par recel ne n\u00e9cessite pas une occultation, une latitation de l\u2019objet enlev\u00e9, d\u00e9tourn\u00e9 ou obtenu \u00e0 l\u2019aide d\u2019un crime ou d\u2019un d\u00e9lit. \u2026 \u2026 Celui qui ach\u00e8te un de ces objets, en connaissance de cause, m\u00eame au juste prix, est un rec\u00e9leur, \u2026 \u2026\u201d.<\/p>\n

A2\u2019s 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.<\/p>\n

A2 also admitted not having asked A1 how much he was looking for from the sale of the said articles.<\/p>\n

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.<\/p>\n

Further, applying the principles set out in Hinga (supra):<\/p>\n

The following passages from Encyclopedie Dalloz de Droit P\u00e9nal 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 \u201cun fait materiel de recel\u201d: \u201c17. Il n\u2019est pas n\u00e9cessaire que le receleur soit trouv\u00e9 d\u00e9tenteur de la chose. \u2026 \u2026 18. Il peut, de m\u00eame, y avoir recel alors que l\u2019on n\u2019a plus la chose entre les mains: la loi frappant ceux qui auront recel\u00e9 permet d\u2019atteindre ceux qui ont dissip\u00e9 la chose apr\u00e8s l\u2019avoir re\u00e7ue. \u2026. \u2026 23. Les principes d\u00e9gag\u00e9s, supra, no. 18 conduiront \u00e0 conclure qu\u2019il importe peu que la chose ne soit pas retrouv\u00e9e en nature chez le receleur \u2026 \u2026\u201d<\/p>\n

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 \u201cen connaissance de cause\u201d to commit \u201cun fait mat\u00e9riel de recel\u201d.<\/p>\n

L\u2019\u00e9l\u00e9ment intentionnel<\/p>\n

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:<\/p>\n

\u201c945. La complicit\u00e9 par recel exige, en effet, que le pr\u00e9venu ait agi, sciemment, c\u2019est-\u00e0- dire ait su que la chose provenait d\u2019un crime ou d\u2019un d\u00e9lit\u201d.<\/p>\n

There is no direct evidence to establish that A2 had the requisite knowledge of the tainted origin of the said articles.<\/p>\n

\u201cL\u2019\u00e9l\u00e9ment intentionnel\u201d can however be inferred from all the facts and circumstances of the case, applying the principles set out in the Authority of Hinga (supra):<\/p>\n

The following passages from Encyclop\u00e9die Dalloz du Droit P\u00e9nal (Supra) further explain what constitutes for that purpose \u201cun \u00e9l\u00e9ment intentionnel\u201d.<\/p>\n

\u201c36. Outre la volont\u00e9 de re\u00e7evoir la chose et la connaissance de la r\u00e9ception, il faut, pour que le recel soit constitu\u00e9, que son auteur sache que la chose provient d\u2019un crime ou d\u2019un d\u00e9lit. La constatation de la mauvaise foi est n\u00e9cessaire\u201d.<\/p>\n

\u201c38. Les tribunaux appr\u00e9cient souverainement, au vu des \u00e9l\u00e9ments de preuve r\u00e9guli\u00e8rement soumis aux d\u00e9bats, l\u2019existence de la mauvaise foi du receleur\u201d.<\/p>\n

\u201c40. La mauvaise foi peut s\u2019induire de l\u2019ensemble des constatations de fait, appr\u00e9ci\u00e9es souverainement par les juges du fond, par exemple de la circonstance que le pr\u00e9venu a donn\u00e9 des indications mensong\u00e8res sur la source de la chose recel\u00e9e et n\u2019a pu fournir une explication satisfaisante de son origine\u201d.<\/p>\n

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.<\/p>\n

Other than seeing A1 go over a wall, and A2\u2019s 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.<\/p>\n

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.<\/p>\n

All these elements taken together ought reasonably to have raised doubts in the mind of A2 at the relevant time.<\/p>\n

The Court has noted that no incriminating articles were secured from A2\u2019s place, and that part of the stolen articles were recovered.<\/p>\n

A3 in relation to Count 11 The Prosecution case rested essentially on A3\u2019s Confessions (Docs. C and C1).<\/p>\n

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.<\/p>\n

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.<\/p>\n

The Court is therefore of the considered view it has been established the said Confessions given by A3, were voluntarily given.<\/p>\n

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\u2019s personal knowledge.<\/p>\n

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.<\/p>\n

Further, the Court bears in mind a plea of Guilty is \u201c[\u2026] 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\u201d (Halsbury\u2019s Laws of England, Criminal Procedure Volume 28, 05 th Edition, para. 659, Judicial admissions).<\/p>\n

The Court has noted that some incriminating articles were secured from A3\u2019s place.<\/p>\n

In light of all the above, and given A3\u2019s 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<\/p>\n

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.<\/p>\n

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\u2019s 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\u2019s 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.<\/p>\n

[Delivered by: D. Gayan, Magistrate] [Intermediate Court (Criminal Side)] [Date: 05 March 2020]<\/p>\n<\/div>\n

\n

Sources officielles :<\/strong> consulter la page source<\/a> · PDF officiel<\/a><\/p>\n

Supreme Court of Mauritius – public domain<\/em><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

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…<\/p>\n","protected":false},"featured_media":0,"template":"","meta":[],"kji_country":[92666],"kji_court":[92667],"kji_chamber":[127485],"kji_year":[41198],"kji_subject":[7646],"kji_keyword":[94465,9014,20741],"kji_language":[7611],"class_list":["post-1059373","kji_decision","type-kji_decision","status-publish","hentry","kji_country-maurice","kji_court-supreme-court-of-mauritius","kji_chamber-ms-d-d-gayan-magistrate-intermediate-court","kji_year-41198","kji_subject-divers","kji_keyword-hossen","kji_keyword-mohamed","kji_keyword-others","kji_language-anglais"],"yoast_head":"\nSupreme Court of Mauritius, 5 mars 2020, 2020 INT 58 - P v Mohamed Hossen & Others - Ma\u00eetre Hassan Kohen, avocat en droit p\u00e9nal \u00e0 Paris<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/kohenavocats.com\/en\/jurisprudences\/supreme-court-of-mauritius-5-mars-2020-2020-int-58-p-v-mohamed-hossen-others\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Supreme Court of Mauritius, 5 mars 2020, 2020 INT 58 - P v Mohamed Hossen & Others\" \/>\n<meta property=\"og:description\" content=\"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. 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