Supreme Court of Mauritius, 10 avril 2026, 2026 INT 86 – Police v M. K. Orange and Ors

Police v M. K. Orange and Ors

2026 INT 86

THE INTERMEDIATE COURT OF MAURITIUS (Criminal Division) Cause No.: 252/2023 In the matter of: Police v. 1. Mike Tostao ORANGE 2. Dylan MONTY 3. Leckraj LALLJEE 4. Keylan MONTY RULING Accused No. 1 stands charged with rape in breach of s. 249(1) (1A) of the Criminal Code (Count 1). Accused No. 2, 3 and 4 stands charged with aiding and abetting the author of a crime, in breach of s. 38(3) and 249(1) (1A) of the Criminal Code (Count 2). All Accused parties have pleaded not guilty, save for Accused No. 3 who has pleaded guilty to Count 2. On 06.02.26, when the case came for trial, Accused No. 3 moved to change his plea from guilty to not guilty as he contended that he had pleaded guilty “dans ene moment de stress”. Prosecution, represented by Ms. P. Tiwari, assisted by the police prosecutor, objected to the said motion and arguments were heard. Accused stood inops consilii. After having been explained his rights and the nature of the motion to be determined by the Court, Accused No. 3 opted to address the Court under oath. He stated that he pleaded guilty “dans ene moment de stress”. He was in prison at the time he pleaded guilty and now believes that he cannot plead guilty to an offence which he has not committed. He further added “Mo ti stresser. Mo ti dan remand. Mo pa ti pe reflechi kan ti lire sa are moi. Mo ti plaide coupable pou case la fini. Mo l’esprit ti ailleur.”. Under cross-examination, he stated having understood that he was being charged for aiding and abetting the author of a crime and not for rape. He thought the case would finish on the same day. He conceded being conversant with court proceedings and knew he was charged with a serious offence. When put to him that it was the first time that he was raising

this issue after having been in Court numerous times, he bluntly stated “Aster mo pe reflechi” and he wants to change plea. When put to him that he was not “stresser” at arraignment, he made reference to deplorable living conditions in prison in relation to food and what prisoners have to endure. However, he accepted that he never complained of that stress to anyone before and he had no evidence of same. Upon question from Court, he confirmed that he understood the information which was duly read over to him in creole. We have given due consideration to the evidence on record and to the submissions of learned counsel for the prosecution. In O.S.M Lalloo v The State & Anor [2011 SJ 391], it was held that “The Court, in its discretion in deciding whether to allow a change of plea to one of not guilty, should be mindful of the presumption of innocence and of an accused’s fundamental right to a fair trial. It is therefore vital for the Court to ensure that he understands the nature of the charge against him before he pleads to it. He will be allowed to alter his plea if he satisfies the court that he has made a genuine mistake of fact or law (Sookun v R [1982 MR 230]), or when his plea of guilty appears to be unclear, ambiguous and equivocal (Isidor v R [1982 MR 262]; Moonsamy Vyraven v The State [1995 MR 128]). However, a motion for a change of plea will not be favourably entertained if made out of the accused’s whims and fancy.” (emphasis ours) This discretion must be used sparingly as held in P. B. Udhin v ICAC & Anor [2015 SCJ 229], where reference was made to Blackstone’s Criminal Practice 2013, D12.96 at pages 1660-1661 – “The authorities make clear that the discretion now under consideration should be sparingly exercised in favour of the accused. Thus, in McNally [1954] 1 WLR 933, where the accused had indicated even in the magistrates’ court an intention to plead guilty, could not possibly have misunderstood the nature of a straightforward charge and had unequivocally admitted guilt when the indictment was put to him, the Court of Criminal Appeal approved the trial judge’s decision to refuse a change of plea. The same approach was more recently adopted in Revitt v DPP [2006] 1 WLR 3172.” The record shows that when Accused No.3 appeared on 22.08.23, the information was read over to him in creole and he pleaded guilty to Count 2. Accused No. 3 does not dispute this fact. On the contrary, he stated in cross-examination that he understood he was being prosecuted for aiding and abetting rape rather than the offence of rape itself. His plea to the charge is therefore clear, unambiguous and unequivocal. We have also not been satisfied from his evidence that he had made a genuine mistake of law or fact when he entered his plea

to Count 2 on 22.08.23. In addition to the contents of his evidence, we had the benefit of watching the demeanour Accused No. 3 whilst deposing and we have not been impressed by and do not believe his contentions that he pleaded guilty due to “stress”. Finally, it is noteworthy that Accused No. 3 appeared before Court for no less than sixteen times (on 28.08.23, 18.09.23, 09.10.23, 31.07.24, 27.08.24, 03.09.24, 16.09.24, 13.11.24, 21.01.25, 04.03.25, 07.04.25, 17.04.25, 07.05.25, 13.06.25, 13.08.25 and 17.12.25) and despite ample opportunity to do so, he never raised the slightest issue concerning his plea at any of these sittings. On the sitting of 21.01.25, he even stated that he was maintaining his guilty plea under Count 2. No justification was offered to the Court for his belated motion. For all the reasons above, we decline to exercise our discretion to allow Accused No 3 to change his plea under Count 2.

K. Poollay Mootien Magistrate

P. Balluck Magistrate

10th April 2026