Supreme Court of Mauritius, 11 juin 2020, 2020 INT 67 – POLICE VS D’EAU JACQUES DESIRE HARDLEY

POLICE VS D'EAU JACQUES DESIRE HARDLEY

2020 INT 67

POLICE VS D’EAU JACQUES DESIRE HARDLEY Cause Number: 935/17 THE INTERMEDIATE COURT OF MAURITIUS (Criminal Division) In the matter of:- POLICE VS D’EAU JACQUES DESIRE HARDLEY JUDGMENT INTRODUCTION The Accused stands charged under Counts 1, 3 and 5 with the offence of larceny made by more than 2 individuals in breach of sections 301(1) and 305(1)(b) of the Criminal Code. The alternative Counts 2, 4 and 6 have been dismissed. The particulars of the charge against the Accused are that in the month of September 2012, on 3 occasions, whilst in company of other persons, and whilst being more than 2 individuals, he willfully and fraudulently abstracted several pieces of cables belonging to La Tour Koenig CEB Sub station.

THE FACTS The Accused’s version in relation to the present charge against him was duly recorded by the police. In his statement, the Accused averred that in the month of September 2012, on many occasions, he went with 3 friends to commit a larceny of cables from La Tour Koenig CEB sub station, before selling same. He explained that they used a piece of wood to accede the wall of the CEB station to enter the premises. There reaching, they went through a tunnel to enter a building where they found cables which they cut and threw over the wall onto a sugarcane track. The Accused and his friends then came back the same way and burnt the stolen cables to remove the copper wires. Subsequently, they

collected the cables in a raffia bag. They then called a lorry driver who came to weigh the cables before buying same and embarking the cables in the lorry.

OBSERVATIONS The Accused is charged under 3 Counts with the offence of larceny made by more than 2 individuals. It is clear from the evidence on record that the Accused made a confession in relation to the charges against him in his statement given to the police.

The confession of the Accused In the case of GENEVIÈVE ALAIN STEEVE V THE STATE (2001) SCJ 159 the Court referred to the case of R V. BALDRY, CROWN CASES RESERVED: 1852, 169 E.R. 568, as follows: “In R v. Baldry, Crown Cases Reserved: 1852, 169 E.R. 568, Pollock C.B. explained in very clear terms the rationale of the rule which excludes a confession induced by threat or promise made by a person in authority. We believe there is a need to remind enquiring officers what that rationale is by quoting a passage from his judgment: "The ground for not receiving such evidence is that it would not be safe to receive a statement made under any influence or fear. There is no presumption of law that it is false or that the law considers such statement cannot be relied upon; but such confessions are rejected because it is supposed that it would be dangerous to leave such evidence to the jury." Therefore a statement is only admissible in Court if that statement is given voluntarily by an Accused party. In the case of THE QUEEN v M. BOYJOO AND R.D. BOYJOO (1991) SCJ 379, the Court referred to paragraph 3(e) of the Introductory notes to the Judges’ Rules which explicitly lays down the principle of a voluntariness of a confession, namely that: “It is a fundamental condition of the admissibility in evidence against any person equally of any oral answer given by that person to a question put by a police officer and of any statement made by that person, that it shall have been voluntary, in the

sense that it has not been obtained from him by fear or prejudice or hope of advantage, exercised or held out by a person in authority or by oppression.”

In the present case, the defence did not contest the statement given by the Accused and hence there is no evidence that the statement was not given voluntarily. In fact, I read from the statement of the Accused that he explained the commission of the offences in detail and even showed all necessary spots to the police, which enhances the notion that he did commit the present offences. There is no suggestion of violence, oppression or force having been exerted on the Accused. In light of the confession of the Accused, I find that the Prosecution has established its case against the Accused. I deem it fit to refer to the case of DPP VS J.P.AUMONT (1989) SCJ 338 wherein the Court laid down as follows: “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 against the accused”.

The offence of larceny made by more than two individuals According to the Accused’s own version, he was in company of 3 friends at the time of the commission of the offences of larceny. The main enquiring officer in this case, PC Pooleecootee, confirmed in Court that the Accused’s confederates have already been sentenced in relation to the present offences. I am therefore satisfied that the offence was committed when there were more than 2 individuals. In order to prove its case against the Accused, the Prosecution must establish the establish the elements of larceny (RE: TEELUCK VS R (1986) SCJ 141) . They are as follows: (1) an abstraction; (2) the circumstances that the thing abstracted does not belong to the author of the abstraction; (3) fraudulent intent;

An abstraction

The notion of abstraction is equivalent to a “soustraction” in French Law and is explained in note 48 of Garçon's Code Pénal Annoté and as follows: 48. La notion de la soustraction est tout entière dans ces principes, et le professeur Garçon pouvait maintenant la définier avec une précision et une rigueur juridiques. C'est la prise de possession à l'insu et contre le gré du propriétaire ou précédent possesseur; c'est l'usurpation, invito domino, de la véritable possession dans ses deux éléments simultanés et concomitants du corpus et de l'animus. Toutes les difficultés reviennent à determiner dans quels cas cette usurpation est réalisée, et nous sommes ainsi amenés à une distinction fondamentale entre le cas où le possesseur s'est mis lui-même en possession et celui où il a reçu la chose par tradition”. It has further been laid down in Garraud, Droit Pénal Français, 3rd edition, volume 6, paragraph 2373 at page 105, as follows- “Une soustraction c'est donc, tout à la fois, une appréhension et un enlèvement. Aussi la Cour de cassation décide "qu'il ne peut y avoir lieu à l'application des lois pénales sur le vol, qu'autant que la chose enlevée à autrui a été soustraite, c'est-à- dire appréhendée contre le gré du propriétaire"; que "le vol consiste à soustraire frauduleusement la chose d'autrui; d'où il suit qu'il n'y a vol, dans le sens de la loi, que lorsque la chose, objet du délit, passe de la possession du légitime détenteur dans celle de l'auteur de délit à l’insu et contre le gré du premier; pour soustraire, il faut prendre, enlever, ravi?”. In the present case, the Accused conceded that he abstracted the cables in company of his friends to the prejudice of La Tour Koenig CEB station. By climbing over a wall to unlawfully enter the premises of the CEB station without the knowledge of the owner, it is clear that the Accused’s action was executed without the authorization and consent of the owner. Through the abstraction, he removed the cables from the ownership and physical possession of the CEB station to cause same to be in his possession. Therefore, the Accused caused an abstraction of the cables.

The thing does not belong to the author of the abstraction The subject matter of the larcenies, being the cables, did not belong to the Accused. In fact, they belonged to La Tour Koenig CEB sub station.

Fraudulent intent For the offence of larceny to be completed, it is incumbent on the Prosecution to establish that the Accused had the mens rea to commit the larceny. The Prosecution must prove a fraudulent intent on the part of the Accused. I deem it fit to refer to note 358 of article 379 of Garcon Code Penal Annote, as follows: “358. En principe général, l'intention est juridiquement réalisée lorsque l'agent commet, avec connaissance, le fait défendu par la loi dans les conditions où elle le défend. Particulièrement, en matière de vol, elle consistera à usurper la possession de la chose d'autrui, animo domini, sachant qu'elle appartient à autrui. Il faut d'abord que l'agent ait su: 1o. qu'il enlevait une chose; 2o. qu'il 1'enlevait contre le gré du propriétaire; 3o. que la chose enlevée ne lui appartenait pas. Mais cette simple connaissance ne suffit pas; il faut encore un dolus specialis, consistant ici dans la volonté de l'agent de s'approprier la chose,ou plus exactement, d'usurper la possession civile de cette chose, animo domini. C'est ce dolus specialis que l'art. 379 a soin de marquer en exigeant que la soustraction soit frauduleuse.” In the present case, the Accused admitted that he planned the offences of larceny. He purposely climbed over a wall and entered the premises of the CEB station through a tunnel to remove cables which belonged to the CEB station. He did so with a view to take possession of the subject matter of the larcenies, that is the cables, and to dispose of same to get money by selling the cables. In so doing, I find that the Accused had the mens rea to commit the offences of larceny whilst there were more than 2 individuals.

CONCLUSION In view of the above, I find that the Prosecution has established its case against the Accused. I find that the Prosecution has proved its case beyond reasonable doubt. I find the Accused guilty as charged under Counts 1, 3 and 5 with the offence of larceny made by more than 2 individuals in breach of sections 301(1) and 305(1)(b) of the Criminal Code. Counts 2, 4 and 6 are dismissed.

Judgment delivered by: M.GAYAN-JAULIMSING, Magistrate, Intermediate Court Judgment delivered on: 1 st April 2020