Supreme Court of Mauritius, 14 juillet 2020, 2020 ROD 37 – POLICE V LOUIS MARIE CLAUDE

POLICE V LOUIS MARIE CLAUDE

2020 ROD 37

Cause Number: 140/2020

THE COURT OF RODRIGUES

In the matter of:-

POLICE

V

MARIE CLAUDE LOUIS

Judgment

Introduction

1. Accused stands charged with the offence of larceny in breach of section 301 (1) of the Criminal Code, as amended. Secondly and alternatively, Accused stands charged of possession of stolen property in breach of sections 40 and 301 (1) of the Criminal Code, as amended. Accused pleaded not guilty under both counts and at trial, Accused was not represented by Counsel.

The trial.

2. This is a case reported by Rosemay Espiegle, mother of Accused, who testified that 26 January 2020, around 20.10 hours, she was under her veranda of her house when she saw Accused coming under the veranda and taking away her blue gas cylinder. Mrs Espiegle testified that she could not shout because she was threatened by Accused. Mrs. Espiegle testified that Accused lives behind her house and that she has not recovered her gas cylinder up to now.

3. Police Sergeant Perrine, a witness for the prosecution, was tendered for cross examination and said that noting incriminating was found in the house of Accused but a gas cylinder was brought at the police station by an individual who stated that he found the gas cylinder in the bushes not far from the place where Mrs. Espiegle resides.

4. As regards to the defence, Accused stated from the dock that she was made aware that a gas cylinder was found in the bushes by one Jache Francois. She went to the place of Jache Francois and met the mother of Jache who told her that she is the one who found the gas cylinder in the bushes. Accused then went at the police station of Port Mathurin but was told that by the police officers that they were not aware that a gas cylinder was brought at the police station.

5. To support her case, Accused called her daughter, Claudiana Guillaume as her witness. She testified that Accused always cook over wood and never brought a gas cylinder at their place. She went on to say that Accused cook in a barrel in an open space.

The law. 6. The first charge against the Accused is one of larceny and section 301 of the Criminal Code provides that: “Any person who fraudulently abstracts anything not belonging to himself shall be guilty of larceny…”

7. In relation to the second count, section 40 of the Criminal Code provides that

Any person who knowingly receives, in whole or in part, or who without sufficient excuse or justification, is found to have in his possession, articles carried off, abstracted or obtained by means of a crime or misdemeanour shall be deemed to be an accomplice in the crime or misdemeanour.

Assessments.

8. I have assessed all the evidence on record.

9. In the present case, for the prosecution, its case rests on the evidence adduced by Mrs. Espiegle. She testified as to how Accused committed the offence but her version is different with the version which she gave to the police. In Court, Mrs Espiegle testified that that while she was

under her veranda, Accused came and stole her gas cylinder. Mrs Espiegle went on to say that she could not shout for help because Accused threatened to kill her. However, as per the version which was put to Accused and which is the version which Mrs. Espiegle gave to the police is that she was in her bedroom at the material time when she heard some noise outside and she saw Accused taking taking the gas cylinder when she went to look through the window.

10. True it is that every inconsistency must be measured by the yardstick of seriousness and materiality which must be linked with the overall issue of truthfulness and that not every inconsistency is serious and material and inconsistencies need not affect per se the appreciation by a trial Court that a particular witness’s testimony is true (See: Saman v The State [2004 SCJ 3]). However, in the present case, I find that the version put forward Mrs. Espiegle is somewhat unreliable and she cannot be treated as a witness of truth nor as credible witness. In cross-examination I found her to be a combative witness and even on to deny that she was not aware that Accused cook over the wood. Furthermore, as regards to the threat, nothing was said in the statement recorded from Accused and in that respect, I find Mrs. Espiegle had a propensity to make up evidence as she went along without realising that she was adducing evidence which was different to the version which she gave to the police and to that, I am satisfied that she was not being honest with the court. 11. As regards to the case of Accused, I find that her daughter gave her version without hesitation and there was no indication of invention, exaggeration or evasiveness. Furthermore, after having examined her version which she gave in examination in chief and in cross examination, I have not find anything adverse which could undermine the creditworthiness of that witness. Hence, in the light of the above, I find that Accused should be given the benefit of doubt under the first count.

12. As regards to the second count, in Prayag J P D v The State [2004 SCJ 29] the Supreme Court held that:

“Where the charge is “possession without sufficient excuse or justification” once the prosecution has established the possession the onus of proving that such possession is justified or sufficiently excused

shifts on to the accused party.” (See also Toofany v The Queen [1957 MR 186]).

13. In the present case, no stolen items were found in the possession of Accused and hence I find that the prosecution has failed to prove the second count beyond reasonable doubt.

Conclusion. 14. Therefore, for the reasons set forth above, the case is dismissed against Accused.

D.J.A Dangeot Senior District Magistrate Delivered on 14 July 2020.