Police V Chatoorsing P. and Anor THE INTERMEDIATE COURT OF MAURITIUS. Police. 1. CHATOORSING Parvesh 2. CHATOORSING Pahalad

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1 Police V Chatoorsing P. and Anor 2017 INT 442 CN 46/2016 In the matter of: - THE INTERMEDIATE COURT OF MAURITIUS Police JUDGMENT Accused 1 stands charged as follows: V 1. CHATOORSING Parvesh 2. CHATOORSING Pahalad Count 1: whilst being two individuals, wilfully and fraudulently abstracting certain articles not belonging to him, in breach of Sections 301(1) and 305 (1) (b) of the Criminal Code. Count 2 (alternate): wilfully, unlawfully and without sufficient excuse or justification found to have in his possession several articles which have been abstracted by means of a crime to the prejudice of other persons in breach of Sections 40, 301(1), 306 and 305 (1) (b) of the Criminal Code. Count 4: wilfully and unlawfully agreeing with another person to do an act which is unlawful breach of section 109(1) of the Criminal Code (Supplementary) Act of the Criminal Code. Accused 2 stands charged in respect of Count 3 with wilfully, unlawfully and knowingly receiving an article abstracted by means of crime in breach of Sections 40, 301 and 305 (1) (b) of the Criminal Code. The pleaded not guilty to their respective charges. Accused 1 was not represented. Accused 2 was represented by Mr L. Servansingh. During the year 2013, several larcenies occurred at St Paul and the surrounding places. Mrs Tapesur deposed to the effect that a larceny occurred at her place at St Paul between 6 th of

2 October and 7 th of October 2013, during which were taken away golden jewels, watches, perfumes and several other articles to the value of 100,000 rupees. Mr Jeenarain also revealed that a robbery occurred at his place in Eau Coulee following which an IPad, jewelleries and a mobile phone were taken away. On the 17 th of December 2013, police remitted the IPad to him. Pc Prayagsing explained that on the 9 th of October 2013 at hours, he went for a search at the place of accused 1 at St Paul. In presence of Accused 1, he secured several mobile phones. He asked the accused about their origin, but he could not give any explanation. For the present case, he secured a mobile phone make Nokia, which was returned the owner after the enquiry was made. Mr L. Boodhoo was prosecuted before the Intermediate Court for several of those larceny cases. In respect of count 1, he went to steal at Eau Coulee and his friend accused 1 was in his company. He also conspired with accused 1 to rob a house at St Paul. Mr Boodhowa was equally prosecuted before the Intermediate Court for being in unlawful possession of an IPad which was stolen at the place of Mr Jeenarain. Police secured the IPad behind his house. One Bachan was interested in buying the IPad and he went to see him. But the said Bachan did not buy it. He identified accused 2 as Bachan. In his statements to the police, Accused 1 denied that he went to steal in company of Witness L. Boodhoo. He however agreed that he was in possession of a mobile phone make Nokia which he bought at 1,500 rupees from one Arvind since it was an old one. He also denied that he conspired with the witness to steal at St Paul. Accused 2 is the father of accused 1. He denied that he bought any IPad from one Shaffick Boodhowa, his son s neighbour. Accused 1 was explained of his rights to adduce evidence and he elected to speak from the dock. He never stole any article in company of witness Boodhoo. Accused 2 did not adduce any evidence. Learned Counsel for accused 2 submitted that Count 3 be dismissed since there is not the least evidence that accused 2 received an abstracted article. Accused 1 Count 1: The larceny For the offence of larceny to be constituted, three elements should exist: 1. Fraudulent abstraction, 2. of anything belonging to another person, 3. with the fraudulent intent.

3 The court finds it relevant to refer to Garçon, Code Penal Annoté, art. 379 note 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 l'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. It has been amply proved that a larceny occurred at the place of Mr Jeenarian at Eau Coulee, whereby several articles were stolen. To prove the abstraction, the prosecution s case rested mainly upon the testimony of witness L. Boodhoo, who identified accused 1 and confirmed that they went together to steal at Eau Coulee. But, the court has borne in mind that witness L. Boodhoo was a participant to the offence and the need to consider the danger of acting upon his uncorroborated evidence. In DPP V Subrattee 2010 SCJ 207, the Court on appeal made the following observations: In general, however, at common law one credible witness is sufficient (vide DPP v Hester [1973 A.C 296], Lord Diplock at p 324). With the development of the common law, the corroboration requirement is said to be required in such categories of cases which include the evidence of a complainant in sexual cases, the evidence of an accomplice when called by the prosecution and the evidence of children. Apart from these established categories, the authorities have established the need for a corroboration warning where the evidence of a witness is suspect and which would include the evidence of a co-accused, the evidence of mental patients and the evidence of witnesses who may have improper motives or interests of their own to serve (Beck [ WLR 461]; Spencer [1987 AC 128] and Brown [1992 Crim LR 178])

4 The court has borne in mind the need for a warning and finds that the testimony of witness L. Boodhoo can be relied upon. The record shows, he has oft been referred to as the friend of accused 1 and there is no evidence or circumstances from which the court can deduce that there could have been a false allegation. There is also no reason for the court to believe that the witness is lying and the court finds that much weight can be attached to his testimony. Furthermore, the court considers that accused 1 did not challenge the testimony of the witness in court with the result that his evidence remained unrebutted. Despite being explained of his rights to adduce evidence, accused 1 did not depose and barely made a denial statement from the dock. By choosing not to depose and being exposed to crossexamination, the court considers that the defence has not been able to raise a doubt as to the veracity of the testimony of witness Boodhoo. Consequently, the court holds that the prosecution has proved its case beyond reasonable in respect of count 1 and finds accused 1 guilty as charged in respect of that count. Accordingly, count 2, which is the alternate count, is dismissed. Count 4: The conspiracy Section 109 of the Criminal Code (Supplementary) Act reads: Any person who agrees with one or more other persons to do an act which is unlawful, wrongful or harmful to another person, or to use unlawful means, in the carrying out of an object not otherwise unlawful, shall commit an offence Three elements have to be proved. There has to be: 1. an agreement 2. by two or more persons 3. to do an unlawful act. The issue is whether there was an agreement. In Archbold 2015, Digital Edition at paragraph 33-14, I read: The agreement may be proved in the usual way or by proving circumstances from which the jury may presume it: R. v. Parsons (1763) 1 W.Bl. 392; R. v. Murphy

5 (1837) 8 C. & P Proof of the existence of a conspiracy is generally a matter of inference, deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them : R. v. Brisac (1803) 4 East 164 at 171, cited with approval in Mulcahy v. R. (1868) L.R. 3 H.L. 306 at 317. Overt acts which are proved against some defendants may be looked at as against all of them, to show the nature and objects of the conspiracy: R. v. Stapylton, Esdaile and Brown (1857) 8 Cox 69. Witness L. Boodhoo, deposed to the effect that he conspired with accused 1 to steal in a house at St Paul. The accused has denied any participation. For reasons already stated above, the court has no qualm in preferring the testimony of witness Boodhoo. Accused 1 on the other hand did not challenge the version of the witness and the court finds that no weight can be attached to his denial. The court therefore holds that the prosecution has proved its case beyond reasonable doubt in respect of Count 4 and finds accused 1 guilty as charged. Accused 2 Count 3: Knowingly receiving an article Garraud in his Droit Penal Francais, Vol 3, ss 944 stated: "Il faut un fait matériel de recel... Recéler une chose... dans l'acception juridique de l'article 62, c est simplement la détenir, dans une intention frauduleuse sachant qu'elle a été détournée... Il faut, mais il suffit, que la chose ait été reçue par le recéleur et qu'il ait exercé une véritable détention sur les objets dont l'origine est délictueuse..." "Le titre de la détention est sans importance sur la constitution du recel. Il résulte du seul fait de la prise de possession d'un objet, que l'on sait avoir une origine furtive, avec l'intention de s'associer au délit." (Emphasis is mine) To establish receiving, it is necessary to establish possession in the sense of control by the accused: R. v. Wiley (1850) 2 Den. 37; and R. v. Watson [1916] 2 K.B. 385, 12 Cr.App.R. 62, CCA. Since it is necessary to establish control of the goods by the accused, proof that he has physically handled them is neither necessary nor sufficient. The accused might have handled the goods physically without being in control of them or have been in control of the goods without physically handling them. In the present case, the prosecution is relying upon the evidence of witness Boodhowa to prove that accused 2 unlawfully received an IPad, which has been abstracted by means of larceny committed by two individuals. However, the witness stated in court that he went to see accused 2 and showed him the IPad, but accused 2 did not buy it. His inconsistent

6 statement was put to him but he maintained that he did not sell the IPad to Accused 2. The record equally shows that the IPad was recovered at the place of witness Boodhowa, behind his house, following which he was later prosecuted for being in possession of stolen property. The accused having denied receiving the IPad, the court finds that there is no evidence on record that he received the property at any point in time. The prosecution has therefore failed to prove this count beyond reasonable doubt against accused 2. The court therefore dismisses Count 3 against accused 2. B.R.Jannoo- Jaunbocus (Mrs.) Magistrate Intermediate Court (Criminal Division) This 13 th December 2017.

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