IN THE INTERMEDIATE COURT OF MAURITIUS. Police v/s 1. Peroomal Veeren 2. Vishnu Dusorath 3. Gilbert Noel Louise

Transcription

1 Police v Veeren Peroomal & ors 2017 INT 197 IN THE INTERMEDIATE COURT OF MAURITIUS C N Police v/s 1. Peroomal Veeren 2. Vishnu Dusorath 3. Gilbert Noel Louise Judgment All three Accused stand charged with Possession of dangerous drug: buprenorphine (subutex) with aggravating circumstances in breach of sections 34(1)(b), 41(1)(i)(2) of the Dangerous Drugs Act ( the Act ), to which all three of them have pleaded Not Guilty and were assisted by their respective Counsel. The information against the three Accused parties reads as follows: That on or about the 11 th day of December in the year two thousand and nine, at Cell No.23, Block B Landing 2, at Beau Bassin Central Prison, [Accused nos. 1, 2 and 3], did unlawfully and knowingly possess dangerous drug, to wit: Buprenorphine (subutex) in (i) four white pharmaceutical tablets, each in original foil pack labelled subutex, (ii) 0.09 g of grey/white solid in a foil pack, (iii) 0.2 g of grey solid in a foil pack and (iv) g of white powder wrapped in three aluminium foil papers. Complainant further avers that the offence was committed in a Penal Institution, to wit: in cell No.23, Block B, Landing 2, at Beau Bassin Central Prison. Now, it is clear that in criminal matters, the Prosecution has the legal burden to prove beyond reasonable doubt all the facts in issue against the Accused parties and that in criminal cases, the facts in issue are ascertained by reference to the essential elements of the offences as averred in the information. Thus, once an Accused party has pleaded Not Guilty as in the present case, the Prosecution bears the legal burden of proving each and

2 every element of the offence with which the Accused stands charged, as held by Lord Goddard CJ in Woolmington v DPP (HL) [1935] AC 462. In the present matter, the elements of the offence which the Prosecution has to prove to the required standard of proof in a criminal case are: 1. Unlawfully and knowingly; 2. Possession; 3. Dangerous drugs as averred under the information; Although not a constituent element of the offence, the Prosecution has averred an aggravating circumstance, namely that the alleged offence was committed in a penal institution, so that the Prosecution has also the duty to prove beyond reasonable doubt this aggravating circumstance. Now, since all three Accused have been charged together for the possession, it goes without saying that the Prosecution has to prove joint possession against all three Accused parties. Dangerous drugs The Prosecution has produced in Court the drugs as per the averment in the information, alleged to have been secured in the prison cell (Exhibit I refers). PC Boodhoo has confirmed in Court that he was handed over the said exhibit by Prison Officer Apasamy, following which he had left the said exhibit to Forensic Scientific Laboratory ( FSL ) for examination. The FSL report dated has been duly produced in Court and identified by PC Boodhoo (Document A refers). The said report confirms that the exhibit is subutex and contains Buprenorphine. Now, the memos from Ministry of Health (Documents B, C, D refer) confirm that subutex is a substance listed in Schedule II of the Act, and following the definition of dangerous drug under section 2 of the Act, there cannot be any doubt whatsoever that the exhibit allegedly secured inside the prison cell is dangerous drug, so that this element has been proved beyond reasonable doubt. The memos from MOH (Documents B, C and D refer) also confirm that the Accused parties were not authorised to be in possession of those drugs so that should this Court find proved beyond reasonable doubt the element of possession against them, then it goes without saying that such possession would be for all intents and purposes an unlawful and unauthorised one.

3 In a penal institution When the offence under section 34(1)(b) of the Act has been committed in an institution mentioned under section 42(1)(i) of the Act, then this fact constitutes an aggravating circumstances. In the present matter, it has been alleged that the Accused parties were allegedly in possession of those drugs whilst inside prison cell of Beau Bassin. Now, there is no dispute whatsoever that at the material time, the Accused parties were inside the said prison cell as averred in the information. Thus, provided the Prosecution proves the presence of the drugs inside the said prison cell in possession of the Accused parties, then it goes without saying that the aggravating circumstances would also be proved beyond reasonable doubt against all three Accused. Possession All three Accused have entered a Not Guilty plea to the present charge so that it is clear that they have denied being unlawfully and knowingly in possession of those drug in the said prison cell. It is to be noted here that on when PS Tukoory interviewed the Accused parties, all three of them declined to give any statement in this matter after they were duly cautioned and informed of the charge against them. According to PS Tukoory, they only stated, Mo pas pou donne aucaine l enquete mo pou dire tout dans la cour. PC Argendra confirmed that he invited Accused nos. 2 and 3 respectively to give a statement in the present matter on but both of them again declined to give any such statement stating simply that they will state everything in Court. However, Accused no.1 did give a statement in the present matter on (Document H refers) in which he denied being in possession of those drugs. His unsworn version is to the effect that the paint tin was not inside the prison cell at the time the Security Squad removed them from the said cell. The Prosecution has relied on the versions of Prison officer ( P.O ) Apasamy as well as ASP Parboteeah so as to prove beyond reasonable doubt the element of Possession against all three Accused. PO Apasamy stated in Court that he was on duty at Beau Bassin Central Prison and formed part of the Prison Security Squad. He started his shift at hrs on At hrs, he got instructions to effect a search at Block B; when he reached the prison cell no.23 occupied by the three Accused, he tried to open the door but found same was blocked from

4 inside. ASP Parboteeah (witness no. 8) warned the occupiers to open the door on several times but the door remained blocked. Witness no.8 sought instructions from his superior officers and was instructed by DCP Gowree (witness no. 16) to break open the door, upon which a special team was called on the spot and broke open the door. He then got access inside the cell together with witness no.8 and 16; they removed all three Accused parties and started searching the cell. He secured a paint tin containing empty as well as sealed subutex foil packs beneath the paint. He informed witness no.8 of his findings and showed the exhibits partly mixed with paint to him. The three Accused were then brought to the reception by another team whilst witness no.8 informed ADSU. He brought the exhibit secured to the reception and whilst waiting for the arrival of ADSU officers, removed the contents of the tin to show the Accused parties. He then showed to ADSU officers the exhibit secured inside the cell including the tin containing the paint and handed it over to PC Boodhoo who sealed them in their presence. During cross examination, he conceded he could not remember how many persons entered the cell but added each of them had a specific task to carry out. He went towards the tin and started his search but maintain no one had told him of the presence of the tin inside the cell. He admitted that the first persons to get inside the cell were the team which broke open the door but added that he also simultaneously went inside the cell to effect the search. He however added that the said team did not remain inside the cell when he got in. He added that when he had climbed on a table to peep inside the cell through a bar, he had seen some of them blocking the door with a mop handle stick. He conceded that he had not mentioned this fact in his statement to Police but maintained having mentioned it in the statement at the Prisons. He added that the said statement he had put up at the Prison was in his possession. He also stated that the three Accused were not together holding the stick which was blocking the door, wedged against the bed. He stated that there were no other incriminating articles found. ASP Parboteeah confirmed in Court that he was on duty at Beau Bassin Prisons on and at hrs, together with witness no.7 as well as other officers, they went to effect a search in cell no.23, Block B, landing D of Beau Bassin Prisons. The door remained blocked despite having unlocked it with the key. The three Accused parties inside the cell were asked as to why they had blocked the door upon which they replied they would not let them get access inside the cell. He asked them to comply with an official order but the three detainees did not allow them access. He then informed his superior of the situation upon which witness no.16 asked him to wait for his arrival at the spot. They then waited for the arrival of witness no.16 who came at hrs. The latter asked the three Accused parties detained inside the said cell the reason they had blocked the door and to allow them get access inside the cell but they still refused access. Witness no.16 informed them that it was an official order from Commissioner to allow access so as to effect search but to no

5 avail. They were then warned they might be injured should they refuse access. Witness no.16 then instructed other officers to break open the door which they did but added that the three Accused parties resisted by leaning against the door. The door was finally opened and they got access inside the cell. They then effected search whilst there were other officers outside the cell. A pic demon, cell phone, syringe as well as paint tin containing parcel inside the paint were secured. Witness no.7 opened the tin and the Accused parties as well as the tin paint were brought to the reception. Since the Accused parties complained of pain after having leaned against the door, Dr. Dina was also called in. He then called ADSU. Whilst waiting for ADSU, they examined the contents of the tin and found it to contain 152 empty foil packs of subutex as well as other parcel and white powder amongst others. The said exhibits were then handed over to ADSU. During cross examination, he explained that the team who broke open the door moved away and he got inside the cell together with witness no. 7. He added that he and witness no.7 were the first persons to get inside the cell whilst there some ten officers outside. He could not give details as to the initial movements inside the cell. He explained that the exhibits were secured as per a list and added that witness no.7 secured some of them whilst he secured others. He denied witness no.7 would be correct if the latter had said that no other prohibited items were secured except the paint tin and its contents. When confronted with his statement in which he did not mentioned having secured pic demon and cell phone, he stated he could not remember but stated he gave his statement as things happened. He added that witness no.7 had searched the Accused parties. He explained that there were three detainees inside the cell but could not say who among the three of them had said access would not be allowed inside the cell. Learned Counsel for the Defence of all three Accused parties have pinpointed the weaknesses in the evidence adduced by witnesses no.7 and 8 respectively. Learned Counsel for Accused no.1 has submitted a catalogue of inconsistencies and contradictions in their evidence so as to invite this Court not to rely on them whereas Learned Counsel for Accused nos. 2 and 3 respectively have highlighted that at best there are circumstantial evidence available based on scanty and contradictory evidence. The inconsistencies highlighted are in respect of who entered the cell, who searched the accused parties, where the accused parties were during the search, what items were retrieved from the cell, how the pot were secured, how accused parties were allegedly blocking the door and who were blocking the door. Whilst witness no.7 stated that he entered the cell together with witnesses nos. 8 and 16 respectively and that members of the special team were the first one who entered the cell, witness no.8 stated that only he and witness no.7 went inside the cell and the members of

6 the squad only forced open the door and the moved away. Now, when these two versions are carefully analysed, I seriously do not find any contradictions in the sense that both versions can be easily reconciled. The members of the special squad would naturally be the first one to enter the cell when it is considered that they must have been exerting force to open the door and driven by the said force, they would naturally advance forward into the cell once the door is forced open. It is here pertinent to note that witness no.8 added that they then moved away to allow him to get inside the cell so that I do not find any contradictions in their two versions. Witness no. 8 stated in Court that witness no.7 searched the Accused parties. Now, when the evidence on record is considered, I find that witness no.7 did not contradict witness no. 8 on this point; he merely stated that the Accused parties were under the responsibility of the special team. He did not utter any words as regards any personal search on the Accused parties so that it would be unfair to impute any contradictions. In fact, if one reads between the lines, witness no.8 has been truthful in his account since witness no.7 had clearly stated that he was in charge of the search from which it could therefore be also inferred that he must have also searched the Accused parties. However, it is also clear that this question was never put to witness no.7 so that there is no answer from him as regards whether he or someone else searched the Accused parties. Learned Counsel for Accused no. 1 stressed on the inconsistency in witness no.7 s version as to where the Accused parties were during the search. In fact, witness no.7 stated during examination in chief that they got inside the cell, removed the three Accused parties and started the search ( noune rentre dans cell, noune retire tous les trois condamné, noune commence faire la fouille dans cachot ) whereas during cross examination, he stated that the Accused parties were inside the cell but when he entered, they were outside ( bannes la ti dans cachot mais quand mone rentré bannes la ti en dehors ). When his replies are minutely considered, I fail to find any inconsistency in his two versions, or at the very least any material and gross inconsistency which might have any negative impact on his truthfulness. He clearly stated that they were inside the cell and when he got inside the cell, the Accused parties were removed so that it would only be natural to find that when he was inside the cell, the Accused parties were outside. Now, it is true when witness no.8 s version is considered, it may give rise to some contradiction since he stated that there were five persons inside the cell, i.e., the three Accused parties and two officers. However, when his subsequent statement is considered, I find that it could only lend to some confusion and not to contradiction. In fact, he is on record to having stated that they told them to stand behind the wall ( et nous fine dire zot débouté derriere muraille ). Derriere muraille may mean several things including outside the cell.

7 As to the issue of how the pot was secured, witness no.7 was closely cross examined but did not state anything which might lead this Court to believe that he was misleading the Court. He stated he went directly towards the tin and when cross examined as to whether someone had tipped him on the presence of the tin, he denied such a suggestion without giving me the impression that he was hiding anything. When the configuration of a cell is considered, it is quite clear that it is a square room with a bed so that the presence of any other big object such as a tin strikes the vision and would be among the first things one would search. As regards how the Accused parties were blocking the door and who were blocking the door, I again do not find any serious flaws in his version. He stated that he climbed over a table and saw the three Accused parties and some of them were blocking the door with a mop handle stick by wedging it against the bed. He could have said all three Accused parties were blocking the door but did not do so since it is clear that he was in Court to state what he had personally perceived on that night without any polluted addition. He was also candid that this detail was material enough to be part of his statement which in fact was not. But he added that he had mentioned same in his statement to Prison authorities and when asked whether he had a copy of same, he replied in the positive so that he could be further cross examined on same but learned Counsel chose not to. So it cannot be said that his credibility had been knocked out. Witness no.8 was also candid when he conceded he could not say who amongst the three Accused parties had said they would not allow access inside the cell. The only contradiction which might be worth considering is in respect of the items secured inside the cell. Witness no.7 stated that no other incriminating articles had been secured inside the cell except the tin and its contents. Witness no.8 however stated that several items according to a list had been secured including cell phones, pic demon, syringes along with the tin. There is clearly a contradiction here. However, this contradiction may be explained when one considers that witness no.8 stated that he secured some items and witness no.7 secured others; furthermore, witness no.7 used the term incriminating article whereas witness no.8 referred to prohibited items thus covering a wider range of items prohibited inside a prison. Furthermore, it could also be a case of loss of memory since when he was confronted with his statement dated at hrs in which he had not mentioned pic demon and cell phones, he merely stated that he related the events exactly as it happened in his statement. It is to be noted that he did not maintain his earlier version in Court so as to become inconsistent with his earlier Police statement; he merely stated he did not remember.

8 Now can these witnesses be blamed if they have not deposed as to the facts of that night with mechanical precision? Is cross examination meant to be a memory test or rather a test of truthfulness? It is clear that cross-examination is not a memory test exercise and this has been confirmed by the Supreme Court in Dhunny v R 1991 SCJ 145 which held that cross-examination of a witness in Court is not a memory test which the witness must pass before his evidence can be accepted and relied upon. Thus, one does not measure the credibility of a witness by how much he can remember but rather by the words he speaks and how truthful he is. In the present matter, it is only too normal that a witness would not remember facts of the minutest details after almost eight years so that some allowance should be given to the witness when he depones as to what he may or may not remember. Moreover, even if I had found inconsistencies and contradictions in their respective versions, this would not have been sufficient to reject outright their evidence in Court. The following extract from Hauradhun v The State 2010 SCJ 183 explains fully well as to when the evidence of a witness would be rejected or accepted: It is well established that the Court will not outright reject the evidence of a deponent merely because it contains inconsistencies. It has a duty to analyse the whole testimony of the deponent taking into consideration, inter alia, the lapse of time between the alleged offence and the time he gives evidence, his age, his apparent mental state and his demeanour in Court. The learned magistrate has then to decide whether the inconsistencies were so material that the whole of the deponent s evidence should be rejected; or whether they were of such a nature that they did not affect his credibility. No doubt each case has to be decided on its own merit. (Vide Fanfan v the State [2006 SCJ 75]; Saman v The State [2004 SCJ 3]). The same line of reasoning as regards inconsistencies is found in the following extract in Saman v The State 2004 SCJ 3: Inconsistencies are often understandable and are likely to occur when, for example, the testimony is given in Court long after the event, or for that matter the witness is a young person who may be shy or overpowered by strange Court surroundings or by the delicate nature of the testimony itself. Inconsistencies must therefore be measured by the yardstick of seriousness and materiality which must be linked with the overall issue of truthfulness. 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. In the present matter, I have duly considered the considerable time lapse since the alleged offence as well as the demeanour of both witnesses in Court. I have also considered the fact that they were relating a rather eventful situation involving several persons in a very secluded area where there was force used and inevitably it was not a peaceful event. It was

9 a real commotion. In the light of all these factors as well as their overall testimonies in Court, I cannot say there are any such material and serious inconsistencies in their evidence which adversely affect their credibility. I rather find both of the witnesses to have been truthful as well as honest in Court. In the light of their respective versions in Court, I find the following facts proved: 1. That a tin containing drugs as averred in the information was secured; 2. That the door was blocked and access to the cell occupied by the three Accused on that night was denied; 3. That special team was required to force open the door of the cell; 4. That the three Accused were requested to open the door; 5. That the three Accused were then warned that it was pursuant to an official order that a search had to be effected inside the cell and that they had to comply with such an order; 6. That some of them were seen blocking the door from inside with a mop handle stick wedged against the bed; 7. That one of the Accused parties stated to the Prison officers that they would not allow them access inside the cell and to come the next morning. The question which arises is whether these facts establish joint possession in the legal sense against all three Accused. Learned Counsel for Accused no.1 rightly cited the State v Chowrimoothoo & anor 2014 SCJ 253 in respect of the issue of joint possession and its related principles. The said Judgment was upheld on appeal in Chowrimoothoo v The State 2016 SCJ 148 and the Appellate Court affirmed the principles adopted by the Supreme Court in respect of joint possession as follows: Now, the issue of joint possession of drugs has been considered in a number of Mauritian and UK cases cited by both learned Counsel. Although many cases on joint possession of drugs involved drugs being found in a vehicle or on premises in which the accused persons were present at the time (see e.g Chung Po v R [1970 SCJ 191], R v Searle [1971 Crim L. R 592] and Yow Ok Cheung v The State (supra)), it is our considered view that it is not necessary that persons in joint possession of the drugs be physically present together in the place where the drugs are secured. As the Supreme Court observed, albeit in relation to possession of articles other than dangerous drugs, in Nawoor v R (supra) to secure a conviction against any one of the ( ) accused, it was not necessary to establish manual possession but ( ) it was essential that there should be proof of some overt act or circumstance connecting each particular accused with the articles found, thus justifying the inference that those articles were at least under his control, exclusive or joint.

10 Thus, it is clear that mere knowledge that someone else in the cell has drugs in in his possession does not make the others a participator in the offence of possession of those drugs. The Supreme Court in Rossan v The State 2015 SCJ 454 held that possession is made up of two elements, namely the factual element (physical control) and mental element (knowledge of the presence of drug) and Nawoor v the King 1948 MR 104 stressed on the presence of some overt act or circumstances connecting the particular Accused with the articles found before possession may be inferred. It is from this overt act that the factual element of physical control may be inferred. From the facts proved by the evidence of witnesses nos. 7 and 8 and highlighted above, it is clear that the subsequent search resulted in securing the drugs as averred in the information, concealed in a paint tin. Now it might be argued that there is no evidence who was blocking the door and who shouted access would not be allowed so that it has not been proved who was denying access. I find that there is no substance whatsoever in this argument since it is clear that all three Accused parties were acting de concert in blocking the door and refusing access into the cell so as to prevent the prison officers from effecting search and securing the drugs. This is the only reasonable and logical inference from all the facts of this case as proved before this Court since if anyone of them was not acting jointly and together with the others, then he would have surely shouted his opposition to the blocking of the door when they were duly warned by witness no.8 but there is no such evidence on record. They could also have made this opposition known afterwards when questioned by the Prison officers and ADSU respectively but there is no such indication either. The fact that they blocked the door so as to prevent entry clearly shows that they knew of the presence of the drugs and the reason for the search. The fact that they did everything to deny access by blocking the door also shows some degree of physical control on the drugs. They acted together in such a way as to assume joint physical possession on the drugs and deny access to same. It is this denial of access to the cell by blocking the door which constitutes the overt act which connects each and every of the three Accused parties to the drugs inside the cell, thus establishing joint possession against them. Since these are circumstantial evidence, pursuant to the principles in Teper v R [1952 A.C. 489] there is a duty upon the Court to consider whether there are any other co-existing circumstances or facts which might weaken or destroy such an inference of joint possession against the Accused parties. I have duly considered all the facts and circumstances but have found none which might have such an effect on the inference reached in this case. In the light of above, I find that the Prosecution has proved beyond reasonable doubt that all three Accused were in joint possession of the drugs averred in the information.

11 Unlawfully and knowingly This concerns the mental element of the offence. In the State v Kanojia 1992 SCJ 381, the Supreme Court held that knowledge is an abstract concept which unless a person tells of what he has behind in his mind can only be revealed by examining his conduct in the light of the circumstances surrounding the case. In the present matter, when the above principle is applied to the surrounding circumstances of this case, I find the element of knowledge to be abundantly present; they clearly knew of the presence of the drug inside the cell, hence their deliberate act of denying the access to the prison cell. The guilty mind is therefore present. Thus, this element has also been proved beyond reasonable doubt. In the light of above, I find the Prosecution has proved all the elements of the present offence as well as the aggravating circumstances against all three Accused parties beyond reasonable doubt so that I find all three Accused guilty as charged. Neerooa M.I.A Magistrate, Intermediate Court. This 31 May 2017.