ST PIERRE J. S.

v THE STATE

2021 SCJ 176

Record No. 256 - 6A/5/19

THE SUPREME COURT OF MAURITIUS

(Court of Criminal Appeal)
In the matter of:

Jean Steven St Pierre

Appellant
v.

The State
Respondent

Judgment

The appellant was prosecuted for the offence of attempting to transport heroin as a
drug trafficker in breach of Sections 30(1)(d)(ii) and Sections 41(3) and (4), 45(1) and 47(2)
and (5)(a)(b) of the Dangerous Drugs Act (DDA).

He pleaded not guilty but was found guilty of the offence charged and sentenced to
18 years’ penal servitude together with a fine of Rs 50,000 and Rs 1,000 costs.

The Court also made an order for the destruction of the drugs seized and forfeiture of
a sum of Rs 12,000 and three mobile phones, secured from the appellant.

He has now appealed against his conviction.

The appellant gave five statements to the Police and he called one witness in his
defence.

The prosecution called eleven witnesses in support of its case. The three main
prosecution witnesses were Inspector Dominique, Inspector Gounowry and ASP Dussoye.
Inspector Dominique posted at the Airport ADSU deponed as to the circumstances in which
one Mrs.Tsialonina Maminirina Rakotoarimanana, a Malagasy national, had been arrested
on 23 July 2011 at the airport following a profiling operation; Inspector Gounowry and ASP
Dussoye gave evidence with respect to the controlled delivery exercise that took place in the
evening of 23 July 2011 at about 9.20 p.m. in the vicinity of Metropole Hotel in Port Louis.
 2

The evidence revealed that following prior arrangements over the phone with the
appellant, the Malagasy national had left the hotel and boarded the appellant’s van bringing
along with her a trolley bag. The Police surrounded the van and arrested the appellant
together with another person, Mr. Jean, who was with him at the time.

The learned Judge had found that the evidence of Inspector Gounowry and ASP
Dussoye was unsafe and rejected same. She found the charge established against the
appellant, essentially, on the basis of the evidence of Inspector Dominique, the undisputed
facts disclosed by the evidence on record as well as the appellant’s own evidence contained
in his statements.

Inspector Dominique the main witness for the prosecution had testified to the effect
that on 23 July 2011 following a profiling operation, the Malagasy national was arrested at
the airport. A powder suspected to be heroin was found in parcels placed in the extendable
handle of her trolley bag. She agreed to participate in a controlled delivery exercise and
went to Metropole Hotel in Port Louis by taxi. The Police followed her to the hotel and
Inspector Dominique stayed in the room with her. Between 8.08 and 8.28 p.m. she made
and received phone calls from Madagascar, her phone was on “speaker mode” and he could
hear her conversations.

At 8.38 p.m. she received a local call from a male person who identified himself as
Didier, the latter told her that he would pick up the “valise” between 9 p.m. and 9.15 p.m. that
same evening. At 9 p.m. she received a further call from the said Didier informing her that
he would call at the hotel to collect the “valise”. She later received another call and she was
asked to come out with the “valise” and wait for the caller near the SBM in Desforges Street.
She subsequently received the following SMS text message, “Je suis devant la SBM”
followed by a call enquiring whether she had left the hotel. She left the hotel with the trolley
bag. Inspector Dussoye and his team who were outside, then took over.

The appellant’s version was to the effect that on 23 July 2011 at about 8 p.m. whilst
he was at home with his wife and children, in Pamplemousses, he received a phone call
from a friend named Carlo (Mr. Rayapen), whom he had met the previous year. Carlo asked
him to pick up “aine 35” (a girl friend) from Port Louis and drop her in Grand Baie, Carlo
texted the lady’s number to him. Acting under Carlo’s instructions he called the lady,
identified himself as Jerry Louis and told her he would pick her up. She informed him that
she was at Metropole Hotel and would leave the hotel at 9 p.m. There followed an exchange
of calls and messages between them, in the course of which they made arrangements
 3

regarding her pick up. He stopped his van at Corderie Street and the Malagasy national
came to meet him pulling along a trolley bag. She had a short conversation with the
appellant who was waiting in the van, then put the trolley bag in the van and boarded the
van. The Police immediately surrounded the van and apprehended them.

In her determination of the appellant’s guilt, the trial Judge took into account the
following undisputed facts:

(a) the appellant had gone to Metropole Hotel to pick up the Malagasy
national in his private van, at the request of one Carlo (Mr. Rayapen);

(b) the Malagasy national was arrested and has since been convicted for
importing the heroin concealed in the handle of the trolley bag that
she brought to Mauritius and which was in her possession as she
waited for the appellant at Metropole Hotel;

(c) after the Malagasy lady had boarded the appellant’s van with her
trolley bag, the Police had surrounded the vehicle and apprehended
the appellant who was at the driving wheel as well as one Mr. Jean
who was also present with them.

The trial Judge considered that the only disputed issues for determination were:

“(a) that of knowledge on the part of the accused that the Malagasy
lady whom he had picked up was carrying a trolley bag containing
drugs;

(b) whether facts which were undisputed disclosed evidence of

preparatory acts or a “commencement d’exécution”.”

She went on to find that both the above issues had been established beyond
reasonable doubt. She further concluded that all the elements of the offence had been
established against the appellant, that he was unlawfully and knowingly attempting to
transport the dangerous drugs to Carlo and found him guilty as charged.

The appellant is now challenging his conviction on 8 grounds.

 4

Ground 1

The issue raised under ground 1 is whether the phrase “on any terms whatsoever” in
Section 30(1)(d) of the DDA is a constitutive element of the offence and if so, whether this
element had been proved by the prosecution.

Section 30(1)(d) reads as follows:

“30. Drug dealing offences

(1) Any person who unlawfully –
(a) …
(b) …
(c) …
(d) offers, offers for sale, distributes, sells, brokers, delivers
or transports on any terms whatsoever, dispatches, or
dispatches in transit any dangerous drug;
(e) ...
(f) …
shall commit an offence and shall, on conviction, be liable –
(i) where the offence is in respect of a dangerous drug
specified in Part I of Schedule I, Schedule II or Schedule
III, to a fine not exceeding one million rupees and to
penal servitude for a term not exceeding 25 years;

(ii) where the offence is in respect of a dangerous drug

specified in Part II of Schedule I, to a fine not exceeding
one million rupees together with penal servitude for a
term which shall not be less than 5 years and not more
than 25 years.”
(Underlining ours)

At the outset of the hearing counsel for the appellant had, inter alia, made a motion
for “full particulars of the element of “transporting drugs” to be made available to the
defence”, failing which, according to counsel, there would be a breach of the fair trial
guarantee enshrined in Section 10(1) of the Constitution.

Counsel had submitted that “the amended information does not … disclose any term
whatsoever. Hence, the offence as allegedly” “committed” “by the accused does not tally”
with Section 30(1)(d).

He added that “the information does not disclose an offence, does not disclose all the
elements of the offence” under Section 30(1)(d) and argued that the information should be
 5

dismissed because it did “not disclose all the elements of the offence” namely with regard to
the terms of the “arrangement with Jean Michael Rayapen” as averred in the information.

It was on the other hand the stand of the prosecution that all “the elements of the
offence have been averred in the information and also that the particulars furnished earlier
on are amply sufficient for the accused to conduct his defence in the present matter”.

It was averred in the information –

“That on or about the 23rd day of July in the year two thousand and
eleven, opposite ‘Metropole Hotel’ … one Jean Steven ST PIERRE,
then 32 years … did unlawfully and knowingly attempt to transport on
any terms whatsoever dangerous drug (Heroin) and which said
attempt was manifested by a commencement of execution which has
failed in its effect through circumstances independent of the will of the
said Jean Steven St Pierre, to wit: He was intercepted by the Police
during a control delivery exercise when, following an arrangement with
Jean Michael Rayapen, he came in private van C 411 to collect a
trolley bag in which were initially concealed around 360.1 grams of
Heroin from Tsialonina Maminirina Rakotoarimanana, a Malagasy
National. The arrangement was for the accused, who is a trusted
person by Mr. Rayapen to go and collect a trolley bag containing drug
and to ensure that it is delivered to Mr. Rayapen for the mutual benefit
of both Mr. Rayapen and the accused given the lucrative nature of
drug business.”

The learned Judge was of the view that:

“… the phrase “on any terms whatsoever” is not an element of such

an offence and that failure to aver any such term cannot result in the
information disclosing no offence. Indeed the use of the word “any”
implies that there may or may not be such a term while the word
“whatsoever” connotes that the precise term, if any, is immaterial and
that delivery or transport of any dangerous drug, irrespective of the
terms on which this is carried out, amounts to an offence…”
 6

She held that –

“the phrase “on any terms whatsoever” does not constitute an

element of the offence, and that the information as worded discloses
an offence under section 30(1)(d) of the Dangerous Drugs Act and the
Interpretation and General Clauses Act…”

On appeal before us it was argued on behalf of the appellant that the Judge had
erred when she held that the phrase, “on any terms whatsoever”, is not a constitutive
element of the offence.

In support of his arguments counsel made a comparison between Section 30(1)(d)

and Sections 33 and 34 in the DDA all of which create offences of transportation of drugs.
He highlighted that the phrase “on any terms whatsoever” is only used in Section 30, the
most serious transportation offence, which also carries the most serious penalty. He
submitted that the offence under Section 30(1)(d) is only committed when the act of
transportation is done on certain conditions and the condition attached to the act of transport
is a constitutive element of the offence of which an accused party must be made aware so
as to enable him to prepare his defence.

Counsel further buttressed his argument by referring to a ruling delivered by a

different Judge in the previous case which had been discontinued in 2017, vide State v. St
Pierre [2016 SCJ 166].

Is the phrase “on any terms whatsoever” a constitutive element of the offence under
Section 30(1)(d)?

The previous DDA of 1986 did not contain any offence such as the present one. The
DDA was amended by Parliament in 2000 by adding inter alia the offence under Section
30(1)(d), this, in order to give effect to the country’s obligations under the United Nations
1988 Convention against illicit Traffic in Narcotic Drugs and Psychotropic Substances (“UN
1988 Convention”) as was explained in The State v Julius [2010 SCJ 328] when
considering another offence, namely the offence of “dispatch in transit” under Section
30(1)(d) –
“…The Prime Minister when presenting the Bill in the National
Assembly … explained that the enactment was prepared with the
assistance of an expert of the United Nations Drugs Control
 7

Programme (UNDCP) as it was designed to bring Mauritian

dangerous drugs laws in conformity with the United Nations 1988
Convention against illicit Traffic in Narcotic Drugs and
Psychotropic Substances (“UN 1988 Convention”). Mauritius had
in fact been a signatory of the Convention to which it had undertaken
to adhere. As a result, the new legislation was passed to incorporate
legal framework and guidelines provided in the UN Convention which
set up the necessary benchmark and a wide array of offences to
combat drug trafficking, both nationally and internationally.”

It might be helpful in that respect to consider the context in which the “Convention
against Illicit Traffic in Narcotic Drugs and Psychotropic Substances” was drawn up. The
objective of “the Convention” was to create a very broad spectrum of criminal offences and
to cover wide ranging situations so as to criminalise all types of illicit traffic in drugs and all
degrees of participation in such activities.

“… [The] Convention, tries to ensure that all activities of the illicit traffic
and all forms of participation in such activities not only the principal
offenders but also their accomplices, will be prosecuted, that activities
of the illicit traffic will be subject to penal sanctions even if they have
not been completed (preparatory acts, conspiracy and attempts), that
criminals will not escape prosecution and punishment on the technical
ground of lack of local jurisdiction in the country in which they are
found .” (The State v. Julius [2010 SCJ 328])

The court in “Julius” (supra) observed in relation to an offence of “dispatch in

transit” under Section 30(1)(d), that the words “dispatch in transit” is a composite term and
pursuant to the ordinary rules of interpretation of statutes, the meaning of such a composite
term cannot be determined by considering the meaning of each word separately. The court
stated that:
“… in the context of a phrase or a composite term like ‘dispatch in
transit’, its meaning cannot be determined by examining the meaning
of each word separately or in isolation which was the approach
adopted by learned Counsel for the defence ...”
 8

The court then referred to the following extract in Lee v. Showman’s Guild of Great
Britain [1952 2 Q.B. 329 at p 338]:

“It is often fallacious in considering the meaning of a phrase consisting

of two words to find a meaning which each has separately and then
infer that the two together cover the combination so arrived at. The
two together may, as here, have acquired a special meaning of their
own.”

Likewise when dealing with the meaning of a composite term in the present matter
made up of the phrase “on any terms whatsoever”, such term has to be interpreted as a
whole without splitting the words individually.

A reading of the whole phrase in context clearly indicates that Section 30(1)(d)
criminalises the transport of drugs irrespective of the terms on which such transportation
takes place. The intention of the legislator was to cast the net wide so as not to exclude any
form of transport or the terms or conditions of such transport. For the purposes of
establishing an offence under the section, the transport of the drugs may have been effected
without any term whatsoever but where the transport has been effected under a term,
whatever be the nature of such term, the term is of no significance or relevance in order to
determine whether the offence has been committed.

Section 30(1)(d) was intended to create an offence in respect of any act of transport
of drugs in the country independently of what may be the terms upon which such
transportation is effected.

As a result the phrase “on any terms whatsoever” in Section 30(1)(d) is not a
constitutive element of the offence. The legislator has incorporated this composite term only
to ensure that an offence is committed once it is proven that there is an offer, an offer for
sale, a distribution, sale, brokerage, delivery or transportation of any dangerous drugs. The
prosecution has no further burden of proving the terms of any of the above mode of
commission of an offence under Section 30(1)(d). By adding the words “on any terms
whatsoever”, the legislator has merely taken the extra precaution of dispensing the
prosecution from having to prove any term or condition relating to any of the modes of
committing an offence under Section 30(1)(d).
 9

In the present matter therefore it was incumbent upon the prosecution, in that respect
to prove that there had been an attempt to transport the drugs without the need of proving
the terms on which such transportation was to be effected.

However since it had been averred in the information in support of the offence of
attempt to transport that there was an “arrangement between the appellant and
Mr. Rayapen” it was legitimate for the trial Judge to accede to the defence request to furnish
further particulars of the terms of the alleged “arrangement between the appellant and
Mr. Rayapen”.

This of course could understandably be relevant for the purpose of establishing

whether there was such a “commencement d’exécution” as is required to establish an
attempt of offence. But it does not require the proof of the terms on which such transport
was to take place.

The need therefore to provide any particulars in respect of the terms of any transport
as set out under Section 30(1)(d) would not arise.

We have also considered the comparison made by counsel for the appellant between
the wording of the different offences of transportation under the DDA. It does not serve any
useful purpose to compare different sections of an Act of Parliament in order to ascertain the
meaning of one particular section of the Act, the more so, since Section 30 is indisputably a
free-standing section which, on its own, creates distinct offences which are not in any way
linked or associated, in respect of their constitutive elements, to Section 33 or Section 34 of
the DDA.

As highlighted in the following passage:

“It is no doubt true that every Act should be read as a whole …

[However] it would be just as misleading to base conclusions on the
different language or different sections as it is to base conclusions
on the different language or sections in different Acts.”
(Commissioners of Inland Revenue v Hinchy [1960] AC 748,
H.L.)

The constitutive elements of Section 30(1)(d) as well as the scope of its application
may be gathered from a plain reading of the section itself. There is no need to resort, for
 10

that purpose, to either Section 33 or 34 of the DDA as submitted by counsel for the
appellant.

The wording in Sections 33 and 34 of the DDA would be accordingly of no assistance

and cannot be invoked in order to ascertain the elements of the offence under Section
30(1)(d) of the Act.

We shall finally consider the appellant’s argument that the trial Court had, when
interpreting Sections 30(1)(d) of the DDA, assumed the role of an appellate court by
overruling the interlocutory judgment delivered in the case which was discontinued in 2017.
This, inasmuch as, according to counsel, in that case the learned Judge had held that the
impugned term, is a constitutive element of the offence and had granted the motion made by
the defence “for particulars of the offence and especially the averment of transport on any
terms whatsoever”.

A new case which is now the subject matter of the present appeal and which is
based on a fresh information was lodged subsequently in 2017 after a nolle prosequi had
been filed in an initial case in which the interlocutory ruling in St Pierre v. State [2016 SCJ
166] was delivered. In the course of the present proceedings the defence had inter alia
made a motion for dismissal of the information on the ground that it did not “tally with Section
30(1)(d) of the DDA and did not disclose an offence”.

The learned Judge rejected the motion and held that the term does not constitute an
element of the offence and that the information before the court disclosed all the elements of
the offence under Section 30(1)(d) of the DDA as already pointed out.

We need therefore to stress in that connection that the proceedings referred to and
relied upon by defence counsel in St Pierre v. State [2016 SCJ 166] were abandoned
following the filing of a nolle prosequi and that the present case with a different information
was lodged in 2017. The learned Judge had the task of deciding the present case only on
the basis of evidence and arguments adduced before her following the lodging of the fresh
information in 2017. She was not bound by the ruling previously delivered by another Judge
in the discontinued case which had, to all intents and purposes, been abandoned. In view of
the motion made by the defence it became incumbent upon her, for that purpose, to
interprete and decide the ambit of the phrase “on any terms whatsoever” on the basis of
arguments offered before her in respect of the information which had been lodged anew.
 11

She was, however, in the course of the legal arguments confronted by counsel for
the defence with the previous ruling in the case which had been discontinued and which was
quoted and relied upon by defence counsel (St Pierre v. State [2016 SCJ 166]). That
ruling was not binding upon the trial Judge in the present case. It was open to her to
completely disregard the 2016 ruling inasmuch as the matter had been discontinued and
were to all intents and purposes of no effect following the filing of the nolle prosequi. The
Judge was not sitting on appeal nor reviewing any previous ruling in a case which had been
discontinued but proceeded to determine a motion made by counsel for the defence and for
that purpose, considered all the legal arguments and the cases cited in support including the
ruling in St Pierre v. State [2016 SCJ 166] which had been submitted by counsel for the
defence himself.

However after having considered that ruling in the light of the submissions made by
counsel for the defence the Judge quite rightly came up with her own determination
regarding the meaning of the phrase “on any terms whatsoever”.

For all the reasons previously set out by us we have no difficulty in finding that the
Judge’s interpretation and conclusion on that issue as set out in the information lodged
before her are correct.

Ground 1 must therefore fail.

Ground 2 - Delay

The issue raised under this ground is whether there was in the circumstances a
breach of the appellant’s fundamental right to be tried within a reasonable time as provided
under Section 10(1) of the Constitution and if so, what would be the appropriate remedy.

Counsel argued that the delay in the whole process since the appellant’s arrest and
his final conviction has resulted in a breach of his right to a fair trial within a reasonable time
pursuant to Section 10(1) of the Constitution.

The appellant had been arrested on 23 July 2011, the enquiry was completed on 2
August 2012 and on 5 December 2013 a first information was lodged against the appellant
and Mr. Rayapen.
 12

On 19 November 2015 a nolle prosequi was filed as a separate trial was ordered for
Mr. Rayapen following his change of plea from not guilty to guilty and on the same day a
separate case was lodged against the appellant.

On 21 July 2016 another nolle prosequi was filed in the case in the light of the
intervening judgment of the Court of Criminal Appeal in The State v Dzitse [2018 SCJ 249]
pursuant to which the drug secured had to be analysed anew and a new report had to be
drawn up due to the unavailability of the Forensic Scientist who had initially carried out the
analysis. The needful was done and a new report was put up on 8 March 2017,and the
present information was lodged on 9 May 2017.

Counsel for the appellant submitted that the reasons given by the prosecution to
explain the two successive discontinuances of the proceedings were both questionable and
unsustainable. He argued that the information should be dismissed on grounds of delay and
unfairness in trying the accused the more so as the conduct of the prosecution had led to the
appellant having to answer a charge in relation to the same facts for the third time in the
present case.

Counsel added that the prosecution had obtained “an unfair advantage with the new
information” lodged in the present case whereas the appellant, on the other hand, has had to
face a totally new case. It was further argued that the prosecution did not act in good faith, it
had exceeded and misused its powers to strike out a case and re-lodge another in the
circumstances that it did. The appellant was thus deprived of his fundamental right to a fair
trial within a reasonable time and to be informed as soon as reasonably practicable in detail
the nature of the offence with which he stood charged.

The defence had at the start of the trial made a motion for a stay of proceedings on
account of inordinate delay. The learned Judge found –

“… that the accused [now appellant] has utterly failed to establish on a

balance of probabilities that there has been unreasonable delay in this
case which has caused him to suffer serious prejudice to the extent
that no fair trial can be held, the more so as his Counsel has
unequivocally stated that he was not submitting that the accused
cannot benefit from a fair trial before this Court.
 13

Overall, the learned Judge further found that taking into account the plethora of
motions (8) made on behalf of the appellant since the time of his arrest and which had
contributed to a large extent to the delay since 2013 and the progress of the cases between
2013 and 2017 as well as the postponements sought by the prosecution, it could not be said
that “there was a lack of due expedition on the part of the prosecution or the court”.

She concluded that there was no unfairness in proceeding with the trial against the
appellant inasmuch as the evidence had not disclosed any improper manipulation of the
court process. Further she found “no sign of bad faith, malice or improper motive on the part
of the prosecution” or an “improper use of the constitutional prerogative to discontinue the
case in 2015 and 2016 in order to re-lodge a new case”.

She accordingly held that “a stay of proceedings on the ground of alleged

misconduct of the prosecution resulting in unfairness in the accused being tried, is not
justified in the present case” and set aside the motion for abuse of process.

At the close of the trial counsel for the defence had again addressed the issue of
delay and had moved that the information be dismissed on the ground that the delay in the
proceedings had led to a breach of the appellant’s constitutional right to a fair trial within a
reasonable time.

The learned Judge dealt with the issue of delay at the sentencing stage. She
referred to the interlocutory judgment in which she had declined to order a stay of the
proceedings on the grounds invoked.

She went on to hold that although she had not found that there had been any breach
of Section 10(1) of the Constitution, she was alive as to “the overall length and causes of the
delay between the commission of the offence and the judgment, including the fact that the
case against the accused was on two occasions discontinued and re-lodged. ... that a
discount of 2 years may be allowed on account of delay in the present case”.

She was also of the view that a reduction in sentence may be an appropriate remedy
where there is a breach of the reasonable time requirement contrary to Section 10(1) of the
Constitution without it being unfair to try the accused.
 14

The principles applicable when dealing with the issue of delay were authoritatively
set out by the Judicial Committee of the Privy Council in Boolell v The State [2006 UKPC
46]. The Judicial Committee held as follows:

(i) If a criminal case is not heard and completed within a

reasonable time, that will of itself constitute a breach of section
10(1) of the Constitution, whether or not the defendant has
been prejudiced by the delay.

(ii) An appropriate remedy should be afforded for such breach, but

the hearing should not be stayed or a conviction quashed on
account of delay alone, unless (a) the hearing was unfair or (b)
it was unfair to try the defendant at all.”

For the reasons highlighted by the learned Judge, we consider that there was in the
circumstances no breach of the appellant’s right guaranteed under Section 10(1) of the
Constitution but that in the circumstances applying the principles in Boolell (supra), a
discount of two years in the sentence provided an appropriate and adequate remedy for any
breach of the reasonable time requirement guaranteed under Section 10(1) of the
Constitution.

We agree with the approach adopted by the Judge and we see no reason to interfere
with same.

On appeal before us Counsel for the appellant also invoked the 18 months’ delay
between the completion of the trial and the judgment.

There is no doubt that delays in delivering judgment may “imperil the decision
making process” and that –

“The infinitely preferable position is for a judge to have the time and
possibility, not long after the trial is concluded when the overall picture
is fresh in his or her mind, to analyse the issues and relevant evidence
and to reflect the result of this analysis in a written judgment.”(Tex
Services v. Shibani Knitting Co. Ltd. (In Receivership) 2016 UKPC
31)
 15

However delay is not a ground, which on its own, will render a decision unsafe –

“Mere delay, however long, does not of itself render a judgment

unreliable as a proper exercise of judicial decision making. Rather, it
increases the risk of unreliability …” (Al Sadik v. Investcorp Bank
BSC and Others [2018] UKPC 15 at para. 47)

In the present case although the judgment was delivered some 18 months following
the trial, the learned Judge had in her judgment made a proper analysis of the material facts
and issues and in the circumstances it cannot be said that the judgment was in any way
unreliable on account of the delay.

Ground 2 accordingly fails.

Grounds 3 and 7 - Section 10(2) of the Constitution

It was submitted under these grounds that the appellant’s right pursuant to Section
10(2)(b) of the Constitution to be informed in detail of the nature of the offence has been
breached given that at the pre-trial stage he was neither informed nor questioned about an
essential element of the offence to wit “the term of transportation”. As such, it was argued
that the prosecution had failed to “inform the appellant as soon as reasonably practicable
and further, in detail the nature of the offence against him”.

Counsel highlighted that at the investigative stage the appellant was charged with an
offence of attempting to possess dangerous drugs. Seven years later, he was however
charged with a different offence namely the offence of attempt to transport dangerous drugs.
Counsel pointed out that it was only after the lodging of three different informations with two
further amendments to the information, that the appellant was informed in detail of the
nature of the offence with which he was charged.

The learned Judge found that it had not been established that the appellant’s right
under Section 10(2)(b) of the Constitution had been breached or that he had suffered any
prejudice. She observed that the appellant was at all material times represented by counsel
and was able to plead freely to the information, to call evidence and cross-examine
witnesses and to otherwise challenge the prosecution evidence.
 16

The issue relating to the term of transportation has already been considered under
ground 1 and for the above given reasons we find no merit in this argument.

As regards the fact that the formal charge against the appellant was different from
that with which he was provisionally charged the learned Judge wrote, “it is for the Director
of Public Prosecutions to decide pursuant to section 72 of the Constitution which formal
charge to prefer against the accused and he cannot in any way be fettered by the provisional
charge lodged often at an early stage of the police enquiry …”.

We find no fault with the trial Judge’s analysis and conclusions.

A provisional charge is lodged by the Police at the initial stage of the enquiry. It “is
merely a preliminary stage when the prosecution is still carrying its investigation and has not
made any decision whether to lodge a criminal charge or not….” (Jugnauth P. K. v. The
Secretary to the Cabinet and Head of the Civil Service Affairs & Ors [2013 SCJ 132]).

It is “in the Mauritian context simply an indication of the offence which a person is
suspected of having committed and is normally lodged at a very early stage of the enquiry,
when investigation may have hardly started and is certainly not over. …” (The State v.
Bundhun [2006 SCJ 254]).

It is ultimately the DPP who, pursuant to the powers vested upon him under Section
72 of the Constitution, decides the formal charge on which an accused party will stand trial.

At the initial stage when the provisional charge is lodged the enquiry is yet to be
completed and the formal charge is yet to be finalised.

“there is no such thing as a duty to put the charge as per the eventual
information to the suspect at enquiry stage. He is normally, as he
should be, informed of the facts and circumstances against him, or
reproached of him. It is only if the final charge is totally different or
more serious than what had been put to the accused at enquiry stage
that there would be ground for concern.’ - DPP v Lagesse & Ors
[2018 SCJ 257].”
 17

In the present case the appellant was informed at the outset of the facts and
circumstances against him. During the recording of his statements, the appellant was
confronted with all the evidence including the version of the Malagasy national and the
prosecution evidence against him.

Indeed, the circumstances which led to the appellant’s arrest were not in dispute.
The appellant had admitted having driven from Pamplemousses in his private van to pick up
the Malagasy national in Port Louis, he had over the phone, informed her of the pick-up
point and after she had boarded the van with her trolley bag containing the heroin, the Police
had surrounded the van and apprehended them.

The appellant had however denied knowledge of the drugs in the trolley bag and the
case for the defence was essentially focused on the issue of knowledge. The appellant was
all along assisted by counsel at all material times and afforded all possible latitude in the
conduct of his defence, inter alia, to challenge the evidence of the prosecution witnesses in
the course of cross-examination and to call evidence on his behalf.

As such, it cannot be said that there had been in the circumstances any breach of
the appellant’s rights under Section 10(2)(b) of the Constitution. He had been informed of
the evidence against him and he was given a fair opportunity to correct, contradict and
respond to the evidence as well as the submissions of the prosecution (vide Kanda v
Government of Malaya [1962] AC 322, 337).

Grounds 3 and 7 also fail.

Ground 8

It was submitted under this ground that the learned Judge had failed to direct her
mind to the dangers of acting on the sole uncorroborated testimony of Inspector Dominique
regarding the appellant’s alleged use of the word “valise” during his phone call to the
Malagasy national, the more so, as Inspector Dominique was deponing as to a conversation
which he had heard some 8 years previously and his testimony was “fraught with
inconsistencies and lies”.
 18

Inspector Dominique had testified that he had remained in the room with the
Malagasy national at the Metropole Hotel and he could hear all her telephone conversations
as the phone was on “speaker mode”. The lady received an initial local phone call from a
person identifying himself as “Didier”. The latter informed her that he would pick up the
‘valise’. The word ‘valise’ was mentioned anew on two occasions in the course of
conversations between the appellant and the Malagasy national.

The learned Judge analysed the evidence as follows:

“In the particular circumstances of the case, Inspector Dominique

was entitled to depose as to what he had personally heard and I
am satisfied, from his demeanour when deposing and in particular
his replies under cross-examination, that he was speaking the truth
when he stated that the local male caller allegedly asked the
Malagasy lady about the ‘valise’ when he called her at the
Metropole Hotel.”

Counsel submitted that the Learned Judge had failed to make a proper assessment
of the witness’s credibility and had, when carrying out the exercise, failed to adopt the
following step by step approach set out in the following passage, when assessing the
credibility of witnesses:-

“Credibility’ involves wider problems than mere ‘demeanour’ which is

mostly concerned with whether the witness appears to be telling the
truth as he now believes it to be. Credibility covers the following
problems. First, is the witness a truthful or untruthful person?
Secondly, is he, though a truthful person telling something less than
the truth on this issue, or though an untruthful person, telling the truth
on this issue? Thirdly, though he is a truthful person telling the truth
as he sees it, did he register the intentions of the conversation
correctly and, if so has his memory correctly retained them? Also, has
his recollection been subsequently altered by unconscious bias or
wishful thinking or by over much discussion of it with others?
………….. And lastly, although the honest witness believes he heard
or saw this or that, is it so improbable that it is on balance more likely
that he was mistaken? On this point it is essential that the balance of
probability is put correctly into the scales in weighing the credibility of
 19

a witness. And motive is one aspect of probability. All these problems

compendiously are entailed when a Judge assesses the credibility of
a witness; they are all part of one judicial process. And in the process
contemporary documents and admitted or incontrovertible facts and
probabilities must play their proper part.” (Onassis v. Vergottis
[1968] 2 Lloyds Rep 403 at p 431)

In the present case although the record does not reveal that the learned Judge had
asked the above specific questions, we have found nothing to suggest that her assessment
is either unreasonable or perverse. The record reveals that Inspector Dominique had
maintained all along that he had heard the local caller referring to a ‘valise’ and this on no
less than three occasions.

Nor have we found any evidence to support the defence contention that his evidence
was “fraught with inconsistencies and lies” on any material issue.

Furthermore the trial court is sovereign in its assessment of witnesses called during
the proceedings and an appellate court is ill placed to interfere with the trial court’s
assessment, it will intervene only in very exceptional circumstances. The advantages that a
trial court has over an appellate court in the assessment of witnesses are manifold and as
highlighted in the following passage these advantages should not be under estimated.

“… No one would seek to minimise the advantage enjoyed by the trial

judge in determining any question whether a witness is, or is not, trying to
tell what he believes to be the truth, and it is only in rare cases that an
appeal court could be satisfied that the trial judge has reached a wrong
decision about the credibility of a witness.
But the advantage of seeing and hearing a witness goes beyond that.
The trial judge may be led to a conclusion about the reliability of a
witness’s memory or his powers of observation by material not available
to an appeal court. …… but an appeal court is, and should be, slow to
reverse any finding which appears to be based in any such
considerations” [Per Lord Reid (Benmax v Austin Motor Co. Ltd.
(1955) 1 All E.R. 326 at page 328)].
 20

In so far as corroboration of Inspector Dominique’s evidence is concerned, there was

in the present circumstances, no legal requirement for corroboration of the witness’s
evidence, nor was corroboration required as a matter of practice. Indeed –

“Apart from the cases specifically provided for by statute or by long

established rule of practice there is no rule of law that requires
corroboration of the evidence of a single witness and a magistrate is
perfectly entitled to convict in appropriate cases on the evidence of
that witness ….. On the other hand where the evidence of the witness
called has been strenuously challenged and certain allegations made
against him, we consider that it is highly desirable that corroborative
evidence, if available, should be adduced. …” (Underlining ours)
(Paruit v.The Queen [1968 MR 37])

None of the circumstances, highlighted in the above passage and which make
corroboration desirable, was here present. The witness had been strenuously cross
examined and had throughout maintained his testimony on the material issues. The learned
Judge who had seen and heard the witness’s testimony was best placed to assess his
credibility. She found him to be truthful and that she could safely act on his evidence. We
have found no reason to interfere with her assessment.

Ground 8 accordingly fails.

Ground 10

It is averred under this ground that the Judge ought to have found that the
prosecution evidence was fabricated and further that the witnesses were not credible; this in
view of the similarities between the entries made by the officers, notably in Documents M
and N, the common style of writing as well as the grammatical and spelling mistakes in the
different statements.

We have perused both Documents M and N. They are respectively entries made by
the police officers in the Diary Book of the ADSU Headquarters on 24 July 2011 at 1.30 am
(Doc. M) and the extract from the Occurrence Book at Northern Division ADSU on 24 July
2011 at 16.55 hours (Doc. N). Both these entries relate the events of 24 July 2011 since the
arrival of the Malagasy lady and the arrest of the appellant.
 21

The record reveals that after the arrest all the officers involved in the operation had
reported to SP Ramasawmy, the senior most officer and the latter gave them instructions
with respect to the entries to be made at the police station. Subsequently the other officers
referred to these entries when writing down their own statements.

We consider that, in the circumstances and in the light of the evidence on record, the
similarity in style and the recurrence of similar mistakes in the various statements, does not
necessarily lead to an inference of fabrication on the part of the officers given that the
circumstances in which the appellant was apprehended on the evening of 23 July 2011 in
Port Louis after the Malagasy national had boarded his van with her trolley bag, were not in
dispute. In so far as disputed issues are concerned, the only prosecution evidence relied
upon by the Judge was that of Inspector Dominique.

The Judge’s determination whether the offence had been established against the
appellant was based on the undisputed prosecution evidence, the evidence of Inspector
Dominique and the appellant’s evidence contained in his statements to the Police.

Given the tenor of the evidence, we find no merit in the argument that the
prosecution evidence was fabricated.

Ground 10 also fails.

Ground 11

This ground challenges the trial court’s finding that the appellant had the requisite
mens rea for the offence.

In determining whether the appellant had the requisite mens rea, the learned Judge
considered firstly the appellant’s version to the effect that –

(1) he had known Carlo (Rayapen) for less than a year;

(2) on the fateful evening he had left his home in Pamplemousses at

Carlo’s request to pick up the latter’s girlfriend in Port Louis;

(3) between 20.38 to 21.24 hours he made several short phone calls to
the Malagasy national;
 22

(4) he did not use his real name when calling her;

(5) during the period 18.28 hours to 22.21 hours Carlo and himself called
and texted each other on some 10 occasions;

(6) the appellant remained at the driving wheel of his van whilst his friend
Mr. Jean, whom he stated he had met by chance, helped the lady into
the van together with the trolley bag.

She further took into consideration Inspector Dominique’s evidence to the effect that
during the time that he was in the room with the Malagasy national, the latter received local
phone calls from a person identifying himself as ‘Didier’ and the said Didier had stated that
he would pick up the “valise” and instructed her to come out of the hotel with the “valise” and
wait for him.

The learned Judge found:

“that the only irresistible inference from the above, coupled with the
fact that the trolley bag loaded into his van was found to contain
heroin powder and that it is undisputed that the Malagasy lady and
Carlo (Mr. Rayapen) have both been convicted of drug offences, is
that the accused knew that the trolley bag, which had been in the
possession of the Malagasy lady whom he had picked up on behalf of
Carlo and which was on board his van, contained drugs.”

The learned Judge’s findings were, in the light of the evidence on record, perfectly
warranted and her conclusion that in all the circumstances, it had been established that the
appellant had the requisite knowledge for the offence, cannot be faulted.

The learned Judge made a correct appreciation of all the evidence and she was
entitled to reach the conclusion that she did.

Ground 11 also fails.

 23

We find no merit whatsoever in the appeal and we accordingly dismiss it. With costs.

We further order that any period which the appellant has spent on remand pending
this appeal shall be deducted from the term of penal servitude imposed upon him.

B. R. Mungly-Gulbul
Ag. Senior Puisne Judge

M. I. Maghooa
Judge

K. D. Gunesh-Balaghee
Judge

7 June 2021

------------

Judgment delivered by Hon. B. R. Mungly-Gulbul, Ag. Senior Puisne Judge

FOR APPELLANT: Mr. S. K. Trilochun together with

Mr. H. Ramlogun, both of Counsel
Ms. Attorney J. J. Beegoo

FOR RESPONDENT: Mr. S. Y. Boodhoo, Ag. Assistant Director of

Public Prosecutions
Mr. M. Lallah, Chief State Attorney