POLICE V STE MARIE DAVID ALEXANDRE

2019 ROD 3

POLICE V STE MARIE DAVID ALEXANDRE

Cause Number: 3583/2015

THE COURT OF RODRIGUES

In the matter of:-

POLICE

DAVID ALEXANDRE STE MARIE

Judgment

Introduction

1. Accused stands charged with the offence of larceny by person in receipt of wages in
breach of section 301 (1) and 309(2) 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) and 309(2) (a) of the Criminal Code, as amended. Accused pleaded not guilty under
both counts and at trial, Accused was represented by Counsel.

The trial.

2. This is a case where Accused is being prosecuted for having stolen a gas cylinder from
Grande Montagne College where he works as an attendant.

3. To establish the fact that Accused stole from his employer, the prosecution first called
Jean Noel Evenor, Manager of Rodrigues Educational Development Company (“REDCO”) who
testified that Accused is employed at REDCO and was working as a general attendant on 19
September 2014 .
4. As regards to the commission of the offence of larceny, Marie Annique Begue (“W4”)
testified that on 19 September 2014, both Accused and her were working as attendant at
Grande Montagne College and that Accused was posted at the college laboratory. On the
material day, around 14.00 hours and 14.30 hours, while she was looking for someone to carry
a gas cylinder at the college laboratory, she saw Accused taking a blue gas cylinder from the
mess room and carried same outside the college premises. W4 testified that she asked
Accused where he was going with the gas cylinder and to return same in the college but
Accused made no reply and brought same near a shop located close to the college.

5. Fils Margeot Jolicoeur (“W5”), the shop attendant who was working in the shop which is
found close to the college testified that on the material day, Accused came in his shop with a
blue gas cylinder. Accused told W5 to keep the gas cylinder and that he will come to collect it
later or a friend will come to collect same. However, in the afternoon, a police officer came and
ask W5 whether Accused came and left a gas cylinder and to which W5 answered in the
affirmative form. W5 testified that the police officer took the gas cylinder and they both went at
Grande Montagne Police Station.

6. As regards to the defence, Accused swore to the correctness of his statement which he
gave to the police. In his statement, in broad outline, Accused denied of having stolen the gas
cylinder. The version of Accused is that on the material day, at 6.38 hours, he attended school
and then left the school premises to consume alcohol with one Doodool. He left the latter
around 14.40 hours and went back to the college and took a gas cylinder and brought same in
the biology laboratory. While Accused was doing his cleaning, W4 told Accused that Mrs.
Francois was looking for him. When he attended the office of Mrs Francois, the latter asked him
whether he took a gas cylinder outside the school precinct to which Accused replied to her in
the negative form. Accused told Mrs. Francois that he did take a gas cylinder from the mess
room and brought same in the laboratory. He told Mrs. Francois to come and see the gas
cylinder to which Mrs. Francois refused. The police then came at the college and Accused was
then brought to the police station after he showed the policeman the gas cylinder which he
carried to the laboratory. To conclude, Accused stated that at the police station, he was shown

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another gas cylinder which had its seal on it and that the gas cylinder which he carried at the
laboratory was half full.

7. Under oath, Accused denied of having stolen the gas cylinder. To support his point,
Accused testified that he is a boxing trainer who travelled with children in Mauritius and the
parents of those children usually gives him money and he never stole any money from those
parents. He went on to say that he used to get into arguments with W4 and that on the very
morning of that day, he entered into an argument with W4 because the latter told him to carry
heavy materials to which he refused and W4 told him that he will have to bear the
consequences of his act. He went on to say that there is a record book regarding the keys to get
access to the place where the gas cylinders were kept but he never went to get the keys on that
day. Accused denied of being present in the yard of the college at the material time and testified
that he left the college for lunch and returned back around 15.00 hours and 15.10 hours.

The law.

8. The first charge against the Accused is one of larceny with aggravating circumstances.

9. Section 301 of the Penal Code Ordinance provides that:

“Any person who fraudulently abstracts anything not belonging to himself

shall be guilty of larceny…”

10. 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.

11. I have assessed all the evidence on record and also submission of Counsel.

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12. The submission of Counsel stems into two points. The first point is that the prosecution
has failed to prove its case to the required standard. His second point is that the charge was
never put to Accused.

13. I shall first deal with the first point of Counsel.

14. As a starting point, it is not in dispute that Accused was working for REDCO at the time
of the alleged offence.

15. For the prosecution, there is the testimony of W4 and of W5 which were crucial. W4
testified that she saw Accused taking the gas cylinder outside the school premises. She went on
to say that she did speak to Accused but the latter made no reply and took the gas cylinder
outside the college premises. As regards to W5, he testified that Accused came and left the gas
cylinder in the shop where he was working at the material time and the police then came and
took same away.

16. After having heard the version of W4 and W5, I see no reason as to why I should doubt
their versions. This is being said because they testified without any diffidence and explain in
clear terms as to how Accused dealt with the gas cylinder. They were able to answers to the
questions asked by Counsel without any difficulty during cross examination and both witnesses
maintained what they say during their testimonies.

17. As regards to Accused, he testified that W4 had a grudge against him and this is why
she levelled a false charge against him. But on the assumption that the version of Accused is to
be believed which is not the case in the present matter, I failed to comprehend as to why W5
would also incriminate Accused to the fact that the latter came and left a gas cylinder in his
shop. Furthermore. Accused testified that he never took any gas cylinder because to be able to
do so, he had to get the keys of the room where the gas cylinders were kept. But this is
inconsistent with the version which he gave in his statement and to which he swore to its
correctness and in which he said that when he returned to the college around 14.40 hours, he
took a gas cylinder from the mess room and brought same to the biology laboratory.

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18. In the light of the above, I find that Accused did take away a gas cylinder from the
college and as stated by W4 in re- examination, no one gave permission to Accused to take the
gas cylinder.

19. In PROCUREUR GENERAL V/S BENCH OF MAGISTRATES OF PORT LOUIS [1884

MR 11] the Court held that the least removal of an article from a place without its owner’s
consent amounts to abstraction.

20. Hence, I find that the prosecution has proved the element of abstraction.

21. As regards to the second element, larceny pre-supposes that the property belongs to
somebody else in the sense that somebody exercises some form of control over the property
and in the present case, I find that the gas cylinder belongs to REDCO and that Accused was
well aware that the gas cylinder was not his and despite same, he took the gas cylinder without
the authorisation of anyone from Grande Montagne College.

22. Regarding fraudulent intention, it was held that the intention for the purpose of larceny
should exist at the particular moment when the abstraction takes place. In SARAWON vs THE
QUEEN [1956 MR 171] ,it was said that :

“French jurisprudence is in accord with the commentators on the Penal Code as

to the meaning to be given to the expression “soustraction frauduleuse” in the
definition of larceny. It will be sufficient to quote the headnote to one of the
decisions which is reported in S. 1929.1.160:

La soustraction frauduleuse, qui est un des éléments constitutifs du délit de vol,

n'existe que lorsque la chose a été appréhendée contre le gré et à l'insu du
propriétaire”.

23. In the case of Reetoo and Anor v R [1958 MR 297] at page 299, in regard to the element
of fraudulent intent for the offence of larceny, reference was made to note 358 of article 379 of
Garçon's Code Pénal Annoté, 2nd edition which is to the following effect –

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 “358. En principe général, l'intention est juridiquement réalisée lorsque l'agent
commet, avec connaissance, le fait défendu par la loi dans les conditions où elle
le défend. Particulièrement, en matière de vol, elle consistera à usurper la
possession de la chose d'autrui, animo domini, sachant qu'elle appartient à
autrui. Il faut d'abord que l'agent ait su: 1o. qu'il enlevait une chose; 2o. qu'il
1'enlevait contre le gré du propriétaire; 3o. que la chose enlevée ne lui
appartenait pas. Mais cette simple connaissance ne suffit pas; il faut encore un
dolus specialis, consistant ici dans la volonté de l'agent de s'approprier la chose,
ou plus exactement, d'usurper la possession civile de cette chose, animo domini.
C'est ce dolus specialis que l'art. 379 a soin de marquer en exigeant que la
soustraction soit frauduleuse.”

24. In the present case, I find that the element of fraudulent intention has indeed been
proved as already stated above, the gas cylinder was taken away without anyone authorisation
from anyone from the college of Grande Montagne. Furthermore, Accused took control of the
gas cylinder and removed it from the college premises and went on to leave it at the shop where
W5 was working.

25. As regards to the second point raised by Counsel, he stated that the charge was never
put to Accused and relied under the authority of the Wayne’s case and of Jhootoo v The State
[2013 SCJ 373].

26. In the Jhootoo’s case there were two counts against the Appellant in respect of giving
false statements in relation to drug dealing offences. In fact, the Appellant had given a second
statement in which he stated that he spoke only three quarter of the truth in his first statement
and that he would now complete the truth in his second statement. The trial Court relied on this
admission to find him guilty on both counts. The Supreme Court however found that a charge of
section 42(1)(a) was never put to the appellant at the enquiry stage so that he could not, unless
he elected to exercise his right of silence, rebut the allegation.

27. The Supreme Court held that:

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…There is no defence statement for, and indeed, a complaint of giving false statements in
relation to the drug dealing offence, in breach of sections 42(1)(a)(4) of the Act was never put to
him.

It is our view, therefore, that the appellant did not have a fair hearing in the circumstances. The
same thing would apply to the charge under Count 3. For the same reason, we take the view
that the conviction cannot stand. … For the reasons given above, the convictions under counts
2 and 3 cannot stand on the ground that the appellant had not been given an opportunity to
exercise his constitutional rights. The appellant had a right to know in the first place the details
of the case regarding the false statement. Nothing shows that it was ever put to him that he
would be charged for an offence of giving a false statement in connection with a drug offence.
Section 10 (2) provides that every person who is charged with a criminal offence ... shall be
informed as soon as reasonably practicable, in a language that he understands, and, in detail,
of the nature of the offence.” That constitutional imperative has been breached in this case and
a conviction cannot be based on that core irreducible minimum of fairness.

28. Having read the statements of Accused, I agree that the charge was not directly put by
the police to Accused but he was made aware of the allegation made by W4. Furthermore,
Accused was also made aware of the case against him prior and after a search was effected at
his place regarding the present case.

29. In Seetahul v the State [2015 SCJ 328], the Supreme Court stated that:
There is no provision in our law which imposes a duty on the police to actually put the charge to
the accused at the enquiry stage. Section 5 of the Constitution relates to the rights of the person
who is arrested or detained to be informed of the reasons for his arrest or detention, to be
afforded reasonable facilities to consult a legal representative of his own choice and to be
brought without undue delay before a Court. Section 10 (2) of the Constitution provides that
every person who is charged with a criminal offence shall be informed as soon as reasonably
practicable, in a language that he understands, and, in detail, of the nature of the offence. In the
information before the trial court, the appellant is charged for unlawfully being found on private
premises not belonging to him without giving a satisfactory explanation for his presence there.

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In the course of the enquiry, the version of witness L. Seewoolal was put to the appellant then
accused as follows: …

In the case of Jhootoo v The State [2013 SCJ 373], the appellant was charged under three
counts. Under count one for drug dealing and under counts 2 and 3 for giving false statements
in relation to the drug dealing offence under section 42(1) (a) (4) of the Dangerous Drug Act. It
is noted that the charges under counts 2 and 3 were never put to the appellant at the enquiry
stage so that he could not rebut the allegation. There was no defence statement for the
Complaint of giving false statements in relation to the drug dealing offence. The Court held that
the convictions under counts 2 and 3 cannot stand on the ground that the appellant has not
been given an opportunity to exercise his constitutional rights. The appellant had a right to know
in the first place the details of the case regarding the false statement. Nothing shows that it was
ever put to him that he would be charged for an offence of giving a false statement in
connection with drug offence. The convictions under counts 2 and 3 were quashed.

In the present case, the version of the prosecution witness was put to the appellant and he had
denied being in the yard of Mr Purmessur. It was not incumbant at the stage of the enquiry to
put each and every element of the offence to the appellant. It suffices that the version of the
complainant was put to him so that he was made aware of the case against him and the
evidence on which it is based so as to enable him to prepare his defence.

30. In the Seetahul case, the Supreme Court found that the version of the complainant
should be put to Accused so that he is made aware of the case against him as well as the
evidence on which such a case is based so that he is enabled to prepare his defence and this is
what the police rightly did and hence, I do not find that the constitutional rights of Accused has
been infringed.

Conclusion.
31. Therefore, for the reasons set forth above, the Court is satisfied that the Prosecution
has proved beyond reasonable doubt all the constitutive elements of the offence under the first

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count, therefore find Accused guilty as charged under Count I and the alternative Count II is
dismissed against him.

D.J.A Dangeot
Senior District Magistrate
Delivered on 20 February 2019.