Wadud M.A.R.A.

v The State
1999 SCJ 187

RECORD NO. 124

IN THE SUPREME COURT OF MAURITIUS

(COURT OF CRIMINAL APPEAL)

In the matter of:-

M.A.R.A. Wadud
Appellant

versus

The State

Respondent

JUDGMENT

This is an appeal against a decision of the trial Court which convicted

the appellant, a national of Tanzania, who is a university student, literate and well
conversant with the English language for the offence of illegally importing, as a
trafficker, into Mauritius 223.49 grams of heroin. She was sentenced to undergo penal
servitude for life.

There were originally four grounds of appeal which challenged the

conviction of the appellant but at the hearing of the appeal learned Counsel for the
appellant chose to rely only on the first ground, namely that the learned Judge had
erred in coming to the conclusion that the appellant was aware that she had a right to
Counsel but she had, herself, never asked for Counsel, since the constitutional right to
Counsel is absolute.

Enlarging on this ground of appeal of his client, learned Counsel

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contended in substance that the appellant had not been specifically explained about her
constitutional rights, including in particular, her right to Counsel before giving her
three statements to the Police.

The appellant had testified before the trial Court that she told Inspector
Azima, the enquiring officer, that (a) she did not want to answer questions before
consulting with a legal adviser and (b) before the subsequent recording of each of the
three statements, she specifically asked for the services of such a legal adviser but was
told on all four occasions that as a foreigner from a country with no embassy in
Mauritius, she was not entitled to Counsel.

All these allegations were denied by Inspector Azima who stated that on
18 November 1996 before questioning the appellant and having a statement recorded
from her, he personally explained to her in the English language her constitutional
rights, i.e her right to silence and her right to retain the services of a counsel of her
choice if she so wished. The appellant was also told that facilities would be provided
to her in that regard and that she could, if she wished, write her statement herself. To
which the appellant stated the following: “I am ready to give my statement and to
explain the truth on my own” (the emphasis is ours). A diary book entry to the effect
that she had been informed of her constitutional rights and that she was willing to give
a statement on her own was signed by the appellant, a copy of which was produced in
Court (Doc. A).

Thereupon the appellant was questioned and voluntarily gave her

statement which was duly recorded (Doc. F) by Inspector Azima, witnessed by
Inspector Tokee and signed by her. Inspector Tokee confirmed in evidence that
Inspector Azima did inform the appellant of her rights. Indeed the appellant signed an
opening declaration in her statement to the effect that her constitutional rights had been
explained to her.

Inspector Azima went on to explain that on 17 November 1996 after the

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arrest of the appellant and after having been informed of the charge against her and of
her constitutional rights, the appellant admitted having imported heroin into Mauritius
and added that she would give her statement of her own free will the next day. A diary
book entry to that effect was signed by the appellant and a certified copy thereof
produced in Court (Doc. B).

On 27 November 1996 Inspector Azima recorded a second statement

from the appellant which was witnessed by Inspector Sawmy. Before the recording of
this statement, the appellant was again informed of her constitutional rights. She stated
that she was ready to cooperate with the Police and to say everything she knew on her
own. A diary book entry to that effect was signed by the appellant and a certified copy
thereof produced in Court (Doc. C). The appellant then voluntarily gave her statement
which was duly recorded (Doc. F1) by Inspector Azima, witnessed by Inspector
Sawmy and signed by her. Inspector Sawmy confirmed in evidence that Inspector
Azima, before recording the statement, informed the appellant of her rights i.e that she
had the right to remain silent and that she could be assisted by a legal adviser of her
choice. Again the appellant signed an opening declaration in her statement to the effect
that she had been explained her constitutional rights.

On 24 December 1996 a third statement (Doc. F2) was recorded from

the appellant which she voluntarily gave and signed. Again Inspector Azima insisted
that before recording the statement he informed the appellant of her constitutional
rights. Again the appellant signed an opening declaration in her statement to the effect
that she had been explained her constitutional rights.

Inspector Azima added that in the corridor to the police cell where the
appellant was being detained at the time she had given her first and second statements,
there was a notice in English affixed in a conspicuous position mentioning the rights of
persons in Police custody, notably the right to communicate with legal advisers. He
also stated in cross-examination that he did not spell out in the diary book the
constitutional rights of the appellant because the latter is an educated person who
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knows English very well.

In the light of the evidence adduced by the prosecution witnesses, the

learned Judge had no difficulty at all, in preferring, as he was entitled to, the version of
the Police Officers that the appellant “was made aware of her right to retain counsel of
her choice and that she never actually expressed the desire to retain counsel of her
choice nor even asked for the services of counsel”.

We consider that any other conclusion on the available evidence would

have been perverse. The appeal is consequently dismissed.

One final observation. It is not correct to say, as submitted by learned

Counsel for the appellant, that the constitutional right of a detainee to be informed of
his right to consult a lawyer is absolute, even if the Police are admittedly under a legal
obligation to inform him of his right to counsel – vide State v Coowar [1997 MR
123].

As explained by the Judicial Committee of the Privy Council (per Lord

Steyn) in Mohammed (Allie) v The State (The Times, Dec 10, 1998) -

“On the one hand, the judge had to weigh the interest of the community
in securing relevant evidence bearing on the commission of serious
crime so that justice could be done. On the other hand, he had to weigh
the interest of the individual who had been exposed to an illegal
invasion of his rights.
. . .
However, it was important to bear in mind the nature of a particular
constitutional guarantee and the nature of a particular breach.

A breach of a defendant’s constitutional right to a fair trial would

inevitably result in the conviction being quashed.

By contrast the constitutional provision requiring a suspect to be

informed of his right to consult a lawyer, although of great importance,
was a somewhat lesser right and potential breaches could vary greatly
in gravity.
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In such a case not every breach would result in a confession being

excluded.

But the fact that there has been a breach of a constitutional right was a
cogent factor militating in favour of the exclusion of the confession.

Nevertheless, the judge had to perform a balancing exercise in the

context of the circumstances of the case. It would generally not be right
to admit a confession where the police had deliberately frustrated a
suspect’s constitutional rights”.

A.G. PILLAY
CHIEF JUSTICE

K.P. MATADEEN
JUDGE

D.B. SEETULSINGH
JUDGE

1 June 1999

Judgment delivered by Hon. A.G. Pillay, Chief Justice

For appellant:- Mr Attorney B. Rampoortab

Mr A. Gayan, Senior Counsel

For respondent:- State Attorney

Mrs A. Narain-Ramloll, Ag. Principal State Counsel