THE STATE v BIBI FATEMAH DILMAMODE & ANOR

1995 SCJ 416

1995 MR 186
416/95
CASE NO. 2/1SCS/95

THE SUPREME COURT OF MAURITIUS

SPECIAL CRIMINAL SESSION 1995

IN THE MATTER OF:-

THE STATE

V.

1. BIBI FATEMAH DILMAMODE

2. SAID DILMAMODE

JUDGMENT

The first accused, Mrs Bibi Fatemah Dilmamode is charged with the

offence of having unlawfully and knowingly imported into Mauritius 59.08 grams of

heroin (Diacetylmorphine).

The second accused, Mr Said Dilmamode, who is the husband of the

first accused, is charged with unlawfully and knowingly causing the importation of the

heroin into Mauritius.

There is also an averment of trafficking in respect of both accused who

pleaded not guilty both as to the importation and trafficking.

 The evidence adduced at the trial is as follows. On 20 April 1994,

Air Mauritius flight MK 749 coming from Bombay landed in Mauritius.

The two accused were amongst the passengers. They were suspected of taking drugs

into Mauritius and they were both questioned and searched.

During that operation, the officers of the Anti Drug and Smuggling

Unit (ADSU) suspected that accused no. 1 had drugs concealed inside her body.

She was taken to Princess Margaret Orthopaedic Centre (P.M.O.C.). At the hospital

between 20 April and 23 April 1994, accused no. 1 passed stools and she restituted

forty two parcels which contained a substance later found to be heroin as per the

report of the Forensic Science Officer.

The two accused made statements in writing to the police.

Accused no. 1 made one statement on 20 April 1994 and another one on 27 May 1994

in presence of Mr R. Valayden, bar-at-law. Accused no. 2 made two statements on

20 April and 28 April 1994 respectively. He did not want to be assisted by counsel on

28 April 1994. Accused no. 1 also gave evidence under solemn affirmation.

Accused no. 1 stated that she operates a small shop (tabagie) where she

deals in ready-made garments and fancy jewellery. She regularly goes to India to buy
her stock. In 1994 she proceeded to India on three occasions. Each time she

travelled alone. She always stayed at the Marama Hotel in Bombay. On the last trip

her husband (accused no. 2) accompanied her. On one occasion, in the hotel room,

she noticed that accused no. 2 was smoking a brownish substance. Though she did

not ask him where he had obtained the substance, accused no. 1 added that she was

fully aware that, in the vicinity of the hotel she was occupying, drugs were easily

available.

On 19 April 1994 at the hotel, accused no. 2 asked accused no. 1 to

give him an amount of 5,000 Indian rupees. He then left the hotel room. The time

was 12.30 hours. He came back at 14.30 hours. At three in the morning on 20 April

1994, before the accused were due to leave the hotel for the airport on their return trip

to Mauritius, accused no. 2 told accused no. 1 to swallow small packets. Though

accused no. 1 suspected something was amiss, she did not query her husband about

the packets (mais meme qui mo fine ena doute mo pas fine ena toupet demande li qui

ena dans banne ti packet la). She explained her attitude by the fact that her husband

is hot-tempered and that he was aggressive in the hotel room and even threatened to

assault her. She was scared and was labouring under fear. She finally had no choice

than to swallow the packets. She then described the circumstances of her arrest

in Mauritius and the restitution of the packets when she passed stools at the P.M.O.C.

When she gave evidence in Court, accused no. 1 repeated substantially

the contents of her statement. The evidence in chief reads as follows:

 “I am now going to say what took place before midnight. My husband,
accused no. 2 brought several packets, meaning the 42 packets
(Exhibits I, II and III) and told me to swallow them. I asked him what
the packets contained. He did not tell me. I had a suspicion that it was
heroin (Mo fine ainan aine doutance). I harboured the suspicion
because my husband is a drug addict. He was consuming drugs during
our stay in Bombay. I did not agree to swallow the packets. My
husband told me that if I did not swallow the packets, he would leave
me. I am married with two children. He also told me he would take
my money and my passport and added “mo guetter couma to pou
aller”. I thought of my children. I got scared. My husband was using
swear words. He assaulted me. I was scared. I thought to myself
I have to look after my children. Finally I agreed to swallow these
packets. It took me one hour to swallow them. My husband is a
“butor”. I have always been scared of him. He is violent. I discussed
with my husband (Mo pé la guerre are li) in order not to swallow the
packets.”

When she was cross-examined she again stated that she was terribly

scared of her husband. She was also made to explain the contradiction between her

statement and her testimony in Court on the issue whether she had asked her husband

what the packets contained. She finally admitted that she did ask accused no. 2

whether the packets contained drugs.

Accused no. 2 did not give evidence in Court but he made a statement

from the dock in course of which he confessed to being a drug addict. He went on to

say that the drugs imported into Mauritius were meant for his own use. He denied

being a trafficker in drugs. In his statement given to the police on 28 April 1994,

he described the trade he was engaged in with his wife. In India he purchased drugs at

a rather cheap price. The wrapping was done by the pedlars in India. At the
hotel he told his wife (accused no. 1) that if she refused to swallow the packets, he

would leave her when they would return to Mauritius. Accused no. 1 got scared and

swallowed the packets. His exact words in the statement are: “Mo fine demande mo

madame amene ca pou moi. Au commencement li pas fine d’accord mais moi mo fine

dire li si li pas amener couma mo rentre Maurice mo pou separer are li. Mo madame

fine peur et vers le 2 heures du matin avant qui nous prend avion Bombay divant moi

mo madame fine avale ça banne boulette dans qui ena la drogue qui mo ti acheter

pour amene Maurice.”

In the course of the proceedings, the prosecution sought to put in a

statement recorded from accused no. 1 after his arrest. That statement was recorded

from the accused without her being informed as to her right to consult a legal adviser

of her own choice. I held the statement to be inadmissible on that ground. I am now

setting my reasons for my ruling on the inadmissibility of that statement.

The starting point of any discussion on this issue should be the case of

Samserally v. The State [1993 MR 94] where the Court (Forget S.P.J. and Sik Yuen J.

as they then were) held that, neither under section 5(3) of the Constitution which reads

as follows:

“Any person who is arrested or detained -

(a) for the purpose of bringing him before a court in execution of

the order of a court;

(b) upon reasonable suspicion of his having committed, or being

about to commit a criminal offence; or
 (c) upon reasonable suspicion of his being likely to commit
breaches of the peace, and who is not released, shall be
afforded reasonable facilities to consult a legal representative
of his own choice;”

nor under the Judges’ Rules 1964, is there an obligation on the police to inform a

suspect that he has a right to consult a legal adviser of his own choice when he is in

police custody unless and until there is a request from the suspect himself.

In The State v. Pandiyan [1993 MR 169], I had the occasion of setting

out the principles that should govern the matter. This is what I said at pages 172-177:

“The first question which arises is whether there was a duty on

the police to inform the accused that he had the right to the assistance
of a legal adviser and if so, whether this assistance was denied to him
through the fault of the police.

Section 5(3) of the Constitution, so far as it is relevant to the

present case, provides as follows:

(3) Any person who is arrested or detained -

(a) ...

(b) upon reasonable suspicion of his having committed,

or being about to commit a criminal offence; or

(c) ...

and who is not released, shall be afforded reasonable facilities

to consult a legal representative of his own choice ...

Paragraph 3(c) of the Introductory Notes (Appendix A) and

paragraph 7 of the Administrative Directions (Appendix B) contained
in the Judges’ Rules, made applicable to Mauritius by a dispatch of the
then Secretary of State for the Colonies in 1965, contain certain
provisions as to the right of a person under arrest or detention being
allowed access to a legal adviser.

Paragraph 3(c) of Appendix A reads as follows:

[E]very person at any stage of an investigation should be able

to communicate and to consult privately with a legal adviser.
This is so even if he is in custody, provided that in such a case
no unreasonable delay or hindrance is caused to the processes
of investigation or the administration of justice by his doing so.

And paragraph 7(a) of Appendix B provides the following:

Facilities for defence

(a) A person in police custody should be allowed to speak on
the telephone to his legal adviser or to his nearest relative
provided that no hindrance is reasonably likely to be
caused to the processes of investigation, or the
administration of justice by his doing so.

In the cases of Thornhill v. Attorney-General of Trinidad and

Tobago (1981) A.C. 61 and Attorney-General of Trinidad and Tobago
v. Whiteman (1991) 2 A.C. 240, the Privy Council had to rule on
whether a person who is arrested or detained must be informed of his
right to a legal adviser in the light of the Constitution of Trinidad and
Tobago as well as the Judges’ Rules of 1964 applicable to that
country.

With regard to paragraph 3(c) of the Introductory Notes

(Appendix A), Their Lordships in the Thornhill case referred to
section 1 of the Constitution of Trinidad and Tobago of 1962 and had
this to say at page 71:

In the context of section 1, the declaration that rights and

freedoms of the kinds described in the section have existed in
Trinidad and Tobago, in Their Lordships’ view, means that
they have in fact been enjoyed by the individual citizen,
whether their enjoyment by him has been de jure as a legal
right or de facto as the result of a settled executive policy of
abstention from interference or a settled practice as to the
way in which an administrative or judicial discretion has been
exercised. The hopes raised by the affirmation in the preamble
to the Constitution that the protection of human rights and
fundamental freedoms was to be ensured would indeed be
betrayed if Chapter I did not preserve to the people of Trinidad
 and Tobago all those human rights and fundamental freedoms
that in practice they had hitherto been permitted to enjoy.

This construction of section 1 makes it unnecessary to examine

whether the ability of an arrested person while in police
custody to communicate with his lawyer for the purpose of
instructing him and obtaining his advice, was enjoyed by him
as a matter of legal right or in consequence of a settled
practice on the part of the police as to the way an
administrative discretion to grant or refuse him leave to do so
was exercised. That such a right was enjoyed in Trinidad and
Tobago at least as a matter of settled practice is apparent from
Appendix A to the Judges’ Rules published in England in 1964
and adopted in identical terms by the judges of Trinidad and
Tobago in 1965. This appendix to the Rules refers to five
“principles” which, it says, are not affected by the Rules
themselves. The third of these principles is:

“That every person at any stage of an investigation

should be able to communicate and to consult privately
with a solicitor. This is so even if he is in custody,
provided that in such a case no unreasonable delay or
hindrance is caused to the processes of investigation or
the administration of justice by his doing so.”

Section 1 of the 1962 Trinidad and Tobago Constitution reads

as follows:

It is hereby recognised and declared that in Trinidad and

Tobago there have existed and shall continue to exist without
discrimination by reason of race, origin, colour, religion or
sex, the following human rights and fundamental freedoms,
namely,

(a) the right of the individual to life, liberty, security of the

person and enjoyment of property, and the right not to
be deprived thereof except by due process of law;

(b) the right of the individual to equality before the law and
the protection of the law;

(c) the right of the individual to respect for his private and
family life;
 (d) the right of the individual to equality of treatment from
any public authority in the exercise of any functions;

(e) the right to join political parties and to express political

views;

(f) the right of a parent or guardian to provide a school of

his own choice for the education of his child or ward;

(g) freedom of movement;

(h) freedom of conscience and religious belief and

observance;

(i) freedom of thought and expression;

(j) freedom of association and assembly; and

(k) freedom of the press.

Section 3 of our Constitution reads as follows and is almost on

identical terms to section 1 above:

3. Fundamental rights and freedoms of the individual

It is hereby recognised and declared that in Mauritius there

have existed and shall continue to exist without discrimination
by reason of race, place of origin, political opinions, colour,
creed or sex, but subject to respect for the rights and freedom
of others and for the public interest, each and all of the
following human rights and fundamental freedoms -

(a) the right of the individual to life, liberty, security of the

person and the protection of the law;

(b) freedom of conscience, of expression, of assembly and

association and freedom to establish schools; and

(c) the right of the individual to protection for the privacy

of his home and other property and from deprivation of
property without compensation,

and the provisions of this Chapter shall have effect for the
purpose of affording protection to those rights and freedoms
 subject to such limitations of that protection as are contained
in those provisions, being limitations designed to ensure that
the enjoyment of those rights and freedoms by any individual
does not prejudice the rights and freedoms of others or the
public interest.

The various rights enumerated in section 1 of the Constitution

of Trinidad and Tobago are embodied in other sections of our
Constitution namely: section 4 (protection of right to life); section 5
(protection of right to personal liberty); section 6 (protection from
slavery and forced labour); section 7 (protection from inhuman
treatment); section 8 (protection from deprivation of property);
section 9 (protection for privacy of home and other property);
section 10 (provisions to secure the protection of the law); section 11
(protection of freedom of conscience); section 12 (protection of
freedom of expression); section 13 (protection of freedom of assembly
and association); section 14 (protection of freedom to establish
schools); section 15 (protection of freedom of movement) and
section 16 (protection from discrimination).

In the Whiteman case Their Lordships had to decide whether

paragraph 8 of Appendix B (our paragraph 7) was part of the
protection of the law afforded to a suspect in view of sections 4 and 5
of the Trinidad and Tobago Constitution 1976. Section 4 reproduces
exactly what used to be section 1 of the 1962 Constitution and which
has been referred to earlier.

The relevant parts of section 5 read as follows:

(2) Parliament may not -

...
(c) deprive a person who has been arrested or detained -
(i) of the right to be informed promptly and with
sufficient particularity of the reason for his
arrest or detention;

(ii) of the right to retain and instruct without delay a

legal adviser of his own choice and to hold
communication with him.

...
 (h) deprive a person of the right to such procedural
provisions as are necessary for the purpose of giving
effect and protection to the aforesaid rights and
freedoms.

Their Lordships had this to say on the effect of sections 4,

5(2)(c)(i), (ii) and(h) of the 1976 Constitution as well as paragraph 8
of Appendix B to the Judges’ Rules as adopted by Trinidad and
Tobago:

The language of a Constitution falls to be construed, not in a

narrow and legalistic way, but broadly and purposively, so as
to give effect to its spirit, and this is particularly true of those
provisions which are concerned with the protection of human
rights. In this case the right conferred by section 5(2)(c)(ii)
upon a person who has been arrested and detained, namely the
right to communicate with a legal adviser, is capable in some
situations of being of little value if the person is not informed of
the right. Many persons might be quite ignorant that they had
this constitutional right or, if they did know, might in the
circumstances of their arrest be too confused to bring it to
mind. Section 5(2)(h) is properly to be regarded as intended to
deal with that kind of situation as well as other kinds of
situation where some different constitutional rights might
otherwise be at risk of not being given effect and protection.
There are no grounds for giving a restricted meaning to the
words “procedural provisions”. A procedure is a way of going
about things, and a provision is something which lays down
what that way is to be. Given that there are some situations
where the right to communicate with a legal adviser will not be
effective if no provision exists for some procedure to be
followed with a view to dealing with these situations, there is a
clear necessity that such provision should be made. So section
5(2)(h) gives a right to such provision. Their Lordships further
consider that, by necessary implication, there is a right to have
the procedure followed through. A procedure which exists only
on paper, and is not put into practice, does not give practical
protection.
 Paragraph 8(b) of Appendix B to the Judges’ Rules adopted in
1965 requires that persons in custody should be informed
orally of the rights and facilities available to them, and that
notices describing these should be displayed at police stations
and drawn to the attention of persons in custody. This is
properly to be regarded as a provision, and it prescribes a
certain procedure to be followed. The rights referred to
include the right to communicate with a legal adviser. Their
Lordships are of the opinion that persons who have been
arrested or detained have a right to a provision of this
character, by virtue of section 5(2)(h) of the Constitution,
because otherwise the right so to communicate might not
receive effect. In any event paragraph 8(b) of Appendix B to
the Judges’ Rules had been standing for over 10 years when the
Constitution of 1976 came into force. It superseded the
Constitution of 1962 and therefore the time of its introduction
is the appropriate time to consider the existence of a “settled
practice” within the meaning of Lord Diplock’s description in
Thornhill v. Attorney-General of Trinidad and Tobago (1961)
A.C. 61, 71. There is no reason to suppose that the
requirements of paragraph 8(b) had not been regularly
observed up until 1976, and a settled practice of doing so must
therefore be held to have been existed.
[Pages 247-248, emphasis added]

In Mauritius there is no corresponding section for 5(2)(h) of the

1976 Trinidad and Tobago Constitution. But paragraph 8(b), as held
by Their Lordships, had become a settled practice followed before the
1976 Constitution came into operation and it was part of the
protection of the law afforded to the individual under section 4(b) of
the 1976 Constitution. Section 4(b) speaks, inter alia, of the right of
the individual to the protection of the law. So does section 3(a) of our
Constitution.

The end result of the decisions of the Privy Council in the two
cases referred to above, which have construed provisions similar to
those embodied in our Constitution and in our Judges’ Rules, is that
both paragraph 3(c) of Appendix A and paragraph 7 of Appendix B
form part of the protection of the law of the individual in Mauritius.
There would be, therefore, a duty on the part of the police to inform a
person under arrest or in detention that he has a right to consult a
legal adviser. To hold otherwise would be tantamount to putting a
retrogade interpretation on the provisions of our Constitution relating
to the fundamental rights of the individual.
 Lord Diplock in the Thornhill case stated that the rights and
freedoms declared to have existed in constitutions and continue to
exist:

are not described with the particularity that would be

appropriate to an ordinary Act of Parliament nor are they
expressed in words that bear precise meanings as terms of
legal art. They are statements of principles of great breadth
and generality, expressed in the kind of language more
commonly associated with political manifestos or international
conventions ...
[Page 69]

In the case of R. v. Mallinson (1993) 19 Commonwealth Law

Bulletin 64; (1993) 1 NZLR 528, decided by the Court of Appeal of
New Zealand, it was held, on a construction of section 23(1)(b) of the
New Zealand Bill of Rights Act 1990, with regard to the right to
consult and instruct a lawyer without delay, that the key point of the
right to consult a lawyer without delay was that it was to be exercised
before the legitimate interests of the person who was arrested were
jeopardised. Therefore, a person should be informed of the right to
counsel immediately on arrest, no particular formula is required so
long as the content of the right was brought home to the arrested
person.

Under paragraph 3(c) of Appendix A and paragraph 7 of

Appendix B the police may defer access to legal advice to a suspect if
such a course may cause unreasonable delay or hindrance to the
processes of investigation or the administration of justice.
Similar provisions exist in the Police and Criminal Evidence Act 1984
(U.K.). In R. v. Samuel (1988) Q.B. 615 it was held that the burden is
on the police to show that such a danger exists. Short of that the
Courts may sanction breaches of the right of a suspect to be informed
of his right to counsel. (See Archobold (1993) Volume I paragraphs
15-188 to 15-196).”

My only difficulty in following Pandiyan is the decision in Samserally

as this was a two judge case and I should be bound by it. However, and, with due

respect to the Judges who decided Samserally, I can depart or even ignore Samserally.
I feel myself bound by the decisions of the Judicial Committee referred to in

Pandiyan, as the Law Lords were interpreting provisions of the law similar to ours in

these cases.

I accordingly hold that, in Mauritius, there is a duty on the police

to inform a suspect of his right to counsel, unless, this would hinder the conduct of the

enquiry, in which case, the police should prove conclusively that this may be so.

It was submitted on behalf of accused no. 2 that he could not be found

guilty of the offence of which he stands charged because the act of causing the

importation took place in India and not in Mauritius. Counsel for accused no. 2 was

of the view that accused no. 2 had wrongly been charged under section 28(1)(c) of the

Dangerous Drugs Act 1986 which reads as follows:

“28(1) Subject to section 38, every person who unlawfully -

(a) ...

(b) ...

(c) imports, causes to be imported, aids, abets, counsels or

procures the importation of any drug specified in
subsection (2) shall commit an offence and shall on
conviction be liable to a fine which shall not exceed
200,000 rupees and to penal servitude for a term which
shall not exceed 20 years.”

According to counsel, the accused should have been prosecuted under

section 34 of the Act which provides:

 “34. Aiding and abetting outside Mauritius

Every person who -

(a) aids, abets, counsels or procures the commission in

any place outside Mauritius of an offence under this Act
which is punishable under any corresponding law in
force in that place;

(b) in any place outside Mauritius does any act preparatory

to, or in furtherance of, any act which, if committed in
Mauritius, would constitute an offence under this Act,

shall commit an offence and shall, on conviction, be liable to a fine

which shall not exceed 50,000 rupees and to penal servitude for a term
which shall not exceed 20 years.”

The first point which, to my mind, arises for consideration is the

meaning to be attached to the word importation.

In R. v. Smith (1973) 2 All ER, the appellant was charged with being

knowingly concerned in a fraudulent evasion of the prohibition against the

importation of cannabis, contrary to section 304(b) of the Customs and Excise Act

1952, and of being knowingly concerned in a fraudulent evasion of the prohibition for

the exportation of cannabis contrary to section 56(2) of the 1952 Act. On appeal

against conviction, it was contended, inter alia, on his behalf that the cannabis had

neither been imported into nor exported from, the United Kingdom within the

meaning of the
1952 Act. In fact, according to the appellant, sections 44 and 45 of the 1952 Act

showed that there was a distinction between merely unloading and importing.

Sections 44 and 45 of the 1952 Act as they appear in the judgment read

as follows:

“Where - (a) except as provided by ... this Act any imported goods ...
are without payment of ... duty ... unloaded from any aircraft in the
United Kingdom ... or removed from their place of importation or from
any approved ... transit shed; or (b) any goods are imported, landed or
unloaded contrary to any prohibition or restriction for the time being
in force ... or (c) ... (d) ... (e) ... (f) ... those goods shall be liable to
forfeiture. Provided that where any goods the importation of which is
for the time being prohibited ... are on their importation either -
(i) reported as intended for exportation in the same ... aircraft [see
s 26 (3) (ii)] ... or (ii) entered for transit or transhipment [see s 28 (2)
(c)]; or (iii) entered to be warehoused for exportation [see s 28 (2) (b)
(d)] ... the Commissioners may, if they see fit, permit the goods to be
dealt with accordingly.”

“(I) If any person unships or lands in any port or unloads from any
aircraft in the United Kingdom ... or removes from their place of
importation or from any approved ... transit shed ... (a) any goods
chargeable with a duty which has not been paid; or (b) any goods
imported, landed or unloaded contrary to any prohibition ... for the
time being in force ... with respect to those goods, or ... is otherwise
concerned in such unshipping, landing, unloading or removal, or if
any person imports or is concerned in importing any goods contrary to
any such prohibition ... whether or not the goods are unloaded
[then follow the penalties].”

The Court of Appeal held that on a true construction of sections 44

and 45:
"‘Goods unloaded’ could not be excluded from the categories of
‘goods imported’; the provisions of the 1952 Act, and in particular
s 79*, showed clearly that goods entering the United Kingdom by air
could be ‘imported’ before they were even unloaded, and the
consignment of cannabis was imported when it was landed at London
airport, and exported when it was placed on the aircraft bound for
Bermuda; it was quite irrelevant to the question of importation that it
remained between loading and reloading in the customs area.

* Section 79, so far as material, provides: ‘... (2) The time of

importation of any goods shall be deemed to be ... (b) where the goods
are brought by air, the time when the aircraft carrying them lands in
the United Kingdom or the time when the goods are unloaded in the
United Kingdom, whichever is the earlier ...’"

In R. v. Wall (1974) 2 All ER 245:

“The appellant was charged with two others that on 17th February
1972 he had been knowingly concerned in the fraudulent evasion of the
restriction imposed on the importation of cannabis by s 2 of the
Dangerous Drugs Act 1965, contrary to s 304 of the Customs and
Excise Act 1952. He admitted that, at a date earlier than
17th February, he had been with the other defendants in Afghanistan
but denied any association with the importation of cannabis. However
it was shown that his finger-prints had been found on a wrapper of
cannabis in a van belonging to one of the co-defendants. He was
convicted and appealed, contending that the jury might have believed
that the only part played by him had been his handling of the goods
abroad for the purpose of their being transmitted to the
United Kingdom; it was argued that, on that basis, the conviction
could not stand since he had been charged with the others that on
17th February he had been knowingly concerned in the fraudulent
evasion whereas he had done nothing on that date and what he had
done earlier had been done abroad.

Held - Although in general an act committed abroad could not be the

subject of criminal proceedings in England, the fraudulent evasion
which was the subject of the charge had taken place in England on
17th February and, because of the steps which the appellant had taken
earlier for the purpose of the fraudulent evasion, it followed he had
been ‘knowingly concerned’ in it, within the meaning of s 304.
 Accordingly the appellant had been properly convicted and the appeal
would be dismissed.”

In R. v. Susan Lesley Jakeman (1982) Cr.App.R. 223, the Court of

Appeal had to construe section 170(2) of the Customs and Excise Management Act

1979 which reads as follows:

“... if any person is, in relation to any goods, in any way knowingly
concerned in any fraudulent evasion ... (b) of any prohibition or
restriction for the time being in force with respect to the goods under
or by virtue of any enactment ... he shall be guilty of an offence under
this section ...” (“goods” in section 170(2) includes cannabis, a Class
B drug, pursuant to paras. 1 and 3 of Schedule 1 to the 1979 Act).”

The Court held as follows:

“When considering whether an offence has been committed under

section 170(2) of the Customs and Excise Management Act 1979, i.e. of
being knowingly concerned in the fraudulent evasion on the
importation of goods (in the instant case controlled drugs) what
matters is the state of the defendant’s mind at the time the relevant acts
were done, i.e. the time the defendant was concerned in bringing about
the importation. To secure a conviction it is not necessary for the
prosecution to prove that the defendant’s guilty state of mind subsisted
at the time of importation.”

In R. v. Sansom, Williams, Smith and Wilkins (1991) 92 Cr.App.R.

115, the Court of appeal held, in relation to the jurisdiction of the English Court to try

a case of conspiracy committed abroad, that:

“Where an agreement is made abroad to commit a crime in England,

it is not necessary to prove that an overt act pursuant to the conspiracy
takes place in England in order to found jurisdiction in the English
courts. It is sufficient if a link can be established between the
conspiracy and England and evidence produced to show that the
 conspiracy is continuing. This principle applies equally to common
law conspiracies and extra-territorial conspiracies charged under the
Criminal Law Act 1977.”

The same section received judicial consideration again in R. v.

Shahzad (1995) 1 Cr.App.R. 270. The facts as they appear in the judgment are as

follows at page 272:

“Mr Honi, a Pakistani national, was an informer employed in

Pakistan by the United States Drugs Enforcement Agency. In that
capacity he came to know suppliers of heroin. In particular he met two
men called Mehboob and Adnan who expressed the idea of importing
heroin into the United Kingdom. Mr Honi reported this to Mr Bragg,
the British drugs liaison officer in Rawalpindi. He was encouraged to
foster the connection and himself suggested to the two men that he
knew an airline pilot who could be used as a courier. That was not
true.

The two men then introduced Shahzad to Mr Honi and all three
intimated that they would supply him with drugs for the
United Kingdom. A few days later Shahzad suggested to Honi an
export of 20 kilogrammes of his own, independently of the other two
men. Honi agreed that he would arrange for the airline pilot to carry
it and would himself receive the drugs in London. Either Shahzad or
someone on his behalf would then collect the drugs in London.

On April 1, 20 kilogrammes of heroin were delivered to Honi.

It was then arranged, through Mr Bragg, for the heroin to be carried
to the United Kingdom not by an airline pilot but by a British officer of
the Customs and Excise named Bolton who was acting, it would seem,
with the knowledge and approval of his superiors.

Mr Honi then came to England and was installed in a hotel by

Customs and Excise, but he did not receive the drugs. His telephone
calls were recorded and a video camera was installed. For some
weeks he tried to persuade Shahzad to come to England to receive the
heroin, and eventually he was successful. A customs officer had
procured a visa for Shahzad through the British High Commission.”

The Court held that the words “fraudulent evasion” extend to any

conduct which is directed and intended to lead to the importation of goods covertly in
breach of a prohibition on import. The reasoning of the Court appears at page 273-

274:

"The wording can be traced back at least to the Customs

Consolidation Act 1853, Attorney-Generals Reference (No. 1 of 1981)
(1982) 75 Cr.App.R. 45, 48, [1982] Q.B. 848, 853.

Section 3 of the Misuse of Drugs Act 1971 provides that,

with certain exceptions, the importation of a controlled drug is
prohibited. But the section by itself creates no offence and imposes no
sanction (Whitehead and Nicholl (1982) 75 Cr.App.R. 389).
Mr Bolton, the customs officer who brought the heroin into the
United Kingdom, committed a prohibited act. None of the exceptions
extended to him. Mr Cripps concedes as much. But that was not by
itself a criminal offence. Mr Bolton’s conduct would not have been
prohibited if he had had a licence from the Secretary of State to import
heroin, but he had none. Mr Bloom suggests that there would have
been no fraudulent evasion by anybody if Mr Bolton had been the
holder of a licence.

That leads to a fundamental question as to what section 170(2)

means. At first sight one might have thought that there had to be some
fraudulent person bringing the goods into this country and deceiving
the Customs and Excise in the process. If that be right there was no
completed offence in this case, for even without a licence Mr Bolton
was not fraudulent and did not deceive anybody. His superiors knew
what he was doing. Mr Shahzad and Mr Latif would not be guilty of
the complete offence, but it is arguable they would be guilty of an
attempt.

Such a construction of section 170(2) is not, in our judgment,

correct. It would not catch the man who organises an importation by
an innocent courier. There would be no fraudulent evasion by
anybody in such a case, and the organiser could not therefore be
knowingly concerned in the fraudulent evasion. Mr Bloom submitted
that the organiser would be liable as the principal of the courier who
acted as his agent. We do not find that suggestion of vicarious liability
plausible.

In our judgment the words “fraudulent evasion” include a

good deal more than merely entering the United Kingdom with goods
concealed and no intention of declaring them. They extend to any
conduct which is directed and intended to lead to the importation of
goods covertly in breach of a prohibition on import. We find support
 for that in the case of Jakeman (1983) 76 Cr.App.R. 223. Wood J. in
delivering the judgment of the Court said, at p. 228:
“Although the importation takes place at one precise moment -
when the aircraft lands - a person who is concerned in the
importation may play his part before or after that moment.
Commonly, the person responsible for despatching the
prohibited drugs to England acts fraudulently and so does the
person who removes them from the airport at which they have
arrived. Each is guilty. Wall (1974) 59 Cr.App.R. 58, [1974]
1 W.L.R. 930, is an example of the former and Green (1975)
62 Cr.App.R. 74, [1976] Q.B. 985 of the latter.”"

In the case of R. v. Hancox (1990) LRC 515, the appellant was

prosecuted for importing controlled drugs in New Zealand under section 6(1)(a) of the

Misuse of Drugs Act 1975. The Court had this to say:

"‘To import’ involves active conduct; and the bringing of

goods into the country or causing them to be brought into the country
does not cease as the aircraft or vessel enters New Zealand territorial
limits. Importing into New Zealand for the purposes of s 6(1)(a) is a
process. It does not begin and end at a split second of time.
The element of importing exists from the time the goods enter
New Zealand until they reach their immediate destination. It follows
that, as was the case in Saxton v. Police, the importer may be
convicted under s 6(1)(a) even though the goods are intercepted by
customs and never reach the addressee - or are otherwise disposed of
in transit. But the process does not end so long as the goods remain in
transit, that is until any shipping and customs formalities are
completed and the consignment is available to the consignee at its
immediate destination. In Bell v. R. (1983) 3 DLR (4th) 385, 392,
Dickson J expressed the concept in this way:

‘The elements of an offence of importing are present as soon as

the goods cross the border, but the offence is not over and done
with until the goods have reached their intended final
destination within Canada. Accordingly, a charge could be
laid relating to the point of entry or of destination or anywhere
in between.’"

It is sufficiently clear from the above authorities that:

 (i) importation is a continuing process and not an isolated act; and

(ii) an act done abroad to import prohibited goods or drugs into the country
will be triable here because the prohibition on the importation is
complete when the prohibited goods reach Mauritius.

When accused no. 2 was in Bombay and asked accused no. 1

to swallow the drugs for the purpose of their importation to Mauritius, he was but

engaged in one of the steps leading to importation. He had not completed the process

there and then. The causing could not have been completed until the arrival of

accused no. 1 here.

In Misuse of Drugs by Bucknell & Ghodse (The Criminal Law

Library), the authors say this at page 99 paragraph 5.14:

“5.14 Acts done abroad in order to further the fraudulent evasion of

the prohibition on importing controlled drugs into the United Kingdom
are punishable in the U.K. Taking part in despatching drugs from
abroad to England is triable here because the evasion or attempted
evasion takes place in England: see R. v. Wall [(1974) 2 All E.R. 245
C.A.], applying R. v. Baxter [(1971) 2 All E.R. 359 C.A.] - a case
which concerned attempts to obtain property by means of letters posted
in Ireland which contained false pretences. Even if the goods fail to
arrive in the United Kingdom, the offence of attempt is triable here
[Criminal Attempts Act 1981, section 1(4)], although it would be wise
to indict under section 50 rather than 170(2) (and see para. 5.16
post).”

As to the meaning of the word cause, this received judicial

consideration in the case of Attorney-General of Hong Kong v. Tse Hung-Lit (1986)

1 A.C. 876. The Judicial Committee of the Privy Council adopted the approach taken
by the High Court of Australia in the case of O’Sullivan v. Truth and Sportsman Ltd.

(1957) 96 C.L.R. 220. In the case of O’Sullivan the question at issue was whether

newspaper publishers could properly be convicted of “causing to be offered for sale”

by a newsagent a newspaper containing prohibited matter. The High Court laid down

the following:

“This appears to mean that when it is made an offence by or under

statute for one man to ‘cause’ the doing of a prohibited act by another
the provision is not to be understood as referring to any description of
antecedent event or condition produced by the first man which
contributed to the determination of the will of the second man to do the
prohibited act. Nor is it enough that in producing the antecedent event
or condition the first man was actuated by the desire that the second
should be led to do the prohibited act. The provision should be
understood as opening up a less indefinite inquiry into the sequence of
anterior events to which the forbidden result may be ascribed.
It should be interpreted as confined to cases where the prohibited act
is done on the actual authority, express or implied, of the party said to
have caused it or in consequence of his exerting some capacity which
he possesses in fact or law to control or influence the acts of the other.
He must moreover contemplate or desire that the prohibited act will
ensue.”

“It tends to greater certainty in interpretation. It provides a sensible

and workable test, which, at the same time, is hardly open to objection
as inelastic. Without some such interpretation the words might be used
to impose criminal sanctions in a manner that could not be foreseen on
conduct vaguely and indefinitely described. But being a question of
the meaning of terms the definition can provide only a primary
meaning which context or any other sufficient indication of a different
intention would displace. In the present case no contrary intention
appears and the words ‘cause to be offered for sale or sold’ in section
35(1) [of the Police Offences Act 1953 ([Act No. 55 of 1953]) (S.A.)]
should accordingly be understood as bearing the meaning stated.”

That case was followed by Pillay then Acting Senior Puisne Judge in

The State v. Hurdowar, Sham & Antoine [1995 SCJ 130].

 On his own admission accused no. 2 did the following: (i) he

purchased the drugs in Bombay; (ii) he handed them over to accused no. 2; (iii) he

told her in forceful language to transport the drugs in Mauritius. The evidence also

establishes beyond doubt that the drugs did reach Mauritius and were seized by the

police. It has also been proved that accused no. 2 had planned the whole operation.

He knew full well the drugs were to be taken to Mauritius and he did everything

towards achieving that result.

In the light of the legal principles involved and the evidence,

I find accused guilty on count 2.

As far as accused no. 1 is concerned, it was urged on her behalf that

she could not be found guilty because, on the undisputed evidence, threats had been

exercised on her by accused no. 2. Counsel for the accused also submitted that the

defence of marital coercion as it existed in 1925 in England applied to Mauritius.

He found support for that proposition in the following passage in the case of

R. v. de Boucherville [1986 MR 255]:

“[T]he English rules of evidence apply to such a defence [duress] and

the correct direction to the jury would have been to tell them that the
defence had fist to discharge the evidential burden and that, if this was
done, the persuasive burden rested on the prosecution (see R. v. Gill
[1963] 1 W.L.R. 841). On the other hand, if the Judge, while
summing-up on an issue like duress, suggests to the jury that they
should acquit if they believe the accused, thereby giving the impression
that the burden rests on the accused, and does not at the same time
couple his direction with the proposition that the persuasive burden
lies on the prosecution anyway, an ensuing conviction will be quashed:
 it will not avail the Crown on appeal to argue that the general
direction given at the beginning of a summing-up about the burden of
proof in criminal cases can be prayed in aid to cure the defect
(see R. v. Bone 52 Cr.App.R. 546).”

The defence of coercion is explained as follows in Criminal Law,

Smith & Hogan 6th ed. at page 238:

“Though the terminology used by judges and writers is by no means

uniform, the term “coercion” is generally reserved for a special
defence that was available at common law only to a wife who
committed certain crimes in the presence of her husband. It was then
presumed that she acted under such coercion as to entitle her to be
excused, unless the prosecution were able to prove that she took the
initiative in committing the offence. The exact extent of the defence is
uncertain. It did not apply to treason or murder; Hale excluded
manslaughter as well and Hawkins ruled out robbery.

Earlier authorities allowed the defence only in the case of felonies but
later it seems to have been extended to misdemeanours - but excluding
brothel-keeping;

“for this is an offence touching the domestic economy or

government of the home in which the wife has a principal
share.”

Various theoretical justifications were advanced for the rule -

the identity of husband and wife, the wife’s subjection to her husband
and her duty to obey him - but the practical reason for its application
to felonies was that it saved a woman from the death penalty when her
husband was able, but she was not, to plead benefit of clergy.
This reason disappeared in 1692 when benefit of clergy was extended
to women, yet the rule continued and its scope increased.”

Glanville Williams in his book Criminal Law, The General Part 2nd

ed., has this to say on the former law of coercion in England:

 “The former presumption that a wife who committed a crime in
the presence of her husband acted under his coercion has been
abolished; but the statute is so obscurely worded that some
understanding of the old law may still be necessary.

The presumption of coercion originated in the wife’s subjection

to her husband. It may be seen as early as the laws of Ine (A.D.712): a
man may be punished for larceny but his wife is exempt because she
must obey her lord. Whether or not the courts ever seriously regarded
the wife as “a marionette, moved at will by the husband,” the rule
survived because it was a merciful one; and it was found to be a useful
way of evading the death penalty for women, at a time when they could
not claim benefit of clergy. After a period of doubt it came to be
extended even to misdemeanours, to which benefit of clergy never
applied.

Although referred to as a presumption of coercion, the

presumption could not be rebutted merely by showing that no coercion
had in fact taken place. The only way of rebutting it, in the crimes to
which it applied, was by showing that the wife had taken an
independent part in the commission of the crime.

Some crimes were excluded from the defence, but the list of
these was never finally settled. It did not apply in murder or treason;
but it perhaps applied to the form of murder committed at common law
by the survivor of a suicide pact. There was a doubt about
manslaughter, robbery and summary offences. Although there were
precedents for ruling it out in libel and perjury, these came from a time
when the defence was thought not to apply to any misdemeanour.
It did not apply to the keeping of a bawdy house, because “this is an
offence as to the government of the house”.

The abolition of the presumption, having been recommended by

a Royal Commission in 1846, was accomplished by Parliament in
1925.”

Such a defence is not applicable in Mauritius. Our law relating to

excuses and defences that an accused may invoke at his trial and, which should be
negatived by the prosecution as part of their case, is governed by our Criminal Code.

Section 42 of the Code deals with insanity and duress (contrainte); sections 43 and

244 with excuse and mitigation of penalty; sections 44 and 45 with minors under 14

acting without or with discernment; section 240 with provocation; section 246 with

self-defence. All these articles are borrowed from the French Penal Code and

we should seek guidance from the French Courts in interpreting them (see for example

R. v. L’Etendry [1953 MR 15]).

The case of R. de Boucherville (supra) is certainly no authority for the

proposition that the English law of coercion as it existed in England prior to 1925 or

even the English law of duress is applicable to Mauritius. The Court in that case was

merely giving guidance on how the jury should be directed as to the burden of proof

when a defence of duress is raised.

Our law of duress, which was invoked by accused no. 1, is contained in

article 42 of the Criminal Code (article 64 of the French Penal Code) which reads as

follows:

“There is neither crime nor misdemeanour, when an accused person

was in a state of insanity at the time of the act, or where he has been
compelled to commit such act by a force which he could not resist;
and in consequence he shall be acquitted.”

A distinction is made between “contrainte physique” and “contrainte

morale”.
 What accused no. 1 is invoking is not in the nature of a “contrainte

morale” which according to Marc Puech in his book Droit Pénal Général (Litec

1988 ed.) at paragraph 1162 “s’analyse sur une force qui agit sur l’esprit de l’agent

qu’elle entraîne à commettre une infraction sous la pression d’un sentiment de peur,

de crainte ou d’asservissement. L’état de la jurisprudence et de la doctrine témoigne

que sa théorie n’est pas encore entièrement construite”.

“Contrainte morale” itself can be a “contrainte morale interne ou

externe”. With regard to “contrainte morale interne”, the principles governing that

defence are explained by Marc Puech in his book at paragraph 1164:

“(1) Contrainte morale interne

1164. - Depuis l’arrêt Silice, il est acquis qu’on ne peut:

«légalement faire résulter la contrainte de l’impulsivité de la

personne, c’est-à-dire d’un fait personnel à l’agent lui-même et
qui comme tel n’entre pas dans les prévisions de l’article 64 du
Code pénal».

Affaire Silice (V. Cass. crim. 11 avril 1908, in PUECH,

no 103): sous l’empire de la crainte de la mise à la retraite anticipée
de son mari, médecin de l’armée, sa femme avait écrit au ministre de
la Guerre des lettres outrageantes et menaçantes. Le moyen de défense
tiré de la contrainte a été écarté.

Jusqu’à présent, la Chambre criminelle est demeurée

inébranlable (V. Cass. crim. 27 nov. 1926: J.C.P. 27, p. 76 - le client
d’un casino qui a signé des chèques sans provision ne peut être
 déclaré irresponsable au motif que, du fait d’une passion morbide
pour le jeu, il aurait subi une contrante morale. - Cass. crim. 17 avril
1956: Bull. crim., no 310 - les convictions d’un témoin de Jéhovah
ne constituent pas une contrainte de nature à empêcher une
condamnation pour refus d’obéissance. - V. sur cette question et dans
le même sens, Trib. mil cass. Metz, 14 nov. 1957: J.C.P. 58, II, 10389,
GENDREL et LAFARGE; Rev. sc. crim. 1958, 385, obs. LÉGAL;
adde à propos de convictions politiques, Colmar, 8 déc. 1987: D. 88,
131, KOERING-JOULIN). Mais il arrive parfois que certaines
juridictions se montrent inutilement (V. infra, no 1170) plus
indulgentes (V. Paris, 27 juin 1968: J.C.P. 69, II, 15728,
DE LESTANG; Rev. sc. crim. 1969, 144, obs. LEVASSEUR, qui a
admis, à la suite d’une double suicide dont l’un fut réussi, que l’état
psychologique de la survivante justifiait, au titre de la contrainte
morale, qu’elle fût relaxée du chef d’omission de porter secours).”

With regard to “contrainte morale externe”, the author has this to say at

paragraph 1165:

“(2) Contrainte morale externe

1165.- Il y a semble-t-il dans la jurisprudence deux attitudes

distinctes selon que la force extérieure propre à contraindre un
individu à agir consiste en une menace ou en une suggestion:

- lorsque l’agent a été l’objet d’une menace, la jurisprudence

refuse d’y voir une force contraignante.

1o En temps de paix: (1) voir l’arrêt Boixo (Cass. crim. 28 déc.

1900, in PUECH, no 106): exploitants d’un bois menacés par des
contumax qui y avaient trouvé refuge et relaxés à tort du chef de recel
de malfaiteurs; (2) la malédiction paternelle (Cass. crim. 21 déc. 1901:
S. 1905, 1, 543), la réprobation administrative, l’anathème marital,
l’imprécation patronale sont des menaces que la Chambre criminelle
refuse de prendre en considération; (3) hors de tout rapport de
subordination de droit ou de fait, la contrainte n’est pas davantage
admise (V. Cass. crim. 29 déc. 1949: J.C.P. 50, II, 5614, MAGNOL,
individu retenu comme instructeur dans un camp de rebelles
malgaches: allégation d’une menace qui n’était ni pressante, ni assez
directe pour enlever au prévenu sa liberté d’esprit. - Comp. Cass.
crim. 26 fév. 1959: D. 1959, 301, Algérien qui avait dû héberger une
quarantaine de rebelles);
 2o En temps de guerre: on attend des citoyens qu’ils se
comportent en héros (Nancy, 7 mars 1874: D. 1874, II, 184, habitants
d’un village qui sur l’ordre des Allemands désignent ceux d’entre eux
qui seront fusillés à titre de représailles: pas de contrainte. - Cass.
crim. 20 avril 1934: S. 1935, I, 398, individu qui accepte sous la
menace d’une exécution de ses compagnons d’aller visiter si un village
voisin est occupé par les troupes françaises: pas de contrainte. - Trib.
civ. Albi, 22 mai 1946: Gaz. Pal. 1946, 2, 253, maquisard arrêté qui,
sous la torture et les menaces de mort, a révélé l’emplacement d’un
poste de commandement: absence de contrainte) et en héros
intelligents (Cass. crim. 2 déc. 1871: D. 1871, I, 366, a été contraint
l’individu qui a coupé du bois dans la forêt d’autrui dans la crainte du
pillage ou de tous les dangers qui pouvaient être la conséquence
directe d’un refus opposé aux réquisitions des troupes ennemies).

- lorsque l’agent a été l’objet d’une suggestion, la

jurisprudence, du moins celle des juges du fond, a tendance à se
montrer plus libérale.

L’hypothèse pratique est celle dite des provocations policières:

des agents de la police ou de la répression des fraudes se font
instigateurs et incitent les individus à commetre une infraction pour les
surprendre en flagrant délit. La «victime» de ces provocations a-t-elle
été contrainte?

Un courant jurisprudentiel assez nourri a considéré que

l’infraction commise dans ces conditions ne présentait pas le caractère
d’un acte libre (V. Trib. corr. Évreux, 22 déc. 1942: Gaz. Pal. 1943,
1, 78. - Trib. corr. Grenoble, 23 janv. 1943: J.C.P. 43, II, 2277. -
Toulouse, 23 avril 1942: J.C.P. 42, II, 1886, MAGNOL. - Trib. corr.
Seine, 7 mars 1963: J.C.P. 64, II, 13522, BOUZAT).

La Chambre criminelle a été appelée à se prononcer sur cette

importante question à deux reprises. Il y a une trentaine d’années,
elle a semblé condamner toute influence de la provocation policière
sur la volonté du délinquant (V. Cass. crim. 28 oct. 1942: D.C. 1943,
89, DONNEDIEU DE VABRES. - Cass. crim. 3 mars 1944: D.A. 1944,
92) sans toutefois se prononcer catégoriquement. Puis, plus
récemment, elle a décidé que la provocation policière n’était pas un
obstacle à la condamnation des prévenus, car elle n’avait en rien
déterminé les agissements délictueux de ces derniers (V. Cass. crim.
2 mars 1971: J.C.P. 71, II, 16815, fonctionnaire de police se faisant
passer pour un acheteur éventuel d’opium auprès d’un trafiquant. -
Cass. crim. 16 mars 1972: Bull. crim. no 108; Rev. sc. crim. 1972, 859,
obs. LÉGAL, indicateur de police suggérant de former une association
de malfaiteurs pour se livrer au trafic de stupéfiants. - Adde Cass.
crim. 2 oct. 1979: Bull. crim. no 266). Des préoccupations
 contradictoires dominent la matière: la loyauté est regardée comme
une qualification essentielle chez un policier, mais il faut sans conteste
donner satisfaction à une opinion publique qui ne s’encombre pas trop
de principes dès qu’il s’agit de certains marchés illicites.”

In Faustin Hélie - Pratique Criminelle des Cours et Tribunaux 6ème ed.

by J. Brouchot and F. Brouchot, at page 170 we read the following:

“La crainte révérentielle des enfants envers leur père ne suffit

pas non plus pour justifier un crime ou un délit. L’ordre du père ne
peut être qu’un motif d’atténuation (Cass. 8 nov. 1811, 25 sept. 1818,
5 mai 1837: B. 143; Th. du C. pén., no 283). La même règle s’applique
au pupille qui a suivi les ordres de son tuteur, à la femme qui invoque
pour excuse l’ordre de son mari.”

The same case is referred to in Garçon Code Pénal Annoté at note 214

under article 64:

“214. La responsabilité pénale de la femme qui invoque pour sa

défense un ordre de son mari, ou l’ascendant moral qu’il exerçait sur
elle a été clairement établie par la jurisprudence même avant les lois
de 1938 et de 1942.”

What accused no.1 is saying that the mere fact that she was threatened

by her husband left her no choice but to swallow the packets containing the drugs and

import them to Mauritius. Now the main conditions which should exist for duress

to succeed is that “la force contraignante doit entraîner une impossibilité réelle de se

conformer à la loi ...” (Marc Puech op.cit. para. 1171).

 It is also interesting to refer to the observations of Lord Lane in

R. v. Graham (1982) 74 Cr.App.R. 235 and followed in R. v. Marnie Michelle Hurst

(1995) 1 Cr.App.R. with regard to the English law of duress:

“As a matter of public policy, it seems to us essential to limit the

defence of duress by means of an objective criterion formulated in
terms of reasonableness. Consistency of approach in defences to
criminal liability is obviously desirable. Provocation and duress are
analogous. In provocation the words or actions of one person break
the self-control of another. In duress the words or actions of one
person break the will of another. The law requires a defendant to have
the self-control reasonably to be expected of the ordinary citizen in his
situation. It should likewise require him to have the steadfastness
reasonably to be expected of the ordinary citizen in his situation.
So too with self-defence, in which the law permits the use of no more
force than is reasonable in the circumstances. And, in general, if a
mistake is to excuse what would otherwise be criminal, the mistake
must be a reasonable one.” (Emphasis added).

It would seem that both French law which we should follow with

regard to the defence of duress and English law lay more or less similar principles in

respect of that defence. When French law speaks of “une impossibilité réelle de se

conformer à la loi”, this is almost tantamount to the principles laid down by Lord

Lane in the case of Hurst.

I see nothing in the evidence before me from which I can conclude that

the will of accused no. 1 had been so annihilated that she had no other choice but to

comply with the wishes of her husband. Accused no. 1 did not strike me as a frail

creature whose will could be crushed easily. In the light of the evidence and the case
law, I hold that the defence cannot avail accused no. 1 and I find her guilty of

importation on count 1.

There is also an averment of trafficking against both accused.

Accused no. 2 is a drug addict. His version that he purchased the drugs for his own

consumption has not been seriously challenged. Accused no. 1 runs a textile trade

along with accused no. 2. She took the drugs to Mauritius for the consumption of

accused no. 2. This version, too, has not been seriously challenged. In the light of the

test laid down in Francis v. R. [1989 MR 238] for the purposes of trafficking and

which reads thus:

“...

since the term “trafficker” is not defined, its meaning must be

restricted to a person who actually trades in, that is to say,
who actually buys or sells drugs as a trade. There is no doubt that the
concept of trade is very much linked up with the notion of trafficking.
For example, if a drug addict imports a small amount of
“brown sugar” for his own consumption, he would no doubt be guilty
of unlawfully importing heroin, but not of trafficking.

The trade or traffic in drugs, however, is an enterprise which is

carried on through the instrumentality of many persons acting in
various capacities and who know what the enterprise they are involved
in is all about. The courier who, at some stage, has charge of the
illicit merchandise is an indispensable participant in this traffic as it is
he who brings the merchandise to make it available in Mauritius.
He is as much involved in the traffic as the persons who procure the
merchandise or else who market it.”

I am unable to say on the evidence that the accused are guilty of

trafficking. I therefore do not find that averment proved.

 Accused no. 1 has been found guilty of importation. She has a clean

record Given the circumstances in which she took the drugs to Mauritius, and given

her clean record, I sentence her to undergo five years’ imprisonment. Accused no. 2

has been found guilty of causing the importation of the drugs into Mauritius.

He has been previously convicted in 1985 for possession of gandia and was sentenced

to pay a fine of Rs 1,000; in 1987 he was sentenced to undergo two years hard labour

for possession of articles used in the smoking of opium and in 1991 he was sentenced

to undergo six weeks imprisonment with hard labour for possession of heroin and

possession of a pipe for smoking heroin. Accused no. 2 engineered the whole

operation. But it cannot be overlooked that he is also a drug addict. I sentence him to

undergo eight years’ imprisonment.

Exhibits forfeited.

V. BOOLELL
JUDGE
15 December 1995
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Miss R. Teelock, Senior State Counsel together with Mr N. Ohsan-Bellepeau,

State Counsel for the State.

Sir Gaetan Duval, Q.C. together with Messrs R. Valayden and M. Helene, for
Accused No. 1

Mr G. Ollivry, Q.C., for Accused No. 2.