STATE v TREEBHOOWON AVINASH & MOONEA SANDIP

2012 SCJ 214

Record number CS 8/2011

IN THE SUPREME COURT OF MAURITIUS

In the matter of:-

The State

v/s

1. Treebhoowon Avinash

2. Moonea Sandip

Ruling (Particulars of the Information)

The accused parties stand charged with the offence of murder in an Information which
reads as follows:
“On or about the 10th day of January in the year two thousand and eleven at
Legends Hotel, Grand Gaube, in the District of Riviere du Rempart, 1.
Avinash Treebhoowon, then aged 29, Room Attendant at Legends Hotel,
residing at Dhalia Road, Plaine des Roches, and 2, Sandip Moonea, then
aged 41, Floor Supervisor at Legends Hotel, residing at School Lane, Petit
Rafffray, did criminally, wilfully and with premeditation, kill one Michaela
Mary Harte, an Irish National also known as Michaela Mary Mc Areavy.

Against the peace of the State and against the form of the Act in such case
made and provided, to wit sections 216, 217 and 222(1)(a) of the Criminal
Code”

They have pleaded not guilty to the charge. Right at the beginning of the trial, Counsel
for accused no 1 moved to be communicated with particulars of the Information, that is
to say ‘details of the material circumstances of the charge’. State Counsel asked him to
expatiate on the ‘details’ asked for, and defence counsel stated that the information
contains an averment to the effect that accused no 1 ‘killed’ one M. Harte. A killing, he
contended, can be perpetrated in many different ways. The defence was not asking for
the ‘cause of death’ but for the details of the killing. Later, counsel for accused no 2
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joined in the motion. State Counsel objected by saying that the Information as presently
drafted was sufficiently particularised.

Counsel for accused no. 1 submitted that the motion is grounded in S 10(2)(b) of the
Constitution which provides that:
“Every person who is charged with a criminal offence –
(b) shall be informed as soon as reasonably practicable, in a language that
he understands and, in detail, of the nature of the offence.”

He submitted that an accused party is entitled to know, at the outset, what charges he
has to meet. The communication of the details of the nature of the offence is at the very
foundation of a fair trial. It is not the contention of the defence that the Information is
defective; however, it is lacking in details of the material circumstances of the offence. In
such a case, the defence is entitled to ask for particulars.

Counsel for accused no 2, for his part, stated that the defence intends to show that it
was a physical impossibility for the offence to have occurred in the way that the
prosecution is contending. He is not asking the prosecution to go into the evidence.
However, the purpose of asking for particulars, at this stage, is to anchor the prosecution
to what it is contending is its version of the killing and thus to prevent it from shifting its
ground at a later stage to fit any evidence that may come out.

In the case of Ramburn v The State [1996 SCJ 64]the appellant was charged with the
offence of involuntary homicide by imprudence before the Intermediate Court. Defence
Counsel moved for particulars of the imprudence and counsel for the prosecution replied
that he was not bound to supply the particulars asked for, but ‘in fairness to the defence’
he would provide same. On appeal, the Supreme Court made the following observation
which, I believe, sets out the basic principle to be borne in mind in considering the issue
of whether particulars should be furnished or not:
“When particulars of an offence are pressed for by the defence, the giving or
withholding of such particulars does not depend on the frame of mind in
which prosecuting counsel finds himself. Particulars are given as a matter of
law when the offence is not sufficiently clear or particularised in the
information”. ……………….. We cannot therefore understand why … [State
Counsel] …. felt that he had ‘in fairness’ to give particulars, when in law, he
was not bound to do so. Criminal trials obey strict rules of procedure and are
not governed by standards of fairness of each individual prosecuting
counsel”. (the underlining is mine)
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Following what has been said above, the next issue that would arise concerns the legal
rules that are to be applied. They are to be found in section 17 of the Criminal Procedure
Act and, to a certain extent, in section 125 of the District and Intermediate Courts
(Criminal Jurisdiction) Act.
S 17 of the Criminal Procedure Act falls within Part II of the Act which deals with the
Information. It reads as follows:
“In any case of a crime brought before the Supreme Court, the Crown or
other prosecutor shall draw up an Information which shall be direct and
certain as regards:
(a) the party charged
(b) the description of the offence charged
(c) the material circumstances of the offence charged.”
The provision is of direct concern to us since it refers to an Information lodged before the
Supreme Court.

S 125(1) of the District and Intermediate Courts (Criminal Jurisdiction) Act reads as
follows:
“The description in an Information of any offence in the words of the law
creating such offence, with the material circumstances of the offence
charged, shall be sufficient.”

S 125 may not be directly applicable to a crime being prosecuted before the Supreme
Court but it is of some relevance inasmuch as it is the expression, in statutory form, of a
principle that has been developed by the common law for a long time and which was
applicable to criminal prosecutions generally well before the provision was enacted (vide
Attorney General v Saurty [1963 MR 1]).

Upon a proper application of these sections of the law, it comes out clearly that the
defence is not precluded from asking for particulars. However, it cannot be said for that
much that the prosecution is bound to furnish particulars for the mere asking. Some kind
of balance has to be struck. If, on the one hand, the accused is entitled to know
specifically enough what charge he has to answer, the prosecution, on the other hand,
ought not to be unduly burdened with demands for particulars on every averment in the
Information.
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The prosecution is not bound to furnish particulars over and above the details which
have already been set out in the information, so far as the information:
[1] is direct and certain;
[2] sets out the sections of the statute, and the words of the law creating the offence;
[3] identifies the party or parties charged unequivocally;
[4] gives a proper description of the offence with which the accused is charged;
[5] discloses all the elements of the offence; and
[6] sets out the material circumstances of the offence with which the accused stands
charged.

Rule 4(1) of the Indictment Rules 1971 {the equivalent of S 125 of our District and
Intermediate Courts (Criminal Jurisdiction) Act} was examined in Blackstone’s Criminal
Practice (1993)at pages 1116 – 1117. It is stated that “... each count should be divided
into a statement of offence and particulars of offence …The statement of offence
describes the offence shortly’. The author then goes on to describe the nature of
particulars and the test that has to be satisfied:
“The particulars of the offence should give ‘such particulars as may be
necessary for giving reasonable information as to the nature of the charge’…
It appears ……………. that the test is: do the particulars provided make clear
to the defence the nature of the case they must meet”.

Having set out the above principles, it would be interesting to see how they are to be
applied in practice. There are a few instances where the prosecution would be required
to furnish particulars almost invariably. One of those instances is where the case is a
complicated one and the furnishing of particulars would help to clarify matters by
identifying the issue or the issues which have to be determined. In the case of
Warburton-Pitt [1992] 92 CA App R 136, the accused was involved in the crash of a
light aircraft in which a person was killed. He was prosecuted for offences involving
reckless flying. An expert was called at the trial and he gave evidence to the effect that
the recklessness may have lied in the fact that the pilot failed to abort the take-off of the
plane.In view of the fact that the recklessness could have been based on several
different reasons, the Court of Appeal held that particulars of recklessness should have
been included in the information itself or should have been provided voluntarily later.
However, the Court did add that no such particulars would be required in a simple
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accident case caused by recklessness because the facts that the prosecution would be
relying on would be obvious.

Another instance where the prosecution may be called upon to provide particulars is
where the legislation creates a new concept without specifying or giving details of what
the impugned act would involve. This was the situation in the case of Police v
Kuderbux & others [1994 SCJ 424]. The accused parties were prosecuted under the
Dangerous Drugs Act of 1986 for unlawful possession of heroin. The Information
included an averment that, having regard to all the circumstances of the case, it could be
reasonably inferred that they were engaged in trafficking. The Act did not define
trafficking in drugs but imposed a higher penalty where an accused is found to be a
trafficker. On appeal, Counsel argued the matter from a Constitutional point of view but
stated that it was open to the Court to decide that the Information was defective in that it
was not sufficiently particularised.

The Supreme Court pointed out that the defence could have asked for particulars at the
trial stage but did not do so. Further, the Court found that, in view of all the surrounding
circumstances, the accused parties could not have been handicapped in the preparation
and presentation of their defence. Without holding that the prosecution was bound to
supply particulars, the Supreme Court expressed the opinion that it would have been
recommendable for the prosecution to furnish particulars. We can read the following in
that connection:
“In the light of our observations and given that it is not disputed that
trafficking may take many varied forms, we see frankly no harm in the
prosecution furnishing outright in the information itself concise particulars, as
distinct from matters of evidence, relating to circumstances giving rise to the
trafficking alleged against a defendant………….If as recommended by us,
particulars of trafficking are supplied by the prosecution and inserted in the
information itself as a matter of practice, this will not only obviate all the
difficulties and complications highlighted already by us but will also have
certain positive results.”

In contradistinction with the above, the prosecution should not be burdened with the task
of furnishing particulars where such an exercise would draw the prosecutor into stating
matters of evidence. In the case of Attorney General v Saurty [1963 MR 1] the
accused stood charged with three counts of involuntary homicide by imprudence which
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was averred to have been committed (1) by ‘imprudence’ (2) by ‘want of caution’; and (3)
by ‘driving without due consideration for other road users’ under each of the counts
respectively. The Magistrate ordered that particulars of the imprudence be furnished.
The Supreme Court giving its finding upon a case stated said the following:
“There may be cases where the statement of material circumstances over
and above the constituent elements of the offence would entail the supply of
a considerable part of the evidence to be adduced in support of the charge.
The supply of such evidence was in our view not intended by the law.”

The Court went on to hold that the Information in the instant case was sufficiently
particularised inasmuch as it satisfied the test of certainty and precision; the Magistrate
was therefore wrong to have ordered that particulars be provided.

Similarly, in the case of The Honourable Attorney General v Nabee Meea Calcatee
[1958 MR 234], the court stated, in relation to a charge of involuntary homicide:
“In our view it is not necessary to prove what precise act of the driver in a
series of acts which must be performed in the overtaking of a vehicle
constitutes the unlawful act committed and such proof indeed would be, in
the majority of cases, impossible to adduce. It is sufficient if the
circumstances in which the accident occurred establish that a driver failed to
do any or all the acts which a prudent driver would have done.”

The above was cited with approval in the case of Saurty(supra) as an illustration which
shows that a request for particulars ought not to be stretched to such an extent that it
requires the prosecution to disclose and set down the evidence that would be used later
in the case. The reasoning behind this is quite obvious. The prosecution is bound to aver
in the Information what it intends to prove and to prove what it has averred. Since
particulars are closely connected with the Information, it would be improper to require
the prosecution to aver matters of evidence in the guise of particulars and later contend
that the prosecution is bound to restrict itself to such evidence.

Another issue must be taken into account when considering whether particulars should
be ordered or not, and this concerns the extent to which the defence has been made
aware of the charge that it has to answer.In the case of Teong Sun Chuah [1991] Crim
LR 463, the accused parties were charged with offences of ‘false accounting’ and
‘obtaining by deception’ through false representations made. Particulars of the false
representations were not given and that formed the basis of the appeal. The Court
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stated that it would have been ‘advantageous’ for particulars to have been furnished in
such cases. However, in the instant case, the particulars were plain to the parties
involved and, therefore, no injustice was caused by any failure to spell them out in
advance.

In view of the developments in our jurisprudence, it has now become an established

practice for the prosecution to communicate materials, used and unused, as part of the
brief prior to the trial to the defence. This normally includes written statements given by
witnesses, documents and other materials gathered during the enquiry. In the case of
Police v Kuderbux & others (supra) the Supreme Court laid emphasis on this aspect
and held:
“The accused will consequently be aware of those circumstances which are,
in any case, included in the relevant prosecution material made available to
their counsel well before the trial and will have ample opportunity of
contradicting them by cross-examination or otherwise. …………….. Given
that the accused (a) knew what was the specific offence alleged against
them when they pleaded not guilty to the information………… (d) are in
possession and are consequently aware of all the relevant prosecution
material and will have ample opportunity in the course of the trial of rebutting
by means of cross-examination or otherwise any evidence led by the
prosecution based on that material …. we find it hard to understand how it
can be said that the accused have been or will be handicapped in the
preparation of their defence under section 10(2)(c) of the Constitution.”

In a trial for murder before the Supreme Court, the defence would have had the benefit
of taking cognisance, at the Preliminary Enquiry, of the circumstances on which the
prosecution would be relying. Moreover, used and unused materials are communicated
by the prosecution to the defence as part of the brief prior to the trial at the Assizes. At
the end of the day, State Counsel will set out, in his opening speech, the facts and
circumstances on which he would be relying to prove the case for the prosecution.
Thus, the following is said in Blackstone (supra):
“Modern practice is to keep even the particulars of offence (in the
Information) short …….. Generally speaking, brevity in a count does not
prejudice the defence since the way the prosecution put their case and the
evidence they intend to call will sufficiently emerge from the committal
statement”.

Finally, both Counsel for the prosecution and for the defence referred to S 22 of the
Criminal Procedure Act which reads as follows:
“22. Information for homicide
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[1]. In an information for murder or manslaughter, it shall not be necessary to

specify the manner in which or the means by which the death of the
deceased was caused.

[2]. It shall be sufficient in an information –

[a] for murder, to charge that the accused did criminally, wilfully and of his
malice aforethought, kill the deceased; and
[b] for manslaughter, to charge that the accused did criminally and wilfully kill
the deceased.

Counsel for accused no 1 stated that the Criminal Procedure Act dates back to 1853;
there have been developments since then, more particularly by S 10(2) of the
Constitution which came in 1968. Whereas S 17 of the CPA is in line with S 10(2), S 22
appears, ex facie, to create an internal contradiction within the Act and must be seen as
being contrary to S 10(2) of the Constitution. The Constitution must be given a wide
purposive approach and, according to him, the giving of ‘details’ mentioned in S 10(2)
entails disclosure by way of particulars as a practical expression of the fair trial afforded
to an accused party. In so far as S 22 seems to restrict or even to go against the spirit of
disclosure, it ought to be struck down as being unconstitutional and as being a violation
of the fundamental rights guaranteed in the Constitution.

I am unable to agree with the submissions of defence counsel to the effect that S 17 and
S 22 of the CPA are in contradiction with each other. Whereas S 17 is of general
application, S 22 deals specifically with the offences of murder and manslaughter. One
must bear in mind that the furnishing of particulars depends, inter alia, on the nature of
the charge that we are dealing with. Thus, in the case of Saurty (supra), the following
was said:
“The material circumstances to be stated in an Information are those that
can reasonably be expected to be given and must depend on the nature of
the offence charged and its constituent elements.”

Going back to what I have said earlier about the inadvisability of giving too many details
in the body of an Information and by way of related particulars, one can imagine the
difficulties that are likely to arise if the prosecution were, in every case of murder or
manslaughter, required to expatiate by way of particulars on the individual elements of
the offences set out in the Information. The Legislator deemed it fit to set at rest any
controversies that may arise concerning requests for particulars for the serious charges
of murder and manslaughter by stating, in statutory form, what has to be averred in such
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Informations. Moreover, the Legislator must have considered, at that time, the fact that
committal proceedings are held which disclose to the defence the material
circumstances of the charge prior to the trial. Nowadays, the communication of the brief
and of unused materials to the defence certainly reveals what the prosecution is relying
on to prefer and prove the charge against the accused. Thus, the prejudice caused to
the defence by the non-communication of particulars over and above the elements set
out in S 22 is minimal, if not inexistent, in a normal and simple trial for murder. This is not
to say that there will never be cases where the need to communicate particulars to the
defence in relation to a charge of murder or manslaughter would arise. But such cases
must be very rare and exceptional and the defence must ask for the particulars.
Moreover, before ordering the furnishing of particulars, the court must be satisfied that
there are specific circumstances justifying the communication of such particulars.

I have duly considered the submissions of counsel, the facts of the case as well as the
law on the subject. In my view, it has not been established that there are sufficient
grounds to order the prosecution to furnish further particulars over and above the details
which are already set out in the information. This being a criminal trial before the
Supreme Court, I find that the prosecution has followed procedures strictly, especially
the principles developed at common law, and the requirements of S 17 of the CPA as
qualified by S 22 when it comes to the offence of murder.

I therefore set aside the motion of the defence. There is no need for the prosecution to
furnish any further particulars and the trial is to proceed on the Information as presently
drafted.

P. Fekna
Judge

14 June 2012

For the State : Mr S.M. Munrakhan, Principal State Counsel

Mr J. Muneesamy, State Counsel
Mrs Servansing-Bhuruth, State Counsel
For Accused No. 1 :Mr S.Teeluckdharry, of Counsel
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For Accused No. 2 : Mr R. Valayden, of Counsel

Mr A. Dulloo, of Counsel
Mr Mooroongapillay, of Counsel
Mr S. Tirvassen, of Counsel
Mr Kallee, of Counsel