Police v S. Gajadhur
2017 INT 128
IN THE INTERMEDIATE COURT OF MAURITIUS
CN 365/14
In the matter of:
Police
V
Shreemuttee GAJADHUR
Judgment
The accused stands charged in respect of 2 counts with unlawfully and knowingly receiving
articles which have been obtained by means of a misdemeanour in breach of Sections 40 and
301(1) of the Criminal Code.
She pleaded not guilty to the charges and was represented by Mr N. Dulloo.
A robbery occurred at the place of Mrs Dhurma on the 12th of November 2012, during which
several jewelries including a golden chain, 2 rings and a mangalsutra were taken away.
Another robbery occurred at the place of Miss Teeluckdharry on the 13th of November 2012.
She lost several articles consisting of a phone, money and equally jewelries.
Mr Deeloosing was sentenced before the Intermediate Court in case CN 23/14. He stole
several jewelries. Amongst them, he stated he sold 2 golden rings, a golden chain and a
mangalsutra to the accused for the sum of 30,000 rupees. He again claimed he sold one golden
chain, a golden medallion and a ring to the accused for 8,000 rupees.
The several statement recorded from the accused are on record.
The accused denied the charges in her statements to the police. She explained that she does
not know the said Deelosing and is not aware why he has levelled a charge against her.
She deposed to the truth of her statement.
Learned counsel submitted that the testimony of witness Deeloosing, who is an accomplice
cannot be acted upon as he has an interest to serve. He referred to the case of Goburdhun V
The Queen 1956 MR 503, and moved that the accused be given the benefit of doubt.
Garraud in his Droit Penal Francais, Vol 3, ss 944 stated:
"Il faut un fait matériel de recel . . . Recéler une chose . . . dans l'acception juridique de
l'article 62, c'est simplement la détenir, dans une intention frauduleuse sachant qu'elle a
été détournée
. . . Il faut, mais il suffit, que la chose ait été reçue par le recéleur et qu'il ait exercé une
véritable détention sur les objets dont l'origine est délictueuse ..."
"Le titre de la détention est sans importance sur la constitution du recel. Il résulte du seul
fait de la prise de possession d'un objet, que l'on sait avoir une origine furtive, avec
l'intention de s'associer au délit." (Emphasis is mine)
In the case of Veeren V The Queen 1984 SCJ 109, the court (Glover SPJ and Ahnee J) made
the following statement:
“It is trite law that in a case of knowingly receiving stolen property, under the first leg of
section 40 of the Criminal Code, the prosecution cannot merely content itself to prove a
possession of property obtained by means of a larceny. The prosecution must go one
step further and establish, beyond reasonable doubt that the accused knew of the
tainted origin of the article found in his possession at the time he received same.”
The prosecution has therefore to prove the two elements:
1. that the accused received the articles
To establish receiving, it was necessary to establish possession in the sense of control by the
accused: R. v. Wiley (1850) 2 Den. 37; and R. v. Watson [1916] 2 K.B. 385, 12 Cr.App.R. 62,
CCA.
Since it is necessary to establish control of the goods by the accused, proof that she has
physically handled them is neither necessary nor sufficient. The accused might have handled
the goods physically without being in control of them or have been in control of the goods
without physically handling them.
2. that she had the knowledge of their tainted origin.
In a case of knowingly receiving stolen property, the burden rests upon the prosecution to prove
that the accused had knowledge of the tainted origin of the articles, as compared to a case of
possession of stolen property where the onus of proving that the possession is sufficiently
excused or justified primarily rests upon the accused party.
The knowledge is proved either directly, by the evidence of the principal offender, or
circumstantially. Lord Diplock said in Treacy v. DPP Times, December 16, 1970, that
“knowledge or belief” are words of ordinary usage and in many cases no elaboration at all was
needed.
The prosecution rests its case solely upon the testimony of witness Deeloosing to establish both
elements 1 and 2 above. Witness Deeloosing maintained that he sold the stolen articles to the
accused so that, if such was the case, she should have had control over them. The court bears
in mind that witness Deeloosing is the principal offender and needs to address its mind to the
danger of acting upon uncorroborated evidence.
In DPP V Subrattee 2010 SCJ 207, the Court on appeal made the following observations:
“In general, however, at common law one credible witness is sufficient (vide DPP v
Hester [1973 A.C 296], Lord Diplock at p 324). With the development of the common
law, the corroboration requirement is said to be required in such categories of cases
which include the evidence of a complainant in sexual cases, the evidence of an
accomplice when called by the prosecution and the evidence of children. Apart from
these established categories, the authorities have established the need for a
corroboration warning where the evidence of a witness is suspect and which would
include the evidence of a co-accused, the evidence of mental patients and the evidence
of witnesses who may have improper motives or interests of their own to serve (Beck
[1982 1 WLR 461]; Spencer [1987 AC 128] and Brown [1992 Crim LR 178])”
Besides being the principal offender, the court finds that witness Deeloosing may have an
interest of his own to serve. The accused revealed that the witness had problems with her son
and she refused to stand as surety. The record also shows that the witness had refused to
identify the accused as his accomplice before other courts and he was consequently fined for
that. This is a witness who seems to have previously lied under oath and the court has doubts
as to his credibility. Having borne in mind the need for a warning, the court considers that the
testimony of witness Deeloosing cannot be relied upon.
In R. v Hills (H.) (1988) 86 Cr.App.R. 26, C.A., the Lord Chief Justice said:
“When in the ordinary affairs of life one is doubtful whether or not to believe a particular
statement, one naturally looks to see whether it fits in with other statements or
circumstances relating to the particular matter; the better it fits in, the more one is
inclined to believe it. The doubted statement is corroborated to a greater or lesser extent
by the other statements or circumstances with which it fits in.”
Furthermore, the court has considered that there is no evidence at all as to the second element,
which is that the accused had knowledge that the articles were stolen.
On the other hand, the accused chose to depose as to what is contained in her statement to the
police, which comes to a denial. She was subject to cross-examination but maintained her
version that she never bought anything from witness Deeloosing.
In Goburdhun V The Queen, Sir Francis Herchenroder, C.J. concluded:
“When, therefore, the sum total of the evidence in the case is taken into account, there
was, in effect, the word of the victim as against the denial of the appellant. It is in such a
case, particularly, that the principle of the presumption of innocence comes into
operation. The application of that principle in every criminal case is the foundation of the
right of the accused person to insist that the prosecution should discharge the onus that
rests upon it to prove that he is guilty. It seems to me that at the close of the case for the
prosecution there was justification for the appellant and his counsel taking the view that
there was no necessity to answer the case any further.”
The court therefore holds that the prosecution has not been able to establish a prima facie case
against the accused to the effect that she knowingly received the stolen money.
The court accordingly holds that the prosecution has not proved its case beyond reasonable
doubt and dismisses both counts against the accused.
B.R.Jannoo- Jaunbocus (Mrs.)
Magistrate
Intermediate Court (Criminal Division)
This 7th April 2017.