Romance vs.

1987 MR 57
1987 SCJ 159
Forget, *Proag JJ

The appellant was convicted at Moka District Court on 20 June1986 of the

offence of "larceny by person on wages" and was sentenced to undergo 6 weeks
imprisonment with hard labour and to pay Rs 150 as costs.

The evidence on record shows that on the night of 31.12.84,the police went
to La Chartreuse tea factory, after one Jacques Raymond Sandou, a security
guard, found 15 bags of tea lying outside the factory store. On 8.2.85, P S
Kowlessur arrested JP Quirin, a factory worker of La Chartreuse and the
appellant, an assistant tea maker of Belle Rive. Both were detained in police
custody for a week and then they were released on bail.

J P Quirin in his statement to the police explained how he and the

appellant managed to steal the tea and how they had planned to sell it and share
the proceeds. The appellant had denied having anything to do with it.

On 27.6.85, the appellant was charged with the theft of 15gunny bags
containing 228 kilos of manufactured tea, whilst being a person on wages and at
the time of the hearing of the case, J P Quirin, star witness for the
prosecution, was still on bail.

The grounds of appeal are-

(1) Because the learned Magistrate ought to have treated the evidence of
Quirin as inadmissible since on his own admission he had committed
the larceny averred in the information and at the time of the trial
was still provisionally 'charged with that offence and had not been
given the assurance by the Director of Public Prosecutions that he
would not be prosecuted for the offence.

(2) Because even if the evidence of Quirin was admissible it should have
been discarded by the Court in view inter alia of its suspicious
nature, the major discrepancies in such evidence and the, total lack
of corroboration.
(
3) Because in view of the nature of Quirin's evidence the learned
Magistrate ought to have stated what inconsistencies he found to
enable the appellate Court to decide of their importance.

(4) Because the learned Magistrate was wrong to find that the appellant
was a person on wages.

Before us, appellant's counsel, rightly dropped ground (4), which is

devoid of merit. The remaining grounds were argued together.

In the case of Turner & others v R (1975) 61 Cr App R 67,it is reported

that a man named D C Smalls was arrested on suspicion of having been involved in
a bank robbery. He was later charged with that robbery and others. He
expressed the wish to give evidence for the Crown, subject to certain
conditions. Subsequently he made a number of written statements in which he
admitted his own part in twenty armed robberies and named others who were all
rounded up by the police. Smalls was arraigned on an indictment containing four

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counts against him. The prosecution offered no evidence and the trial Judge
ordered a verdict of not guilty to be entered.

Immediately afterwards Smalls was taken to a Magistrate's Court where he

was called by the prosecution as a witness against twenty-six accused who had
been arrested, including the appellants. The evidence of Smalls was in
considerable detail as to the planning and execution of the robbery. The
foundation of the prosecution's case against all the appellants was Smalls'
evidence. Without it, the Crown would have had no case. Nevertheless, the Court
of Appeal stated that it could find nothing unsafe or unsatisfactory, about
Turner's conviction.

In the case of Thorne & others v R (1977) 66 Cr App R 6,reference is made

to a crown witness called O'Mahoney who had pleaded guilty to a charge of
robbery and after the prosecution counsel had told the Recorder that he had been
of great help to the police and could be called as a witness in a number of
cases. The Recorder sentenced him to five years imprisonment, after taking into
consideration the help he had given and was intending to give to the police.
But for what he had done by way of giving information, the least sentence he
could have expected to get was15 years imprisonment. After his conviction, he
deponed as a Crown witness during the trial of the appellants. His credibility
was attacked at length. He was already a very dangerous criminal indeed. He
must have appreciated that telling the police what they wanted to know would
stand him in good stead and that if he came up to proof in Court, his chances
for an early release from prison would be improved.

Nevertheless Lawton LJ said -

Running as a theme through all the appeals ... was the submission that
O'Mahoney was such a villain that his evidence ought not to have been
accepted by the jury and that any verdict based upon it was bound to be
unsafe. This Court decided in Turner & others (1975)61 Cr App R 67, that
the evidence of villains of 0’Mahoney's kind can be admitted and that
convictions based on such evidence can stand. The trial Judge must,
however, give the jury adequate warnings about the dangers of convicting
on such evidence. [Page 141

However, appellant's counsel in the case before us, submitted that the
ought not to have admitted the evidence that the learned Magistrate ought not to
have admitted the evidence of Quirin and he quoted the case of Pipe v R (1966)
51 Cr App R 17, where Lord Parker CJ, had said

In the judgment of this court, it is one thing to call for the prosecution
an accomplice, a witness whose evidence is suspect, and about whom the
jury must be warned in the recognised way. It is quite another to call a
man who is not only an accomplice, but is an accomplice against whom
proceedings have been brought which have not been concluded. There is in
his case an added reason for making his evidence suspect. In the judgment
of this Court, this well-recognised rule of practice is one which must be
observed, and, accordingly, in the circumstances of this case there is no
alternative but to quash the conviction. [Page 211

In respect of this case, Lawton LJ, six years later, had this to say in
Turner (supra) -

Lord Parker CJ in PIPE (supra) seems however, to have viewed the admission
of Swan's evidence in the circumstances of that case as more than a wrong

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 exercise of discretion. He described what happened as being "wholly
irregular". It does not follow, in our judgment, that in all cases calling
a witness who can benefit from giving evidence is "wholly irregular". To
hold so would be absurd. [Page 781

In our judgment, the decision in Pipe (supra) turned on a narrow point.

The trial of the accomplice Swan was adjourned and was to begin only one day
after that of Pipe. That is why Lawton LJ in Turner (supra) went on to say -

PIPE (supra) on its facts was clearly a right decision. The same result
could have been achieved by adjudging that the trial judge should have
exercised his discretion to exclude Swan's evidence on the ground that
there was an obvious and powerful inducement for him to ingratiate himself
with the prosecution and the Court and that the existence of this
inducement made it desirable in the interests of justice to exclude it.
[Page 78]
We have been very fortunate to have come across the case of R v
Pentonville Prison Governor, Exparte.- Schneider and anor (I 98 1)73 Cr App R
200, where Boreham J delivering the judgment of the Court has canvassed
thoroughly the competence of an accomplice to give evidence, after reviewing,
inter alia, the cases of Winsor v R (1866) LR I QB 289, Grant (1944) 30 Cr App R
99, Pipe (1966)51 Cr App R 17, and Turner (1975) 61 Cr App R 67. He has
summarised as follows-

It seems to us that the following conclusions can properly be drawn from

this line of authority: (a) that an accomplice is a competent witness -
save, perhaps, when he is both indicted and tried with the defendant.
Certainly there is no authority for the proposition that an accomplice who
has been charged but not dealt with is not competent. Indeed WINSOR v R
(supra) remains an authority against that proposition; (b) that there is
no rule of law which renders the evidence of an accomplice -even one who
has been charged but not tried-inadmissible. The rules referred to in PIPE
(supra) and TURNER (supra) are rules of practice and not rules of law. All
the authorities from WINSOR v R (supra) onward -with the possible
exception of PIPE -are to the same effect. In our view there is no
conflict of principle between the decisions in PIPE and TURNER. If there
is, then we consider TURNER to be more in line within the earlier
authorities and we would follow it. [Page 2121

In the case before us, we are satisfied that the learned Magistrate who
saw and heard Quirin was in no doubt that Quirin was on bail and in exercising
his discretion he gave himself the required clear warning to ensure that the
evidence in question was adequate and amply confirmatory to act upon.

By the way, it was argued before us that the Director of Public

Prosecutions ought to have given the assurance that Quirin would not be
prosecuted for the offence. We are of the view that there was no valid reason
for the Director of Public Prosecutions to send forth this assurance. In Turner
(supra) it was stated that the spectacle of the Director recording in writing
his undertaking to give immunity to accomplices was distasteful and that it
should be done only in the public interest and most sparingly.

It follows therefore that the appellant's contentions must fail. The

appeal is dismissed with costs.

19 May 1987

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G Ollivry and L Moutou for the appellant
R Pursem for the respondent

Attorneys
N Appa Jalla for the appellant
Crown Attorney for the respondent

Record No 4715

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