LUCHMUN Y.

v THE STATE

2019 SCJ 242

Record No. 235

THE SUPREME COURT OF MAURITIUS

[Court of Criminal Appeal]
In the matter of:

Yavinash Luchmun
Appellant

The State
Respondent
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JUDGMENT

The appellant (“the accused”) was prosecuted before the Supreme Court, composed of
a Judge and a Jury, for the offence of manslaughter under sections 215 and 223 (3) of the
Criminal Code Act. He was found guilty by the jury and sentenced by the Judge to undergo 35
years penal servitude from which would be deducted the 1397 days which he had spent on
remand. There were initially nine grounds of appeal. Grounds 4, 5, 6, 7 and 9 have however
been dropped. Part of ground 3 has also been dropped. The outstanding grounds are therefore
grounds 1, 2, 8 and the outstanding part of Ground 3.

Ground 1

This ground reads as follows:

“It was wrong to prosecute the Accused (Appellant) under section 215 of
the Criminal Code whereby section 215 does not create an offence but it
only interprets what manslaughter is, that is to say, it defines manslaughter.
Nor does section 223 (3) when this section deals only with sentencing.
Therefore, in law, section 215 and 223 (3) cannot amount to a charge at all
for which the Appellant was prosecuted. Hence the information was wrong
in law and in principle”.

Section 215 of the Criminal Code reads as follows:

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“215. Interpretation of “manslaughter”

Homicide committed willfully is manslaughter.”

Section 223 (1) provides for the sentence for any person “guilty of manslaughter
preceding, accompanying or following another crime” and section 223 (2) the sentence for
attempt at manslaughter. Section 223 (3) then provides as follows:

“In every other case, a person guilty of manslaughter shall be liable to

penal servitude for a term not exceeding 45 years”

In the contention of Counsel for the appellant, section 215 defines manslaughter and
section 223 (3) merely provides for the sentence such that neither of those two enactments
actually creates the offence of manslaughter. He conceded that the issue was not raised at trial
but submitted that this Court can consider it under its wide powers.

It has been settled in Moussa v The Queen [1972 MR 100] that the Supreme Court
sitting on appeal against the judgment of the District or Intermediate Court has the power to
raise proprio motu the issue of an information disclosing no offence known to the law,
notwithstanding the prohibition, in section 97 of the District and Intermediate Courts (Criminal
Jurisdiction) Act of objections to the information not raised at trial and raised for the first time on
appeal. This Court sitting on appeal against a conviction by the Supreme Court sitting at first
instance could not be said not to have the same power.

However, it cannot be said that the information laid against the accused in the present
case did not disclose an offence known to the law. The surprising contention of Counsel for the
appellant that sections 215 and 223 (3) of the Criminal Code do not create the offence of
manslaughter is clearly unfounded. Such a contention would imply that all the convictions of
accused parties for manslaughter throughout Mauritian legal history on the basis of these
enactments were wrong. This clearly cannot be so. The words “a person guilty of manslaughter
shall be liable to penal servitude for a term not exceeding 45 years” in section 223 (3) of the
criminal Code clearly convey that manslaughter, as defined in section 215, is an offence under
our law.

All the more so since –

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(i) Section 2 of the Criminal Code provides that offences which the law punishes are
crimes, misdemeanors or contraventions.
(ii) By virtue of section 4 of the Criminal Code, the offence of manslaughter which is
punishable under section 223 by penal servitude, would fall under the category of
“crimes”.

The information, which has been drafted in the words of the law creating that offence,
clearly discloses that offence.

Ground 1 has accordingly no merit and must fail.

Ground 2

“The Learned Judge failed to give adequate and proper direction on the elements of the
offence of manslaughter and whatever direction was given was unfair and prejudicial to
the defence case.”

In what Counsel for the appellant entitled “perfected skeleton argument” he embarked
for the first time into an argument in support of Ground 2 which we must admit we have much
difficulty to follow. We shall reproduce verbatim his argument which is couched in the following
terms:
“It is argued that:
a. voluntary manslaughter requires the requisite intent and at least one of the partial
defences of murder;
b. the partial defences were absent in the present case;
c. it is questionable on what basis the charge of murder was reduced to voluntary
manslaughter since the partial defences were not present;
d. involuntary manslaughter requires no intent but an unlawful act and the act need be
a dangerous one”.

The question of intention to kill has been raised under Ground 2(c). But the above
argument does not have any bearing in relation to the charge of manslaughter in the present
case which has been brought under sections 215 and 223(3) of the Mauritian Criminal Code.
There is no need in that connection to consider “partial defences of murder” and still less the
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“intent” required in respect of “involuntary manslaughter” which are absolutely of no relevance to

the present charge of manslaughter.

Counsel for the appellant further submitted that there was a misdirection and/or lack of
direction in respect of what was “wilful and unlawful act of violence inflicted by the accused”
from a “legal, evidential and factual perspective.”

Counsel argued that the directions and the summing up of the learned Judge on the
elements of the offence of voluntary manslaughter fall short of what is required in law to be put
before the jury. The learned Judge failed to direct the jury as to what constituted the unlawful
acts. He was wrong to have used the term “act of violence” and the learned Judge failed to put
across to the jury the version given by the appellant in that connection when he gave evidence
under solemn affirmation in Court. Since there were two different versions, both versions must
have been put to the jury with an appropriate direction to enable the jury to reach an informed
decision as to the “wilful and unlawful act of violence inflicted by the accused.”

The learned Judge, on more than one occasion in the course of the summing up,
directed the jury in law as to the elements which constitute the offence of manslaughter with
which the accused was charged. The learned Judge gave an explicit direction with regard to
the elements of of the offence of ‘manslaughter’ in the following terms:

“The three elements, which in law constitute the charge of manslaughter are as follows:
I. there must be a wilful and unlawful act of violence inflicted by the accused on a
living person which causes injury to that person;
II. the injury must be the cause of the death of the person, that is, the person must
have died as a result of the injury received from that wilful and unlawful act; and
III. there must be an intention to kill at the time when the violence and injuries were
inflicted, as opposed to an intention to simply injure or cause injury”.

The learned Judge went on to provide a detailed explanation of all the above elements
which constitute the offence of manslaughter. We find no merit in any of the arguments in
support of the appellant’s complaint that the learned Judge “failed to give adequate and proper
direction on the elements of the offence of manslaughter” or that “whatever direction was given
was unfair and prejudicial to the defence case”. The learned Judge did indeed set out to the
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jury in an explicit manner all the constitutive elements of the offence of manslaughter which the
prosecution had to prove beyond reasonable doubt. Ground 2 therefore fails.
Ground 2 (a)
“The Learned Judge failed to direct the jury what constituted unlawful act(s) as alleged in
the Appellants disputed confession and by reference to his testimony at the trial. The
Appellant testimony was that he had slapped the Deceased on her buttock, back and
temple. In his disputed statement the slaps were styled as “calotte ….bien fort” and
“bien fort …. deux coup karate….”. The Learned Judge used the term “act of violence”
when he should have used what the Appellant said he did, that is slaps. Because there
has been no sign of medical evidence or otherwise that the Prosecution had established
with regards to the version as styled in his statement.”

The accused had, in a statement given to the police on 14 December 2010 stated that
he had hit Anshita, the victim who was a 3 year-old girl, twice with much force (“bien fort”) at her
buttocks before hitting her again in the following manner:

“mo fine saper, la mo fine batte Anshita deux coup avec mo la main droite, aine
dans so cotte côté droite et aine dans so cotte côté gauche, bien fort, mo ti batte
deux coup, ‘karaté’ c’est-à-dire, avec mo rebord la main à la suite de sa Anshita
fine abate et fine tombe embas et li ti vine bien faible et so li yeux ti pé
commence fermer”

When the accused gave evidence in Court, he came up with the following version: He
first hit the girl twice at her buttocks as a result of which she fell down in a bush. He
subsequently dealt her 2 blows at her chest and slapped her twice at her head as a result of
which she fell down on each occasion.

The learned Judge whilst directing the jury with regard to the “confession statement”,
pointed out the following to the jury:

1. they had in the first place to decide whether they could accept to act on these
confessions;
2. the burden was always on the prosecution to prove beyond reasonable doubt that
the accused did voluntary give and sign the statements in question.
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3. Unless the prosecution proved beyond reasonable doubt that the admission or
confession had been made freely and voluntarily after the accused had been duly
informed of his constitutional rights, such admission or confession could not be
relied upon.
4. If they found that the confessions were voluntary, the next step for them was to
decide on the weight to be attached to them.

The learned Judge elaborated, in his summing up, both on the undisputed and disputed
facts in the case and concentrated more particularly on the disputed confession and the
grounds invoked by the accused to challenge the weight to be attached to the confession
statement.

The learned Judge also went through the accused’s version under oath in Court in
relation to the brutal and inhuman treatment meted out to him by the police and his claim that
he did not make the confessions imputed to him.

The learned Judge drew the attention of the jury that “in the end the only confessions he
seemed to contest are the admission that he dealt the deceased with violent slaps and karate
blows at her ‘côte’. In fact it is not his contention under oath that he never inflicted any violence
on the deceased. On the contrary he admits having dealt her with slaps in the manner he
described which were not violent on three occasions before she collapsed”.

The learned Judge in the course of his summing up on that issue also directed the jury
that it would be for them to decide to what extent they believed, and could give credence to the
confessions and act upon them in the light of all the relevant evidence on record including the
medical and scientific evidence and their assessment of the accused’s testimony in Court. The
learned Judge told the jury that for that purpose: “You’ll have to take into account his
demeanour and the impression left upon you in the witness box, his credibility and the
plausibility of his version and whether in the end he is capable of belief” before again reminding
the jury that the burden always remains on the prosecution to prove beyond reasonable doubt
all the essential elements of the offence charged.
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We find that it was perfectly legitimate for the learned Judge to use the term “acts of
violence” which indeed reflect the assault perpetrated by the accused as described by the
accused himself in his statements to the police and his testimony in Court.

It cannot in our view be contested that the learned Judge correctly and fairly directed the
jury with regard to all the ingredients of the offence. The learned Judge did put before the jury,
in a well-balanced and accurate manner, the versions of both the prosecution and the defence
with regard to the alleged “acts of violence” inflicted upon the victim by the accused. He referred
the jury in that respect to the accused’s statements as well as his testimony in Court.

For all the above reasons, we do not find any merit in any of the arguments raised on
behalf of the appellant in support of ground 2(a) which must accordingly fail.

Ground 2 (b)

We shall next turn to ground 2(b) which reads as follows:

“The Learned Judge failed to direct the jury that there was no nexus between the
unlawful act(s) as per the disputed confession of the Appellant and by reference to his
testimony during trial and by reference to the medical evidence both for the Prosecution
and in particular the Defence. That is, there was no conclusive evidence that these acts
“calotte … bien fort … deux coup karate …” resulted in the injuries contended by the
Prosecution”

It was submitted that the learned Judge failed to direct the jury adequately on the issue
of causation and the absence of any nexus between the slaps and the injuries contended by the
prosecution.

The learned Judge brought to the attention of the jury -

(i) the version of the appellant as to the non-violent slaps inflicted by him and the various
versions given by the appellant including the version contained in his disputed
statement;
(ii) the nature of the conflicting evidence of Dr Gungadin and Dr Gujjalu, more
particularly with regard to the injuries sustained by the deceased and the manner in
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which they could have been inflicted and their relevance in determining the cause of
death.

The learned Judge reminded the jury that at the end of the day “your task is to choose
which of those two doctors’ versions to accept” in that connection. The learned Judge added
that in assessing the evidence of the two doctors in order to decide which finding as to the
cause of death to accept, “you are entitled in your own deliberate judgment and after taking into
account all the circumstances including their explanations and what are according to you the
strong points and weaknesses in each doctor’s version to

I. accept or reject in toto the evidence and findings of any of them; or

II. accept only part of their respective evidence and reject the other part.

The fact that you accept only part of the evidence of a doctor does not necessarily mean that
his finding as to the cause of death ought to be rejected, which means that even if you accept
only part of the evidence of one doctor, you are entitled, in your own deliberate judgment, to
hold that the extent of the evidence you decide to accept is sufficient proof of the cause of
death as found by that doctor.”

The following direction further illustrates that the learned Judge correctly and
appropriately directed the jury on the issue of “causation”:

“let me remind you that in the particular circumstances of the present case at the
end of the day, irrespective of which version you accept to believe, what you
have to decide is whether the violence which you find proved is indeed the cause
of the fatal injuries sustained by the deceased.”

The learned Judge did not, in our view have to go any further in his directions to the Jury
on the issue of causation. We accordingly find no merit in ground 2 (b).

Ground 2 (c)

We shall next turn to grounds 2(c), 2(c)(i), 2(c)(ii) and 2(c)(iii) which read as follows:

“(c) The Learned Judge failed to direct, adequately, the jury on the issue of
intention whilst the Appellant stated at the Preliminary Enquiry, in his
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statement and during trial that he did not have the intention to kill.
Therefore, there was lack of mens rea and the Prosecution failed to prove
intention.

(c)(i) Having informed the Jury that intention is a subjective matter, the Leaned
Judge left the issue of intention unexplained and offered no guidance to
the jury, except listed some factors, which they should consider, which is
highly prejudicial to the Defence case leaving out the characteristics of
the Appellant (well built) and the Deceased (malnourished). The Learned
Judge should have directed the Jury that the Prosecution has shown no
evidence that the injuries were consistent to the “calotte …bien fort” and
….bien fort …. deux coup karate ….” but that he failed to do.

(c)(ii) Having left the issue of intention, being the state of mind of the Appellant,
unexplained, the Learned Judge failed to give specific direction that those
factors are not proof of intent given the fact that there was no evidence to
prove that the assaults had caused the injuries. Furthermore, there were
no signs of injury marks relevant to the alleged assaults by the Appellant
on Deceased.

(c)(iii) The Learned Judge failed to direct the Jury from what sources of
evidence and how they can consider drawing any relevant inference.”

We consider that the complaint that there was a lack of adequate directions to the jury,
with regard to the element of ‘intention to kill’, is not justified in view of the nature and extent of
the directions which the learned Judge gave in that connection to the jury.

The learned Judge gave a detailed direction to the jury in order to assist them in
reaching a proper verdict in determining the issue of ‘intention to kill’ both at the beginning and
towards the end of his summing up.

The learned Judge had in the first place pointed out that it was incumbent upon the
prosecution to prove beyond reasonable doubt that the accused had an intention to kill at the
time when the violence and injuries were inflicted, as opposed to an intention to simply injure or
cause injury to the deceased.

The learned Judge then explained to the jury that ‘intention to kill’ is a subjective element
which must be gauged at the time of the inflicting of the wilful and unlawful act of violence. The
question, he told the jury, is whether at the material time, the accused intended that death
should ensue, and this, by reference to all the evidence and by drawing such inferences from
the evidence as would appear proper to the jury.
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The learned Judge added that the facts which are normally considered for that purpose
are the degree of violence, the part of the body at which the blow was aimed and the nature of
the wound or injury which proved to be fatal.

The learned Judge then reminded the jury that the accused had consistently stated that
he had no intention to kill and that it was incumbent upon the prosecution to disprove such
assertion before referring the jury to the evidence which had been lengthily elaborated upon by
Counsel for the prosecution in support of her submissions that “intention to kill” had been proved
beyond reasonable doubt. The learned Judge then concluded his direction on that issue in the
following terms:

“It is for you to decide whether the arguments of learned counsel for the
prosecution hold good, and this, in the light of your own appreciation of the
evidence before you and the arguments of learned defence counsel to the
contrary which you are likewise entitled to accept or reject if you decide to agree
or disagree with him.”

The learned Judge also directed the jury as to the medical evidence which had been
adduced by both parties and directed them as to the conditions which must be met before they
can act upon any circumstantial evidence.

We find no fault with the directions given by the learned Judge which conveyed quite
clearly and accurately to the jury what the prosecution had to prove in order to establish that
there was the required ‘intention to kill’ on the part of the accused at the time when the violence
and injuries which caused the death were inflicted.

Ground 2(c) must accordingly fail.

Ground 3

The outstanding part of this ground (after the dropping of the rest thereof as indicated in the
introductory paragraph of this judgment) reads as follows:

“(i) The Learned trial Judge failed to draw the attention of the Jury on
evidence which were reasonably capable of undermining the reliability of
the confession by reference to the testimony of Dr Ramkoosalsing (the
Psychiatrist), and the Appellant’s testimony at trial. That is, mental
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impairment due to sleep and food deprivation for over 24 hours; no right
to telephone call afforded to the Appellants as his family were not aware
of his where about for 3 days; his impaired handwriting when signing the
closing certificate of his statement due to impaired state of mind; that his
statement was not read over to him; nor could he have managed to read
the handwriting of another in a 10 pages long statement with lack of sleep
for 27 hours by then; the inconsistent testimony of PS Moolee, DI
Goolaup, PS Ramyad, PC Saneechur; the inaccuracy of DB entries; the
departure of Dr Gungadin from accepting the role of a pathologist is to
help progress the Police enquiry when he was contradicted by Dr Gujjalu
and that he departed to accept the normal practice that he should inform
the Police not only the cause of death but potential suspect (in this case
close member of the family) and that he has to specify the possible
weapon or material used. He further departed to accept that the police
also shared information with Dr Gungadin, but to all that he flatly denied.

(ii) The Learned Judge failed to put the Defence case so far as
involuntariness was concerned with reference to the facts stated at
paragraph 3(b)(iii) and (iv) below.

(iii) The Learned Judge was wrong to allow the admissibility of the confession
for the reason stated at paragraph 3(i) and (ii) above and that Dr
Gungadin had not given a thorough medical examination to the
Appellant.”

In a gist, Counsel for the appellant has challenged two issues under the heading of
confession and they can be summed up as follows: (i) that the learned trial Judge was wrong to
allow the admissibility of the confession; (ii) that the learned trial Judge was wrong in his
directions in relation to the confession in the course of the Summing Up.

Admissibility of the confession (Ground 3 (iii) above)

Counsel for the appellant has submitted in his “perfected” skeleton argument that the
impugned part of the accused’s statement dated 14 December 2010 should not have been
admitted by the trial learned Judge since the confession was obtained in breach of the
accused’s constitutional rights and was not voluntary. It was further submitted that the objection
to the admissibility of the accused’s impugned statement was based on the following grounds:

(1) the accused was deprived of sleep for two days;

(2) the accused was not offered food for 12 hours;

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(3) the accused suffered from impaired concentration;

(4) the accused was not explained his right to counsel; and

(5) the accused’s confession was induced and/or fabricated by the Police.

As indicated in the Interlocutory Judgment of the learned trial Judge on the admissibility
of the accused’s statement dated 14 December 2010, the accused challenged his confession on
no less than 8 grounds (inclusive of the 5 grounds mentioned above). The prosecution called
five witnesses for the voir dire to substantiate its objection and to rebut the allegations and
complaints of the accused to eventually establish that the statement of 14/12/2010 and the two
others of 15/12/10 and 17/12/10 were voluntary.

It is apposite at this stage to refer to the chronology of the undisputed factual events,
which took place on 14 December 2010:

(1) the accused, a baker, worked in a bakery at Mare-d’Albert from 20.00 hrs onwards on
13/12/10 until early morning of 14/12/10;

(2) he then proceeded to J. Nehru Hospital to collect his dose of Methadone;

(3) at 10.00 hrs he reached home, had breakfast and then took his step-daughter, Drishtee
of 3 years old, to Madame Lolo football ground to play;

(4) around midday, he left the playground and carried Drishtee to the hospital;

(5) at about 14.00 hrs, Drishtee was declared dead;

(6) at 14.30 hrs, the accused gave a statement at the Police station before returning home;

(7) in the afternoon, the accused took the police to the football ground where Drishtee was
injured;

(8) the accused was kept at the Police station until he was handed over to Rose-Belle CID
for investigation;

(9) in the meantime, Dr Gungadin carried out an autopsy on the body of Drishtee. The
autopsy ended at 19.30 hrs and the doctor attributed the cause of death to shock due to
rupture of the liver;

(10) at 20.05 hrs, the accused was taken from Rose-Belle Police Station to Rose-Belle CID
and PS Moolee took charge of him;

(11) the accused was taken in a small room where he was questioned and P.S. Moolee
recorded the impugned statement consisting of 9 pages from 20.45 hrs to 22.55 hrs
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(12) during the recording of the impugned statement, the accused was given water to drink
at his request;

(13) at around 00.35 hrs, the accused was conveyed to L’Escalier Police Station where he
was detained;

(14) on 15.12.10 a provisional charge of murder was lodged against the accused before
Grand Port District Court and he was then taken to hospital to collect his dose of
Methadone;

(15) at about 08.35 hrs a reconstruction exercise was carried out;

(16) at about 13.20 hrs a second statement was recorded from the accused;

(17) on 16.12.10 the accused was examined by Dr Gungadin who testified that the former
was cooperative, well-oriented and his cardiovascular, respiratory and nervous systems
were normal;

(18) on no less than 15 occasions the accused appeared before Grand Port District Court
and Mr Ghoorbin confirmed that according to the records of the proceedings from
remand and enlargement of bail, the accused did not make any complaint to the District
Magistrates; and

(19) Mrs Awotar confirmed that the accused did not make any complaint at the Preliminary
Enquiry.

The prosecution evidence at the voir dire can be summarised from the testimony of P.S.
Moolee who testified that when C.I. Goolaup, P.S. Ramyead and himself were interviewing the
accused they noted at some point in time that the accused was coming up with a confession.
The latter was cautioned and duly informed him of his constitutional rights, namely, his rights to
use the telephone, to remain silent and to be assisted by counsel. The accused made no
request and stated that he was going to give his statement by himself. P.S. Moolee and C.I.
Goolaup added that the accused after confessing stated that he felt relieved as he wanted to
remove things off his chest. They explained that the accused did not request for food and they
presumed that he had already had dinner at the time he was handed over to them.

The accused deposed under oath and explained that at the time of the recording of his
first statement on 14 December 2010, he was tired, sleepy and was subjected to physical
violence. However, he also admitted that he did not make any complaint to the District
Magistrate.
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The accused in the course of the voir dire called Dr Ramkoosalsing who explained that
sleep deprivation could lead to tiredness, fatigue, impaired concentration, attention, reasoning
and judgment. He opined that a person who had not slept for 24 hours and who had as food
only half a loaf of bread during that time would suffer from hypoglycemia.

In a ruling consisting of 13 pages, the learned trial Judge analysed all the evidence
adduced at the voir dire and concluded that although it had not been disproved that the accused
had not been without sleep and food at the time of recording the impugned statement, there was
no evidence on record that the accused had suffered from any mental impairment due to lack of
sleep to nullify his free will at the material time. The learned trial Judge further accepted the
versions of PS Moolee, CI Goolaup and PS Ramyead that the accused voluntarily gave the
impugned statement after he had been duly informed of his constitutional rights to counsel and
to remain silent. The learned trial Judge rejected the version of the accused as to the
circumstances in which the statement was recorded and his contention that the statement had
been obtained under conditions of inhuman treatment, oppression and in breach of the Rules.

After perusing the evidence on record, we concur with the findings of the learned trial
Judge that there was nothing on record that could justify the inference that the police officers
(PS Moolee, CI Goolaup and PS Ramyead) unfairly took advantage of the fact that the accused
was tired due to lack of sleep. Secondly, it cannot be said that the police officers also unfairly
deprived the accused of food as there was no dispute that the accused was given water at his
request, which fact implies that if he wanted food, he would have requested for same.

We find that the appellant has not demonstrated in what manner, if any, the learned
Presiding Judge has wrongly exercised his discretion in admitting the impugned statement. We
are satisfied that the Learned trial Judge rightly exercised his discretion in admitting the
confession of the appellant made in his statement dated 14 December 2010 and he rightly
applied the principle that a voluntary statement should not normally be held inadmissible. We
therefore find no reason to interfere with the findings of the learned Judge.

Direction on the confession to the Jury (Ground 3 (i) and (ii) above)
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Counsel for the appellant has submitted that the direction on confession was one of admissibility
rather than truth and reliability and that the jury was not properly directed on how it should deal
with the issue of confession.

It is apposite at this juncture to refer to some relevant parts of the summing up where the
learned trial Judge directed the Jury in relation to the confession of the accused contained in the
statement dated 14 December 2010.

At the initial stage, the learned trial Judge reminded the Jury of the contentions of the
accused in respect of his confession:

“You would recall that in the contention of the accused the confessions contained in his
statement of 14/12/10 have been unfairly and unduly obtained from him:

 after he had been subject to physical abuse in the manner he described;

 under inhuman treatment and torture as at the time the statement was recorded
he had not had any sleep and food for almost 24 hours; and
 without his having been informed beforehand of his constitutional rights as
required by law.”

The learned trial Judge further directed the Jury on the law on the issue of confession:

“There are two principles that apply to the admissibility in criminal

proceedings of admissions and confessions made by an accused in an out
of court statement. That is, there are conditions that ought to be satisfied
before an admission or confession of an accused party can be used as
evidence against him at his trial.

Firstly, it is the constitutional right of an accused party, before giving any

statement which may be used against him to be informed of his right to
retain legal representative before making any statement. He also has to be
informed of his right to remain silent and to refrain from making or giving
any statement, if he so chooses.

Secondly, the admission or confession must have been made voluntarily in

the sense that it was not obtained by fear of prejudice or hope of
advantage exercised or held out by a person in authority. In application of
this rule, confessions not freely made and obtained under violence, torture,
duress or oppression that saps the free will of the accused party exercised
by persons in authority such as enquiring officers have either been held to
be inadmissible in evidence or discarded on the ground that it cannot carry
any weight.

The burden of proving beyond reasonable doubt that an admission or

confession sought to be used against an accused party satisfies those two
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conditions, rests squarely on the prosecution. Unless the Prosecution

proves beyond reasonable that the admission or confession has been
made freely and voluntarily after the accused had been duly informed of his
constitutional rights, such admission or confession cannot be relied upon.

Therefore, ladies and gentlemen of the Jury, before accepting and relying
on any admission or confession of the accused in his statements to the
Police on record, you must be sure that the Prosecution has proved that his
constitutional rights have been observed by the Police before the recording
of such statements and that the statements were given voluntarily, failing
which you will have no alternative but to discard whatever evidence these
statements may contain. It is up to you to decide which evidence to accept
in that respect. As already pointed out, the burden is always on the
Prosecution to prove that the statements are in fact statements which have
been given by the accused voluntarily, that they have been recorded in full
observance of his constitutional rights and that their contents are true and
reliable”.

The learned trial Judge further took the pain to summarise for the Jury the evidence
adduced by the prosecution and the accused on the issue of the confession:

“In the present case, the prosecution set out to discharge this burden of
proving beyond reasonable doubt the voluntariness of the confessions of
the accused by relying on the evidence of PS Moolee, CI Goolaup and PS
Ramyead to the effect that the accused voluntarily gave and signed the
statements containing the confessions after he had been explained his
constitutional rights. They were subject to lengthy and searching cross-
examination as to the circumstances in which they took the first statement
during the course of which they were confronted with the allegations of the
accused to claim that his confessions were unfairly extracted from him and
therefore not voluntary. They all along maintained the voluntariness of the
confessions and denied the allegations of the accused.

The accused testified under oath as to his allegations of brutality and

inhuman treatment allegedly meted out to him and his claim that he did not
make the confessions imputed to him. However, you may wish to note that
in the end the only confessions he seemed to contest are the admissions
that he dealt the deceased with violent slaps and karate blows at her
“cote”. In fact, it is not his contention under oath that he never inflicted any
violence on the deceased. On the contrary he admits having dealt her with
slaps in the manner he described which were not violent on three
occasions before she collapsed.

You may wish to note also that he did not at any stage complain of having
sustained injuries at the hands of the police officers, which is a fact in clear
contradiction with his mother’s version that he bore injuries all over his face
and arms and could barely walk”.

Finally the learned trial Judge directed the Jury on their role as Judges of facts to decide
on the weight and the truthfulness of a confession:
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“If you find that the confessions were voluntary, the next step for you is to
decide on the weight to be attached to them. This means that what you will
have to decide is to what extent you believe, you can give credence to the
confessions and act upon them. For this, you will have to consider not only
the tenor of the confessions, but also the plausibility of the version given
and the facts and circumstances they reveal. And you will have for that
purpose to assess the weight of the confessions in the light of all other
evidence on record including the medical and scientific evidence before
you.”

The Court of Criminal Appeal stated in R v Murray [1951] 1 K.B.391 that “when a
statement is admitted by the Judge, he should direct the Jury to apply to their consideration of it
the principle as stated by Lord Sumner (viz, in Ibrahim v R [1914] A.C. 599) and he should
further tell them that if they are not satisfied that it was made voluntarily, they should give it no
weight at all and disregard it.”

After perusal of the directions given in the summing up, we are satisfied that all material
issues related to the confession of the accused were rightly explained to the Jury in a clear and
unequivocal manner. The learned trial Judge’s instructions to the Jury on the weight to be
attached to the confession taking into consideration all the evidence before them were explicit,
fair and well balanced. We are also satisfied that the learned Judge made it clear to the Jury
that even if the confession was voluntary, as judges of facts it was their duty to decide whether it
was true or not. He further directed the Jury that if ever they came to the conclusion that the
appellant did not speak the truth in the confession, they should disregard it. We therefore find
no reason to interfere with his directions which we consider to be appropriate and just. For the
reasons given above, we dismiss ground 3.

Ground 8

This ground reads as follows:

“The defence was denied the right to cross-examine properly and

adequately about the inquiry due to the fact that there was no main inquiry
officer in a murder inquiry.”
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Counsel for the appellant pointed out that the police officers who deponed, especially
during the voirdire could not make it clear who was the main enquiring officer. This is indeed
apparent from the proceedings.

However, ground 8 has, in our view, no substance for the following reasons:

(i) The issue raised therein was not canvassed before the learned
Judge.
(ii) As rightly pointed out by Counsel for the respondent, the
several officers involved in the enquiry all deposed at the trial
and were subjected to lengthy cross-examination for several
days.
(iii) Counsel for the appellant has been unable to show that any
real prejudice has resulted to the accused from the absence of
a main enquiry officer.

In the light of our above conclusions, we dismiss the appeal.

E. Balancy
Chief Justice

A. A. Caunhye
Senior Puisne Judge

G. Jugessur-Manna
Judge

16 September 2019

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Judgment delivered by Hon. E. Balancy, Chief Justice

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For Appellant : Mr. K. P. Pursun, Attorney-at-Law

Mr. D. Rutnah, of Counsel

For Respondent : Mr M. Lallah, Chief State Attorney

Ms A. J. Ramano-Egan, Senior Assistant D.P.P.
Mrs N. Dauharry-Jeewa, Senior State Counsel, as she then was