POLICE V N.

RAMGOOLAM & ORS

2017 INT 169

Cause No: 393/2016

IN THE INTERMEDIATE COURT OF MAURITIUS

[CRIMINAL DIVISION]

POLICE

1. - NAVINCHANDRA RAMGOOLAM
2. - RAMPERSAD SOOROOJEBALLY
3. - PREMNATHSING JOKHOO

RULING

All three accused stand charged with the offence of Conspiracy in breach of Section
109(1) of the Criminal Code Supplementary Act coupled with Section 298 of the
Criminal Code. They are each assisted by their respective panel of Counsel.

During the course of the trial Prosecution moved to call witness 7 Doomeswarsing
Gooljaury before calling the police officers who have recorded the statement/s of the
accused parties. The Defence has objected to this course of action elected by the
Prosecution on two grounds, namely:-

1.- The accused parties will not benefit from a fair trial.

2.- The court will be on a blind date in as much as it will not be in presence of the
defence statement/s of the accused parties.

Leading Counsel appearing for Accused 1 Mr G.Glover SC submitted that, unlike in

other common law jurisdiction where the court is usually apprised of the case for the
prosecution and defence before witnesses are called, the Intermediate Court of
Mauritius has no such procedure except at the Assizes at the Supreme Court of
Mauritius. He agreed that the prosecution has full latitude to decide on the witnesses it is
going to call and to add the names of witnesses on the list of witnesses as and when
required. It also has the discretion to call or not to call whom so ever who is on the said
list of witnesses.

However, he added that the court retains the inherent supervisory power over the
conduct of proceedings in any criminal trial in order to ensure that the trial is fair to all
parties. So, the principle of fairness must apply in the manner the trial must evolved and
not for the prosecution to have its way by calling any witness at whatever time.

On the second point of objection Learned Senior Counsel submitted that the court will
only know the evidence which have been put to the accused in the course of the police
enquiry is when the defence statement/s has/have been produced in court. Without
the/those statement/s the court will be on a blind date as the court will not be in
presence of the defence statement/s in case of an objection that certain evidence be put
in and which evidence was not put to the accused parties.

He supported his submission by a string of case-laws, namely, ICAC v Mauritius

Commercial Bank (Ruling of the Intermediate Court) 2011, The State v Peter
Wayne Roberts (Supreme Court Ruling) 2016, Jhootoo v The State [2013] SCJ 373,
Seetahul v The State [2015] SCJ 328 and Easton v The State & Anor [2012] SCJ 55.

Mrs N.Bundhun, SC appearing for Accused 2 and Mr. M.Gujadhur, appearing for
Accused 3, joined in the submission of Mr G.Glover SC.

State Counsel Miss K.Soochit, submitted on behalf of the prosecution that the discretion
to call witnesses, whom to call and whether to tender a witness for cross-examination is
within the realm of prosecutorial discretion as aptly stated in the case of Barbeau v The
Queen [1988] MR 247. She stated that this discretion is present in many
Commonwealth jurisdiction including United Kingdom, India and Canada. She cited the
cases of R v Brown & Anor [1997] 1 CAR 112 and R v Russell-Jones [1995] 3 All ER
239 in which it has been said the prosecution enjoys a wide discretion but certainly not
unfettered to call witnesses and have them tendered. The prosecution must be guided
by fairness and the court may intervene where the prosecution is acting in bad faith and
with oblique motive. She also made reference to the ruling of the Intermediate Court in
the case of ICAC v Mauritius Commercial Bank [2011] and some Indian and Canadian
authorities.

She added that there has been a full disclosure of all documents and statements
including the statement/s of witness 7 Doomeswarsing Gooljaury by the prosecution to
the defence before the start of the present trial. So, whatever witness 7 has stated to the
police has been put to the accused parties in the course of the police enquiry. So, the
defence will have full latitude to question the recording police officers as to whether the
version of witness 7 has been put to the accused parties.

Therefore, the course of procedure adopted by the prosecution will not hamper the
fairness of the trial of the accused parties.

On the second point it was submitted by the prosecution that if the witness is departing
from his statement then the prosecution will be duty bound to inform the court and to
correct the witness by applying the laid down procedures.

We have carefully considered the whole of the submissions offered by both parties
including the authorities submitted.

At the very outset it is on all fours that there is nothing in our law which lays down the
manner in which the Prosecution must call its witnesses but in doing so the principle of
fairness must apply in line with Section 10 of the Constitution of Mauritius.
What is disputed in fact is whether the Prosecution can call witness 7 Doomeswarsing
Gooljaury before the statements of the accused parties have been produced by the
recording police officers. The law is silent on that issue.

Section 162 of the Courts Act provides:-

Except where it is otherwise provided by special laws now in force in Mauritius or

hereafter to be enacted, the English law of evidence for the time being shall prevail and
be applied in all Courts of Mauritius.

So, where our law in matters of evidence is silent, we have recourse to what English
common law provides.

It is undisputed that Prosecution has a wide discretion on the issue of calling witnesses.
The principles relating to the discretion of the Prosecution whether to call a particular
witness or not have been succinctly summarised in the case of R v Brown and Brown
[1997] 1 Cr. App. R 112 at page 114:-

(3) Counsel for the prosecution enjoys a discretion whether to call or to tender a
particular witness whom he had required to attend. Further, Counsel may refuse even to
tender a witness, notwithstanding that the witnesss statement has been included in the
depositions, if he decides that the witness is unworthy of belief. Our adversarial system
requires counsel for the prosecution to present a case against the defendant. He must
always act in the interests of justice and to promote a fair trial, and his discretion must be
exercised with these objects in mind. He should not refuse to call a witness merely
because his evidence does not fit in exactly with the case he is seeking to prove. But he
need not call a witness whose evidence is inconsistent with, or contrary to, the case he
is prosecuting since such witnesss evidence will be unworthy of belief if his case be
correct.

(4) Counsel for the prosecution ought normally to call, or offer to call, all the witnesses
who give direct evidence of the primary facts of the case unless the prosecutor regards
the witnesss evidence as unworthy of belief.

(5) it is for counsel for the prosecution to decide which witnesses give direct evidence of
the primary facts of the case. He may reasonably take the view that what a particular
witness has to say is, at best, marginal.

(6) Counsel for the prosecution is also the primary judge of whether or not a witness to
the material events is unworthy of belief.

(7) Counsel for the prosecution, properly exercising his discretion, is not obliged to offer
a witness upon whom the Crown does not rely merely in order to give the defence
material with which to attack the credit of other witnesses on whom the Crown does rely.
The law does not insist that the prosecution are obliged to call a witness for no purpose
other than to assist the defence in its endeavours to destroy the Crowns own case.
Such a course would merely serve to confuse a jury. The Crowns obligation is to make
such witnesses available to the defence so that the defence can call them if they choose
to do so. The jury will then be clear that evidence is led by the party who wishes to rely
upon it and can be tested by cross-examination by the other party, if that party wishes to
challenge the evidence.

The cases of Teerumalai and Ors v The Queen [1972] MR 131 and Barbeau v R
[1988] MR 247 are authorities for the proposition that if the prosecution considers that a
witness will confuse, deceive or mislead the Court or, in other words, is unworthy of
belief, it is not bound to call him or tender him for cross-examination.

In Barbeau v R (supra) it was stated:-

The principles governing the calling of witnesses by the prosecution may be

summarised as follows

(i) The prosecution, as a general rule, should have present in Court all the
witnesses whose name appear on the list of witnesses but they have a
discretion whether to call all of them or not (Archbold 42nd Ed. Para. 4-182,
page 335).
(ii) Where the prosecution choose not to call a witness, two courses are opened to
them: they can either tender the witness for cross-examination or just leave it
to the defence to call him (R v. Dauphine 1959 MR 159; R v Teerumalai 1972
MR 131. Where they opt for the second course of action, it is their duty to
make available to the defence any statement made by the witness (R v
Nellayah 1985 SCJ 106
(iii) The discretion of the prosecution not to call a witness is theirs only and should be
exercised fairly. It will not be interfered with by the court unless there are
strong reasons for so doing (R v Oliva (1965) 49 C.App. 298; Adel
Muhammed El Dabbah v Attorney General for Palestine (1944) AC 156).
(iv) If the prosecution feels that a witness will confuse, deceive or mislead the Court
they are not bound to call such a witness (R v Teerumalai (supra); R v
Nugent (1977) 3 All ER 662.

In R v Russell-Jones [1995] 3 All ER 239 it was held that:-

However, a prosecutor will not be obliged to proffer a witness merely in order to give the
defence material with which to attack the credit of other witnesses on whom the Crown
relies. Moreover, because the judgment to be made is primarily that of the prosecutor. In
general the Court will only interfere with it if he has erred in principle.

In R v Oliva [1965] 45 CAR 298 Lord Parker explains the rule as follows:-

The prosecution must of course have in court witnesses whose names are on the
indictment. But there is a wide discretion in the prosecution whether they should call
them, or calling and tendering them for cross-examination. The prosecution do not, of
course, put forward every witness as a witness of proof, but where the witnesss
evidence is capable of belief, then, it is their duty, when recognised, that he should be
called, even-though the evidence that he is going to give is inconsistent with the case
sought to be proved.

On the manner in which the prosecution should exercise the discretion Lord Parker went
on to say:-
The discretion must be exercised in a manner which is calculated to further the interest
of justice, and at the same time, to be fair to the defence.

See also R v Dauphine [1959] MR 179 and R v Nugent [1977] 3 All ER 662.

Reference can also be made to the case of Seneviratne v R (PC) [1936] 3 All ER 36
where the Privy Council stated that it would not lay down any rule to fetter the discretion
of the prosecution because the calling of witnesses depends on the circumstances of
each case. The law-lords also stated that as a general principle they could not approve
the principle that the prosecution should call witnesses irrespective of considerations of
number and of reliability because the prosecution does not have to discharge the
functions both of prosecuting and of defending.

It is trite to refer to the Indian case of Dr Rajesh Talwar And Another v Central Bureau
of Investigation [2013] the High Court of Judicator at Allahabad, India, Honourable
Sudhir Agarwal, J. stated:-

Public prosecutor in his responsibility is guided only by ethics of fair play and should
execute his solemn duty faithfully as an officer of the court, who is also expected to act
as a prosecutor and not as a persecutor. Prosecution should make all endeavour to
unfold its case in the chronological order in which incident had occurred and should
examine all those witnesses justly and fairly who are essential to unfold its story.
Prosecutor is expected to act in a manner which serves best course in achieving justice
without being guided by the ultimate result. Since decades this aspect has been too well
settled to be dislodged at this late hours.

In R v Pickton [2007] BCSC 2027 the Honourable Mr. Justice Williams of the Supreme
Court of British Columbia stated the following:-

It is clear that the Crown has a substantial discretion in the manner in which it proceeds
to prosecute its case. It is recognized that a criminal trial is essentially an adversarial
process and that the Crown is entitled to have a trial strategy and to modify that strategy
as the trial unfolds. Specifically, there is no obligation to call witnesses that the Crown
does not consider necessary. The landscape of the matter is informed, of course, by the
extensive disclosure obligations that the law has imposed upon the Crown and the
information that the defence is thereby provided. The authorities do not support the
proposition that the defence has a right to require the Crown to produce given witnesses,
nor to call upon the Court to impose such an obligation.

The discretion that resides with the Crown, however, is not without limit. There has
been a long-standing recognition that where there is found to be some conspicuous
evidence of improper motive, bad faith or conduct such as would violate the conscience
of the community, often referred to as oblique motive, the Court has its general power to
control the process.

The latter power is one that must be exercised sparingly because the trial judge does
not know counsels brief.

The Crown is one of the principals to the litigation and is charged with the critical task of
presenting the case for the prosecution. It should be assumed to know its case and to
have an approach as to how that case is to be put before the trier of fact. A trial judge
should leave the Crown to do so without interference unless there is a valid basis to
intervene in the interest of the proper conduct of the trial or out of a concern for fairness.

Therefore it is fairly well settled that it resides solely within the discretion of the
prosecution to choose which witnesses they want to be included in the information and
in what manner to proceed and there is nothing that can interfere with that discretion
except in situations as stated above.

Having laid down all of the above, the question which needs to be answered is whether
the statements of the accused parties need to be produced before Witness 7
Doomeswarsing Gooljaury is called by the prosecution for the principle of fairness to
apply. It is admitted that there is no law enacted on this issue which leaves the Court
with an inherent jurisdiction on which it has a discretion. Therefore, it makes sense that
the same principle be applied as for the calling of witnesses as propounded above so far
as no prejudice is being caused to the accused parties. Since the prosecution is given
the wide discretion to call witnesses then it has even wider discretion to choose the
order in which those witnesses should be called so far that discretion is exercised
judiciously to which this Court will make sure that they are observed. It is the common
practice that formal witnesses are called first and then lay witnesses are subsequently
called. It is the duty of prosecuting counsel to place evidence before the Court and in
doing so he must have in mind that he must assist the Court.

Although, the statements of the accused parties are not yet before this Court, it is
apposite to consider that the Court is already aware of the charge to which the accused
parties have pleaded. There is nothing which prevent the defence from putting their case
to the witness through cross-examination even-though the version of the accused parties
are not before the Court, the more-so that the complete brief containing those defence
statements has been communicated to the defence as confirmed by the prosecution.
Clearly, the case has started meaningfully although the statements of the accused
parties have not yet been produced.

We further take note of the stand of the prosecution in answer to the principle found in
the Scottish case of Brian Jamieson v Her Majestys Advocate [1994] SCCR 610 that
the version of the accused parties is a primary source of evidence which has all its
importance to which they are duty bound to put before this Court at the appropriate time.

On the second point raised by the defence it is apposite to note the undertaking given by
the prosecution that witness 7 will be brought within the parameters of his statement/s by
already laid down procedures in the event he departs from the contents of his
statements.

In Mrs P.Marday v The State [2000] SCJ 225 it has been stated the following:-

In a criminal case it is normal to assume that the version that is put to an accused party
when recording his or her defence is the very complaint that was made by the victim.

Hence, in light of this principle the court will be eventually in possession of all the
evidence at the close of the case. It will have the latitude to assess the evidence
adduced including the exact complaint of witness 7 Doomeswarsing Gooljaury which has
been put to the accused parties in their defence statements. Besides, the prosecution
has given the undertaking that witness 7 Doomeswarsing Gooljaury will be brought in
line with his statements if ever he is departing and the prosecution will act in all fairness.

This Court is very much alive with the principle adumbrated in the case of The State v
Peter Wayne Roberts (Supreme Court Ruling) 2015 where Justice Benjamin. G.
Marie Joseph stated:-

I. In a criminal trial the judge, in the exercise of his overriding duty to ensure the fairness
of the trial, has the discretion to exclude even admissible evidence where its prejudicial
effect outweighs its probative value;

II. the failure to confront the accused with the evidence or case against him at enquiry
stage constitutes a breach of his imperative constitutional rights to be informed of the
case against him and to be given an opportunity to respond to what lies against him; and

III. in view of the above, the Judge, ought in the circumstances, in exercise of his duty to
ensure the fairness of the trial, to exclude such evidence.

Taking all the above observations into consideration this Court is of the considered
conclusion that the accused parties will not be deprived of a fair trial if witness 7
Doomeswarsing Gooljaury is called before the statements of the accused parties have
been produced by the prosecution.

We, accordingly, set aside the objection raised by the defence.

Mr Raj Seebaluck Mrs. B.R.Jannoo-Jaunbocus

Magistrate Magistrate
Intermediate Court Intermediate Court
Criminal Division Criminal Division

This 10 May, 2017.