Sabapathee D.

v The State
1998 SCJ 221
RECORD NO: 61530
IN

THE

SUPREME

COURT

OF

MAURITIUS

In the matter of:D. Sabapathee

Applicant
v.s.

The State
Respondent
----------

JUDGMENT

This is an application for conditional leave to appeal to the Judicial Committee of

the Privy Council against a judgment of the Court of Criminal Appeal, delivered on 10
October, 1997, which had considered and rejected the 24 grounds of appeal raised on
behalf of the then appellant, now the applicant.

The grounds relied by the applicant to obtain leave are contained in paragraphs 8
and 9 of his affidavit. These grounds, after some amendments on the numbering so as to
render them less confusing, read as follows:

8.1. I am advised and verily believe that I am entitled to appeal as of

right to the Judicial Committee under Section 81 (1) (a) of the
Constitution on the following grounds which involve an interpretation of
the Constitution.

8.2.
8.2.

Grounds of Appeal

A. Whether the Court of Criminal Appeal has not erred in its conclusion
that Section 38 (2) of the Dangerous Drugs Act which provides that
trafficking can reasonably be inferred from all the circumstances of the
case against me did not lower the burden of proof in a criminal case and
did not offend Section 10 (2) of the Constitution.
8.2.
B. Whether the Court of Criminal Appeal has not erred in its
conclusion that failure by the Dangerous Drugs Act to define trafficking
did not go against the principe de lgalit criminelle enshrined in
Section 10(2) of the Constitution.
8.2.
C. Whether on a proper interpretation of Section 10 (7) of the
Constitution the Court of Criminal Appeal ought not to have found that
the case-law of the Court of Criminal Appeal which finds it lawful for the
Courts to make a finding of trafficking, before conviction breaches my
right to silence enshrined in such Section 10 (7) of the Constitution.
9.
I am further advised and verily believe that leave ought to be
granted to me to appeal to the Judicial Committee of the Privy Council
against the judgment of the Court of Criminal Appeal on the following
issues which raise points of great general public importance or otherwise
in terms of Section 70 (a) of the Courts Act and 81 (2) (b) of the
Constitution.
9.1.
A. All the grounds set out in paragraphs 8.2 A. 8.2. B and 8.2. C
above.
9.1.
B. Whether the Court of Criminal Appeal has not erred in holding
that the prosecution was not bound to have proceeded with the trial
without a preliminary enquiry.
9.1.
C. Whether the Court of Criminal Appeal has not erred in
upholding the trial Judges finding that the facts found proved by him
justified the irresistible inference that there had been an offer to buy
within the meaning of Section 28 (1) (3) of the Dangerous Drugs Act and
whether the Court of Criminal Appeal has not misdirected itself in law as
to the true interpretation to be given to the words offer to buy in
Section 28 (1) (b) of the Dangerous Drugs Act and whether such
misdirection has not resulted in a miscarriage of justice.
9.1.
D. (i) Whether the Court of Criminal Appeal has not erred in
upholding the trial judges decision not to view the locus in quo for the
reasons given by him and this all the more so as the Court of Criminal
Appeal has failed to take into account that the learned Judge himself had
found that one of the main planks of the defence from the crossexamination of prosecution witnesses was that from the awning where
they stated they were, witnesses Gooramsing (sic) and Goolamghise (sic)

could not have seen what they said they saw and whether the Court of
Criminal Appeal ought not to have found that the application of my
Counsel for a view was tantamount to an application for a reconstruction
of the events deponed to by the Prosecution witnesses.
(ii) Whether accordingly the failure of the trial Judge to accede to
the defence request has not resulted in a miscarriage of justice which
cannot be cured by application of the proviso contained in Section 6 (1)
(b) of the Criminal Appeal Act.
9.1.
E. Whether (i) the Court of Criminal Appeal had not erred in its
conclusion that the procedure adopted by the learned Judge of finding
the Applicant guilty of the substantive offence and making a finding of
trafficking in the same breath was the correct procedure and (ii) whether
the Court of Criminal Appeal ought not to have found that trafficking
(a) was not an ingredient of the offence and (b) was a penalty provision
which ought to be decided after conviction in terms of Section 38 (i) of the
Dangerous Drugs Act, thus giving me an opportunity to dispute the
averment of trafficking without being compelled to give evidence on the
substantive offence in terms of Section 10 (7) of the Constitution.
9.1.
F. Whether the Court of Criminal Appeal has not erred in failing
to decide (i) whether the learned trial Judge had not been wrong in
relying on the evidence contained in a court record of the Intermediate
Court to reject a defence which the learned trial Judge himself had found
to be of substance and (ii) whether the Court of Criminal Appeal was not
wrong in finding that the grounds could not have influenced to any
appreciable extent the outcome of the case in view of the learned trial
Judges own finding that the defence raised was of some substance.
The 3 grounds of appeal canvassed in paragraphs 8.2.A. and 8.2.B. and 8.2.C. of
the affidavit relate to an interpretation of the Constitution, so that applicant is entitled, as
of right, to appeal against the decision of the appellate Court under Section 81(1)(a) of
the Constitution. Leave is accordingly granted. Leave is also granted in relation to
ground 9.1.E. which is connected with ground 8.2.C.

The other grounds of appeal purport to be based on Section 70 A of the Courts

Act and Section 81(2)(b) of the Constitution which provide that leave should also be
granted where the question involved in the appeal is one that, by reason of its great
general public importance, ought to be submitted to the Judicial Committee.

We shall deal with each ground seriatim.

(1) Ground 9.1.B. has already been extensively dealt with by the full Bench of the
Court of Criminal Appeal in Gulam Rasool & Muktar Ali v. State [1993 MR 119].
Further, Section 10 of the Criminal Procedure Act specifically provides that offences
under the Dangerous Drugs Act 1986 may be prosecuted by the Director of Public
Prosecutions before the Supreme Court without a Jury on an information signed by him
and filed before the Court. Section 41(1) of the Dangerous Drugs Act equally provides
that a prosecution for an offence under the Act shall take place, at the discretion of the
Director of Public Prosecutions, before a Judge without a Jury, the Intermediate Court or
the District Court.

We know that pursuant to the procedure obtaining before the Assizes, where a
trial is held before a Judge and a Jury, the Judge, (who is the Judge of law only), is
communicated with the record of the Preliminary Enquiry. The same record is also
provided to the defence but not to the Jury whose role as sole Judge of fact necessitates
that sworn evidence by the witnesses be led before it. The logic for having a preliminary
enquiry for Assizes cases, where the Judge and the Jury each plays a distinct role and
performs a separate task, should not be upset. This reasoning cannot be made to apply to
those cases which, as specifically provided by law, are triable by a Judge without a Jury.

(2)

Ground 9.1.C. merely questions the decision of the Court of Criminal

Appeal, upholding the trial Judges finding that, on the facts found proved by him, he
rightly inferred that there was an offer to buy heroin.

(3)

Ground 9.1 D. questions the decision of the Court in upholding the trial

Judges decision not to view the locus for a number of reasons which were set out in the
judgment, namely:

a)

the motion for the visit was made for the purpose of having a
general view of the house, the office and the first floor in
particular. Photos and plans were already available and matters
could be further elucidated by questioning the police photographer
and the police draughtsman;

b)

the lapse between the time the alleged offence took place and the
motion presented;

c)

certain alterations to the building had been made in the meantime.

The Court of Criminal Appeal specifically stated that the defence, at no time, had
moved for a reconstruction of the raid, or more specially, for a demonstration, which was
something quite different from viewing the locus which view could serve no purpose.
We are amazed to find that the applicant is now questioning the Court of Criminal
Appeal for failing to find that the motion of his Counsel to the effect that the trial Court
should view the locus was tantamount to an application for a reconstruction.

(4)

Ground 9.1.F. basically concerns a misquoting of a Court record by

Counsel who appeared before the trial Court regarding police surveillance of the

applicants house on a specific date.

We have not found any point of great general public importance in grounds
9.1.B., 9.1.C, 9.1.D. and 9.1.F. which would require that the matter be submitted to the
Judicial Committee.

Leave to appeal on those 4 grounds is therefore refused.

Leave to appeal to the Judicial Committee is granted in respect of grounds 8.2.A.,

8.2.B., 8.2.C. and 9.1.E. on condition that appellant shall:

a) within 10 days from the date of this judgment enter into good and sufficient
security to our satisfaction in the sum of Rs 150,000.- for the purposes set out
in Section 4(a) of the Mauritius (Appeals to Privy Council) Act;

b) cause the record to be prepared and despacthed to England not later than three
months from the date of this judgment.

Execution of the judgment of the trial Court is stayed pending the appellant
obtaining final leave to proceed and pending the eventual determination of the appeal.
The appellant will in the meantime remain incarcerated on remand.

Y.K.J. Yeung Sik Yuen

Senior Puisne Judge

D.B. Seetulsingh
Judge
3 June, 1998
566
Judgment delivered by Hon. Y.K.J. Yeung Sik Yuen, Senior Puisne Judge
---------For Applicant:
Mr G. Ollivry, QC
Mr Attorney Y.W. Appado
For Respondent:
State Counsel
State Attorney