J-2018- Police v A.

Ebrahim

2018 INT 193

IN THE INTERMEDIATE COURT OF MAURITIUS

(Criminal Division)

In the matter of :- C.No.374/2010

Police v Afsar Azize Abdullah EBRAHIM

JUDGMENT – After determination of Supreme Court on Intermediate Court Ruling 6

October 2014 on Dismissal of Charges after Submision of No Case to Answer and
referral back to this Bench.

On 6 October 2014, this Court acceded to the Motion made by Defence Counsel
appearing for Accused Ebrahim that the latter had No case to Answer and ruled that the
two charges of conspiracy to do wrongful acts as per Counts 2 & 3 of the information,
were to be dismissed.

The DPP appealed against the said Ruling (which is on record and need not be
reproduced) and after determination by the Supreme Court on 14 September 2017, the
abovementioned decision was quashed and the matter remitted back to me to be
proceeded with in the light of the Supreme Court Judgment- which is also on record.

The Observations of the Supreme Court were that I had misdirected myself upon
the assessment of the evidence adduced against Accused Ebrahim in as much as I
wrongly applied the ‘’beyond all reasonable doubt test’’ when the requirement was that
the Court should have applied the ‘’prima facie standard’’ as enunciated in Chief
Constable of the Police Service of N.Ireland v LO [2005 NICA 3 ] as referred to in DPP v
Dawoonarain [ 1994 SCJ 316].

The matter was heard anew on 16 May 2018 with Mr H.Duval SC for the Defence
and Mr M.Manrakhan from the State Law Office for the Prosecution, both offering
written and oral submissions in the light and directions of the Supreme Court Judgment.
 Mr H.Duval SC closed the case for Accused No.2/Ebrahim and no further evidence
was adduced. Accused Ebrahim’s defence statements in denial of the charges are on
record.

Mr Manrakhan submitted that the Prosecution’s case vis-à-vis Accused Ebrahim

had always been based on circumstantial evidence buttressed by the latter’s out-of-
court defence statement and that when reviewing the Intermediate Court’s Ruling, the
Supreme Court found that parts of the evidence adduced amounted to circumstantial
prima facie evidence which this Court had to consider. And all the evidence against
Accused Ebrahim replete with the inferences the Court could and should have drawn
was reviewed once again and the Prosecution ended its Submissions on the note that
the Prosecution had established its case on a ‘’beyond reasonable doubt’’ standard.

Mr H.Duval SC replied that there is a difference between the process adopted by

the Appellate Court whilst reviewing the Ruling delivered and the exercise which this
Court has to carry out now. After cursorily analyzing the purport of the evidence
adduced and to which the Prosecution had selectively referred to at length, the Defence
submitted that the Court’s conclusion could not be different than the one previously
reached in the Ruling all the more so as the Court was at that time satisfied that taken
at its highest, the evidence against Accused Ebrahim was such that no conviction could
stand. And furthermore, it was not for Accused Ebrahim to prove his innocence and
that the burden was on the Prosecution to prove its case beyond reasonable doubt.

After perusal of the evidence on record as regards Accused No.2, submissions

made by Senior Counsel for the Defence and by the Assistant DPP for the Prosecution,
the conclusions of the Court is as follows:-

After heeding the directives of the Appellate Court and hearing Submissions
anew added to the fact that the Defence has closed its case, this Court has no reason to
come to a different decision than the one it came to in its former Ruling of 6 October
2014.

However much the Prosecution will try to persuade the Court to the contrary, the
fact is that the evidence vis-à-vis Accused Ebrahim remains unchanged and same has
been considered in this Court’s previous ruling. And even if the small strands of
circumstantial evidence (coupled with a lot of suppositions) were to be viewed
cumulatively, they do not reach the standard of a prima facie case against Accused
Ebrahim as regards Counts 2 & 3.

The Defence has not adduced any evidence. It has nothing to prove - more
especially in the teeth of the evidence on record which falls short of a prima facie case -
see Andoo v R [1989 MR 241].

In Annia T v The State [2006] SCJ 262] the Supreme Court took the pain of stating
and of explaining once again the issues that were at stake:

“Indeed, Andoo [supra] restates both the constitutional right of an accused party
to remain silent and the duty of the prosecution to prove its case beyond
reasonable doubt. However, where the prosecution adduced evidence which is
strong and credible enough to support the charge, it will be open to the trial court
to act upon that evidence unless the accused party adduced such evidence as
to satisfy the trial court that it should not act on the evidence adduced by the
prosecution. This principle has been reaffirmed in a number of cases and more
recently in DPP v Bhaugeerutty [2006 SCJ 158].

Of course a trial court cannot, in all cases where no evidence is called on behalf
of an accused party, perfunctorily rely on Andoo and convict. Andoo has not
created any new species of burden or standard of proof in a criminal trial. It is
clear from the above-quoted passage from Andoo that the court hearing a
criminal matter has indiscriminately to analyse the evidence adduced by the
prosecution to see that all the elements of the offence charged have been
established and that the state of that evidence, when pitted against the version
of the accused as elicited through the cross-examination of the prosecution
witnesses and the unsworn statement of the accused, is such that there is no
room for any reasonable doubt”.

For all the reasons set forth above and as the Prosecution has failed to prove its
case against Accused Ebrahim beyond all reasonable doubt, Counts 2 & 3 are
dismissed against him.

Dated this 25th day of July 2018.

N.Ramsoondar
President, Intermediate Court (Criminal Division)