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IN THE INTERMEDIATE COURT OF MAURITIUS
Cause No.: 84/00
In the matter of:
The accused stands charged with inflicting wounds and blows to Renouka Ramchelawon on the 2 nd March 1997, without intention to kill her but nevertheless causing her death. He pleads not guilty to the charge and is assisted by Mr M. Dulloo of counsel.
During the course of proceedings the defence moved that an anonymous letter forming part of the police enquiry, and into which witness 24 enquired and witnesses 3, 4, 5 and 6 were interviewed, be communicated to them.
Ms Sookun for the prosecution at first undertook to provide the letter but during today’s proceedings she modified her stand and objected to communication of the letter inasmuch as it was not relevant and had been treated as unused material by the prosecution. An enquiry had indeed been carried out to trace out the author of the letter and statements had been recorded in that respect and thereafter communicated to the defence. The author of the letter had not been found and the prosecution would therefore not seek to rely on the letter.
Mr Dulloo confirmed that the defence had received the statements recorded in connection with the letter but maintained that it was needed since it contained averments of facts which were material to his case. He further submitted that since the prosecution was going to rely on an alleged dying declaration made subsequent to the visit of witness no. 4 to the deceased, and since witness no. 4 was one of the persons who was questioned in relation to the letter, he needed the letter before he could cross-examine the enquiring officers as well as witness no. 4 to situate the sequence of events leading to the alleged dying declaration.
Ms Sookun replied that the dying declaration was recorded on the 7 th March 1997 and the Commissioner of Police received the letter on the 14 th March 1997. A statement was recorded from witness no. 4 on the 1 st May 2005.
In the case of The State v Sir Bhinod Bacha & Ors 1996 SCJ 79, the point which the Supreme Court had to decide was whether the communication of documents was necessarily linked with the issue of admissibility or whether such a question should be dealt with independently when an attempt was made to usher in the evidence.
It was reiterated that the general rule was that there was a duty on the prosecution to make available to the defence materials not led in evidence by them but which could nevertheless assist the accused. The Court referred to the case of R v Preston & Others (1994) 98 Cr. App. R. 405, where counsel for the Crown was of the opinion that it was not his duty to acquaint himself with any intercepted material which might exist for the purpose of considering whether any part of that material had to be disclosed on the ground that in any event, such evidence would be inadmissible.
The House of Lords observed that “
the fact that an item of information cannot be put in evidence by a party does not mean that it is worthless. Often, the train of
inquiry which leads to the discovery of evidence which is admissible at a trial may include an item which is not admissible, and
this may apply, although less frequently, to the defence as well as to the prosecution. As the Court of Appeal pointed out in
Ward
(supra) (1993) 
96 Cr.App.R. 1, 25, [1993] 1 W.L.R. 619, 645, it is of help to the accused to have the opportunity of considering
all the material evidence which the prosecution have gathered and from which the prosecution have made their own selection.
In my opinion the test is materiality, not admissibility.”
[Emphasis added].
In the present case it is significant that the prosecution did not at first object to communicating the letter to the defence until it reviewed its position.
After considering the grounds put forward by Mr Dulloo in support of his motion, I find that it has been sufficiently established that the letter, although anonymous and not relied upon by the prosecution, may be material to the defence for the reasons given. It may therefore assist in the conduct of the case for the defence.
Whether the letter is admissible in evidence is, as pointed out in the cases just referred to, a separate issue which this Court does not have to deal with at the present stage.
For the above reasons I hold that the prosecution should communicate to the defence a copy of the anonymous letter received by the police.
This 3 rd May 2005
Magistrate
Intermediate Court
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URL: http://www.commonlii.org/mu/cases/MUIntC/2005/180.html