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Police v Chandan Monebhurrun and anor - CN 386-04 [2005] MUIntC 196 (13 May 2005)

IN THE INTERMEDIATE COURT OF MAURITIUS

IN THE MATTER OF:

Police

V.

Chandan Monebhurrun

Kewalaparsad Narrain

CN: 386/2004

RULING

The information charges accused no. 1 under all three counts for unlawful possession of goods on which duty was not paid, under count 1; under count 2 for assaulting an agent of the civil authority in the performance of his public duty and under count 3 for damaging goods and chattels of another person. Accused no. 2 is charged jointly with accused no. 1 under count 2 only that is for assaulting an agent of the civil authority in the performance of his public duty in breach of Section 159 of the Criminal Code. Both accused parties have pleaded not guilty under the respective counts under which they are being prosecuted and they are represented by counsel.

The court was informed by the prosecution that it would not be calling Mr. Parmanand Sanicharane, witness no. 21 on the list of witnesses. Counsel for the defence is now moving that the said witness be tendered for cross- examination. There is objection on the part of the prosecution. Counsel for the prosecution prayed in aid the cases of Nundah V. The State [2003] SCJ 189 and A.K.Unnuth V. The State [1998] MR 202 and insisted that the prosecution has a discretion whether to tender a witness for cross- examination or not. According to her the witness has not given any statement regarding the offences with which both accused parties stand charged. Further the brief has been communicated to the defence and they are free to call that witness if they are so minded.

Counsel for the defence stated that the name of witness Sanicharane has been referred to on several occasions and in relation to an allegation of attempted bribery. He is also of the view that the evidence of that witness will be relevant in relation to valuation of goods.

It is trite law that the prosecution has a discretion not to call a witness which is theirs only and that it will not be interfered with by the court unless there are strong reasons for so doing (see Barbeau V. R [1988] MR 247 ). However in the case of R. v. Russell-Jones [1995] 1 Cr.App.R. 538 , the Court of Appeal held further that the prosecution enjoy a discretion whether to call, or tender, any witness they require to attend, but the discretion is not unfettered .

First of all in the case of K. Nundah V. The State [2003] SCJ 189 , the Supreme Court made it clear that that having regard to settled case law on the issue of the refusal by the prosecution to tender a witness for cross- examination, the lower court was not wrong, on the facts of the case , to uphold the refusal of the prosecution (emphasis added), which means therefore that the proposition in that case is not to be used as a proposition of law but limited to the particular facts of that case only.

In the case of Unnuth, the Court referred to the principles governing the matter and summarized in the case of R. V. Brown and Brown [1997] 1Cr. App. R. 112 and held that the test which should be adopted is whether the witness is likely to mislead or deceive the court and is unworthy of belief.

In Archbold 2004 edition, §4-273 one can read the following “…In certain of these authorities it is suggested that the trial judge has the power to order the prosecution to call a witness (cf. observations to the contrary in R. v. Baldwin, ante, §4-274, and in R. v. Oliva, ante, and, post, §4-345). However, the judge may, in his discretion, call a witness who has been "named on the back of the indictment" in the event that the prosecution are reluctant to do so and if the defence wish to have him called: R. v. Thompson and R. v. Oliva, ante. The staying of the proceedings in such circumstances as an abuse of process (ante, §§4-48 et seq.) would appear to be another possibility. In the alternative, failure by the prosecution to call a witness in such circumstances may lead to a successful appeal.”

In the present case the court notes that the witness was on the list of witnesses ever since the case was lodged. The information and its attached list of witnesses have been duly vetted by the office of the DPP who then refers the matter to the Intermediate Court. It can only be inferred that at the time of the lodging of the information the prosecution had reasons to believe that witness Sanicharane would be in a position to give relevant and material evidence for his name to be inserted in the list of witnesses. On the number of occasions the case came for continuation witness Sanicharane was always in attendance and at no time has the prosecution hinted that that witness is not going to be required as had been the case of witnesses no. 7, 15 and 19, for example. It is surprising that it is only now, at the close of its case that the prosecution states that that witness did not give any statement in connection with the offence with which the two accused parties stand charged. Still more surprising is the statement that by tendering that witness that would be tantamount to destroying the prosecution’s own case when this witness has been on the list of witnesses since the start of the case. Additionally witness Bhajan made it clear that it was after that witness no. 12 had discussed the matter with witness no. 21 that it was decided that FOB value should be uplifted. Mr. Persand also stated that the decision was taken by Mr. Sanicharane. I fail to see therefore how the evidence of Mr. Sanicharane is likely to destroy the case of the prosecution and the prosecution cannot be heard to say that the witness will not give any relevant evidence or that he will mislead or deceive the court. I am on the contrary of the view that Mr. Sanicharane, being the superior and deciding officer on the issue of revaluation of the FOB value of the consignment imported by the accused, his testimony on this issue will be material and highly relevant more especially on the reasons for revaluation and how is that made as this would, at the end, help the court to assess the proper duty paid value, which is an important aspect in sentencing, if accused no. 1 is convicted under count 1.

I further note that the defence could not be expected to call the witness who, according to what obtains already on record, is more likely to give evidence hostile to the defence in view of an allegation leveled by the accused against him (See Moonien V. The Queen [1953] MR 246 ).By refusing to tender the witness for cross- examination the prosecution is not making use of its discretion judiciously and as pointed out in the above quoted authorities, this discretion is not unfettered. It will be in the best interests of justice, on the facts of the present case, if that the witness (Mr. Sanicharane) who is already on the list of witnesses and who is available is tendered by the prosecution, for cross-examination on issues relevant to the case.

For all the reasons given above I allow the prosecution the option to call witness Sanicharane and in the case it does not call that witness, the prosecution is to tender the said witness for cross- examination. I uphold the motion of the defence and overrule the objections of the prosecution.

P.M.T. Kam Sing

May 13, 2005

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