POLICE V N.

RAMGOOLAM & ORS

2018 INT 272

CN 393/2016

THE INTERMEDIATE COURT OF MAURITIUS

In the matter of:

POLICE

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

RULING (whether statements 3, 4 and 5 of Accused 1 should be excluded)

The 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 represented by their respective Learned Counsel.

Mr Glover SC raised an objection with regard to the production of statements 3, 4 and 5 of

Accused 1 on the ground that they fall foul of Rule III (b) of the Judges Rules and
Administrative Directions to the Police. The first two statements recorded from Accused 1 on
the 5th of March 2015 and 10th of March 2015 are already on record (Documents R and R1),

For reasons stated in a previous ruling dated 19th of July 2018, we allowed DI Goinden, who
is the recording officer, to be tendered for cross-examination for the purpose of hearing
evidence on the issue of exclusion of the statements.

The issues revolve around the status of the Judges’ Rules, the requirements of Rule III(b)
and the manner in which the court may exercise its discretion to admit evidence in the event
there has been a breach of the Rules.

Submissions

Mr Glover SC based his submission on the fact that once Accused 1 has been informed of
his rights under Rule II and his statement has been recorded, the first part of the
investigation is over, then Rule III starts operating.

It is his contention that the police unfortunately completely misunderstood the purport of the
Judges’ Rules, which is clear from the manner in which ACP Jangi responded when
Accused 1 asked to write his own statement when faced with the charge in his first
statement, stating that police will put some questions to him first. Subsequently he thought it
appropriate to allow Accused 1 to write down his own statement in answer to the allegation,
which was recorded in his second statement.
Since the questions were ready beforehand, the issue arises as to why police did not start by
putting those questions. Learned Counsel stated that clearly these questions had not been
prepared after statement 1 and 2 were recorded, in order to clarify any issue which arose
therefrom.

He referred to a bundle of cases, amongst which are Peart V The Queen [2006] UKPC 5,
The State v M.A. Coowar 1997 SCJ 193, The State v S. Bundhun 2006 SCJ 254, The
Queen V M. Boyjoo and Anor 1991 SCJ 379.

Miss Soochit, Counsel for the State, took the view that there was no duty on the police to
put the charge to Accused 1 as stated in the case of V.Seetahul v The State 2015 SCJ 328.
As confirmed by DI Goinden, police were simply questioning Accused 1 and for that
purpose, facts and circumstances of the allegations were put to him. The police were
therefore still proceedings under Rule II. The relevant authority to decide on the charge to be
put to an accused party is the DPP. Since the police were proceedings under Rule II, there
could not have been any infringement of Rule III. She referred to the case of The DPP v
T.P.J.M. Lagesse and Ors 2018 SCJ 257

She therefore stated that the charge, as defined in our case laws, is what is before the
Court. She mentioned the case of D.S. Kalanj V The Queen [1989] 1 SCR from Canada in
which the Court of Appeal observed that: “The word “charged” or “charge” is not one of fixed
or unvarying meaning at law. It may be and is used in a variety of ways to describe a variety
of events. A person is clearly charged with an offence when a charge is read out to him in
court and he is called upon to plead.”

Moreover, she added that Judges Rules are mere directions, which have to be taken in
conjunction with the Constitutional rights of an accused and the rule of fairness.

The status of Judges Rules and Administrative Directions to the police

In The State v S. Bundhun (supra), the Supreme Court explained the purport of the Judges
Rules in the following:

“The Judges Rules in their present form were, as indicated in the introductory notes
preceding them, made by the Judges in England for the guidance of police officers
conducting investigations. They were formulated by a Committee of Judges and approved by
a meeting of all the Queen’s Bench Judges. They were made applicable to Mauritius in
March 1965, as indicated in a letter dated 12 March 1965 written by Tom Vickers, Chief
Secretary, on behalf of the Governor of Mauritius, and addressed to the Commissioner of
Police. As pointed out in the introductory notes referred to above, the Judges Rules were
made in response to a request for guidance made by the Chief Constable of Birmingham to
the then Lord Chief Justice, “in consequence of the fact that on the same circuit one Judge
had censored a member of his force for having cautioned a prisoner whilst another Judge
had censored a constable for having omitted to do so”. This underlines the essential conflict
of interests – between the need of not unduly hindering the police in its investigations and
the need of protecting the accused against unfair treatment – which the Judges Rules
attempted to reconcile. And the norms of fairness contained in the Rules are reflected in the
provisions of our Constitution.”

Rule II reads: “As soon as a police officer has evidence which would afford reasonable
grounds for suspecting that a person has committed an offence, he shall caution that person
or cause him to be cautioned before putting to him any questions, or further questions,
relating to that offence.
The caution shall be in the following terms:

“You are not obliged to say anything unless you wish to do so but what you say may be put
into writing and given in evidence.”
…

Rule III (a) stipulates that: “where a person is charged with or informed that he may be
prosecuted for an offence he shall be cautioned in the following terms:

“Do you wish to say anything? You are not obliged to say anything unless you wish to do so
but whatever you say will be taken down in writing and may be given in evidence.”

Rule III (b) states: “It is only in exceptional cases that questions relating to the offence
should be put to the accused person after he has been charged or informed that he may be
prosecuted. Such questions may be put where they are necessary for the purpose of
preventing or minimising harm or loss to some other persons or to the public or for clearing
up an ambiguity in a previous answer or statement.”

It was stated in The Queen V M. Boyjoo and Anor 1991 SCJ 379, that the constitutional
principle against self-incrimination is not limited to cases where the accused is charged
before a court of law. At the stage of the police enquiry, when he has been charged and
before he is questioned, the accused must be told of his right of silence, leaving it to him to
make the choice whether he wishes to waive the privilege or not.

In The State v M.A. Coowar 1997 SCJ 193, the Court of Criminal Appeal adopted the
pertinent points made by Davis J.A in the Court of Appeal of Trinidad and Tobago and
concluded that both the right to retain a legal adviser and the right to protection against self-
incrimination are constitutional rights which are legally enforceable and the construction of
the Judges’ Rules and the administrative appendix thereto must be considered against the
background of the Constitution.

In S. Peart V The Queen [2006] UKPC 5, Lord Carswell distilled ‘four brief propositions’ with
regard to the exercise of the discretion whether to admit an evidence notwithstanding a
breach:

“(i) The Judges’ Rules are administrative directions, not rules of law, but possess
considerable importance as embodying the standard of fairness which ought to be
observed.

(ii) The judicial power is not limited or circumscribed by the Judges’ Rules. A court
may allow a prisoner’s statement to be admitted notwithstanding a breach of the
Judges’ Rules; conversely, the court may refuse to admit it even if the terms of the
Judges’ Rules have been followed.

(iii) If a prisoner has been charged, the Judges’ Rules require that he should not be
questioned in the absence of exceptional circumstances. The court may nevertheless
admit a statement made in response to such questioning, even there are no
exceptional circumstances, if it regards it as right to do so, but would need to be
satisfied that it was fair to admit it. The increase vulnerability of the prisoner’s position
after being charged and the pressure to speak, with the risk of self-incriminating or
causing prejudice to his case, militate against admitting such a statement.
 (iv) The criterion for admission of a statement is fairness. The voluntary nature of the
statement is the major factor in determining fairness. If it is not voluntary, it will not be
admitted. If it is voluntary, that constitutes a strong reason in favour of admitting it,
notwithstanding a breach of Judges’ Rules; but the court may rule that it would be
unfair to do so even if the statement was voluntary.”

Whilst at some point in time, the Judges’ Rules were qualified simply as administrative
directions given to the police when recording the statement of a suspect, meaning that a
breach of the Rules will not entail the exclusion of the statement at trial stage, it is now
settled that in so far as the rights guaranteed by the Constitution are concerned (for example
right to silence and right to counsel), the Rules have the force of law. Following the principles
laid down in Peart, the court should also consider whether it will be fair to admit the
statements.

The requirements of Rule III

The issue is whether the “charge” referred to in Rule III relates to a formal charge before the
Court as suggested by Learned Counsel for the prosecution.

In The DPP v T.P.J.M. Lagesse and Ors 2018 SCJ 257, it was held that the baseline is that
the accused be made aware of the case against him. Either, he is informed of the facts and
circumstances against him or reproached of him. It is only if the final charge is totally
different or more serious than what had been put to the accused at enquiry stage that there
would be ground for concern. Or, it suffices that the version of the complainant is put to him
so that he is made aware of the case against him and the evidence on which it is based so
as to enable him to prepare his defence: V.Seetahul v The State 2015 SCJ 328.

The letter that preceded the Judges’ Rules relate to two forms of caution according to the
stage which an investigation has reached. One is to be given when the police officer has
evidence which would afford reasonable grounds for suspecting that a person has
committed an offence. After this caution questioning may continue, but a record must be
kept of the time and place at which such questioning began and ended and of the persons
present. The second form of caution is to be given as soon as a person is charged with, or
informed that he may be prosecuted for, an offence. Thereafter questions relating to the
offence can be put only in exceptional cases, where they are necessary for the purpose of
preventing or minimising harm or loss to any person or to the public or for clearing up an
ambiguity in a previous answer or statement.

These rules do not affect the principles that when a police officer who is making enquiries of
any person about an offence has enough evidence to prefer a charge against that person for
the offence, he should without delay cause that person to be charged or informed that he
may be prosecuted for the offence: Paragraph 39(d) of the Introductory Notes to the
Judges’ Rules.

Lord Devlin in The Criminal Prosecution in England (1960), p 26 pointed to the reason
underlying the prohibition in Rule III (b):

“The enquiry that is conducted by the police divides itself naturally into two parts
which are recognisably different, although it is difficult to say at just what point the first part
ends and the second begins. In the earlier part the object of the inquiry is to ascertain the
guilty party and in the latter part it is to prove the case against him. The distinction between
the two periods is in effect the distinction between suspicion and accusation. The moment at
which the suspect becomes the accused marks the change.” (Underlining in ours)

The Board in Peart V The Queen (Supra) went on to state that:

“Once the suspect has been charged, the efforts of the police interviewers are directed to
establishing his guilt. He is under a greater disadvantage at that stage, in that he may feel
under greater compulsion to answer questions, notwithstanding a caution. These factors
may tend to produce a feeling of pressure upon the accused to speak where he might
otherwise have remained silent and to result in unreliable statements from him when seeking
to tell exculpatory lies to get himself out of trouble. The most cogent expression of this risk is
contained in the dissenting judgment of Pigot CB in R v Johnson [1864] 15 ICLR 60 at
121:

“The danger is that an innocent person, suddenly arrested, and questioned by one
having the power to detain or set free, will (when subjected to interrogatories, which
may be administered in the mildest or may be administered in the harshest way, and
to persons of the strongest and boldest or of the most feeble and nervous natures)
make statement not consistent with truth, in order to escape from the pressure of the
moment….The process of questioning impresses on the greater part of mankind the
belief that silence will be taken as an assent to what the questions imply. The very
necessity which that impression suggests, of answering the question in some way,
deprives the prisoner of his free agency, and impels him to answer from the fear of
the consequences of declining to do so. Daily experience shows that witnesses,
having deposed the strict truth, become on a severe and artful cross-examination
involved in contradictions and excuses destructive of their credit and of their direct
testimony. A prisoner is still more liable to make statements of that character under
the pressure of interrogatories urged by the person who holds him in custody; and
thus truth, the object of the evidence of admissions so elicited, is defeated by the
very method ostensibly used to attain it. This relative position of the parties does not,
therefore, tend to truth as the result of the enquiry.”

But the basic fundamental reason for the prohibition is the principle that to interrogate the
prisoner at this stage tends to be unfair as requiring him possibly to incriminate himself.”

We also find that the underlined part by the prosecution in the Canadian case of D.S. Kalanj
V The Queen (supra), should not be read in isolation. We further read in that judgment that:
“A person could be considered in a general or popular sense to be charged with an offence
when informed by one in authority that ‘you will be summoned to court’ or upon arrest when
in answer to a demand to know what all this is about an officer replies: “You are arrested for
murder” …the word “charge” has no precise meaning at law, but merely means that steps
are being taken which in the normal course will lead to a criminal prosecution.”

It follows therefore, that the “charge” can only refer to the accused being informed at the
enquiry stage as to what evidence there is against him.

For means of comparison, we find it relevant to refer to the case of The State v S. Bundhun
(supra), where the Appellant was brought before the District Court of Port Louis on a
provisional charge before he was invited to give a statement. Learned Counsel for the
Appellant referred to Rule III (b) of the Judges Rules to the effect that questioning should not
normally take place after a suspect has been “charged”. In his Interlocutory Judgment, E.
Balancy J. had the following to say:

“I am unable to agree with the submission of Counsel for the accused that Rule III (b) was
applicable in the present case in as much as the accused had been provisionally charged. A
provisional charge in the Mauritian context is simply an indication of the offence which a
person is suspected of having committed and is normally lodged at a very early stage of the
enquiry, when investigation may have hardly started and is certainly not over. The purpose
of such a charge is to serve as a basis for the detention or conditional release of the
suspect. Accordingly, when only a provisional charge has been laid against a suspect, he
cannot be considered as a person “charged” within the meaning of Rule III (b). In the
circumstances of the present case, police investigation was clearly still on and the applicable
Rule was Rule II: the police was therefore entitled, within the wording of that Rule, to
question or further question the suspect, relating to the offence which it suspected him to
have committed, after giving the appropriate caution and upon keeping an appropriate
record of any such questioning and of any statement offered.”

In the present case, the circumstances of the recording of the statements from Accused 1
are revealed by DI Goinden during his brief cross-examination. It came out from his
testimony that he was detailed by ACP Jangi, then in charge of the CCID to record the
statements. There was a set of prepared questions put to him every time his statement was
recorded. The nature of the allegation was put to Accused 1 in his first statement
(Document R), dated 5th of February 2015, after he was duly cautioned, following which he
chose to write down his own statement. He started to write his version when the recording
was stopped. Accused 1 was arrested on the next day, the 6th of February 2015. On the 10th
of March 2015 at 11 20 hours, Accused 1 was again cautioned and he then proceeded to
write down his statement (Document R1).

Before he wrote his second statement, it is apparent from the Diary Book entry that he was
informed that after writing the statement, questions will be put to him and that he is not
obliged to answer any of these questions, but all questions and answers he makes will be
put into writing and may be used as evidence. Police had in their possession a sheet of
paper with all questions thereon. On the same day, at 14 00 hours, before any further
questions were put to Accused 1, his legal representative raised an objection since any
further questioning will be in breach of Rule III(b). 54 questions were put to him and he
refused to answer any of them. Accused 1 also exercised his rights to silence with regard to
two further statements.

According to DI Goinden, he was proceeding under Rule II. Though he did not put the
charge to accused 1, he informed him of the nature of the allegation/ evidence/offence.

The allegation went as follows as per Document R: “On the 03/07/2011 at Roches Noires in
your bungalow, an incident occurred where Mr Doomeshwarsing Gooljaury, aged 41, self-
employed and residing at Floreal has on the 03.07.2011 given a statement to the police
wherein he stated that on the same day around 01.30 hrs whilst he was sleeping in his
bungalow at Roches Noires, he was attacked by an intruder and by threat with a knife the
intruder stole sum of Rs 20,000 from him. Later he retracted and stated that he did not speak
the truth in his statement. He said that, in fact, at the material time of the incident, he was at
his place at St Pierre and that he went there after he was called by Mrs Nundanee Soornack.
On spot he met you, Dr Navin Ramgoolam, Mrs Nundanee Soornack, Mr Sooroojbally, DCP
ADSU and Mr Jokhoo, DG NSS where you, Dr Navin Ramgoolam and Mrs Nundanee
Soornack related that whilst you were having intimate relation, an intruder entered and
attacked you and during a struggle between you and the intruder you were injured. Then all
of you discussed the matter and all of you agreed that the matter be reported by Mr Dass
Chetty, but he was not available, then you all agreed that Mr Gooljaury reported the case as
if he himself was the victim. Mr Gooljaury also said that he was coerced by you all in making
a false statement to the police.”

The caution was that: “You, Dr Navin Chandra Ramgoolam, are being informed that in
connection with the above allegation, vide OB 2927/11 Riviere du Rempart larceny armed
with offensive weapon, questions will be put to you. You are not to answer any of these
questions unless you wish to do so but all the questions and answers given by you will be
taken in writing and may be used as evidence…”

The court does not agree with the submission of the prosecution that the police were
proceeding under Rule II. DI Goinden conceded that the police already had evidence against
Accused 1 when they arrested him and the allegation of Mr Gooljaury was already in the
statement book of the police since 11th of January 2015. By the mere fact that Accused 1
was cautioned and the allegation put to him and the manner in which it was put, renders
Rule III operational. However, we agree with Learned counsel for the prosecution that
ultimately it is the DPP who decides on the formal charge, but her argument that the police
was still operating under Rule II is inconsistent with the fact that Accused 1 had been
informed of the allegation against him.

To that extent, we endorse the submission of Learned Counsel for Accused 1 that he was
charged as per Rule III. There is of course, no contention on record from the prosecution
that further questioning was necessary for the purpose of preventing or minimising harm or
loss to some other persons or to public or for clearing up an ambiguity in a previous answer
or statement.

Hence, we conclude that the submission of the prosecution that the Police was still acting
under Rule II at the time the statements in dispute of Accused 1 were recorded, is totally
irrelevant. Moreover, the prosecution failed to expatiate on the issue that the Judges’ Rules
are mere directions and on the issue of fairness.

Therefore, in absence of the exceptional circumstances laid down in Rule III (b) , the court
finds that there has been a breach of the said rule.

Discretion of the Court to admit evidence in the event there has been a breach of the Rules.

Lord Devlin in The Criminal Prosecution in England 1960 expressed the view that:

“The essence of the thing is that a judge must be satisfied that some unfair or oppressive
use has been made of police power. If he is so satisfied, he will reject the evidence
notwithstanding that there is no rule which specifically prohibits it; if he is not so satisfied, he
will admit the evidence even though there may have been some technical breach of one of
the rules. It must never be forgotten that the Judges’ Rules were made for the guidance of
the police and not for the circumscription of the judicial power.”

The issue is whether it is fair to admit the evidence even if it was obtained in breach of the
Judges’ Rules. It seems that there has been simply a technical breach of the Rules.
Voluntariness is not in issue in absence of any confession or the least, when no answers
were provided by Accused 1 who, as was revealed, preferred to exercise his right to silence.
We can simply say that the fairness and the relevance of those statements can only be
assessed after they are placed on record and after the evidence has been adduced by both
prosecution and defence.

With much relevance, we reiterate the principle adumbrated in the case of The State v Peter
Wayne Roberts (Supreme Court Ruling) 2015 where B. Joseph J. stated:

“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…”
We are also comforted in our view by the observation made by E. Balancy J. in The State v
S. Bundhun (supra) with regard to the right to silence of a suspect at enquiry stage:

“In my view the right to silence, which is a natural corollary of the rule that the prosecution
bears the burden of proof in a criminal trial, does not carry with it at investigation stage a
subsidiary right to be completely spared from questioning once the decision to exercise that
right has been communicated to the police. A reasonable number of questions may still be
put to the suspect, and his response – be it mere silence – noted. However, care must be
taken by the police, once a suspect has indicated an intention to exercise his right to silence,
not to indulge in an oppressive form of questioning – as opposed to simply putting questions
and recording the response – as the suspect’s right to silence would be infringed.”

For all the above reasons, this court considers that statements 3, 4 and 5 should be admitted
as evidence and the court will assess the overall fairness at the close of the case and
subsequently the weight to be attached to them.

The Court, accordingly, sets aside the objection raised by Learned Counsel for
Accused 1.

Mr Raj Seebaluck Mrs B.R. Jannoo-Jaunbocus

Vice-President Magistrate

Intermediate Court
Criminal Division
This 17th October 2018.