POLICE v N.

RAMGOOLAM

2019 INT 229

POLICE v N. RAMGOOLAM

CN: 977/2017

THE INTERMEDIATE COURT OF MAURITIUS

[CRIMINAL DIVISION]

In the matter of:-

Police

v/s

Navinchandra RAMGOOLAM

RULING (3):
The accused stands charged with the offence of:-
Limitation of payment in cash, in breach of Sections 5, 7 & 8 of the Financial
Intelligence and Anti-Money Laundering Act 2002, under Counts 1 to 23.

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The accused has pleaded Not Guilty to all the 23 Counts of the amended information
and he is assisted by a panel of counsel.
Initially, the defence moved for particulars of the exact dates on which the alleged 23
offences were purportedly committed. But, subsequently, that motion culminated into a
motion for the dismissal of the 23 Counts and, for the sake of clarity, the Court finds it
appropriate to set out the chronology of events as follows:
On 1st of April 2019, Mr. D. Mootoo, Learned Assistant D.P.P, stated that the
prosecution cannot give a specific date and, hence, it has used the formula ‘between
31st January 2009 and 7th February 2015’.
Mr. G. Glover SC insisted that in view of Section 10 (2) of the Constitution, Section
17 of the Criminal Procedure Act, Section 125 of the District and Intermediate
Courts Act and Section 36 of the Criminal Procedure Act, the information is
uncertain, in that it does not aptly describe the particulars and material circumstances of
the offence to afford the accused the opportunity to present a defence before a Court of
law. As a result, the matter was set for Argument.
On 14th of June 2019, Mr. G. Glover SC moved for particulars, inter alia, of the person
who made the payment in order for the payment to be accepted by the accused.
Mr. D. Mootoo replied that the identity of the person who made the transaction remains
unknown and evidence will be adduced by the enquiring officers on this issue that there
was a transaction.
Mr. G. Glover SC stated that in view of the fact that the prosecution cannot give
better particulars because they do not have the exact date and the inability of the
prosecution to say who was the other party in the transaction which the
prosecution wishes to prove, the defence moves that the charges be dismissed,
inasmuch as they fail the test of certainty which is required under the
Constitution in order to allow the defence to know the case it has to meet and to
be adequately prepared to meet the case for the prosecution.
Mr. D. Mootoo contended that such motion is premature at this stage.
Hence, the matter was fixed for Argument anew, but this time on the issue of whether
all the charges fail the test of certainty.
On 12th of September 2019, Mr. G. Glover SC stated that the present motion concerns
all the 23 Counts of the amended information and submitted as follows:
1. Section 5 of the Financial Intelligence and Anti-Money Laundering Act
(hereinafter referred to as the FIAMLA) clearly implies a transaction. The
particulars of the person making the payment will make the accused know, under
each Count, the payment was made by whom. This would afford the accused the
possibility of putting up a defence, for example, the transaction is an exempt one.

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 2. The prosecution has absolutely no idea of when the payments were made, who
made the payments and in what circumstances the payments were made. They
cannot say, for example, whether the first 17 transactions were in 1 or 17
transactions. The defence must know the particulars of each and every single
transaction, in order to meet the case of the prosecution. The fact that the
prosecution cannot further particularize the charges, the charges must be
quashed.

3. The prosecution has to say what is the transaction, who gave the accused the
money and where does that money come from. If the prosecution cannot say so,
it is circumventing the fact that the law does not provide for an offence of being in
possession of cash in excess of Rs.500,000. There is no deeming clause and
that is why the Integrity Reporting Services Agency was set up under the Good
Governance and Integrity Reporting Act.

4. There must be particulars offered to the Court in order for the Court to be able to
assess whether there has been a payment or not.

5. There must be a finding of mens rea by the Court and this exacerbates the
problem of the defence.

6. When one passes the threshold test of the requirement of particulars, the
defence may ask the Court to decide that the information is too vague and too
uncertain, and the Court has the power to quash the information on the basis that
it is too uncertain to be allowed to proceed. The amended information is defective
in the sense that it lacks particulars.

7. The manner in which the prosecution is being conducted is wrong; the Court
should act against this and protect all the rights of the citizen of this land under
the Constitution.
Mr. D. Mootoo contended as follows:
1. The motion made by the defence is tantamount to a plea in bar, which is taken
before a Not Guilty plea is recorded. In the present case, the plea has already
been recorded twice.

2. The present motion by the defence goes in contradiction with the two pleas
recorded, as at the time the plea is taken, it is open to the accused to say that he
does not understand the case he has to meet.

3. The power to dismiss the information without a hearing is not to be found in

Section 72 (3) of the District and Intermediate Courts (Criminal Jurisdiction)
Act.

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 4. In Police v I. Kuderbux & Ors. [1994 SCJ 424], the power at common law to
dismiss an information was alluded to where the prosecution unreasonably
refuses to furnish particulars after the Trial Court has ordered them to furnish the
particulars. But, in the present matter, there is no order to grant particulars.

5. The elements of the offence have been averred in the information, a time range
has been given, the material circumstances have been averred, for example,
‘100,000 USD’, ‘sealed’, ‘package’ and ‘labelled’, the complete brief has been
communicated and these are enough.

6. In Beezadhur v The ICAC & Anor. [2013 PRV 83], the word ‘transaction’ is not
used.

7. By making reference to the specific date and the persons involved, the defence is
mixing evidence with averments in the information.

8. The prosecution has not hidden anything from the defence. Whether this case is
enough to find the accused guilty is a matter after the evidence has been heard.
Mr. G. Glover SC responded as follows:
1. The motion is not a plea in bar.

2. The word ‘transaction’ has been used throughout the judgment in Beezadhur v
The ICAC & Anor. (supra).

3. Section 72 (3) of the District and Intermediate Courts (Criminal Jurisdiction)

Act has no bearing in relation to the motion made by the defence.

4. Lastly, the prosecution are in a position where they know that they cannot
prosecute the accused for being simply in possession of the money.

ANALYSIS:
The law:
As a starting point, the Court finds it convenient to set out the relevant provisions of the
law.
Section 10 (2) (b) of the Constitution provides that,
‘Every person who is charged with a criminal offence –
… shall be informed as soon as reasonably practicable, in a language that he
understands and, in detail, of the nature of the offence.’ [Emphasis added]

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Furthermore, Section 125 of the District and Intermediate Courts (Criminal
Jurisdiction Act) stipulates that,
‘(1) The description in the information of any offence in the words of the law creating
such offence, with the material circumstances of the offence charged, shall be
sufficient.’ [Emphasis added]
And, Section 17 of the Criminal Procedure Act provides that,
‘In any case of crime brought before the Supreme Court, the State or other prosecutor
shall draw up an information which shall be direct and certain as regards –
(a) the party charged;
(b) the description of the offence charged;
(c) the material circumstances of the offence charged.’ [Emphasis added]

Turning to the case law on the issue of particulars, in Police v Kuderbux and Others
(supra), the Supreme Court made the following observations on the subject:
“(f) the question of whether or what sort of particulars should be ordered in a
given case by the trial Court at the request of the defence after the prosecution has
turned down that request depends on the particular facts of the case.” [Emphasis
added]
Equally of relevance is the following passage in Attorney General v Saurty [1963 MR
1]: “The material circumstances to be stated in an information are those that can
reasonably be expected to be given and must depend on the nature of the offence
charged and its constituent elements.” [Emphasis added]
Finally, in M.F. Ramburn v The State [1996 SCJ 64], it was stressed that, “Particulars
are given as a matter of law when the offence is not sufficiently clear or
particularised in the information.” [Emphasis added]

The case-in-hand:
Admittedly, the present Argument has put the amended information in this case under
the microscope and, undoubtedly, this has called for a thorough dissection of that
amended information. Thus, the Court shall now consider the following issues:
1. The date of the offence;
2. The inability of the prosecution to furnish particulars as to who was the other
party in the transaction;
3. The implications of the unavailability of particulars in relation to the other party in
the transaction(s); and
4. The remaining issues raised by Mr. D. Mootoo.

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The date of the offence:
In Hurry v R [1958 MR 274] it was held that where time is not of the essence of the
offence, the date specified in the information as being that of the commission of the
offence is not a material circumstance and the Supreme Court referred to the case of R
v Dossi 13 Cr. App. R. 158, where Atkin J. expressed that, “From time immemorial a
date specified in an indictment has never been a material matter unless it is actually an
essential part of the alleged offence.” In cases where it is impossible to know on what
day an offence was committed, time is not of the essence, and no prejudice would result
to the accused (vide: Lai Wan Chut and Co. Ltd v The Queen [1981 SCJ 26]).
In the present matter, given the nature of the offence charged, the Court is of the
considered opinion that the date of the offence is not of the essence. According to the
amended information, the time frame in respect of Counts 1 to 17 is ‘between 31st
January 2009 and 7th February 2015’ and the stretch of time in relation to Counts 18 to
23 is lesser. Of relevance, is the case of Edith Leste v The King [1947 MR 65], where
the information charged the appellant with having kept a brothel between the years
1941 and 1946. Interestingly, the Appellate Court declared that:
“This was a somewhat vague allegation as to the dates of the offence but there is
ample authority to show that where time, is not material to the offence the lack of
greater precision in this respect will not render the information bad.” [Emphasis added]
Therefore, in the present matter, time is not of the essence, save that the span of time
in respect of all the 23 charges remains “a somewhat vague allegation as to the dates of
the offence.” At any rate, the burden is on the prosecution to establish that the offence
charged was committed during that span of time in respect of the 23 charges.

The inability of the prosecution to furnish particulars as to who was the other
party in the transaction:
1. It has to be highlighted that the identity of the person who made the transaction
remains unknown is, indeed, a startling revelation by the prosecution, inasmuch
as the underlying key feature of Section 5 of the FIAMLA is that there must be a
transaction to have taken place between an accused and the payer. And, in
ICAC v A.S. Saumtally [2016 SCJ 47], it was stated that,
“In construing section 5(1) of the Act, the Court in Meeajun v The State [2011
SCJ 141] pointed out that “Its mischief lies in engaging in any transaction in
cash whether in Mauritian or foreign currency above the statutory limit”.”
[Emphasis added]
Hence, the transaction is quite essential as far as Section 5 of the FIAMLA is
concerned and it cannot be downplayed. Actually, given the nature of the offence
charged and its constituent elements, the transaction is at the core of Section 5
of the FIAMLA.
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2. This case is definitely one of a kind, as Mr. G. Glover SC correctly submitted that
there has been no case of this nature of which the Court is having to adjudicate
upon. It is unique not only because of the hefty sums involved, but the facts are
dissimilar to the usual cases brought before the Court. Having painstakingly
trawled through many judgments pertaining to Section 5 of the FIAMLA, none of
those cases mirrors this case.

3. The argument deployed by the defence that particulars of the payer is important
cannot be said to be unreasonable, being given that there are cases where,
indeed, the information has been particularised in the sense contended by
Learned Senior Counsel for the defence. One can cite, for example, the case of
L.A. Abongo v The State (supra), in which the relevant part of the body of that
information reads as follows:
‘That on or about the 12th day of April two thousand and four, at Harbour
Waterfront and in the District of Port Louis, one LYNETTE AKEYO ABONGO,
Businesswoman, Kenyan National, 46 years, residing at Ayemy Estate House
No. R 13, Nairobi, Kenya, did willfully and unlawfully accept a payment in cash in
excess of Rs 350,000/- in foreign currency, to wit:- 38,000 US Dollars from
Maita Fabre.’ [Emphasis added]
That case concerned Section 5 of the FIAMLA and the last part of that
information speaks for itself. However, the amended information in the present
case is devoid of such particulars. Also of note is that, according to the
information in the Abongo case, the payer, Maita Fabre was on the list of the
prosecution witnesses. Furthermore, one can read the following on the first page
of that judgment, “The unchallenged testimony led by the prosecution at the trial
showed that on 12 April 2004 at Mc Donald Restaurant, Port Louis, one Maita
Fabre remitted to the appellant a plastic bag containing the sum of 38,000 U.S.
dollars.”
Even in M.J. Meeajun v The State [2011 SCJ 141], resorted to by Mr. G. Glover
SC, the particulars of the transaction averred under Count 1 were that on or
about the 5 July 2003 the accused had made a payment of GBP 15,000 to
Shibani Finance Money Changer. Therefore, the identity of the other party was
known. But, surprisingly, in the present matter, the identity of the payer has
remained elusive to the prosecution, which, obviously, means that no payer(s)
will be called by the prosecution to testify in relation to the element ‘accepting of
any payment’. Consequently, this may have the effect of reducing the
prosecution’s case to a mere possession of money, as Mr. G. Glover SC
submitted that without any particulars the Court will have to decide whether by
mere possessing the money it must be deemed to have been received as a
payment. Now, to accept payment is one thing and to be in possession of same
is another.

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4. A distinction must be made between ‘accepting’ payment and ‘possession’ of
money, as a parallel cannot be drawn between them. These are two different
words and have nothing in common. For instance, Section 5 of the FIAMLA
provides that,
‘(1) Notwithstanding section 37 of the Bank of Mauritius Act 2004, but subject to
subsection (2), any person who makes or accepts any payment in cash in
excess of 500,000 rupees or an equivalent amount in foreign currency, or such
amount as may be prescribed, shall commit an offence.
(2) Subsection (1) shall not apply to an exempt transaction.’ [Emphasis added]
In the case-in-hand, it is incumbent upon the prosecution to prove the element of
‘accept’ and not ‘found to have in the accused’s possession’. In that respect, one
may seek illumination from the drafting of the offence of Possession of property
obtained unlawfully and the relevant provision of the law is Section 40 of the
Criminal Code, which stipulates that,
‘Any person who knowingly receives, in whole or in part, or who without
sufficient excuse or justification, is found to have in his possession, articles
carried off, abstracted or obtained by means of a crime or misdemeanour shall
be deemed to be an accomplice in the crime or misdemeanour.’ [Emphasis
added]
Interestingly, in the case of Prayag v The State [2004 SCJ 29], the Supreme
Court pointed out that Section 40 of the Criminal Code provides for two distinct
charges and explained the two different charges, namely, “knowingly receiving”
and “possession without sufficient excuse or justification” as follows:
“This section contemplates two distinct cases which ought not to be confused:
the first one is when an accused party “knowingly receives articles obtained by
means of a crime or misdemeanour”, which is an extension of the offence of
“recel” borrowed from the French Penal Code, and the second, peculiar to our
Mauritian law, is when he is “found in possession of such articles without
sufficient excuse or justification”. It is well established that where the charge is
“knowingly receiving”, the onus of proving guilty knowledge rests upon the
prosecution. Where the charge is “possession without sufficient excuse or
justification”, once the prosecution has established the possession, the onus of
proving that such possession is justified or sufficiently excused shifts on to the
accused party.”
Therefore, ‘accept’ and ‘found to have in the accused’s possession’ are two
entirely different concepts.
5. Section 5 of the FIAMLA is not a ‘deeming Section’. A ‘deeming Section’
would resemble, for example, Section 8 (2) of the FIAMLA. In L.A. Abongo v
The State (supra), the Supreme Court pointed out that “Section 8(2), … contains
a deeming clause which provides that ‘any property belonging to or in possession
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 or under the control of’ any convicted person shall be deemed to be proceeds of
crime which would entitle the Court to make a forfeiture order in respect of all
such property.” [Emphasis added]
It does not mean that if someone is found in possession of money in excess of
Rs.500,000 that Section 5 of the FIAMLA automatically condemns that person
to be deemed to have accepted and has waived the duty on the prosecution to
prove this key element ‘accept’. Conspicuously, the manner in which Section 5
of the FIAMLA has been formulated, it cannot possibly be construed as a
‘deeming Section’.
The implications of the unavailability of particulars in relation to the other party in
the transaction(s):
1. The inability to furnish particulars of the person who made the transaction means
that the identity of that person remains veiled in mystery and will not be called as
a witness for the prosecution. That person would have been a material witness,
who would have enlightened the Court on the crucial issue of ‘accepting
payment’, inasmuch as he was the person who allegedly remitted the money and
he had personal knowledge of the purpose of the remittance. That person would
have also possibly implicated the accused in the actus reus of the offence, either
directly or indirectly by indicating the circumstances in which the money was
received by the accused.

2. It goes without saying that the defence will not have the opportunity to put to test
the version of a witness as important as the one who made the payment
allegedly accepted by the accused. This means that the defence will be deprived
to cross-examine that person as regards the circumstances in which the alleged
payment was made, thus, denying him a fair trial. At this juncture, the words of
John Henry Wigmore, quoted in Lilly v Virginia, 527 US 116 (1999), spring to
mind: “Cross-examination is the greatest legal engine ever invented for the
discovery of truth.” To shut out an accused from this right may lead to dire
consequences and is inimical to the interests of justice. If the defence is, by the
present state of affairs, be denied of this fundamental right, then, self-evidently,
the light of truth may never break through in the course of the trial and this will be
immeasurably unfair to the accused and may, eventually, lead to disastrous
consequences, of which the Court is mindful, such as miscarriage of justice.
Thus, the inability for the prosecution to know and impart to the defence the
particulars of the person(s), who made the transaction(s) would be wholly unfair
and highly prejudicial to the accused.

3. As rightly pointed out by Mr. G. Glover SC, the particulars of the person making
the payment is important, because it will make the accused know, under each
Count who made the payment. This would give the accused the possibility of
putting up a defence, particularly, the defence provided under the FIAMLA as

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 exempt transaction. Hence, the lack of particulars of the person(s) who made the
alleged payments renders all the 23 charges of the amended information
nebulous and uncertain to the extent of denying the accused the opportunity of
raising such defence.

4. Furthermore, the amended information turns out to be even more vague when
considering that there must be particulars provided to the Court in order for the
Court to be able to assess whether there has been a payment or not. The Court
cannot be expected to plug the gap by conjecturing that there has been a
payment.

5. To be provided scarcely with only a wide time lapse and to know only about the
sums of money allegedly accepted by the accused are not sufficient for the
accused to prepare his defence and to be able effectively to deal with the
charges or answer them, in particular to consider how to rebut the evidence of
the prosecution. He has been clearly left in the dark and to surmise. The Court
declines to believe that the law of Mauritius permits an accused to be so treated.

6. Additionally, there is also the very important consideration that if the accused
shall be made to wait in Court for evidence to unfold on the prosecution’s side, it
shall be too late for the preparation of the defence and for him to avail himself of
defences. That would be profoundly unfair and will cause immense and
irreversible prejudice to him. As a result, the fairness of the trial would be tainted
from the very beginning. In that respect, one cannot lose sight of an accused’s
right to a ‘fair trial’, as guaranteed under Section 10 (1) of the Constitution.

7. Another weighty consideration is that the particulars of the payer would have
shed light on the origin of the payment, which would have been known and this is
important in respect of the transaction and the accused would have known
whether to invoke any defence of exempt transaction. Thus, the material
circumstances as averred in the amended information are far from being enough.

8. The proposition that the constitutional right of the accused under Section 10 (2)
(b) of the Constitution to be informed ‘in detail’ of the nature of the offence with
which he stands charged refers to a right to be provided with adequate
particulars of the offence charged and that is explicit in the case of C.S. Jean
Louis v The State [2000 SCJ 153], where the Supreme Court explained the
following:
“Section 10(2)(b) of the Constitution provides that every person who is charged
with a criminal offence “shall be informed as soon as reasonably practicable, in a
language that he understands and in detail, of the nature of the offence.” The
accused is normally so informed when he is arraigned for plea and the
information is read or, more commonly, translated to him, the translation being
most of the time into the creole language. The constitutional provision that the

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information should state in detail the nature of the charge means, in our
view, that the charge should be sufficiently particularised, a requirement
already existing in our statute book for quite some time and found, notably,
in section 125 of the District and Intermediate Courts (Criminal
Jurisdiction) Act which provides that an information containing a description of
the offence in the words of the law creating such offence “with the material
circumstances of the offence charged” shall be sufficient.” [Emphasis added]

Therefore, Section 10 (2) (b) of the Constitution does not simply require that
an accused be informed briefly of the nature of the offence, but it is also
mandatory to inform him of same ‘in detail’ by way of sufficient particulars. It is
only when the constitutive elements of the offence and the required material
circumstances are read out to the accused that it can be said that the latter is
informed ‘in detail, of the nature of the offence’, inasmuch as he will fully
understand and be made aware of the exact nature of the charge which has
been levelled against him and to which he has to answer and prepare his
defence in order to meet the prosecution’s case at trial stage.

In the present case, the Court takes the view that the accused has not been
informed in detail of the nature of the charges, because although the elements of
the offence have been averred in the amended information, the required material
circumstances regarding the particulars of the other party to the transaction,
which are crucial details, are clearly missing.

Now, failure to provide certain particulars can constitute an infringement of

Section 10(2) (b) of the Constitution and can have an adverse impact on the
fairness of the trial (vide: A.Z. Bholah & Anor v The State of Mauritius [2009
SCJ 432]). At this juncture, the Court finds it apt to quote the pertinent passage in
that case, which reads as follows:
“Of course, the constitutional right of an accused party to be informed “in detail”
of the charge lying against him is one which can be waived, for instance by an
accused party who does not deem it necessary, for the preparation of his
defence, to be provided with any precision in relation to any element of the
offence. This is why the failure to provide certain particulars in an
information could only result in a breach of section 10(2)(b) of the
Constitution in those scenarios indicating that the defence objected to the
lack of particulars which it needed for the preparation of its defence but
was nonetheless denied such particulars: Kuderbux & Ors [1994 SCJ 124].”
The Supreme Court went on: “Section 10(2)(b) of the Constitution reflects
this rule of fairness essential for a fair trial by requiring that the accused party
should be able to obtain the information, at the very outset, as to what the
alleged criminal conduct … in question consisted of.” [Emphasis added]

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 Therefore, this right to be informed ‘in detail’ of the nature of the offence, which is
enshrined in the Constitution, cannot be curtailed and, in effect, it is a right which
must be upheld to the utmost.
Returning to the present matter, the particulars sought by the defence of the
other party relates to the transaction and which is inextricably linked with the
element of ‘accepting payment’. Consequently, the present charges are not
sufficiently particularized and the Court would have ordered the prosecution to
furnish the particulars of the other party who was in the transaction, given that
the said particulars are indispensable and should form part of the material
circumstances of the offence charged. Hence, the inability of the prosecution to
provide particulars to say who was the other party in the transaction can only
result in the infringement of Section 10 (2) (b) of the Constitution.
All in all, the particulars in relation to the other party in the transaction are vital and,
obviously, there are overwhelming and a miscellany of compelling reasons to show that,
in the absence of the said particulars, the 23 charges fail the test of certainty.

The remaining issues raised by Mr. D. Mootoo:

1. He pointed out that the motion made by the defence is tantamount to a plea in
bar, which is taken before a Not Guilty plea is recorded. In the Dictionary of
English Law, by Earl Jowitt, Volume 1, A-H, a plea in bar is “a pleading
showing some ground for barring or defeating an action at common law.”
Interestingly, in Oxford Concise Dictionary of Law, Second Edition, ‘pleas in
bar’ have been defined as follows: “Pleas in trials on indictment setting out some
special ground for not proceeding with the indictment. There are four such pleas:
autrefois acquit, autrefois convict, pardon, and special liability to repair a road or
bridge.” Obviously, the present motion cannot be considered as a plea in bar. In
any event, it is noteworthy that the trial has not yet started and a Not Guilty plea
cannot act as a bar to the motion put forward by the defence; the more so as the
discretion to dismiss the information is a power afforded to trial Courts at
common law [vide: Police v Kuderbux and Others (supra)].

2. He submitted that the present motion is in contradiction with the two pleas
recorded. But, the fact that the accused has pleaded Not Guilty to the 23
charges of the amended information and to say that the accused must have
known the precise nature of the charges and the exact case he has to meet at
that stage is rather subjective. Although the plea has been taken, particulars are,
at times, applied for by the defence, when the need arises.

3. He contended that the power to dismiss the information without a hearing is not
to be found in the District and Intermediate Courts (Criminal Jurisdiction)
Act. However, to this there is a short answer. One has to bear in mind that the

12 | P a g e
 discretion to dismiss with regard to the present type of motion is derived from
common law.

4. He submitted that, in the present matter, there is no order to grant particulars

and, therefore, the Court cannot dismiss the charges. Of course, he is referring to
paragraph (e) in Police v Kuderbux and Others (supra), where the Supreme
Court had this to say:

“it is for the defence to ask for further and better particulars from the prosecution
in the first place and, if the prosecution refuses, the defence may apply to the trial
Court. The Court must then exercise its discretion in deciding whether or not to
order the prosecution to furnish particulars and what sort of particulars, if any, are
to be supplied. If the prosecution still unreasonably refuses to furnish them,
then it is open for the trial Court to dismiss the information. The prosecution
has, of course, a right of appeal - vide Saurty.” [Emphasis added]
In the case-in-hand, with regard to the second point raised by the defence to the
effect that the information is bad for want of particulars of the other person
involved in the transaction, the Court notes that, admittedly the prosecution does
not have the particulars of the other party in the transaction, although it cannot be
said that, in the circumstances, the prosecution is unreasonably refusing to
furnish the particulars as contemplated in the case of Police v Kuderbux and
Others (supra). But, the Court has already mentioned above that it would have
asked the prosecution to provide particulars of the other party to the transaction,
which the Prosecution would not have been able to supply. The upshot of the
present situation and the scenario envisaged in the Kuderbux case is that the
defence is deprived of important particulars. In the circumstances, logic dictates
that it is open for the Court to dismiss the amended information in the present
case.
5. He further submitted that by making reference to the specific date and the
persons involved, the defence is mixing evidence with averments in the
information. The Court takes the view that the particulars sought for by the
defence cannot amount to evidence and, by the way, one can also note that in
the Abongo case the particulars of the other party to the transaction featured in
the body of the information.

6. In the course of his submission, Mr. D. Mootoo referred to the case of K.

Muddhoo v The State [2014 SCJ 77], where the appellant was found guilty of
having committed an indecent act upon a child under the age of 12 and the
Appellate Court decided that there was no need to provide for particulars of the
‘indecent act’, inasmuch as the version of the complainant which consisted of the
indecent act was put to the appellant at the time of recording his out-of-court
statement and the appellant was provided with a full brief. But, that case can be
distinguished from the present one, as in the present matter the offence with

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 which the accused has been charged is different from that in the other case,
which is of a sexual nature. Each type of offence requires different particulars,
because the particulars required in a particular case hinges on the nature of the
offence charged. In addition, in the case-in-hand, seemingly, the particulars of
the other party to the transaction has never been put to the accused nor provided
in the prosecution’s brief, otherwise the defence would not have asked for same.
Moreover, despite the fact that the defence has been communicated with the
whole of the prosecution’s brief, given the present state of affairs, one may
imagine the intractable problem being faced by the accused in preparing his
defence to be able to meet the prosecution’s case.

7. He relied on the cases of Vigier de La Tour v The State [2009 SCJ 19] and
Mattoccia v Italy [ECHR (Application no. 23969/94) 25th July 2000] to contend
that in the present case, the accused will not be taken by surprise and the
prosecution has not hidden anything from the defence, as it has been made clear
from the beginning that the prosecution does not know the exact date of the
offence and the identity of the other person involved. However, although the
accused has been told from the start that particulars as requested are not
available, one cannot discard the fact that nevertheless considerable prejudice
will be caused to him as above-mentioned.

CONCLUSION:
When taking into consideration the fact that there are 23 almost identical charges,
compounded by the fact that the particulars of the person(s) who may have been
involved in the transaction(s) are unknown, these, inevitably, render the amended
information glaringly uncertain as to unfairly prejudice the accused in his defence. The
inability for the prosecution to know about the particulars of the person(s), who may
have given the sums of money has not only hampered the accused to a great extent in
the preparation of his defence, but it also appears that the prosecution would start off its
case with a considerable built-in handicap.
Finally, the Court would also say this: whilst there is a need to ensure that cases are
heard on the merits in the public interest, one, however, cannot allow a case to proceed
at the expense of compromising fundamental Constitutional rights conferred upon each
citizen of this country. The need to uphold rights embodied in the Constitution is of
higher public interest which overrides all other.
In light of the above observations, the Court is of the considered view that the 23
charges of the amended information fail the test of certainty which is required under the
provisions of the law in order to allow the defence to know the case it has to meet and
to be adequately prepared to meet the case for the prosecution. In other words, the
amended information is bad for being vague and uncertain, in view of the inability by the
prosecution to furnish the particulars of the other party in the transaction.

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The Court, accordingly, dismisses the amended information against the accused.

Mr. P. SEWPAL Ms. N. PARSURAMEN

Ag. Vice-President Magistrate
Intermediate Court Intermediate Court
Date: 15/11/19

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