Police v C.K.C Pottier & J.

B Vilbro
2014 INT 325

IN THE INTERMEDIATE COURT OF MAURITIUS

(CRIMINAL DIVISION)
In the matter of :C.No. 650/2014
Police v

1.- Charles Kenny Cedric POTTIER

2.- Jacob Bradley VILBRO

JUDGMENT
24 year-old Accused Charles Kenny Cedric Pottier ( hereinafter referred to
as Accused No.1) and his 22 year-old cousin Jacob Bradley Vilbro ( hereinafter
referred to as Accused No.2) are jointly charged under 3 counts of the
Dangerous Drugs Act (hereinafter referred to as DDA), as follow :

Under Count 1, Accused Nos.1 & 2 are charged with possession of 27

pieces of subutex wrapped in aluminium foil and 2 subutex tablets
[ valued at Rs.5,400.-& Rs.3,200.- respectively] for the purpose of
distribution in breach of section 30(1)(f)(i) DDA,

Under Count 2, Accused Nos.1 & 2 are charged with possession of

0.025 g brown mass containing heroin wrapped in 11 pieces of
aluminium foil [valued at Rs.2,200.-] for the purpose of distribution in
breach of section 30(1)(f)(ii) DDA and

Under Count 3, Accused Nos.1 & 2 are charged with possession of 3

cannabis seeds weighing 0.0046 g [valued at Rs.300.-] in breach of
section 34(1)(b) DDA,

all contained in the false bottom of a cream jar [ hereinafter referred to as

the jar].

Accused No.1 pleaded Guilty to Counts 1, 2 & 3. Accused No.2

pleaded Not Guilty to Counts 1,2 & 3. They are not assisted by counsel.

The gist of the Prosecutions case as per PC Bhoobun is as follows :-

Accused No.1 resides at Govinden Lane, Floreal and his cousin Accused
No.2 resides at Blk J 26, Cite Mangalkhan, Floreal.

On 11 June 2013, Accused No.2 went to visit Accused No.1 at Govinden

Lane and whilst he was there, ADSU officers arrived at Accused No.1s
residence at about 9.10 hrs for a search. The search was carried out in presence
of Accused Nos.1 & 2 and the jar containing the drugs as described above was
found in Accused No.1s wardrobe.

After caution, Accused No.1 stated to PC Bhoobun : Faire aine lusage ar

moi missi. Tout la drogue dans pot la crme l pou moi a. Mo pas pou gagne
caution. Faire Bradley Vilbro prend charge la. Mo pou arrte vende la
drogue. And, thereafter, Accused No.2 said Mo daccord pou prend charge
l.

The search continued. Rs.10,175.- in various bank notes/ Exhibit 2 was

found in Accused No.1s wardrobe to which when questioned under caution,
Accused No.1 stated :- Mo cash a. 1 parti cash la drogue. And Accused No.2
made no reply.

A used roll of aluminium foil, a pair of scissors, a used roll of insulating

tape suspected to have been used in drug dealing transactions was also
found/Exhibit 3 at Accused No.1s residence - to which Accused No.2 remained
quiet when questioned.
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Both Accused parties subsequently refused to sign the envelopes in which

the drugs and other items were placed.

It is part of the Prosecutions case that the only reason why Accused No.2
was arrested was because he was at Accused No.1s residence and had stated
that he was ready to agree that he had committed the offence/s. At one stage,
PC Bhoobun stated that Accused No.2 had admitted possession of part of the
drugs - which he later conceded was a mistake on his part. No drugs were found
at Accused No.2s residence.

The case was closed for the Prosecution.

The defence statements of the Accused parties are on record - Accused

No.1s in the form of a denial. The gist of Accused No.2s defence statements is
reproduced for ease of perusal.
In Accused No.2s defence statement/Doc D at Folio 12/533170, mention
is made that following discovery of the drugs in Accused No.1s wardrobe,
Accused No.1 had told the police : Faire aine lusage. Mo daccord tout la
drogue dans a pot la crme la pou moi ca. Mo pas pou gagne caution. Ena
case traficant ladans missi. Faire Bradley prend charge l. Mo pas pou vende
la drogue encore.

To which he/ Accused No.2 thereafter replied Mo daccord pou prend

charge la, tire Kenny. Accused No.2 also stated that he remained silent when
confronted with the money and the aluminium foil, scissors and tape.

At Folio 12/533173, Accused No.2 denies all knowledge of the drugs and
money. He explained that Accused No.1 had oftentimes told him that he did not
want to go to jail again and after the ADSU drugs raid, he felt sorry for Accused
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No.1 and that was why he/Accused No.2 stated that he was ready to take the
blame although he knew nothing about the drugs.

In Court and under cross-examination, Accused No.2 denied all charges of

drug dealing, reiterated his ignorance about the drugs in Accused No.1s
wardrobe albeit he often visits Accused No.1s house and explained that that
morning he was there to fix a tattooing machine. He frankly conceded that when
Accused No.1 told the police that he/Accused No.2 could take the charge, in the
confusion of the moment, he stated being agreeable to accepting the charge in
order to absolve Accused No.1.

No defence witnesses were called and the case was closed for the
Defence.

Accused No.1

A plea of guilty at trial-stage is an express and conclusive admission of the

offence in respect of which the plea is made, for the purposes of that trial, and
dispenses with the necessity of proving facts alleged in that count of the
indictment see Halsburys Laws of England Criminal Procedure- Volume 28
(2010) 5th Edition paragraph 659.
On his timely plea of guilty to Counts 1,2 & 3 put up at his first court
appearance, Accused No.1 is found guilty as charged under Counts 1,2 & 3.

Accused No.2
After perusal of the evidence on record and for all the reasons given
below, which are to be read comprehensively, this Court is of the considered
opinion that the Prosecution has failed to prove the charges against Accused
No.2 as regards Counts 1, 2 & 3.

Prosecutions evidence as regards Accused No.2

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The only reason why Accused No.2 was arrested was because he was at
Accused No.1s house at the time of the drugs raid.

The Court notes the similarity in the tenor of the replies made by Accused
No.1 as per PC Bhoobun and Accused No.2 [ as reproduced above] as regards
causing Accused No.2 to take the blame.

To his credit, Accused No.2 does not dispute having stated that he was
willing to take the blame on behalf of Accused No.1. Accused No.2 would have
had a reason to distort the truth in order to serve his own interests but not PC
Bhoobun. The Court considers PC Bhoobun as a witness of truth when he says
that it was Accused No.1 who asked the police to spare him and to cause
Accused No.2 to take the blame.

This reinforces Accused No.2s version that he felt sorry for Accused No.1
and torn by sympathy and in the confusion of the moment, he/Accused No.2
spontaneously agreed to take the blame at Accused No.1s behest, despite his
consistently-reiterated ignorance about the drugs found in Accused No.1s
wardrobe and Accused No.1s dealings in same.

Does the fact that someone agrees to take the blame at the

request of another party transmute such a verbal statement

into an admission of guilt/confession?

The Court pertinently notes that Accused No.1s answer given to PC

Bhoobun refers to (a) his admission of possession of the drugs and nevertheless
(b) the entreaty that Accused No.2 be made to take the blame.

Accused No.2 has explained the reasons why he said that he would
shoulder the blame despite the fact that he knew nothing about the drugs.

Save for his unfortunate presence at Accused No.1s home that morning,
there is no evidence connecting Accused No.2 to the drugs found in Accused
No.1s wardrobe.

The Court notes that PC Bhoobun stated that Accused No.2 merely said
Mo daccord pou prend charge la- see pg 2 above and did not mention the end
of Accused No.2s answer as per his defence statement - see pg 3 above
tire Kenny ... This is however of no consequence as, from the sequence and
tenor of the answers, it is abundantly clear that Accused No.2 (naively) agreed to
take the rap following Accused No.1s entreaty to the police that he/Accused
No.2 be made to do so.

And it is the opinion of the Court that Accused No.2s words Mo daccord
pou prend charge la, tire Kenny taken in context cannot reasonably be
considered as an admission of possession of drugs, an admission of guilt or a
confession.

How is possession proved in law?

The time-honoured authority on possession is the case of Chung Po v

The Queen [1970 SCJ 191] in which reference was made to Nawoor v, R
[1948 MR 104] where the Supreme Court held that in order to secure a
conviction against any one of the five accused, it was not necessary to establish
manual possession but that it was essential that there should be proof of some
"overt act" or circumstance connecting each particular accused with the
articles found, thus justifying the inference that those articles were at least
under his control, exclusive or joint.

Reference was also made to Warner v.Metropolitan Police

Commissioner (1968) 2 All E.R. 356 at p.383, Lord Guest quoted the following
definition of "possession" from the Dictionary of English Law (Earl Jowitt), 1959
at p.1367:
Possession, the visible possibility of exercising physical control over a
thing, coupled with the intention of doing so, either against all the world, or
against all the world except certain persons. There are, therefore, three
requisites of possession: First, there must be actual or potential physical
control. Secondly, physical control is not possession, unless accompanied
by intention; hence, if a thing is put into the hand of a sleeping person, he has
no possession of it. Thirdly, the possibility and intention must be visible or
evidenced by external signs, for if the thing shows no signs of being under the
control of anyone, it is not possessed.......
The Appellate Court in Chung Po [supra] agreed with the above
proposition that the meaning of possession per se must depend on the context.
The circumstances in this case are such that it is the opinion of the Court
that as regards Accused No.2 who does not reside at the same address as
Accused No.1, there was (a) no actual or potential physical control of the drugs
found in a false-bottomed jar in Accused No.1s wardrobe and (b) no external
evidence of intention to exercise physical control on the part of Accused No.2.

The Defence
It is trite law that whilst the burden of proof is always on the Prosecution,
when evidence capable of proving the case against the accused and of
disproving his defence is adduced by the Prosecution, there is a kind of tactical
burden which is borne by the Accused in the sense that if he does not adduce
evidence in rebuttal he may well find the case proved against him: in other
words, the evidential burden shifts to the Accused - Andoo v R [1989 MR
241]
Stricto sensu and taken in abstracto Accused No.2s verbal statement
given on the spot that he was willing to accept the charge could be construed
by others as an admission of guilt.
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However, Accused No.2 has testified under oath in respect of his defence
in a quietly, convincing manner and the Court was most impressed with his
candour and straightforwardness.

Explanations have been given as to how and why Accused No.2 said he
would take the blame for something he knew nothing about and for all the
reasons given above, the Court has no reason to disbelieve him when he says
he had no knowledge of the drugs in Accused No.1s wardrobe.

Conclusions
For all the reasons set forth above,
On his plea of guilty, Accused No.1/Charles Kenny Cedric Pottier is
found guilty as charged under Counts 1, 2 & 3.
As regards Accused No.2/Jacob Bradley Vilbro and as the Prosecution
has failed to prove the charges against him beyond all reasonable doubt, the
Court dismisses Counts 1, 2 & 3 against him.
Dated this 27th day of November 2014.

N.Ramsoondar,
Ag.Vice President, Intermediate Court (Criminal Division)