COLLET LOUIS JOSIME v THE

STATE

1998 SCJ 148

RECORD NO. 5951
THE

SUPREME

COURT

OF

MAURITIUS

IN THE MATTER OF:LOUIS

JOSIME

COLLET
APPELLANT

V.
THE

STATE
RESPONDENT

JUDGMENT
The appellant was found guilty before the Court of Rodrigues,
presided over by a single Magistrate, of the offence of wounds and blows
causing death without intention to kill.

He was sentenced to undergo three

years penal servitude and to pay Rs 100 as costs.

The only evidence

implicating the appellant in the offence was an admission he had made in the
course of the police enquiry and which was acted upon by the Magistrate
following the procedure of voir dire in respect of that confession.

The conviction is challenged on several grounds which challenge

the conviction, namely:
(i) a suspect of an offence who is arrested in Rodrigues is not
taken before a Magistrate, but before the Island Secretary
who is a member of the Executive and this is
fundamentally wrong and has vitiated the proceedings;

(ii) the Court of Rodrigues had no jurisdiction to hear that

case;

(iii) once a Magistrate hears proceedings on the voir dire, that

same Magistrate should not hear the same case on its merits
if the confession is admissible;
(iv) the confession was wrongfully admitted given the evidence
on record.

The Island Secretary issue

The Island Secretary of Rodrigues has been known under
different appellations.

Under the Rodrigues Resident Commissioners Powers

Act, he was styled the Resident Commissioner. This title was changed to that
of Administrative Secretary by the Rodrigues (Administrative Provisions) Act
1982.

By the Rodrigues (Administrative Provisions) Act 1988, he was

restyled the Island Commissioner and his present title of Island Secretary was
conferred upon him by the Rodrigues (Administrative Provisions) Act of
1990.

His powers are set out in the Rodrigues Resident Commissioners

Powers Act of 1883.

empowered

to

In addition to these powers the Island

perform

some

of

the

functions

of

for Rodrigues during the latters absence from the island.

Secretary is

the

Magistrate

These are set

out in section 5 of the Rodrigues (Administrative and Judicial Provisions) Act

1974 and which read:

(1) The powers and duties vested before 11 July 1974 in the
Magistrate for Rodrigues which are of an administrative
nature are transferred to the Resident Commissioner and
any enactment shall be construed so as to give effect to
this subsection.

(2) Notwithstanding any other enactment, where the Magistrate

for Rodrigues is absent from Rodrigues or is for any other
cause unable to perform his duties, the Resident
Commissioner shall, during the Magistrates absence or
inability to act, have and exercise the powers and duties of
the Magistrate set out in the Schedule.

The Schedule sets out the matters which are cognisable by the
Island Secretary:

1. Issuing orders for affixing or removing seals, or for a

provisional attachement.
2. Issuing warrants for provisional seizures, warrants of arrest,
warrants of commitment, search warrants, warrants of
entry and warrants to reinstate minors.
3. Fixing the amount of security and taking recognizances.
4. Remanding persons in custody or to gaol.
5. Issuing summonses to parties charged.
6. Issuing orders for the stay of execution of judgment in
civil matters when an application for a new trial is made.
7. Giving consent to the marriage of a minor whose parents
are dead or absent or incapable of manifesting their will.
8. Issuing orders for the dispensation of one publication of
marriage.
9. Authorising issue of occasional
restaurant extension licences.

liquor

licences

and

10. Taking and receiving dying declarations.

11. Ordering post-mortem examinations, and for that purpose
ordering the exhumation of a body.

12. Receiving solemn declarations, informations or

declarations on oath or affirmation and affidavits.

other

13. Issuing orders for interim detention under the Lunacy

Act.

Under section 5 of the Constitution, when somebody is arrested

under suspicion of having committed an offence, he must be taken before a
court of law as soon as practicable. The relevant provisions read:

5(3) Any person who is arrested or detained (a) ...

(b) upon reasonable suspicion of his having committed,
or being about to commit a criminal offence; or
(c) ...
and who is not released, shall be afforded reasonable facilities
to consult a legal representative of his own choice and shall be
brought without undue delay before a court ...

When a person is arrested in the circumstances described in

section 5(3), his arrest is effected by a member of the police force usually,
that is a member of the Executive.

The purpose of bringing him before a

court of law is to enable a person independent of the Executive to ensure

that the suspects rights are not being infringed and that any representations
he may have to make or any complaints he may wish to level against the
members of the Executive involved in his arrest or detention are made
without any pressure or fear that the Executive may be judge and party
in

his case.

The various statutes which set out the powers of the Island

Secretary show clearly that he is a member of the Executive and does not
belong to the Judiciary, hence he cannot be presiding over a Court within the
meaning of section 5(3) of the Constitution when a suspect is brought before
him and may be remanded in custody pending the next sitting of the Court
of Rodrigues where a Magistrate will be present in the island.

We

understand that, given the present system of regular periodical sittings of that
Court, that period of remand in custody pending the arrival of the Magistrate
in Rodrigues, may range between one day and one month.

Although we

would urge the appropriate authorities to consider the possibility of reducing

that period considerably, we are not prepared to say that, in the specific
circumstances of Rodrigues and in the light of the evidence which is to the
effect that the appellant was arrested on 31 May 1993 and released on bail
on 9 June 1993, there has been such a breach as to affect the validity of the
proceedings.

The jurisdiction of the Court of Rodrigues

Section 12 of the Court of Rodrigues Jurisdiction Act confers
jurisdiction on the Magistrate for Rodrigues to hear and dispose of cases
referred to in section 112(d) and (f) of the Courts Act.

In Mauritius these

cases fall under the jurisdiction of the Intermediate Court upon a reference
by the Director of Public Prosecutions.

The powers of the Intermediate

Court over criminal matters are set out in section 112 of

the Courts Act

and the offence with which the appellant

was charged is one of those cases falling under the jurisdiction of the
Intermediate Court of Mauritius. A case would normally be heard before two
Magistrates before the Intermediate Court under section 84(a) of the Courts
Act.

An exception is provided for under section 84(b) which allows one

Magistrate to hear a case which would be the subject matter of a direction

by the Chief Justice.

There is nothing in our Constitution which would lead

us to conclude that an offence which is triable on

the Island of Mauritius

by two Magistrates should equally be tried by two Magistrates in Rodrigues.

What the Constitution provides is that a person who is charged with an
offence should be tried by an independent and impartial tribunal within a

reasonable time: see Luk Tung v. The Commissioner of Police & Ors
[1997 SCJ 101] .

It would have been different if, for example, a resident of

Rodrigues was charged with murder and tried before one Magistrate.

There

is no such jurisdiction conferred in Rodrigues nor should there be.

In

Mauritius such an accused would be tried before a Judge and Jury and given
the gravity of the offence and the heavy penalty involved, such a distinction
in the trial of such a case cannot be envisaged: see Police v. Flore [ 1993
MR 106 ] .

We hold therefore that there was nothing objectionable for the

appellant to be tried before the Court of Rodrigues though he could equally
have been charged before the Intermediate Court in Mauritius.

Voir dire
In proceedings before a Judge and Jury, the issue of the
admissibility of a confession is determined by the Judge alone as a matter of
law, the jury being the arbiters of facts.

Such a function is also performed

by the Judge when he sits without a jury or by the Magistrate.

If such a

confession is ruled to be admissible as a matter of law, it is then for the

tribunal of fact, be it a jury or a Magistrate, that has to decide what weight
should be attached to the confession (our emphasis).
procedures.

These are two different

We see nothing in the notion of fair trial which suggests that

when a confession is challenged on the voir dire before a Magistrate or a

Judge, the case should be tried by a different bench.

The admissibility of the confession

We have considered all the evidence on record in the light of
the submissions of learned counsel for the appellant and we are of the view
that the decision of the learned Magistrate to hold that the statements made
by the appellant were admissible cannot be assailed.
The appeal is accordingly dismissed with costs.
V. BOOLELL
Judge
K.P. MATADEEN
Judge
17 April 1998
Judgment delivered by Hon. V. Boolell.
Mr J. Panglose, of Counsel, for the appellant instructed by Mr
Attorney G. Baguant.
Mr B. Madhub, Senior State Counsel, for the respondent instructed
by the Senior State Attorney.