The Republic v Labiche & Elisabeth (CO 26 of 2022) [2023] SCSC 120 (13 February 2023)

GOVINDEN CJ

1. Upon Corporal Tania Solin attempting to produce a statement under caution taken from  the 1st accused on the 5th of May 2022 at the Anse Royale Police Station at 4.31. The learned Counsel for the 1st accused objected to its admissibility on the ground that it is being retracted for having been involuntarily taken.
2. The objections are as follows:-
3. That the 1st accused was not read his Constitutional rights or his rights to Counsel prior to taking of the statement
4. That pressure in terms of oppression was used by “agent provocateur” consisting of  Sergeant Simon, officer Fred and Legaie.
5. He also asserted that his client has given two statements on the day before which further strengthened the oppression
6. The Prosecution called two witnesses that is Corporal Tania Solin and WPC Bettymay Lesperance. The Defence on its part called two witnesses also the 1st accused and  the 2nd accused person.
7. I have given careful attention to the evidence on record especially those given under cross examination, with a view to find out where the truth lies and to test the credibility of the witnesses.
8. I appraised myself on what the law says on this subject. That is that the Republic bears the burden of proving that the statement was voluntary beyond a reasonable doubt. And what the law defines oppression to be in the sense that this word has to be given its ordinary dictionary meaning, it should be something that is said and or done to the Suspect that is intended to sap the will and indeed sap the free will of the Suspect that would have cause him to give a statement under caution that is oppressive in nature, without which he will not have given the statement. This oppression has to come from somebody in authority.
9. As far as the non informing of the caution and the Constitutional rights to a large extent that both obligations has now been merged into a Constitutional right as a result of  the right to fair hearing and the right to silent and the obligation of the Republic to prove its case beyond a reasonable doubt. As such the Republic again bears the burden to prove that the 1st accused was informed of his caution and was informed of his Constitutional rights and this beyond any reasonable doubts
10. Having carefully analyse the evidence as a whole I am of the view that the two witnesses of the Republic are witnesses of truth, their evidence are cogent, consistent and corroborative. Whilst the evidence from the 1st accused is to say the least almost very scanty with regards to material particulars.
11.  I am convinced that on the 5th of day of May at the CID officer at Anse Royale Corporal Solin cautioned the 1st accused at 4.24 p.m  in the presence of WPC Lesperance only. Facts were put to him based on the new evidence arising in the course of the investigation before he was cautioned.  This is in consonant with the Judge’s  Rules.  As it is only after the Police interviewing a Suspect has reasonable grounds to believe that a Suspect is implicated that she should further caution Judge’s Rule 2(2).
12. After being cautioned he was informed of his Constitutional right to Counsel and he did not exercise this right have a Counsel present as he did not inform the officers to call one for him.
13. The only manifest inconsistencies arising on the part of the evidence of the witness to the statement whilst she was testifying if to whether the caution came before he was informed of the new evidence. But then she went on to correct herself in her testimony.
14. The 1st accused does not recall the procedure with regards to taking of the statement. He only recalls being brought in a room with Ashten before he came to the Interview Room. And Ahsten crying and the Police putting pressure on him.  I don’t believe his story I find that this evidence of him being put together with Ashten to be a concoction.
15. I strongly believe that Solin is right when she says that Ashten was placed in cell after her statement under caution was taken.  All in all I find beyond a reasonable doubt that the 1st accused was informed of his Constitutional rights to Counsel and that he was cautioned.
16. The 2nd objection is based on the common law objection of retraction of a statement under caution based on oppression that affects its voluntariness.  Counsel for the Defense stated that this was done by “agent provocateur” Sergeant Simeon, officer Legaie and Officer Fred. In regards to this objection I find that these officers were not present when the 1st accused was being interviewed by Corporal Solin and the statement witnessed by Corporal WPC Payet. 
17. At any rate “agent provocateur” is a term which is not applicable here as it relates to a person or persons who induces another person to be violent or to commit an illegal act in order to incriminate that person thereafter. In this case the alleged offence had been committed days before the statement was taken. The police officers in doing their investigation cannot therefore be qualified as “agent provocateur”.
18. That as it may I am of the view that the name police officers did not apply any oppression on the 1st accused even before he was interviewed by Corporal Solin.  They did nothing that will have sap the willingness of the accused to give his statement under caution.
19. The witness called by the 1st accused to establish oppression exercised upon him by the said police officers testified that she was present in the Interview Room when the statement was taken. At any rate she also testified that she was brought in a room together with the 1st accused at 5 p.m. That according to evidence will be during the course of the statement being taken from the 1st accused, something that is untenable as this incident is alleged by the defence itself to have been occurred prior to the interview by Corporal Solin.
20. Accordingly, I find established beyond a reasonable doubt that no oppression was exercised on the 1st accused in order for him to give the said statement under caution. Therefore the statement is admissible and will be laid in evidence.              

Signed, dated and delivered at Ile du Port on 13 February 2023…

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Govinden CJ