R v Ernesta (CO 52 of 2021) [2023] SCSC 786 (13 October 2023)

Vidot J




[1]       This is an application  from the Applicant,  Patrick Ernesta, challenging  a report of a locus in quo  conducted  on  13th   July  2023.  The  locus  was conducted  at the  residence  of the Applicant.  The Applicant  is chargewith possession  with intent to traffic in a Controlled Drug with intent to traffic contrary to Section 9( I) as read with Section  19(J)( d)(i) of the Misuse of Drugs Act, 2016 and punishable  under Section 7(1) and the second schedule of the said Act.


[2]       The reasons for this application  are;



(a)        To view all notes taken in respect of the proceedings,  relating to the locus in quo which took place at the residence of the Applicant on 131h July 2022.


(b)       That the record of proceedings  be amended to include the following matters;




(i)        Officer  Malvina  attempt  to  pusthe  exhibit  through  the  space  existing between  the wooden planks and the exhibit did not go through as the space between the planks was too small, and


(ii)       After the exercise to see whether the exhibit could go througbetween the space  and  the wooden  planks,  Officer  Malvina  pulled  down  one  of  the wooden  planks, in respect of which the exercise was done.


[3]        The Republic objected  to the Application.  In essence the objections  state that;

(i)        The AppJicant has already been served with a copy of the report of the locus in quo. (ii)       As regards  to paragraph  2(b)  (1), there  is no  objection  to the  insertion  into the


report. That amendment  is therefore allowed.




(iii)      As regards to paragraph 2(b)(ii), the amendment  being requested  is already within the proceedings  and that the Accused tells Officer Servina" pa zwe avek sa", (Don't play  with  that)  and  Officer  Servina  explained  that, "Non,  mon  pe touse.  Li kin bouze. Zis koumsmon  fer, koumsa  rnon war Ii bouze',  (No, I did not touch.  It moved  on  its own.  I just  did  like that, and  I saw  it moved".  The  Accused  then responded  that "T  bouze be sa lakaz I vye. Pa bouz dil ou. I ti kouma Ii. Oun bouz



sa dil ou". (it moved but that house is old. Don't  move it. It is like that. You moved that plank).


[4]       As has been submitted  by thProsecution,  the Accused  was handed  over a copy of the Report. He made request  to Iisten to the recordings and this was granted. Both he and his then counsel  had the opportunity  to undertake that exercise.


[5]       Furthermore  the Prosecution  does not object to the amendment  as suggested  in 2(b) (i)So the same is accepted  and the proposed amendment  included in the locus in quo report.


[6]       The only contentious  issue is the amendment  proposed under paragraph 2(b)(i). It's Officer Malvina who tried to push the package through the plank in the room. The Respondent  is saying that it was Servina.


[7]        Mr Hoareau  submitted  that a Judge should always be present to view, whether  or not any witness  is present  for the purpose of demonstration,  see Hunter  (1985)  1 WLR  613. It is to be understood  that a locus is not merely to view the scene but also for the purpose  of demonstration.   In the present  case the Court can confirm  that there was a demonstration which was to assess whether a package brought to the scene by the Police, could go through

a space which  existed  in the room. The COUl1can  say without  reservation  that the Police had difficulty  in making such demonstration  as the package  appeared  to have been to big to easily go through that gap in the room.


[8]       Mr Hoareau then went on to refer to the of Antoine Leon v Volare (Prop) Ltd SeA 2/2004 wherein  it was  said that the  Court  "may direct  that a record  of the visit together  with observation  and  comments  be prepared,   then  come  back  in  Court,  the  said  document



should be read in the presence  ofboth parties and agreed upon (subject to correction being made. The parties would then endorse the said document  hence making it part ofthe  Court record".  The parties  be examined  at the site then such parties  (or otherelevant  people) should  be examined  (after having been sworn) and be subjected  to cross-examination   by the adverse party. Their evidence  becomes part of the record".


[9]       The  Respondent  filed an affidavit  from  Police Officer  Johny  Malvina  together  with the objection.  In his affidavit  OfficeMalvina  clearly states that it was OfficeServina who conducted  the demonstration  of attempting  to push the exhibit  through  the open space in the house. I believe that Officer  Malvina is correct in that respect. At the end of the day, ] do not believe  that  it is highly importanas to which  Officer  did the demonstration.  The Court can confirm that the demonstration was done and the Officer undertaking that demonstration  had difficulty  in getting the exhibit to go to the said open space.


[10]     The Court is thereforunwilling  to amend the record of proceeding  of the locus in quo as requested  by the Applicant.  However the Court will permit the insertion of the following;


'Further  to the  demonstration   by Police  Officers  to  pass  thalleged  Controlled  Drugs through  a gap between  a plank in the house, it was met with some difficulty  becausthe size of  the Exhibit appeared  too big to pass through the gap".


I so order such amendment.







Signed, dated and delivered  at Jle du Port on  13 October 2023.












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