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 charged with 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 push the 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 through between 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 koumsa mon 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 the Prosecution, 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 other relevant 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 Officer Malvina clearly states that it was Officer Servina 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 important as 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 therefore unwilling 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 the alleged Controlled Drugs through a gap between a plank in the house, it was met with some difficulty because the 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.
MVIDOT
JUDGE