LARCENY WITH VIOLENCE BY TWO INDIVIDUALS : appeal rejected, but the Appeal Court orders a deduction of 607 days on remand out of the 5 years’ imprisonment

Of 5 years’ penal servitude imposed by the Intermediate Criminal Court on the appellant, Tony Moutien, must be deducted the total period of 607 days which represents the total period the appellant spent on remand pending his trial before the trial Court and pending the determination of the present appeal. All the grounds of appeal have been rejected by the Appeal Court having on the Bench the Acting Senior Puisne, Judge Ashraf Caunhye and Justice K.D. Gunesh-Balaghee on 6th September 2018.

The appellant was prosecuted before the Intermediate Court on a charge of ‘larceny by 2 individuals’ in breach of sections 301(1) and 305 (1)(b) of the Criminal Code. He was convicted and sentenced to undergo 5 years’ penal servitude under count 1 of the information and ordered to pay Rs 500 costs. The appellant has filed only one ground of appeal. It reads as follows: “Because in all the circumstances of the case, the learned Magistrate was wrong to act on the identification of the appellant (then Accused No 2) by Complainant.”

In the course of his submissions, the appellant’s Counsel questioned essentially the appreciation of the in evidence by the Magistrate on the issue of identification. He submitted that in view of the tenor of the evidence on record the Magistrate erred in finding that the complainant, witness Aubeeluck, positively identified the appellant when she should have reached the inescapable conclusion that it was a case of mistaken identity.  The Counsel for the appellant laid much emphasis on the conditions and circumstances in which witness Aubeeluck is said to have seen the appellant when he allegedly perpetrated the offence, as the person who snatched her necklaces on 31 March 2016.

For the appellant’s Counsel, the Magistrate failed to give due consideration to the weaknesses in the identification evidence and more particularly to the difficult conditions in which the complainant saw the person who committed the offence. The Magistrate also failed to give herself the proper warning in accordance with the ‘Turnbull’ guidelines. Had she done so, she would have inevitably come to the conclusion that the identification evidence was not reliable and would not exclude the danger of a mistaken identification on the part of the complainant.