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STATE
SUPREME
COURT
OF
MAURITIUS
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.
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.
Act, he was styled the Resident Commissioner. This title was changed to that
of Administrative Secretary by the Rodrigues (Administrative Provisions) Act
1982.
restyled the Island Commissioner and his present title of Island Secretary was
conferred upon him by the Rodrigues (Administrative Provisions) Act of
1990.
to
perform
some
of
the
functions
of
Secretary is
the
Magistrate
(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.
The Schedule sets out the matters which are cognisable by the
Island Secretary:
liquor
licences
and
other
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
In Mauritius these
cases fall under the jurisdiction of the Intermediate Court upon a reference
by the Director of Public Prosecutions.
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.
reasonable time: see Luk Tung v. The Commissioner of Police & Ors
[1997 SCJ 101] .
There
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 ] .
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.
If such a