Office of the
Director of
Public
Prosecutions
E-Newsletter
Issue 66
January 2017
‘To No One Will We Sell, To No One
Deny or Delay Right or Justice’
Chapter 40, Magna Carta 1215
January 2017 - Issue 66
IN THIS ISSUE:
PAGE
Editorial
1
Reform of sexual offences law is overdue
2-4
Workshop on Domestic Violence in Rodrigues
5-6
An overview of our law on ‘child witnesses’
7-9
Community Service Order
10
List of new callees to the Mauritian Bar: January 2017
11
Summary of Supreme Court Judgments
12-14
EDITORIAL TEAM
Miss Anusha Rawoah, State Counsel
Miss Zaynah Essop, State Counsel
Mrs Rampoortab - Purmanund Geetika, State Counsel
Mrs Shaaheen Inshiraah Dawreeawoo, State Counsel
Miss Neelam Nemchand, Legal Research Officer
Miss Pooja Domun, Legal Research Officer
The views expressed in the articles are those of
the particular authors and should under no
account be considered as binding on the Office.
January 2017 - Issue 66
Editorial
Dear readers,
We wish you a very happy new year 2017 and hope that it has been a great
start for you. The ODPP reiterates its commitment, taken 6 years ago, to
provide on a monthly basis, an insight of the activities carried out at the office
as well as to bring forth articles exploring beguiling legal issues. It is with
the same dedication that we present to you this 66th issue. Indeed,
through our monthly endeavour, we hope to augment the interest of our
readers throughout the year 2017.
In this issue, we provide our readers with an article advocating for a reform of the law governing sexual offences
in Mauritius, whereby the author also provides her views on the Sexual Offences Bill 2007, a bill fated with no
continuity and which has unfortunately, seen demise. You will also read on a workshop organised by the ODPP in
collaboration with the Mauritius Police Force on ‘domestic violence’ in Rodrigues, pursuant to the recent
amendments brought to the “Protection from Domestic Violence Act” (‘PDVA’) 2016. Moreover, you will be
provided with an overview of the legal framework governing child witnesses in Mauritius, especially, having
regard to the fact that evidence of children should be dealt with caution and hence, the necessity to have proper
safeguards. Also, a review of the law regarding ‘Community Service Orders’ is provided in this issue, emphasizing
on factors which courts would normally bear in mind before opting for such orders.
In the same bid, we take the opportunity to congratulate the 42 new members of the Mauritius Bar Association,
who have been called to the bar in January 2017. We also congratulate Mr Jacques Tsang Mang Kin, who has been
elected as Chairman of the Bar Council following the Annual General Meeting of the Mauritius Bar Association
on 27th January2017.
Finally, we stand by our monthly engagement in providing our readers with summaries of recent Supreme Court
judgments.
We wish you a pleasant reading and thank you for your continuous support.
Anusha Rawoah
State Counsel
Page 1
January 2017 - Issue 66
Reform of sexual offences law is overdue
There is presently no statutory definition of the offence of rape and other sexual
offences in Mauritian law. Prosecution can be instituted under section 249 of the
Criminal Code and the sanctions are herein. This is an outdated state of affairs
and the law governing sexual offences is in need of review. Our laws need to
provide a strong framework that will deter and prevent sexual violence from
happening and provide justice to victims.
Parliament considered the structure of sex offences through the Sexual Offences
Bill 2007. According to the Explanatory Memorandum, the bill provides a new definition of the offence of rape as
well as new categories of sexual assaults. It pays particular attention to persons under sixteen. During the
parliamentary debates in April 2007, the Sexual Offences Bill was not passed into law and it was referred to a
Select Committee for more in-depth analysis. The Bill however came to an end. It is hence time we resume active
debate with a view to engendering formal reform in this complex and sensitive area of law
In it's 'Achieving Meaningful Change' Programme 2015 - 2019, the Government pledged to amend the Criminal
Code to provide for a better legal framework for dealing with sexual offences. However, a holistic overhaul of the
law on sex offences is needed. The two main reasons put forward to explain why sexual offences need to receive
renewed governmental attention are to achieve greater protection for victims and to provide legal certainty. The
article will also outline two key principles which might be useful starting points on the basis of which the debate
may be advanced.
Protection for victims
Sexual offences are on the rise in our country. According to the Crime, Justice and Security Statistics in
Mauritius, from 2014 to 2015, sexual offences increased by 8%. In 2015, victims of sexual offences were mostly
(91%) females and of whom 63% were aged below 16 years. The picture painted by these figures is gloomy: as a
society we are failing in the protection of our citizens, especially the most vulnerable ones.
One instance of our current laws failing to protect victims is that at present only vaginal penetration is retained
for rape cases - oral sex without consent would instead lead to a charge of attempt upon chastity. The Sexual
Offences Bill 2007 proposed extending the definition of rape to include penetration of the anus or mouth. Such
widening of the actus reus of rape is essential because forced oral sex is as traumatising as other forms of penile
penetration.
Sceptics claim that the mere fact of strengthening our laws will not lead to perpetrators not raping. Evidently, the
letter of the law is only one of the numerous factors that would help the criminal justice process. Beyond
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January 2017 - Issue 66
criminalising and prosecuting it, combating rape involves understanding, and eventually tackling, the misogyny
that often motivates the heinous act. However, legal reform remains a potent weapon to fight the crime. Legal
reform can have great educative value as well as providing important opportunities to raise consciousness.
Updating and clarifying our laws, accompanied with social actions such as sexual harassment programmes, will
slowly but surely eliminate prejudiced attitudes.
Legal certainty
The present structure of sexual offences has been developed over time through case law, in a piecemeal fashion.
While on the one hand, case law has the advantage of being dynamic so that it can continue to develop and
change to meet the needs of the society, the uncertainty that can result is highly undesirable. In Mauritius, there
have been many debates about what is and is not appropriate sexual activity. In this context, it is important that
the law be clear and easy to decipher so that people can ascertain what behaviour is criminal.
In particular, codification of the law of consent is essential and urgent. The lines of defence that are generally
used in rape cases are: that the intercourse took place but the victim consented to it or that the accused believed
that the victim consented to it. The issue of consent is therefore the central focus of many rape defence
arguments. Consent is the part of the private sexual relationship where verbal and non-verbal messages can be
misunderstood, the result of which can tragically be forced sex (studies in the United States have found that 61%
of men say they rely on nonverbal cues - body language - to indicate if a woman is consenting to a sexual act,
while only 10% of women say they actually give consent via body language). The key ingredient of lack of consent
should be set out clearly for the community and all actors of our criminal justice system. This will ensure that as
a society we have a common shared perception of what consent is and what it isn't.
A statutory definition of consent is the way forward. The definition suggested in the Sexual Offences Bill 2007
was "a person consents if he agrees by choice, and has the freedom and capacity to make that choice." Defining
consent as "free agreement" connotes negotiation between equal partners. This is a useful way of looking at
consent as it sends out positive messages about gender equality. The proposed legislation also contained a set of
examples of when consent is not present and thereby clear boundaries of what is acceptable and unacceptable
behaviour. Moreover, the defence that the accused honestly believed there was consent (i.e. defence of mistaken
belief) became subject to the test of reasonableness. This means that the accused would have to show reasonable
steps were taken to ascertain the existence of consent before relying on the defence of mistaken belief. These
proposed changes constitute commendable reform of what it means to truly consent.
Guiding Principles
Principles are crucial for law reform, particularly when it comes to areas that carry widespread social
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January 2017 - Issue 66
implications like sexual offences. The law in this area involves a delicate balancing exercise between an
individual's rights to the enjoyment of private life and the need for the State to protect its citizens.
We should be careful before applying the weight of criminal law to consensual behaviour between adults.
Application of the principle of harm is commonsensical: judgment of what is right and wrong should be based
on an assessment of the harm done to the individual. Applying the principle of harm means that most
consensual activity between adults in private should be their own affair rather than that of the criminal law.
Criminal law should not enter private consensual activity between adults unless there are public policy
justifications to that effect. Such an approach also shows respect for sexual autonomy whereby the law allows
forms of sexual activity that involve the presence of the consent of those taking part.
The second principle is to provide protection to the members of our society who are vulnerable to sexual
exploitation and abuse, particularly children under the age of 16. Children need particular protection under the
law because of their lack of maturity and their dependence on adults. Children should not have the capacity to
consent to sexual activity. One might contend that not allowing children to engage in sex if they have consented
to it is antithetical to the principle of autonomy previously described. However, the point is that children should
not be part of sexual conduct because they are incapable of understanding the implications and should they
wish to make the choice to participate in sexual activity, it would not be a truly free choice. Using the protective
principle for children is also important to make it clear to predatory adults that adult sexual activity with
children is strongly condemned.
Conclusion
This article does not advocate a wholesale adoption of the proposed Sexual Offences Bill as it was put to
Parliament in April 2007. In fact, there were some lacunas and questionable provisions in the bill. A glaring
omission is the elimination of the requirement of corroboration to prove rape. Moreover, a provision which might
have unintended consequences is s.23 which renders it an offence to make a false declaration under the Act with
penal servitude up to 10 years. This is a superfluous provision because making of false and malicious statements
in writing is already an offence under s.297 of the Criminal Code. Reporting of sexual violence is a difficult
process as it is and victims might perceive the proposed s.23 as being a Damocles sword.
It remains the case that introduction of a specific piece of legislation to deal with sexual offences would be a giant
step forward. It would be useful to approach such reform in a principled fashion.
Anouchka Appanah
Pupil Barrister
Page 4
Workshop on Domestic Violence in Rodrigues
January 2017 - Issue 66
A workshop on domestic violence was organised by the Office of the Director of Public Prosecutions (“ODPP”) in
collaboration with the Mauritius Police Force on 24th and 25th of November 2016 at Centre Intégré de la Famille,
Malabar, Rodrigues. Mrs Johan Moutou-Leckning, Senior Assistant DPP and Ms Zaynah Essop, State Counsel
made presentations on the amendments which had been brought to the “Protection from Domestic Violence Act”
(‘PDVA’) 2016.
The aim of the workshop was to sensitise the police officers in Rodrigues on the PDVA, powers of the police and
police response to reported cases of domestic violence. Mrs Johan Moutou-Leckning, Senior Assistant DPP
provided an overview on the main amendments brought to the PDVA. She also explained about the role and
responsibilities of police officers in cases of domestic violence. She highlighted that a police officer not below the
rank of Assistant Superintendent may now arrest the accused and bring him before a Magistrate at the earliest
opportunity. The other topics of discussion were as follows:
• Assessment of training needs in relation to domestic violence, child abuse and elderly abuse;
• Analysis of training needs;
• Current practices with domestic violence cases;
• Police response to domestic violence;
• CP circular; and
• Powers of police officers.
It was a fruitful and interactive workshop with practical exercises and important information were given to the
police officers who deal with domestic violence cases in their day-to-day work.
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January 2017 - Issue 66
Event organised by “Bureau de L’adjointe au Chef Commissaire” and “Commission du Genre et du
bien-être de la Famille”
An event was organised by the “Bureau de L’adjointe au Chef Commissaire” and “Commission du Genre et du
bien-être de la Famille” on 25th November 2016 at Centre Intégré de la Famille, Malabar, Rodrigues. It was
organised to commemorate the International day for the Elimination of Violence against Women. The theme of
the event was “ANSAM ANOU MET FIN A LA VIOLENS”.
Mrs Moutou-Leckning, Senior Assistant DPP
Shruti Lallbeeharry, Legal Research Officer
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January 2017 - Issue 66
An overview of our law on ‘child witnesses ‘
The general rule for a witness to depone in Court is that he must be competent to
do so. Competence of a witness is the capacity of a person to depone as a witness;
and if found to be competent, he is compellable. Compellability relates to the
obligation to depone. In the interest of justice, all relevant and admissible
evidence should be brought to Court.
Competency of a witness is decided by the presiding judge/magistrate in a case.
Some witnesses are incompetent owing to their age, status (spouse of the accused
for instance) and mental disability.
The rule is that a witness in a criminal case, before he is admitted to depone, must be sworn.
Section 106 of the Criminal Procedure Act 1853 (hereinafter referred to as “the CPA”) provides for the swearing of
witnesses and reads as follows:
Any person who is produced or appears as a witness, against or for an accused on a criminal charge shall before
he is admitted to depone or give any manner of evidence—
(a) be sworn by the Court according to the form of the religion he professes; or
(b) make such solemn affirmation as is receivable in place of an oath, to speak the truth, the whole truth and
nothing but the truth.
In addition to this provision of the law, Sections 109 and 110 of the same enactment provides for the evidence of a
child victim as a witness:
109. Child victim as witness
In every trial of an offence charged as having been committed, or attempted to be committed, upon a child of
tender years, the child, if under the age of 9, shall be admissible as a witness, where the Judge or Magistrate by or
before whom the case is tried, is satisfied that he has sufficient intelligence to make a correct statement on the
subject of the trial, although he may not understand the nature of an oath or of a solemn affirmation.
110. Child witness not to be sworn
A child who is heard as a witness under section 109, shall—
(a) not be examined on oath or solemn affirmation;
(b) before giving evidence, make, in presence of the Judge or Magistrate, a promise to speak the truth in terms of
the First Schedule.
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January 2017 - Issue 66
The case of Basenoo 1983 MR 89 formulated a few rules on child witnesses, as follows:
(1)
A person who is over the age of 9 is always competent to depone as a witness on oath or solemn affirmation;
(2)
If a child is under the age of 9 and he can understand the nature and implication of an oath, he may
depone on oath or solemn affirmation whether he depones as an ordinary witness or a child victim;
(3)
If the child is under 9 and he cannot understand an oath, then if he is the victim in the case, he can depone
provided (a) he shows that he has sufficient intelligence to make a correct statement on the subject of the
trial and (b) before giving evidence he makes a promise to speak the truth in terms of the First Schedule of
the Criminal Procedure Act.
Child witnesses under 9 years old
Hence, following the rules laid down in Basenoo (Supra), before a child under 9 years old is allowed to depone
under oath in accordance with Section 106 of the CPA, the presiding judge/magistrate must be convinced that the
child is competent to testify. To determine if the child has testimonial competence, the test to be carried out is that
the Magistrate/Judge must be satisfied that they understand the nature and implication of an oath.
If the child witness passes such test, he/she can depone on oath under s106 of the CPA. On the other hand, if they
fail to show to the Court that they understand the nature of an oath, that is they do not understand the duty to
tell the truth, then their evidence is not receivable by the court.
Nonetheless, in the case of a child victim under 9 years old, if they fail to show that they understand the nature of
an oath, then their evidence can be received under Section 109 of the CPA after the Magistrate is satisfied that they
have sufficient intelligence to make a correct statement on the subject of the trial.
Child witnesses above 9 years old
Among the three rules that Basenoo (Supra) laid down, the first one deals with witnesses above the age of 9 as
follows:
“A person who is over the age of 9 is always competent to depone as a witness on oath or solemn affirmation”
(emphasis added).
This rule is to the effect that child witnesses above 9 years old are always competent to depone on oath under
section 106 of the CPA.
However, in 2014 the Full Bench in the case of Jeetah A K v State 2014 SCJ 337 held that the first rule laid down in
Basenoo (Supra) (as laid down above) was wrong and was hence re-formulated as follows “... any child who does
Page 8
January 2017 - Issue 66
not fall within the ambit of section 109 of the Criminal Procedure Act can only be a competent witness giving
evidence under oath or solemn affirmation under section 106, if such competency is established following the
holding of the appropriate test.”
Hence, previously child witnesses above 9 years old could depone on oath without having to undergo the test of
whether they understand the nature and implication of an oath. Following the case of Jeetah (Supra), a child
witness, whether deponing as ordinary witness or as victim, should now pass the test of oath first to be able to
depone under s106 CPA.
At what age should a child no longer be considered as being of tender years under our law?
Our law is silent on the age when a child ceases to be of tender years. The Court again in Jeetah (Supra) held that
according to section 162 of the Courts Act 1945 by virtue of which English law is applicable in Mauritius, the cutoff age is 14 years as is the case in the UK (R v Lal Khan 1981 73 Cr. App. R 190). Hence, a child witness up to the
age of 14 is subject to the competency test before he/she is allowed to depone on oath under section 106 of CPA.
Conclusion
The evidence of a child should be dealt with caution and thus it is important that proper safeguards are in place
to enable a child witness, especially a child victim, to depone. On the other hand, a child can be creative in their
thinking and may not necessarily gauge the seriousness and solemnity of giving evidence in a Court of law.
Hence, the risk of a wrongful conviction on the evidence of a child cannot be overlooked and to avoid a
miscarriage of justice, the safeguards as laid down above, should be closely adhered to.
Tanzeen Auleear
Pupil Barrister
Page 9
January 2017 - Issue 66
Community Service Order
Community Service Orders (“CSO’s”) have become an increasingly popular sentencing option in Mauritian courts, as they
obligate offenders to perform work in the community as an alternative to imposing stricter judicial remedies or sanctions . The
Community Service Act (“CSA”) was enforced in Mauritius in July 2002. Pursuant to Section 2 of the CSA, a CSO means an order
requiring a person convicted for an offence to perform unpaid work in the open for a specified period and in the form set out in
the First Schedule of CSA. In accordance with Section 4(2) of the CSA, a CSO can be issued when the convicted person consents to
this sentence. One of the pre-conditions of CSO is that a Probation Officer will prepare a Community Service Suitability Report
on the rehabilitation of offenders.
One of the purposes why a CSO should be granted was set out in the case of Heerah v The State [2012 SCJ 71], where it was held
that, “In a number of cases, the objectives of the criminal justice system are better served when the offenders’ sense of
responsibility to society and self-reliance are triggered.” This rationale was most recently, applied in Ittoosingh C v The State
[2016 SCJ 177], whereby it was held that a CSO is far from being a “let-off” for an offender as it confers upon the offender
“substantial restriction of liberty and holds him to account to the community for his misdeeds whilst having the additional
virtue, as compared to the other forms of punishment, of affording him an opportunity to mend his life in the open. Hence, the
choice open to him between serving a prison sentence or avoiding it by doing some useful civic duty to the community and
repaying his debt to society.”
As per the statistics of Mauritius Prison Service, there were 2,212 detainees as at 14 November 2016 and the cost of imprisonment
was estimated to be approximately Rs 700 per day, per prisoner. Prison overcrowding is one of the toughest challenges facing
the Mauritian criminal justice system nowadays and the enormous strain being placed on government resources cannot be
underestimated. CSO is therefore, a measure to control prison overpopulation.
However, as stated in Jogee v. the State [1997 SCJ 57], a clean record is not a passport to be treated leniently. In fact, it was held in
the case of Thomas L.D. v The State [2006 SCJ 52] and Hurloll D K v The State [2015 SCJ 341] that:
“Although it is open to the Court to consider a community service order where a convicted person is sentenced to a term of
imprisonment of 2 years or less, it cannot be faulted for any omission to do so if there are valid grounds to impose a custodial
sentence, for instance, where in view of the seriousness of the offence or the antecedents of the convicted person, it would not be
suitable to suspend the custodial sentence and make a community service order.”
Undoubtedly, the severity of the offence is one of the factors which will determine whether a CSO is relevant or not. For example,
in the case of Moulan M.S V The State [2015 SCJ 344], the Magistrate found that the offence was too serious for him to even
consider a non-custodial sentence, in spite of the fact that the appellant did not have any previous conviction for a cognate
offence.
To conclude it is important to underline that “a clean record and a plea of guilty would not necessarily entitle an accused to be
treated with leniency” (Azize v The State [2011 SCJ 139]), because community service is not appropriate for every offender.
Ensuring that the offence and the sentence are compatible with the principles of sentencing is one of the responsibilities of a
Magistrate.
Ms Shruti Lallbeeharry & Ms Keshini Dhunnoo
Legal Research Officers
Page 10
List of new callees to the Mauritian Bar: January 2017
The Mauritius Bar Association has, since the 19th and 20th
January 2017, 42 new members. They are:
January 2017 - Issue 66
1. Bheema Ausgur-Bhoyroo
15. Keshwaree Devi Bundhoo
29. Anji Faugoo
2. Himvaani Trikeitan Ajay Daby
16. Manisha Mootoocurpen
30. Vania Kirtika Baloomoody
3. Kirsh Roy Audit
17. Naasira Punjoo
31. Mandinee Ballah
4. Nadiah Ramasamy
18. Kushal Rucktooa
32. Deepa Darshinee Bucktowar
5. Ivrishroa Bhikoo
19. Dooshyant Jhurry
33. Vishni Nursimhulu
6. Taij Avinash Dabycharun
20. Anusha Sheila Aubeelack
34. Dharmanand Chukooa
7. Mohammad Shaffick Chuttur
21. Dhannish Gunesh
35. Kessie Dulthummon
8. Lovendra Nulliah
22. Jean René Ludovic Balancy
36. Yee Nian Yeung Sik Yuen
9. Mohammad Shamir Hossany
23. Stephen Vincent Hassell Scali
37. Khemrajsing Gungla
10. Renita Bungaroo
24. Arun Bhinda
38. Yovich Rajnesh Chineah
11. Adil Calleea
25. Sannidi Pillay Paupoo
39. Akhilesh Rajee
12. Urvashi Bissoondyal
26. Avinash Poorooye
40. Nileema Devi Jeetah
13. Veda Dawoonauth
27. Ankusha Nathoo
41. Sophie Chloé Teckham
14. Poushpal Maunick
28. Gavindren Seeneevassen Coolen
42. Satyajit Bundhoo
The Office of the Director of Public Prosecutions congratulates the new barristers especially Mr Dabycharun, Mr Chineah, Ms
Mootoocurpen, Ms Yeung Sik Yuen, Ms Ramasamy, Ms Nursimhulu, Mr Audit, Mr Coolen and Ms Faugoo, who were pupils at
the Office.
Page 11
SUMMARY OF SUPREME COURT JUDGMENTS:
December 2016
GOPAUL K. V THE STATE [2016 SCJ 495]
By Hon. Judge Mrs N. Devat, Judge and Hon. Judge Mrs. G. JugessurManna, Judge
Appeal on facts – incoherent witness – independent witness
January 2017 - Issue 66
failed to report to a police station in conformity with the conditions
for his release on bail. He pleaded not guilty and his defence was
that his breach was not intentional. He could not report to the
police station in time because his car had a breakdown.
The Appellant was found guilty of the offence of blows and he was
sentenced to a pay a fine of Rs 3000 with Rs 100 as costs. The
grounds of appeal are essentially challenging the learned
Magistrate’s appreciation of the evidence.
He was convicted of the offence and he was ordered an absolute
discharge by virtue of Section 197 of the Criminal Procedure Act.
The complainant gave evidence to the effect that on 16 February 2011
at about 3.50 p.m., the appellant refused to remove his car which
was blocking his front gate. After some time, while his relative was
on his way out, the appellant entered his garage and gave him a
blow at the right and left sides of his “face”.
inasmuch as the Appellant has been granted an absolute discharge
by the trial Court and that no appeal lies against an order of
absolute discharge”.
In the present case, the Appellate Court found that the Learned
Magistrate adopted a one sided approach. The Learned Magistrate
set out the prosecution’s version but not that of the defence. He
remained silent on the testimony and credibility of the Appellant
which left the impression that the Learned Magistrate did not
address his mind to the evidence of the appellant including his
version given in his statement to the police.
The learned Magistrate was also wrong to find that the complainant
was coherent in his version when his version in court and the one he
had given to the police differed materially.
It was concluded that the Magistrate failed to correctly assess the
merits and demerits of the evidence adduced before him and took
into account matters which ought not to have influenced him. The
appeal was allowed and conviction and sentence was quashed.
CURPEN S. V THE STATE [2016 SCJ 503]
By Hon. Judge Mr A. Caunhye, Judge and Hon. Judge Mrs. R.
Teelock, Judge
Appeal by way of case stated – Section 82 of the Constitution –
Absolute Discharge and Conditional Discharge
The Appellant was prosecuted for the breach of one of the
conditions of his release on bail contrary to Section 22 (a)(ii)(iv) and
(d) of the Bail Act.
He was released on bail for an offence of money laundering. He
The Respondent objected to the appeal being heard on the ground
that “the Supreme Court ought not entertain the present appeal
The Appellate Court held that Section 82(2)(b) of the Constitution
coupled with section 92(a) of the District and Intermediate Courts
(Criminal Jurisdiction) Act creates a mandatory right of appeal
from any final decision of a subordinate court in criminal
proceedings only where the subordinate court has imposed a term
of imprisonment or a fine of 500 rupees or more, which is the
amount prescribed under section 92(a) of the District and
Intermediate Courts (Criminal Jurisdiction) Act. There is
accordingly no right of appeal against an order for absolute
discharge under Section 82(2)(b) of the Constitution coupled with
section 92(a) of the District and Intermediate Courts (Criminal
Jurisdiction) Act.
There was no statutory right of appeal prescribed in respect of an
absolute discharge, which in the words of section 197 of the
Criminal Procedure Act (Supra) is an order made by the Court
where “it is inexpedient to inflict punishment”.
It was further held that the absolute discharge may be questioned
by way of case stated subject to the conditions set out in Section 82
(2)(c) of the Constitution. In the present case, the Appellant failed
to do so. Hence, he was precluded from proceeding by way of an
appeal.
The Appellate Court further stated that this appeal could not be
treated as a case stated because the exercise of a right of appeal by
virtue of section 82(2)(b) of the Constitution is a distinct channel, as
opposed to an appeal by way of case stated, for seizing the appellate
jurisdiction of the Supreme Court. Such distinction was highlighted
in Section 82(2) of the Constitution which limits an appeal by way of
Page 12
case stated “on the ground that it is erroneous in point of law or in
excess of jurisdiction”.
The specific characteristics of an appeal by way of case stated were
highlighted by the Appellate Court.
The objection of the respondent was upheld and the appeal was set
aside.
RADHA A. K V THE STATE [2016 SCJ 498]
By Hon. Judge Mr A. Caunhye, Judge and Hon. Judge Mrs. N. Devat,
Judge
Custodial sentence – Community Service Order - Delay
The appellant was prosecuted before the Intermediate Court under
two counts for the offences of attempt upon chastity in breach of
section 249(2) of the Criminal Code and for having exercised an
activity specified in the Schedule of the Pamlemousses/Riviere du
Rempart District Council Regulations 2006 without having paid the
appropriate fees in breach of Regulations 3(a)(i)(b) and 6(b) of the
said Regulations. The appellant pleaded not guilty to both counts.
He was found guilty and sentenced to undergo 6 months’
imprisonment. The appeal is against conviction and sentence.
The facts of the case were that in the afternoon of 3 June 2007, the
complainant, a 19 year old young girl, accompanied by her father,
went to the place of the appellant, a 43 year old Nursing Officer for a
neck massage. The complainant was taken into a “massage room”
where there was a “table” whilst her father waited for her in the
living room adjacent to the massage room. The door between the
living room and the massage room was closed.
After having ascertained from her which part of her body was in
pain, the appellant requested her to remove her T-shirt and bra and
even helped her in doing so. She was made to lie down on the table
before the appellant started massaging her neck. The appellant then
asked her to remove her trousers and knickers, which she
reluctantly did, after the appellant had reassured her that he would
not do any harm to her.
As she stood in front of the appellant, the latter kissed her breasts
and lips pretending that he was practising “reiki” on her. She found
the whole thing suspicious but kept quiet. Due to her father’s heart
condition and as she feared for their safety, she made no complaint
to her father on the spot but waited until they had reached home in
order to reveal to her parents what the appellant had done to her.
January 2017 - Issue 66
Ground 1 was concerned with the delay between the lodging of the
information in October 2009 and judgment in March 2012 which
spanned over a length of about 2 years and 5 months. The Appellate
Court held that an examination of the Court record failed to show
that a delay of 2 years and 5 months between the arraignment of the
appellant, the hearing of evidence which took only one day, and the
handing down of the judgment within 15 days of the completion of
the trial, was so excessive or inordinate as to render the appellant’s
trial unfair. There was also no indication of any prejudice suffered
by the Appellant as a result of the delay or that his defence has been
impaired by the delay or that he had any witnesses whom he
intended to call at his trial but was unable to do so either due to
their demise or their inability to recall past events with accuracy.
Ground 1 failed.
Under ground 2, it was submitted that the failure of the police to
enquire into the appellant’s allegations of a surgery of his left thigh
and his inability to bear weight has severely undermined his
constitutional right to a fair trial.
As far as Groun2 was concerned, the Appellate Court found that the
learned Magistrate was fully justified in believing the complainant’s
version. Ground 2 failed.
Under ground 3, it was submitted that in stating “I find his version
and his denials unconvincing”, the learned Magistrate gave the
impression that the appellant had the burden of establishing his
innocence. Ground 3 failed because the Appellate Court found that
such a ground was misconceived as the phrase used by the learned
Magistrate should not have been looked at in isolation but in the
context in which it was said. They further held that faced with the
two sworn versions, the learned Magistrate was perfectly entitled to
prefer the complainant’s version, which she found creditworthy and
reliable, to that of the appellant.
The Appellant also challenged the custodial sentence imposed by
the Learned Magistrate and his main concern was that he was not
given a hearing at the sentencing stage. It was conceded by the
Respondent that the court record does not reflect that the appellant
was given a hearing before sentence was passed on him. The Court
was then invited to consider remitting the case back to the
Magistrate for her to conduct a hearing before sentencing the
Appellant.
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However, the latter argued that it would be in the interest of justice
that a community service order be imposed as an alternative to
remitting the case back to the Magistrate in view of the long delay
which elapsed.
It was therefore held that, in view of the delay, the best alternative,
following the imposition of the custodial sentence, would be to remit
the case to the Magistrate for the making of a Community Service
Order in conformity with sections 3, 4, 5 and 6 of the Community
Service Order Act. The appeal against conviction was dismissed.
HOSANY I. V THE STATE [2016 SCJ 501]
By Hon. Judge Mr A. Caunhye, Judge and Hon. Judge Mrs. D.
Narain, Judge
Outrage against public morals – public morality and public order
The appellant was prosecuted before the Intermediate Court for the
offence of ‘Outrage against good morals’ in breach of sections
206(1)(a)(ii), (3) and 208 of the Criminal Code.
The information averred that on 15 July 2012 the appellant, by
putting up for sale the Sunday Times newspaper in public places,
committed an outrage against good morals. He did so by causing to
be published in the newspaper photographs of a deceased person,
Michaela Mary Harte, which were of a nature to cause an outrage
against good morals. The appellant was convicted of the offence and
sentenced to pay a fine of Rs 50,000 and Rs 500 as costs.
At the hearing of the appeal, several grounds were dropped and
only grounds 5 and grounds 9 to 15 were argued.
It was argued under ground 5 that the police acted most unfairly in
the course of their enquiry by adopting a procedure which misled
the appellant as to the nature of the offence he had allegedly
committed.
The Appellate Court held that there was clearly no contravention of
section 10(2)(b) which came into play, not at enquiry stage, but when
the appellant was eventually charged with the offence at his trial
before the Intermediate Court. The information, which contains all
the elements of the offence, was read out to him at the outset of the
trial and sets out in detail the precise nature of the offence with
which he was charged. They further held that the question which
were put to the appellant in the presence of his counsel indicated
that he was confronted with the evidence which the police had in its
possession.
January 2017 - Issue 66
As far as the other grounds were concerned, the Appellate Court
held that the learned Magistrate was in presence of evidence which
established beyond reasonable doubt that by publishing the
impugned photographs of the deceased the appellant had
committed an outrage against good morals as contemplated by
section 206 of the Criminal Code. The publication of the
photographs showing the dead body of Michaela Harte in her hotel
room lying on the floor only wearing a bikini in the positions
depicted in the photographs as well as the close-ups of the marks
appearing on her body constituted by any standard a grave
violation of the integrity and dignity of the human body. It could
not be questioned that such treatment of, and more particularly
such an utter lack of respect for, the dead body of Michaela Harte
as it laid on the floor following the perpetration of the killing to
which she had been subjected, constituted an unacceptable outrage
to human dignity and added to the distress of all those afflicted by
the demise of that person. This would in a society like ours
indisputably constitute an outrage against good morals.
The appeal was dismissed.
The Annual General Meeting of the Mauritius Bar Association
was held on the 27th January 2017 and the newly constituted
Bar Council comprise of the following:
• Mr JACQUES TSANG MANG Kin - Chairman
• THE HONOURABLE ATTORNEY GENERAL - Vice
Chairman
• Ms CHOOMKA Tawheen – Secretary
• Mrs BALGOBIN- BHOYRUL Priscilla – Treasurer
• Mr HALKHOREE Arvin - Member
• Mr OOZEER Hisham - Member
• Ms GAREEBOO Sooraya - Co-opted member
The ODPP wishes them best of luck for the challenges ahead.
“A nation' s strength ultimately consists in
what it can do on its own, and not in what it
can borrow from others.”
- Indira Gandhi
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