‘To No One will We Sell
To No One Deny or Delay Justice’
Chapter 40, Magna Carta 1215
Office of the
Director
Of Public
Prosecutions
The Monthly
Legal Update
Newsletter
October 2011
Issue 9
EDITORIAL
OBITUARY
LORD RODGER OF EARLSFERRY
Dear Readers,
SUPREME COURT JUDGE
OF THE UNITED KINGDOM
In this new issue, Our Office is pleased once more to
share with you a few of the legal activities during the
month of September 2011.
The Director of Public Prosecutions, Satyajit Boolell, SC,
met with some non-governmental organisations which
work closely with prisoners. In a short article, the DPP
also argued the benefits of having cameras in court. The
Privy Council has been covering its proceedings since
the new premises of the Supreme Court in UK was In June 2011, Lord Rodger of Earlsferry, Scottish lawyer
and Justice of the Supreme Court of the United Kingdom,
launched.
The first Guidelines for Legislative Drafting have also passed away after a short illness. Lord Rodger was
been issued by the Attorney General. The UNODC has known for his sharp intellect allied to his humanity and
published its Global Study on Homicide.
humility which made him one of the great Advocates and
It is with deep regret that we have heard of the demise of Law Lords.
Lord Rodger. He was present during the last two visits of
the Privy Council in Mauritius. He was fond of Mauritius Lord Rodger was born on 18th September 1944 in Glasand he had a lot of praise for the Mauritian judicial sys- gow. He joined the Scottish Bar in 1974 after having
tem. Among his latest judgment is the case of Hurnam V studied in Glasgow and Oxford. He was made a life peer
Bholah [2010 UKPC 12]. It was an important pro- in 1992 and he became Lord Advocate during that same
nouncement on the mounting of a collateral attack on a year, holding that position until 1995. Lord Rodger was
appointed a Court of Session judge in 1995 and was
final decision of the court.
Lord President of the Court of Session and Lord Justice
I wish you all a pleasant reading.
General of Scotland from 1996 to 2001. In 2009 he was
one of the two Scottish Judges appointed to the newly
Zaynah Essop
formed UK Supreme Court. Some of his most significant
State Counsel
judgments are as follows:
IN THIS ISSUE
Editorial...........................................................Pg 1
Obituary - Lord Rodger of Earlsferry...............Pg 1
Cameras in our Courtrooms
By Satyajit Boolell, SC, DPP……………Pgs 2-3
Informative Criminal Justice
By Leena Ramlackhan..........................Pg 4
Supreme Court judgments..............................Pgs 5-15
Intermediate Court judgment...........................Pgs 15-16
District Court judgment........................................Pg 16
UNODC - Global study on homicide....................Pg 17
Launching - Guidelines for Legislative Drafting....Pg 17
Page 1 - Issue 9

As Lord Justice General: Drury V Her Majesty’s
Advocate [2001 SCCR 583]: definition of murder
in Scotland;

As Justice of the Supreme Court: HJ and HT V
Home Secretary [2010] UKSC 31: homosexuality
in asylum claims.

Hurnam V Bholah [2010 UKPC 12]
Lord Phillips, President of the Supreme Court, said, „He
was an outstanding jurist and a wonderful companion. „
Cameras in our Courtrooms
I was in court yesterday (11.10.11), listening to Mr Justice Balancy delivering sentence in the murder case of State v
Chocalingum. Apart from members of the victim's family and a few police witnesses, there was overall a poor attendance in court. It was the culmination of a three-week long trial before nine jurors and there was the judge sentencing
the defendant in this important case and explaining why he felt that the defendant deserved 42 years for this "odious
crime". A key requirement in our legal system was being fulfilled. Justice was being dispensed in an open court.
It is often argued and rightly so, the wider the access the public has to the courts, the greater the exposure to the judicial process and the better the understanding of how our courts dispense justice.
It is precisely for these reasons that the Supreme Court in UK, has endorsed the idea of having television cameras covering its proceedings. This decision affects us indirectly, since all the proceedings before the Privy Council heard before the Law Lords, are also covered by TV cameras. As a result, appeals from Mauritius are broadcast live to a UK
audience I do not intend to detract from the purpose of this short article but allow me to suggest to the MBC to purchase in future from Sky News, proceedings before the privy Council which are relevant to us and to broadcast them.
Take for instance the case of "Rezistans ek Alternativ" challenging the decision of the full bench of the Supreme Court
on the best loser issue which will be heard before the Privy Council at the end of the month. The constitutional issues
that will be debated before the Privy Council are matters of public importance and I see no reason why we could not
have a live or deferred broadcast of these proceedings.
Coming back to the importance of having TV cameras in our courtrooms, I can think of three advantages. First, it will
enable a much larger public to have access to the courtroom. They will be able to assist court deliberations in the comfort of their homes and understand better the court process. Accessibility can only boost public confidence in our legal
process. Second, the judiciary, as one Law Lord puts it "will be in the glare of a wider public. It will no doubt respond
in a manner which will enhance its efficacy and effectiveness". Our judiciary has always been recognised as a forte of
our democratic setup, I do not foresee any objection to more openness on the part of its members. Third, TV coverage
of court proceedings could be used as an important pedagogical tool for the training of prospective barristers.
Page 2 - Issue 9
There is nevertheless a need to exercise caution so as not to allow the judicial process to become subject matter of
sensational or salacious coverage, a temptation that occurs with the complicity of a TV audience. The trial of Dr Murray, following the death of Michael Jackson in the US, highlights how different and sober our own adversarial system
can be when compared to the US system. Court cases should on no account be turned into soap operas. Members of
the bar should not use the opportunity of a wider audience to advance a cause other than one related to the case of
their client.
In the lower courts where much of the time of the court is taken up with the testimonies of witnesses both in civil and
criminal cases, there is a huge risk that witnesses may be influenced or intimidated by the presence of cameras. We
must therefore strike a balance between, on the one hand, giving more access to the public to court proceedings and
the judicial process itself. It should however be pointed that the cameras would be barely visible and the actual filming
is normally carried out by remote controls in a room outside the court room.
We could start by projecting the lights of the TV cameras in the appellate division of the Supreme Court where witnesses are not heard. The next step may well be to allow TV cameras in the courtroom when the judge is about to deliver
his sentence. The public will be in a better position to appreciate the reasoning of the judge or Magistrate when passing a sentence.
By opening our courtrooms to the wider public through television we will, at the same time, educate them on our system of justice and dispel any misapprehensions. It is also important that those who are guilty of crime are seen to be
punished for the crime they are committed.
Disraeli used to say that “justice is truth in action”. Shining the glare of the camera lights on its workings will allow us to
better appreciate justice.
Satyajit Boolell, SC
Director of Public Prosecutions
Page 3 - Issue 9
FOR AN INFORMATIVE CRIMINAL JUSTICE SYSTEM
STRENGTHENING & PROFESSIONALISING COMMUNICATION
The Office of the Director of Public Prosecution is receiving increasing requests from convicted prisoners
and suspects arrested and remanded to Jail in detention centers and the carceral environment. But often
times the requests are either not directed properly or there is a lack of necessary information which would
enable the Office to address the request efficiently and in a timely manner. Delays are then caused and
systems put in place to contain them and rationalize the processing of the requests.
We also recently have been meeting two non-governmental organization working closely with incarcerated
prisoners. Although their primary objects are focused on the rehabilitation and the preparation for reinsertion of those persons in the civil society. They come across a number of difficulties encountered by
the prisoners who are now reverting to them for assistance. Those of interest to the Office are mostly related to the Freezing orders of banks accounts, complaints relating to offences committed within the carceral
environment, requests for extradition, certificate of morality for those seeking re-insertion. One of the strikingly interesting feature of the brainstorming session was related to first time offenders, specially the
young persons and women, and the way the choice of the information chosen will impact on them, their
immediate family and environment. In line with the policy of the Office to maximize all relevant use of reliable information, it became apparent that the office would benefit from the input of professionals (such as
psychologists) working with these non-governmental organization in the carceral environment. Two other
institutions are often called upon to address claims from convicted prisoners apart from the Judiciary, the
Commissioner of Prisons and the Commissioner for Drugs: The prerogative of Mercy and the Parole
Board.
The overpopulation of prisons and its internal organization to address different types of prisoners is a
grave concern for society. All prisoners are called upon to be released at some stage.
Also of grave concern, it seems that the increasing focus on them parallels a total absence of information
on the victims of the crimes committed by them in each of the decision making process of the institutions
addressing their requests.
Leena Ramlackhan
Senior State Counsel
Page 4 - Issue 9
Please find below a summary of Supreme Court
judgments for the month of September 2011
Aulum V The State [2011 SCJ 318]
JJ. Chui Yew Cheong & Bhaukaurally
Self-defence – Editing of statements Proportionality
The Appellant was prosecuted before the Intermediate
Court for causing wounds and blows causing death
without intention to kill in breach of s228(3) of the Criminal Code. He was found guilty and sentenced to undergo 7 years‟ penal servitude.
The grounds of appeal are as follows:
1.
2.
3.
4.
5.
The conviction of the Appellant is wrong because
in view of the evidence on record, the learned
Magistrate was wrong to have rejected the defence of self-defence.
The finding of the learned Magistrate that the
Appellant was not facing any real danger to his
life is unjustified.
Because the evidence on record clearly shows
that the Appellant had acted in self-defence.
Because the leaned Magistrate wrongly appreciated the evidence on record, including the version of the Appellant.
The sentence is wrong in principle and manifestly
harsh and excessive.
The prosecution relied solely on the statement of the
Appellant to substantiate its case. The version of the
Appellant was that he was walking in the direction of
Bismillah Hotel when he saw a man coming from Pharmacy Plaine Verte. The man had allegedly sworn at
him and the latter was excited. He drew a knife with a
blade of about 5 to 6 inches long and moved towards
the Appellant at about two to three feet from the latter.
The deceased raised his right hand towards the Appellant and it was at that moment that the latter dealt the
man two blows with his crash helmet at his face and
pushed him with his hands. The man fell to the ground.
In cross-examination he explained that pushing the person constituted one blow and that this was not sufficient
to stop him. Even when he had fallen down and was
bleeding, the man was getting up to come towards him.
He then got scared and left on his motorcycle. He did
not run into the shop (presumably meaning the Bismillah Hotel), but his reaction was to get on to his motorcycle and go home.
Upon reviewing the evidence on record, the Appellate
Court was of the view that three things went wrong in
the present matter. First, the Learned Magistrate did
refer to the cause of death concluded by the Police
Medical Officer as being “septicaemia (due to injuries
over the body)”. It is important to note that whilst deponing in examination-in-chief the doctor said that
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“there are other things inside the body which contributed
to the septicaemia but they are not injuries”. Although he
also said that he would not have died had he not sustained those injuries, the prosecution left unclear the
effect of the “puncture wounds both inguinal regions”
which the doctor also found in the body of the deceased.
The Magistrate was in presence of wounds caused by
the force admittedly administered with a blunt object, but
was left totally in the dark as to the provenance and effect of the punctured wounds to both inguinal regions on
the body of the deceased, or what the doctor meant
when he referred to other things which contributed to the
septicaemia.
Secondly, the Appellate Court was of the view that the
Learned Magistrate had taken a wrong view on the issue of self-defence. She made an analogy with the
case of Yan Luck v. R. [1987 MR 25] and stated that in
this case the appellant did not sustain any injuries. She
also commented that appellant was not facing any real
danger to his life which would have warranted the killing
of another person. On this issue, the Learned Judges
were of the view that there had been a wrong appreciation of the concept involved. It is not necessary for a
person to counter an attack on him after he would have
become the victim of a first blow – see note 63 under
article 328 Garçon –
Il est évident d‟ailleurs, qu‟on doit considérer comme
actuel non seulement l‟attaque réalisé et consommée,
mais l‟attaque imminente. Celui qui est l‟objet d‟une
agression n‟est pas tenu d‟attendre, pour se défendre,
que le premier coup lui ait été porté, car alors cette défense serait souvent tardive et inefficace. Il suffit que le
danger soit actuel.
It must also be remembered that the appellant explained
that he dealt only one blow, albeit with force, and the
other blow was a push when the deceased persisted in
coming towards him. It was also noted that the person
assaulted was not killed on the spot, but died of septicaemia one week after admission to hospital. The defence had adduced evidence that the deceased was
found to have a parcel of drug attached to his arm. The
learned Magistrate quite rightly rejected the defence
contention that she should have considered “the type of
person the appellant was dealing with” as the appellant
had said that he had met the deceased for the first time
in his life.
In addition, the Learned Judges were of the view that
there had been a wrong appreciation on the issue of
proportionality of the „riposte‟ by the appellant to the imminent attack he was facing. The Appellate Court came
to the conclusion that although he is taller than the deceased, he was being threatened by a man of 39 years
old and that his reaction was perfectly legitimate on the
occasion.
Thirdly, there were materials which ought to have been
edited by the prosecution in the statement of the
Appellant. In fact, in the course recording of that statement the police put to the appellant the version of one
Sheik Ally Abdool Gaffoor to the effect that on the night
in question, that is on the 13 August 2006 at about 3.30
a.m. or 3.45 a.m., after he had bought a number of
things in Bismillah Hotel, he suddenly felt that two persons were pulling him from behind and he was taken
along Edgar Laurent Street to Khadafi Square where he
was hit with a truncheon and a helmet all over his body.
He noticed that one of them was the son of Raffick
Goolfee and he had a helmet in his hand. The other
called Aulum also called Gros Sirop was holding a truncheon colour black. The appellant denied the allegation. The appellant also denied that whilst these two
persons were assaulting Sheik Ally Abdool Gaffoor, a
third person came and slapped him, and that at the material time there were only himself and Oozeer present.
The appellant was made the subject of direct confrontation and was recognised by Sheik Ally Abdool Gaffoor
at Line Barracks. The Learned Judges were of the view
that these matters have been prejudicial to the fairness
of the trial. The Learned Magistrate did not make any
comment on the introduction of this objectionable part
of the statement. However, it is to be noted that the appellant was answering only a charge of having dealt
wounds and blows causing death without intention to
kill Mohamad Acktar Oozeer. There was no count of
assault on Sheik Ally Abdool Gaffoor, not was the latter
on the list of witnesses.
Appeal allowed and conviction quashed.
Bajan V The State [2011 SCJ 321]
CJ Yeung Sik Yuen & J. Balancy
CSO – Order of Commitment – Appeal against sentence
The Appellant was found guilty of swindling before the
Intermediate Court and he was sentenced to undergo
three months‟ imprisonment. However, following his
consent to do community service work, the latter sentence imposed was suspended and subsequently a
CSO was made pursuant to s3 of the Community Service Order Act.
He appealed against the conviction and the appeal was
set aside on 18th October 2010. On 1st November
2010, the Appellant attended the Intermediate Court
and Mrs Chundunsing informed the Learned Magistrate
that the Appellant was no longer willing to perform community service. The Appellant then informed that he
was appealing against the decision of the Supreme
Court to the Judicial Committee of the Privy Council.
After noting that there had been no motion to that effect
on record, the Magistrate ordered that the Appellant be
committed.
The appeal was then made against the latter Order. A
preliminary objection has been raised by the respondent to the effect that no appeal lies against that order
Page 6 - Issue 9
inasmuch as it is neither an appeal against conviction
nor an appeal against sentence falling within the ambit
of s92 (a) of the District and Intermediate Courts
(Criminal Jurisdiction) Act.
The Learned Judges disagreed with the contention of
Counsel for the Appellant to the effect that the appeal
was one against sentence under the enactment just cited as the commitment order appealed against formed
part of the sentence.
The appellant was convicted on 7 September 2005 and
sentenced on the same day, to undergo 3 months imprisonment, which sentence was suspended upon the
undertaking of the accused to perform unpaid work as
community service. The precise conditions of the community service order were laid down on 25 October
2005 following a report from the probation service. The
appellant exercised his right of appeal under section 92
(a) to challenge his conviction and thereby exhausted
that right. Accordingly, after his appeal had been set
aside, the commitment order thereafter made by a Magistrate of the Intermediate Court in the circumstances
related earlier could not form part of the sentence of the
court which was in fact passed at an earlier stage by
another Magistrate. The order of commitment cannot
be challenged by way of an appeal before the Appellate
Court.
Preliminary objection upheld and appeal dismissed with
costs.
Balaram V The State [2011 SCJ 328]
SPJ Matadeen & J. Devat
Fired bullet & cartridges – Offence within our law
The appellant was prosecuted for the offence of possession of “(i) one fired bullet and one fired cartridge case
of calibre 7.62 mm and (ii) one fired cartridge case +
bullet each of calibre 9 mm” without a licence in breach
of sections 3(1) and 24(1)(a) of the Firearms Act. He
pleaded guilty and was convicted and sentenced to six
months‟ imprisonment. The present appeal challenges
both the conviction and the sentence passed on the appellant.
After consultation with the DPP, Learned Counsel for
the Respondent indicated that he was no longer supporting the conviction. The Learned Judges were of the
view that fired bullets and fired cartridges do not come
within the definition of “ammunition” and as the possession of fired ammunition is not an offence.
Appeal allowed. Conviction and sentence quashed.
Muljee V The State [2011 SCJ 315]
JJ. Domah & Devat
Child witness – Trauma – New trial ordered
The Appellant was charged with involuntary homicide
by imprudence in breach of s239(1) of the Criminal
Code. He was found guilty and he was sentenced to
pay a fine of Rs 50,000. His licence was endorsed and
cancelled. He was further disqualified from holding or
obtaining a licence for all types of vehicles for a period
of 3 years.
It was the case of the prosecution that, in the early
morning of 14 March 2006, the deceased victim having
met a friend on the road-side at the round-about of the
bus terminal of Quatre Bornes moved forward when the
bus driven by the appellant ran over her. It was the
case of the appellant that he was negotiating the narrow round-about at a speed of some 5 to 7 kph and
was moving to pick up passengers from the Terminal
when he sensed having run over something which he
would discover is the victim. In support of its case, the
prosecution put in the report of damages of the bus
which was nil, the plan of the accident and, aside the
formal, an eye witness aged 13 years who started to
give evidence but could not complete it. She could not
complete her examination in chief, still less the crossexamination as she began to feel dizzy. The case was
then closed for the prosecution.
The Appellate Court noted that the main witness has
also suffered a psychic accident from which she needs,
in their view, the assistance of a psychologist. As a
young mind, she saw what she saw of the violent manner in which the victim died. Soon after she related in
court what she saw, she became dizzy and could not
continue. She preferred not to come back to court on
subsequent occasions. The Learned Judges would not
wish that she is called upon to depone unless and until
she has recovered from the trauma. They left it to the
DPP to decide what would be the best option in the
light of their remarks and other facts and circumstances
of the case. In the light of this, the Appellate Court ordered a new trial subject to the DPP‟s discretion to decide what proper „suite‟ he may give to this matter.
Bhantooa V The State [2011 SCJ 305]
SPJ Matadeen & J. Bhaukaurally
Review of sentence – DDA
This was an application made under s5(1) of Criminal
Procedure (Amendment) Act 2007 for a review of the
sentence of 30 years‟ penal servitude inflicted upon the
Appellant after he was found guilty of possession of
gandia, qua trafficker, in breach of the Dangerous
Drugs Act 1986 („DDA 1986‟). The Appellate Court
noted that s38(3)(b) of the DDA 1986 – the law in force
at the time of the offence and which has since been
repealed and replaced by the DDA 2000 – provided for
Page 7 - Issue 9
a mandatory sentence of 30 years‟ penal servitude in
the case of a second conviction qua trafficker in drugs
coupled with a fine of not less than one hundred thousand rupees and not more than two hundred and fifty
thousand
rupees.
In the light of the evidence before the Court which included the fact that the applicant had participated in various rehabilitation programmes, pursuant to s5(3) of the
Act, the sentence of 30 years‟ penal servitude was substituted with a sentence of penal servitude for a term of
10 years.
Lapierre V The State [2011 SCJ 306]
JJ. Domah & Devat
Gross negligence – Findings of fact
The Appellant, a 67 year old woman, was prosecuted
before the District Court for involuntary wounds and
blows by imprudence whilst she was driving a private
van, in breach of s239(2) of the Criminal Code coupled
with ss133(1)(2) and 52 of the Road Traffic Act. She
pleaded not guilty to the charge and she was represented by counsel. She was found guilty and she was ordered to pay a fine of Rs 3000.
The grounds of appeal are as follows:




The learned Magistrate erred in her appreciation
of facts in finding that gross negligence and imprudence of the victim were not tantamount to an
“erreur grossière”.
The victim riding the auto cycle without having the
lights on at the time the accident occurred was
enough to establish his own gross negligence.
That the victim swerved abruptly to the right for
no reason whilst he should have stayed on the
left to avoid the collision is enough to establish
imprudent driving of the auto cyclist.
The finding of the learned Magistrate that the auto cyclist had no room to stay on the left is erroneous inasmuch as the real evidence shows the
debris in the middle of the road and the position
of the car after the accident not at the point of
impact.
The undisputed facts were that on 9 June 2005 at about
17.55 hrs, the appellant was driving her car along Pope
Hennessy Street, Beau Bassin proceeding in the direction of Beau Bassin. The appellant whilst overtaking
another car knocked against auto cycle 1641 K which
was on the left side of the road coming in the opposite
direction. The rider as well as the pillion rider fell down
resulting in injuries to both who had to attend medical
treatment at the hospital.
Grounds 1 and 2: Counsel for the appellant submitted
that the absence of light on the auto cycle amounted to
gross negligence and it was so gross that same should
operate as a complete defence and exonerate from all
responsibilities the appellant, who admittedly had failed
to notice the presence of the auto cyclist on the road.
The Appellate Court quoted the following from Paul
Gerard Christian Affoque v The State [2005 SCJ
108] which cited with approval Walker v Talhurst
[1976] 1 RTR 513; R v Lawrence 1981 RTR 217;
Marot v R [1990 SCJ 17] and Ramloll v R [1990 SCJ
237]:
“The real one (question) was whether the appellant had
satisfied the standard of driving required of a reasonable and prudent driver in the applicable conditions of
light, weather, time and traffic, as revealed generally by
the particular facts of the case of which the trial court is
the sovereign judge of facts.”
In Bathfield v The Queen [1980 MR 72], referred to us
by learned Counsel for the respondent, the Appellate
Court citied the following passage from Merle et Vitu,
Traité de Droit Criminel, p. 421:“En réalité la jurisprudence pénale, moins stricte en ce
domaine que la jurisprudence civile, s'attache
beaucoup plus à la faute qu'à la causalité objective.
Dès qu'une faute figure parmi les antécédents du dommage, elle a tendance à la sanctionner, pourvu simplement qu'elle ait joué un rôle quelque dans l'enchaînement des causes génératrices du résultat. Ce mépris
relative du côté objectif des choses est la marque de
droit pénal contemporain.”
to explain the principle that “if the accused party has
been negligent and it is shown that his act, or omission,
was one of the factors which contributed to the victim‟s
death, then he is to be found guilty even if the victim
also was most imprudent.”
Garçon at note 50 referred to in Sham v The Queen
[1982 MR 224] lays down that:
“Il ne faudrait pourtant pas croire que la faute de la victime soit indifférente; le juge doit encore rechercher si
elle existe et la défense peut la plaider. Il est évident,
en effet, qu'aucune condamnation ne pourrait plus être
prononcée s'il était établi que l'imprudence de la victime
a été si grossière qu'elle fait disparaître, en réalité,
toute faute de la part de l'auteur matériel de l'homicide
et, d'autre part, tout le monde reconnait que, dans les
cas où l'imprudence de la victime laisse subsister la
responsabilité du tiers, elle peut au moins justifier une
large atténuation de la peine et des dommages et intérêts.”
Whether imprudence there was on the part of the appellant or rider is purely factual and is to be left to the
sole appreciation of the trial Court. What may in a given
circumstances amount to imprudence may not be so in
a different situation and it is only if the victim is guilty of
imprudence so gross that the appellant‟s imprudence
will be immaterial and will be excused.
Page 8- Issue 9
In the present case, the Learned Magistrate had concluded that the real cause of the accident was not the
rider‟s failure in not having his headlight on but rather
the appellant being on the wrong side of the road in the
path of the oncoming auto cycle, close to the pavement
leaving the rider with no space on his left to continue his
way thus forcing him to take evasive action by moving
to his right in a bid to avoid the car. The absence of light
on the auto cycle cannot, in the face of such manoeuvre
on appellant‟s part, be said to be a determining factor in
the collision as to amount to “une faute si grossière
qu‟elle fait disparaître, en realité, toute faute de la part
de l‟auteur matériel de l‟homicide” (vide Sham v The
Queen supra). On the evidence that was available before the trial Court, the finding of the learned Magistrate
that the appellant was not the reasonably prudent driver
who had exercised all reasonable care and precautions
before overtaking and was alert to other road users was
fully warranted and could not be faulted.
Grounds 3 and 4 questioned the rider‟s manoeuvre in
moving to the right which in the submission of learned
Counsel for the appellant had provoked the accident as
well as the learned Magistrate‟s appreciation of the real
evidence and her conclusion that the rider could not
have done otherwise and was forced to do so. Upon a
perusal of the evidence on record, the Learned Judges
were of the view that the appellant who, by her conduct
and manner of driving has inconvenienced another road
user, could not lay the blame at the door of the rider
and be heard to say that the accident was provoked by
the rider whose natural reflex was only to steer clear of
the appellant‟s car which at that instant was an imminent danger to him.
Appeal dismissed with costs.
Treebhoowon V Her Honour Bonomally S
[2011 SCJ 304]
SPJ Matadeen & J. Bhaukaurally
Judicial review of ruling
This was an application made for the judicial review of
the ruling given by the Respondent following a motion,
made at the start of a preliminary enquiry into a charge
of murder lodged against the applicant and a coaccused, for the respondent to challenge herself and
abstain from proceeding with the enquiry. The respondent had ruled that there was no reason for her to recuse
herself.
At the hearing of this application, Learned Counsels for
the Applicant and for the Co-Respondent had informed
the court that the preliminary enquiry had been completed and that the Respondent had on Monday 18 July
2011 committed the applicant to stand trial for the offence of murder. That was sufficient reason for the
Court to conclude that there was no live issue in the
present application.
Issar V State [2011 SCJ 329]
SPJ Matadeen & J. Devat
S 351 of Criminal Code – Surplusage – Whether PF3
was an original act of public authority
Mosafeer V The State [2011 SCJ 326]
SPJ Yeung Sik Yen, JJ. Domah & Devat
Mandatory sentence of 45 years’ penal servitude Review
The Appellant was prosecuted before the District Court
on two counts of an information charging him with (1)
outrage against an agent of the civil authority in breach
of section 156(3) of the Criminal Code, and (2) destroying “an original act of public authority creating an obligation to wit: a PF 3 to produce his driving licence” in
breach of section 351 of the Criminal Code. Upon his
plea of guilty, he was convicted and sentenced to undergo two months‟ imprisonment under each count.
The Appellant was arrested in 1998 in connection with
the death of one Nizam Maudarbaccus. In 2011, he
was found guilty by the Assizes on a charge of wilfully
and unlawfully giving instructions for the commission of
murder. He was sentenced to undergo 45 years‟ penal
servitude which was then the mandatory sentence for
murder.
The Learned Judges enquired from Counsel for the
Respondent whether the words „creating an obligation‟
in s351 of the Criminal Code did not relate to the „act of
public authority.‟ She agreed and she submitted that
they were mere surplusage and that they did not render
the information defective.
It was further enquired from Learned Counsel for the
Respondent whether the “PF3 to produce his driving
licence” was “an original act of public authority”. She
referred the Court to Code Pénal Annoté Livre III Art.
439, which is the corresponding article in the French
Penal Code and to notes 13 -15 thereof, namely –
“… … Cependant, il a été jugé qu‟on devait comprendre dans les actes de l‟autorité dont la destruction
est punie de la réclusion:
……
Les procès-verbaux dressés par un officier de police
judiciaire – et spécialement, un procès-verbal dressé
par un garde champêtre, et constatant un fait de
chasse. C‟est au moins ce qui paraît résulter
implicitement d‟un arrêt de Cass., 28 November. 1833.”
The Court disagreed with such submission. The Form
was no more than an undertaking by the appellant to
produce his driving licence at a specified police station
within a certain number of days.
Conviction and sentence quashed under count 2.
Under count 1, the Court noted that the Appellant admitted having addressed the offensive words mentioned in the information to the police officer acting in
the exercise of his function, that he had pleaded guilty
at the earliest opportunity and that he had apologised.
The Learned Judges were therefore of the view that a
non-custodial sentence would have been more appropriate.
Appeal allowed and for the sentence of 2 months‟ imprisonment under the first count, a fine of Rs 5000 was
substituted.
Page 9 - Issue 9
His appeal to the Court of Criminal Appeal was dismissed and leave was then granted to appeal to the
Judicial Committee of the Privy Council. However, he
could not follow suit since he could not furnish the required surety.
The present application to review the sentence was
made in June 2009 following the judgment of that Court
in Philibert & Ors v The State [2007 SCJ 274] and the
judgment of the Judicial Committee of the Privy Council
in De Boucherville v The State of Mauritius [2007
PRV 70], reported at 2008 MR 317. In Philibert (supra),
this Court had held that s222(1) of the Criminal Code
contravened s7(1) of the Constitution, inasmuch as the
indiscriminate mandatory imposition of a term of 45
years‟ penal servitude in all cases contravened the principle of proportionality and amounted to “inhuman or
degrading punishment or other such treatment” contrary
to s7(1) of the Constitution. The Court, however, observed that the infringed s222(1) of the Criminal Code
was unconstitutional only in so far as it provided for a
substantial mandatory prison sentence of 45 years and
that it should be read down in such a way that upon
conviction an offender would be liable to a prison sentence the duration of which would be at the discretion of
the Court but which would carry a maximum sentence of
up to 45 years.
Philibert was approved by the Judicial Committee of
the Privy Council in De Boucherville (supra). It was
further held that pursuant to s5(1) of the Criminal Procedure (Amendment) Act 2007, a person convicted of
such a mandatory sentence of 45 years was entitled to
apply to the Supreme Court for review.
The Learned Judges were not persuaded that in the
Mauritian context a sentence of 45 years‟ penal servitude for a number of very serious offences can be said
to be inhuman and degrading. The Court noted that the
legislator in his wisdom has presently provided in the
Statute books that certain offences, including the one in
lite, should carry a penalty of up to 60 years. The legislator‟s concern of the rising rate of violence and the prevailing sense of insecurity in the country, and of the
need to distil that sense of fear cannot be more clear. It
is for the Court to send the right signal to would be offenders so that they are not let off by lenient sentences
and effectively deterred by appropriate ones.
With the above in view, the Court referred to the following judgment in order to make a proper assessment for
determining the appropriate sentence in the present
matter: L.G. Leboeuf v The State [2009 SCJ 30];
Jeeawoody v The State [2009 SCJ 302]; The State v
Oobye & Anor [2010 SCJ 95]; State v Joseph John
Robertson [2008 SCJ 203]; State v Sudheer Nackhejee [2008 SCJ 250]; Philibert v The State [2008
SCJ 289]; State v Jahul [2009 SCJ 347].
In the instant case, the circumstances of the killing of
the victim can be gleaned fromthe summing up of the
trial Judge. The victim, after being taken to a secluded
place was stabbed to death and set ablaze by the principal authors acting under the instructions of the applicant. The latter was arrested on 8 November 1998 and
had been in detention until he was tried at the third Assizes Session in 2001, after the principal offenders
were convicted on their plea of guilty to the reduced
charge of manslaughter.
Having in mind the sentencing approach of the Court
for such type of offence; the age of the applicant at the
time of the commission of the offence (31); his time
spent in detention i.e. from November 1998 (the time of
his arrest) to October 2003 (the time his appeal was
dismissed); his conduct in prison whilst serving sentence as can be gathered from the affidavit filed by
Veerappa Mukesh, Assistant Superintendent of Prisons; his readiness and willingness to reform himself
through education; his active participation in the prison's rehabilitation activities (learning an artisanal trade),
The Court reviewed the sentence passed by the trial
Judge by substituting the sentence of 45 years‟ penal
servitude to one of 30 years, which is to take effect as
from October 2003.
State V Gokhool [2011 SCJ 332]
J. Angoh
Drug importation - Trafficking
The Accused stood charged for having imported into
Mauritius heroin contained in the following:

155.6 grams of brownish lumps in plastic sachets
enclosed in a packet,

8.52 grams of brownish lumps in plastic sachets
enclosed in a second packet, both packets concealed in a metal bowl, and

201 grams of brownish lumps in plastic sachets
concealed in a second metal bowl.
The information also averred that having regard to all
the circumstances of the case and since the street value of the heroin exceeded one million rupees, the accused was a drug trafficker. The charge was brought
under ss 30(1)(b)(ii), 41(3), 41(4), 45(1) and 47(2), 47
(5)(a) of the Dangerous Drugs Act 2000. Accused
pleaded not guilty to the charge and was represented
by counsel.
Page 10 - Issue 9
The Accused had admitted having imported the drugs
but he denied being a trafficker. On that issue, the
Learned Judge found it apposite to refer to the case of
DharmarajenSabapathee v. The State [1999 PRV 1]
where their Lordships defined at length what is meant
by the word “trafficking”. At paragraph 16, it is said that
“There is no difficulty in understanding what is meant by
the word “trafficking”. It is a familiar expression in the
context of transactions which are tainted by immorality
or illegality. It has the same meaning as “dealing” or
“trading”, except that it has a pejorative element”.
At paragraph 20 of the same judgment, their Lordships
went on to say that “Experience has shown that trafficking in drugs takes many forms, which vary according to
the nature and quality of the drug and the market in
which the trafficker seeks to operate. Attempts to penalise the activity by reference to such yardsticks as value
or quantity may be counterproductive, or at least ineffective, as individual transactions can be so easily adjusted to avoid penalty. In any event, it is artificial to set
limits on an activity which is infinitely variable. The policy of Parliament in enacting section 38 was to strike at
the heart of the problem by penalising the act of dealing
in dangerous drugs, whatever form this might take and
whatever the quantities. This is a legitimate approach,
as there is clear distinction between the handling of
drugs for personal use and trading in drugs by buying
and selling, which is the essence of trafficking. In the
Board‟s view the Court of Appeal put the matter correctly in its judgment in the present case when it said:- „As
we have already adverted to, the term „trafficking‟ cannot be defined with any degree of precision. The multifarious forms which trafficking can take, can be measured only by the degree of human ingenuity which, as
yet, is unfathomable. No exhaustive list of instances of
trafficking can be enumerated, or defined, so that the
legislator has left it to the good sense of the Courts to
decide what amounts to trafficking in a given set of
facts”.
Bearing the principles enunciated in Sabapathee and
those as laid down by our Courts, the Learned Judge
analysed the evidence in the present matter. He concluded that the unchallenged evidence on record points
to the irresistible direction that Accused was an active
participant in the traffic of bringing drugs into Mauritius.
In this illicit enterprise, the Accused involvement was
part and parcel of the traffic of drugs. He was found
guilty and he was sentenced to undergo 25 years‟ penal
servitude.
‘An unjust law is itself a species of
violence. Arrest for its breach is
more so.’
Mahatma Gandhi
State V Naranayasawmy [2011 SCJ 316]
J. Balgobin
Drug trafficking – Attempt to possess
The Accused was initially charged with 6 counts of an
information and in the course of the hearing, grounds
1,2,3,5 and 6 were dropped by the prosecution. They
were accordingly dismissed. Under ground 4, the Accused was charged with the offence of unlawfully and
knowingly attempting to possess 312.42g of heroin contained in 24 cylindrical parcels for the purpose of distribution in breach
of s30(1) (f) (ii) of the Dangerous Drugs Act and ss 2
and 45 of the Interpretation and General Clauses Act.
There was also an averment of trafficking since the
street value of the drugs exceeded Rs 1m. The Accused pleaded not guilty and he was represented by
counsel.
The evidence of the prosecution showed that the accused had a close connection and interacted both with
the witnesses Jordano and with Mrs. Zandamela. For
instance:
1.
2.
3.
4.
5.
6.
The accused‟s own version reveals that it was at
Jordano‟s request on the 13th that he went to
meet Mrs. Zandamela on the 14th of January.
Both individuals were total strangers to him.
The accused and Mrs. Zandamela were both
arrested together in Flic en Flac at night in his
lorry heading towards the hotel where her personal belongings were still lying in her room;
The accused was the one who had booked the
bungalow for her and was seen bringing food for
her in a Spar Supermarket shopping bag on the
second day of her stay;
The accused was again the one who made arrangements for the extension of her stay in the
bungalow;
The accused appears to have been the only one
who had been visiting her in the bungalow and
caring for her well-being by requesting that she
was not to be disturbed.
The accused had been in contact by telephone
calls and messages with both the said Jordano
and Mrs. Zandamela.
Furthermore, the Court was of the view that the large
quantity of drugs involved could not have been for personal consumption and could only have been meant for
distribution.
The Accused was found guilty and he was sentenced to
undergo 28 years‟ penal servitude and to pay a fine of
Rs 500,000.
Page11 - Issue 9
State V Rome A N & Ors [2011 SCJ 319]
J. Bhaukaurally
Judges’ Rules – Calling of witnesses – Proof of control or attempted control – Actual distribution or
attempted distribution
Accused No. 1 stood charged under Count I with having
wilfully, unlawfully and knowingly possessed dangerous
drugs for the purpose of delivery, that is heroin contained in 291.46 g. of whitish powder concealed in 34
cylindrical-shaped pellets. Under Count II, accused
Nos. 2 and 3 were charged with having wilfully, unlawfully and knowingly attempted to possess dangerous
drugs for the purpose of distribution, that is 291.46 g. of
heroin contained in a whitish powder concealed in 34
cylindrical-shaped pellets. In view of the fact that the
street value of the drugs exceeded Rs 1m, there was an
averment of trafficking by virtue of ss 41(3) and (4) of
DDA.
The Learned Judge made a thorough review of the evidence on record in his judgment. In the course of submissions at the end of the trial, Counsel submitted that
there was a breach of the Judges‟ Rules in relation to
the cautions administered by the Police at the spot
where the controlled delivery exercise was effected. It is
trite law that Judges‟ Rules are not rules of law, but a
guide to the Police for properly conducting their investigations. A voluntary confession obtained in breach of
the Rules or a suspect‟s constitutional rights are not per
se inadmissible – see Allie Mohammed v. State [1999]
2 WLR 552. By way of analogy and since Counsel referred to the “anti-verballing provisions” in England, reference may be made to the case of R. v. Walsh 91 Cr.
App-R 161 where the Court of Appeal held that “it does
not mean, of course, that in every case of a significant
or substantial breach … the evidence concerned will
automatically be excluded … The task of the Court is
not merely to consider whether there would be an adverse effect on the fairness of the proceedings, but
such an adverse effect that justice requires the evidence to be excluded”.
Furthermore, the Learned Judge could not find fault
with the prosecution not calling a witness who it finds
has no relevant evidence to give to the Court. The principles governing the discretion the prosecution has in
calling evidence and the possibility for the defence to do
so in the event they believe that the person has valuable evidence to give are well known and do not bear
repetition – see eg. Teerumalai & ors. v. R. [1972 MR
131]; R. v. Russell-Jones [1995] Cr. App. R 538; and
R. v. Brown [1997] Cr. App. R 112.
The Learned Judge was of the view that there had not
been much debate about the other legal issues involved
in the case. Whether for the count of possession (count
1) or attempt to possess (count 1), it is incumbent on
the prosecution to prove the dual requirement that the
accused respectively had control or attempted to have
control of the drugs, as well as to prove that they had
the requisite knowledge that the substance was a prohibited one. The following extract from Warner v. Metropolitan Commissioner [1968] 52 CAR 373 aptly
sets out the principles governing the issues:
Lord Morris (p. 289):
"There can be no rigid formula to be used in directing a
jury. Varying sets of facts and circumstances will call for
guidance on particular matters. The conception to be
explained, however, will be that of being knowingly in
control of a thing in circumstances which have involved
an opportunity (whether availed of or not) to learn or to
discover at least in a general way what the thing is."
Lord Pearce (p. 305):
"I think the term 'possession' is satisfied by a knowledge
only of the existence of the thing itself and not its qualities and that ignorance or mistake as to its qualities will
not excuse. This would comply with the general understanding of the word 'possess'. Though I reasonably
believe the tablets which I possess to be aspirin, yet if
they turn out to be heroin I am in possession of heroin
tablets. This would be so, I think, even if I believed them
to be sweets. It would be otherwise if I believed them to
be something of a wholly different nature. At this point a
question of degree arises as to when a difference in
qualities amounts to a difference in kind. That is a matter for a jury who would probably decide it sensibly in
favour of the genuinely innocent but against the guilty.
The situation with regard to containers presents further
problems. If a man is in possession of the contents of a
package, prima facie his possession of the package
leads to the strong inference that he is in possession of
its contents. But can this be rebutted by evidence that
he was mistaken as to its contents? As in the case of
goods that have been 'planted' in his pocket without his
knowledge, so I do not think that he is in possession of
contents which are quite different in kind from what he
believed."
Lord Wilberforce (p. 310):
"The question, to which an answer is required, and in
the end a jury must answer it, is whether in the circumstances the accused should be held to have possession
of the substance, rather than mere control. In order to
decide between these two the jury should ... be invited
to consider all the circumstances - to use again the
words of Pollock & Wright [Possession in the Common
Law, p. 119] - the 'modes or events' by which the custody commences and the legal incident in which it is held.
By these I mean, relating them to typical situations, that
they must consider the manner and circumstances in
which the substance, or something which contains it,
has been received, what knowledge or means of
knowledge or guilty knowledge as to the presence of
the substance, or as to the nature of what has been
received, the accused had at the time of receipt or
thereafter up to the moment when he is found with it;
Page 12 - Issue 9
his legal relation to the substance or package (including
his right of access to it). On such matters as these (not
exhaustively stated) they must make the decision
whether, in addition to physical control, he has, or ought
to have imputed to him, the intention to possess, or
knowledge that he does possess, what is in fact a prohibited substance. If he has this intention or knowledge,
it is not additionally necessary that he should know the
nature of the substance."
The facts of this case do not raise any difficulty as regards the participation of accused Nos. 2 and 3 in the
transaction. The offence with which they are charged is
attempt to possess for distribution. It was incumbent on
the prosecution to establish in respect of accused Nos.
2 and 3 that there had been a commencement of execution which failed by circumstances independent of the
will of these two accused. The following notes in French
doctrine about attempt are relevant to the issues.
Recueil Dalloz Vo Tentative Note 12 [quoted by the
Court of Criminal Appeal in Islam v. State [2008 SCJ
331] –
“12. Lorsque le fait établi cesse d‟être « équivoque » et
devient « univoque », c‟est-à-dire lorsqu‟il ne laisse plus
subsister aucun doute sur l‟intention de l‟auteur de l‟infraction, ce fait constitue un commencement d‟exécution. Dans le cas contraire, il y a seulement acte préparatoire. (FAUSTIN HELIE, p. 3 à 9 ; GARCON, sous art.
2 et 3 ; GARRAUD, t. 1, no. 232 VIDAL et MAGNOL t.
1. no. 97). Ce critère est énoncé sous une autre forme
par DONNEDIEU DE VABRES (no. 231), pour qui: le
commencement d‟exécution est constitué par les actes
accomplis par l‟agent lors de son appréhension, attestent chez lui une volonté criminelle irrévocable;
quand il existe entre le mal qu‟il a commis et le but qu‟il
se proposait, une distance morale si faible que, laissé à
lui-même, il l‟aurait presque certainement franchie.“
Rep. Pén et Proc. Pén. Dalloz, Juin 1999 – Tentative
Suspendue – note 28:
“28. La Chambre criminelle admet aussi que soient retenus des actes qui sont objectivement plus éloignés de
la consommation de l‟infraction. C‟est alors leur proximité temporelle avec l‟infraction qui autorise à les rattacher à celle-ci. Il semble en fait que la situation de
proximité temporelle compense souvent une relation de
causalité moins directe. C‟est ainsi que des actes, qui
sont très proches de la consommation de l‟infraction,
sont qualifiés de commencement d‟exécution bien qu‟ils
ne participent pas de sa constitution matérielle. Leur
proximité temporelle permet alors de présumer avec
certitude un passage à l‟acte. Le commencement
d‟exécution du vol est, par exemple, caractérisé par le
fait pour des individus de s‟être postés, munis d‟armes,
à quelques pas de l‟entrée de l‟immeuble d‟où devait
sortir peu d‟instants après un encaisseur, alors qu‟ils
avaient conçu le projet de le dévaliser (Cass. Crim. 3
janv. 1913, DP 1914.1.41, note H Donnedieu
de Vabres, S. 1913.1.281, note J.-A. Roux), par la mise
en place par des malfaiteurs d‟un puissant dispositif
d‟attaque (Cass. Crim. 23 déc. 1970, Bull, crim., no.
356, JCP 1971.II.16770, note P. Bouzat, Rev. Sc. Crim.
1972.99, obs. A. Légal).
The facts of the present case establish that accused
Nos. 2 and 3 had, by their acts, been so proximate to
the perpetration of the act of possession of the drugs
itself that a commencement of execution on their part
has been proved beyond any reasonable doubt.
It stands to reason that actual distribution or attempted
distribution need not be proved by the prosecution (see
Karrimbuccus v. The State [2004 SCJ 200] when a
person is found attempting to possess such a large
quantity of drugs. The Court found that in the present
case I can safely infer that the only purpose for which
the accused came to fetch the drugs was for distribution.
The Accused parties were found guilty. All the Accused
parties were sentenced to undergo penal servitude for
a term of 30 years with the time already spent on remand to be deducted accordingly.
Sujore & Ors V State [2011 SCJ 334]
JJ. Domah & Bhaukaurally
CSO – Newton Hearing
The four Appellants appeared before the Intermediate
Court on an information to answer charges of larceny
with aggravated circumstances. Appellant Sujore,
Lutchoomun and Rummun for the offence of larceny
armed with an offensive weapon in breach of section
301(1) and 305(a) of the Criminal Code, and appellant
Beeharry, for his part, for the offence of aiding and
abetting in the commission of the above offence read
with section 38(3) of the Criminal Code. Appellants
Sujore, Lutchoomun and Beeharry pleaded guilty eventually and, on conviction, they were each sentenced to
3 years‟ penal servitude. Appellant Rummun, for his
part, pleaded Not Guilty and was sentenced to 4 years‟
penal servitude.
Appellant Sujore:
Appellant Sujore challenged his sentence on the
ground that it was manifestly harsh and excessive. He
had pleaded guilty and he was 27 at the time. He had
a clean record. He is the sole breadwinner and he has
a loan to reimburse. Learned Counsel for the Appellant
submitted that his personal circumstances called for a
Community Service Order („CSO‟). He referred to
Jhugroop and Jhugroop v. The State [2008 SCJ
197]; Rose v. The State [2011 SCJ 74]; Gungaram v.
The State and Rose v. The State [2011 SCJ 39];
Bhageea v. The State [1995 SCJ 61].
Page 13 - Issue 9
The Court concluded that this was not a fit case for the
imposition of a CSO bearing in mind that this case had
to do with a hold-up of Rs800,000 and involved advance
organization, planning, discreet trailing of the targeted
car, with attendant features such as attack and damage
to the property and use of swords and masks. Most of
the Rs800,000 was not recovered and was shared
among the authors.
Taking into account the mitigating factors, the sentence
of three years‟ penal servitude was quashed and substituted by two years‟ imprisonment.
Appellant Lutchoomun:
Appellant Lutchoomun had pleaded guilty and he had 1
cognate. He pleaded that his participation in the matter
was merely to use a piece of wood to break the windscreen of the car from which the booty was looted and
nobody was hurt in the process. His story was that he
had joined the group without knowing that it was for a
hold-up. He also stated that he had returned Rs10,000
to the Police. He admitted having obtained his share in
the booty in the sum of Rs100,000. He added that they
were led by one Police Officer, Khedoo by name.
The Appellate Court reiterated the reasons above as to
why a CSO would not be appropriate in the present
case. If Dinesh Mohabeer v. The State [2009 SCJ
297] was a case of “thoroughly anti-social behavior,” this
one is a case of planning, organization and pursuit of
the grave criminal activity of a hold up where the booty,
far from being recovered, was shared amongst the perpetrators. A Community Service Order is one which
should be warranted on the facts: Neehul v. The State
[2010 SCJ 55]. By any standard, one cannot state that
this was a case suitable for one Mohabeer v. The State
[2009 SCJ 297]; Ramchurn v The State [2008 SCJ
18].
On account of the nature of his participation and his previous conviction, the Learned Judges were minded to
maintain the three years‟ penal servitude imposed upon
him. However, the record also shows that he was desirous, albeit at a late stage, of disposing of the case following the change of plea, and he was not trying to take
advantage of a postponement for the trial of the remaining defendants who had pleaded Not Guilty. Of the
three years penal servitude, shall be deducted a period
of 3 months to account for the genuine attempt, as may
be gleaned from the record, by his Counsel for a disposal of the case in the circumstances related.
Appellant Rummun:
He had pleaded Not Guilty. He was aged 38 at the time
of the offence, had nothing to state as mitigating circumstance. Appellant Rummun has a previous conviction for
a non cognate offence. He was sentenced to 4 years‟
penal servitude. Learned counsel for the appellant submitted in his skeleton argument that the appellant had
received a heavier sentence on account of the attitude
of the Bench to impose a heavier sentence for his having pleaded Not Guilty. Reference was made to the
following cases in support of his argument: Bhinkah v
The State [2009 SCJ 102]; Philibert v The State
[2007 SCJ 274]; Elaheebocus v The State of Mauritius 2009 UKPC 75 and Malloo v. The State [2010
SCJ 261].
The Learned Judges disagreed with such submission
and they were of view that Appellant‟s sentence happened to be longer by a year or so not because he was
being punished for pleading Not Guilty but because the
other appellants had pleaded Guilty for which they
were entitled to an appropriate discount on their sentence. The sentence of 4 years‟ penal servitude was
therefore maintained.
Appellant Beeharry:
He had pleaded Guilty on 27 November 2008, had one
previous conviction but after the offence and was aged
43 at the time of the offence. Learned counsel for the
appellant submitted that the Court was under a duty to
conduct a Newton hearing before sentencing the appellant. Appellant had given three statements to the Police. In Newton (1982) 77 Cr App R 13, the Court of
Appeal indicated three ways in which the judge, in a
case where there is a sharp divergence on the facts of
the offence, „can approach his difficult task of sentencing.‟ As per Lord Lane CJ:
“In some cases, it was possible to obtain an answer
from a jury, where the different versions could be reflected in different charges in the indictment. The second method was for the judge himself to hear the evidence on one side and another, and come to his own
conclusion, acting so to speak as his own jury. The
third possibility was for the Judge to hear no evidence,
but to listen to the submissions of counsel; but if this
course is adopted, “if there is a substantial conflict between the two sides … the version of the defendant
must so far as possible be accepted.”
A Newton hearing becomes necessary not in all cases
but only where, at the sentencing stage, the Court,
faced with conflicting versions of facts of the offence
put forward by the prosecution and by the defence,
needs to determine which version to accept before it
proceeds to mete out the penalty. In this case, there
were no conflicting versions of facts of the offence put
forward by them. In Newton (1982) 77 Cr App R 13, N
pleaded guilty to buggery of his wife. Prosecution in
summarizing the facts alleged that he had buggered
her against her will and inflicted various other sexual
indignities on her (the allegation of buggery without
consent could now, of course, be charged as rape). He
claimed that she had consented both to the buggery
and to the other sexual acts. As may be seen, the consent or absence of consent was at the very root of the
Page 14 - Issue 9
case for the purposes of sentencing so that the duty to
have it clear became compulsive.
In this case, the record had shown that appellant Beeharry stated nothing to the Court at the sentencing
stage. However, the prosecution had produced his four
statements where he had given his version of the incident. Three of those were compromising of him. The
one of 31st December 1999 where his version was basically that he had only done a trip, as a taxi driver, for the
other appellants had been discredited following a voire
dire by the learned Magistrate. Accordingly, there was
no disparity of evidence which required the scrutiny of
the Court for the purposes of a Newton hearing.
The Appellate Court was of the view that the learned
magistrate properly considered the case of the appellant
who happens to be a mature man of 43, is married and
should have demonstrated responsibility. One cannot
say that he was engaged in a spontaneous incident
which one would put to his youth.
Learned counsel for appellant Sujore also submitted
that the appellant was being punished for a matter
which took place some 10 years ago. He referred to the
case of P. Boolell v The State 2006 UKPC 46. As
rightly pointed out by learned counsel for the respondent, public interest demanded that the delay in disposal
of the case should not be a factor for the reduction of
sentence on account of the nature and gravity of the
case. What the four appellants were involved in was a
hold-up carried out with advance planning and premeditation. There was the use of sabres and masks with a
hired vehicle as a trailing and getaway device. He referred to the cases of Yadally v. The State [1998 SCJ
419]; Sanhye v The State [1998 SCJ 208].
The sections of the Criminal Code under which the appellants were charged are serious offences under our
law. The penalty section of section 305(a) speaks of
penal servitude: i.e. “where the offender, being armed
with an offensive weapon or with any instrument has
committed the larceny or assaulted any person with intent to rob.”
Poonye V The State [2011 SCJ 307]
JJ. Balgobin & Devat
Applicability of ss 123F, 123G and 123H – Decision
in Couronne – Failure to provide breath test
The Appellant was prosecuted before the District Court
under 2 counts of an information for „failing to provide a
specimen of his breath for a breath test‟ in breach of
s123G of the Road Traffic Act („RTA‟) and for „driving
motor vehicle having alcohol concentration above the
prescribed limit‟ in breach of ss 123F and 123H of RTA.
He had pleaded not guilty to both counts. The Learned
Magistrate found him guilty. He was sentenced to pay a
fine of Rs 6000 and Rs 14000 respectively. Under
count 2, he was disqualified from holding or obtaining a
driving licence in respect of all types of vehicles for a
period of 8 months.
Mr. V. Cooshna appearing for the appellant submitted
that the appellant having refused to undergo a preliminary breath test under section 123G of the RTA – for
which he was amenable to prosecution – it was therefore improper for the police officer to have proceeded
under section 123H of the RTA by asking the appellant
to provide either a specimen of his breath for analysis
or blood or urine for laboratory test.
accordingly quashed.
In relation to the other grounds of appeal which cover
both counts, the Learned Judges were of the view that
the lower court was perfectly entitled, after having
weighed the evidence adduced before him in the light of
the submissions of Counsel appearing before him, to
accept and act on the version of PC Bhoyrub. It could
not be said that the approach of the learned Magistrate
in his assessment of the evidence before him and his
findings were perverse and unreasonable.
In reply to the above submission, Mrs. A. PurryagRamful, State Counsel, submitted that the appellant
having failed to undergo a preliminary breath test as
provided for under section 123G of the RTA, it was perfectly legitimate for the appellant to be offered the opportunity of providing specimens of his breath for analysis or specimen of his blood or urine for a laboratory
test pursuant to section 123H of the RTA. There may
well be, so argued learned State Counsel, several reasons why a driver would refuse to blow into the breath
test device, but will readily accept undergoing alternative tests such as blood or urine test. Accordingly, the
police officer was duty bound to inform the appellant of
the possibility of undergoing a blood or urine test in accordance with section 123H of the RTA.
Appeal dismissed on count 1 of the information.
The Court found it useful to refer to the recent decision
of the Appellate Court in Couronne V The State [2010
SCJ 440] in which case the Court considered, inter alia,
the purport of sections 123G and 123H of the RTA. In
Couronne (supra) the appellant was prosecuted before the Intermediate Court for the offence of driving
motor vehicle with alcohol concentration above the prescribed limit in breach of section 123F (1)(a), (3) of the
RTA. After the Appellate Court made an extensive reference to the decision in Couronne, it was of the view
that section 123H of the RTA can only become operative on a breath test carried out pursuant to section
123G of the RTA being positive.
The complainant testified to the effect that in the night of
31.12.07, she was at the place of her neighbour, the
Noyan‟s family, talking to her friend who is the sister of
accused. Accused called her in his room which was not
lighted, locked the room and hid the key in a wardrobe.
Accused made her lie on a bed, caressed her, removed
her clothes, and had relation with her. She shouted and
the sister of accused heard her. Afterward accused
opened the door and she went away. Accused did not
know of her age. In cross examination, she explained
that she did not report the case out of fear.
In the present case, the appellant having refused to
submit himself to a preliminary roadside test under section 123G of the RTA, he was accordingly amenable to
prosecution under section 123G (2)(a) of the RTA, the
subject matter of count 1. Section 123H which empowers the police to probe further into the state of sobriety
of a driver becomes operative only upon a positive
breath test having been obtained under section 123G of
the RTA. The requirements of section 123G of the RTA
not having been satisfied, count 2, a charge preferred
under section 123H of the RTA was accordingly wrongly preferred.
In the light of the decision in Couronne (supra), The
Appellate Court took the view that the point raised by
Mr. Cooshna that the appellant had been wrongly prosecuted under section 123H of the RTA to be of substance and well taken. The appellant‟s conviction and
sentence under count 2 of the information was
Page 15 - Issue 9
Police V Noyan [2011 INT 189]
His Honour Magistrate Appadoo
Sexual intercourse with minor – Corroboration Alibi
The Accused stood charged for having sexual intercourse with a minor in breach of s249(4) of the Criminal
Code. He pleaded not guilty and he was assisted by
counsel.
The alibi of the accused was that he was at the Noyan‟s
place during that night for New Year celebration and
that at all times, he was in company of Mr Bissessursing. The latter testified to that effect in court.
The Learned Judge addressed his mind to the fact that
this was a case of a sexual offence and that corroboration is desirable particularly because the prosecution
rests on the sole testimony of a young person. In the
case of Saman v The State [2004 SCJ 3], it was said
that :
“The general rule is that a Court is entitled to act on the
sole and uncorroborated evidence of a witness who is a
victim in a sexual offence case where the Court finds
the witness truthful and has addressed its mind to the
danger of acting on uncorroborated evidence. The Court
must obviously be more alive to those requirements of
proof where the witness, the alleged victim, is a young
person. But still, there is no legal requirement that
because the person who has allegedly been assaulted
sexually is young the Court will only act on that person‟s
testimony if it is supported by corroborative evidence.”
It was clear that the Court could act on the evidence of
the complainant if it considered that it was safe to do
so. However, the Learned Magistrate felt unable to do
so for the following reasons:
1.
2.
3.
4.
5.
The incident allegedly occurred in December
2007 and the incident was reported only in July
2008 after the complainant was found by the police;
Besides the issue of corroboration, the alibi was
made a live issue before the court and there has
been a witness to testify to that effect;
The complainant was vague as to the alleged
acts and doings of the accused and it was certainly not for the court to draw inferences. It was
the duty of the prosecution to to prove all the
facts constituting the offence charged and this is
a fundamental principle which has existed for
years. In the case of Mourga v R (1873), it was
held that “the fundamental parts of the case
against the accused cannot be assumed, but
must be distinctly proved out of the mouths of
competent witnesses.”
There were minor inconsistencies in the version
of the complainant;
The MLR indicated that there was a „Large vaginal entrance‟ which was an indication of the sexual activities of the girl at her young age. She
had stated that she has had sexual relationship
with the accused only once in 2 years. Either this
gives her the lie or there is surely another person
in her life which create a serious doubt at to her
credibility.
Case dismissed.
3. any other road to which the public is granted
access, and
4. any road reserve not under cultivation or
occupied by buildings.
The issue to be determined was whether the place
where the accident was alleged to have occurred as
averred by the prosecution falls within the above definition of a road.
First, it has to be established that the public has or is
granted access to the locus. No evidence was led on
this issue. It is common ground that the said compound
houses a studio and there is nothing on record to show
that that members of the public generally who do not
have any business there are granted access. As held in
the leading case of DPP v Lockman [1979] SCJ 326:
„ I think that when the statute speaks of public in this
connexion, what is meant is the public generally and not
the special class of members of the public who have
occasion for business or social purposes to go to the
premises…………The mere fact that the public has access is not enough. There must be a limitation of some
sort, otherwise any place to which the general public
has access could be said to be road within the definition
of S2 of the Road Traffic Act.‟ (emphasis added)
Hence, the Learned Magistrate found that the entrance
of Scorpio Studio where the accident occurred could by
any stretch of the imagination be construed as forming
part of the road nor could it be said that the public generally has access to it. Further, no one would in the ordinary acceptance of the word „road‟ think of the entrance
of the said studio as a road.
The prosecution had therefore failed to prove an essential element of the offence, that is, that the accident had
occurred on a „road‟ within the meaning of the law.
Case dismissed.
Police V Satar Abdool Gunnoo [2011 BMB 129]
Her Honour Magistrate Hamuth
Meaning of ‘road’
The accused stands charged with having unlawfully
driven heavy motorcar CL 206 on a road without due
care and attention, in breach of Sections 123 (C)(1)(a)
and 52 of the Road Traffic Act. He pleaded not guilty to
the charge and was not assisted by counsel.
One essential element of the above offence is that the
accident should have occurred on a road within the
meaning of S2 of the Road Traffic act, which defines
„road‟ as follows:
1.
2.
a public street, road, bridge and thoroughfare,
a place over which the public has a right of way
for motor vehicles,
Page 16 - Issue 9
‘Never mistake
knowledge for wisdom.
One helps you make a
living; the other helps
you make a life.’
Sandra Carey
United Nations Office on Drugs and Crime
Global Study On Homicide
LAUNCHING OF THE GUIDELINES FOR
LEGISLATIVE DRAFTING
During the month of October, the United Nations Office
on Drugs and Crime („UNODC‟) has published its first
During the months of August and September, the Attor-
report on the Global Study on Homicide.
The study
ney General‟s Office organised a nine-session course
shows that young men, particularly in Central and South
on legislative drafting which was delivered by Sir Victor
America, the Caribbean and Central and Southern Afri-
Glover. Law officers from the Attorney General‟s Office,
ca, are at greatest risk of falling victim to intentional
the Office of the DPP and from several ministries at-
homicide but women are at greatest risk of murder ow-
tended it.
ing to domestic violence.
On 9th September 2011, Honourable Yatin Varma, AtFirearms are behind the rising murder rates in those
torney General, launched the „Guidelines for Legislative
regions, where almost three quarters are committed
Drafting‟ at the Municipality of Port-Louis.
with guns, as opposed to 21 % in Europe. Worldwide,
that, „one cannot master the art of Legislative Drafting
468,000 homicides occurred in 2010. Some 36% of all
overnight. It requires some degree of training and, very
homicides take place in Africa, 31% in America, 27% in
often, years of practice.‟ The guidelines offer a compre-
Asia, 5% in Europe and 1% in Oceania. At page 70 of
hensive approach to legislative drafting which concisely
the Report, the shares of homicide victims in Mauritius
set out all that drafters need to know on the matter.
rise until the 40-44 age group for men and until the 35-
They have been prepared with the assistance of Sir Vic-
39 age group for women.
tor Glover, Mr Mouammar Oozeer and Miss Deeya
Beesoondoyal.
The above study also establishes a link between crime
and development. High levels of crime are both a major
cause and a result of poverty, insecurity and underdevelopment.
The current study is the comprehensive cross-national
ENJOY READING YOUR
MONTHLY LEGAL
UPDATE NEWSLETTER
and time series homicide data from 207 countries and
territories, which forms the backbone of the Global
Please forward your
Study on Homicide. The Report is available at the fol-
comments to:
lowing web address:
http://www.unodc.org/unodc/en/data-and-analysis/
statistics/crime/global-study-on-homicide-2011.html
Page 17 - Issue 9
[email protected]
He stated