Office of the
Director of
Public
Prosecutions
E-Newsletter
Issue 43
December 2014
‘To No One Will We Sell, To
No One Deny or Delay Justice’
Chapter 40, Magna Carta 1215
IN THIS ISSUE:
December 2014- Issue 43
PAGE
Editorial
1
Corporate Crime
2
Visit to the Forensic Science Laboratory
3
‘The contemporary challenge of domestic violence in Mauritius: An alarming issue.’
4
Case Summary: November 2014
6
Highlights of year 2014
13
EDITORIAL TEAM
Mrs Sulakshna Beekarry, Principle State Counsel
Miss Anusha Rawoah, State Counsel
Mrs Zaynah Essop, State Counsel
Mr Ashley Victor, Public Relations Officer
Mr Nitish Bissessur, LRO
Mr Yashvind Kumar Rawoah, LRO
Mr Ajmal Toofany, LRO
Miss Toshika Bobeechurn, LRO
Miss Jouana Genave, LRO
We look forward to receiving
your comments/suggestions on:
[email protected]
EDITORIAL
December 2014- Issue 43
Dear readers,
Year 2014 is nearing completion. Many of us are thinking of the holidays and the end of year festivities with our close ones.
2014 has been an eventful year for the DPP’s Office. The highlights of year 2014 are found at page 13 of this issue.
In this December 2014 issue we provide you with an insight into the events and activities of the Office. Mr Satyajit Boolell SC,
DPP, gives his thoughts on the issue of ‘criminal liability of a Corporation’. Mr Mervyn Anthony, trainee at the ODPP,
addresses the issue of the contemporary challenge of domestic violence in Mauritius.
The Office of the Director of Public Prosecutions was invited to attend a talk by the Forensic Science Laboratory (FSL) on
Tuesday 2nd December 2014. Among the subjects discussed were: (a) The impartiality of the FSL (b) The challenges faced by
the department (c) The goals for the future. Finally, this issue provides you with the usual summary of the latest Supreme
Court judgments.
On behalf of the editorial team and all the officers of the ODPP, we wish you all a Merry Christmas and a happy new year
2015. May this Christmas end the present year on a cheerful note and make way for a fresh and bright New Year. We also
wish to thank you for having been with us throughout the year and for your constant support.
Yashvind Kumar Rawoah,
Legal Research Officer
Page 1
December 2014- Issue 43
Corporate Crime
There are many lessons to be drawn from the findings of the Magistrate following the
judicial enquiry in the fatal road accident at Soreze, Pailles on 3 May 2013. The first one is
for the legislator to enact legislation on corporate criminal liability to give more teeth to the
present law.
As matters stand, our law (see section 44 IGCA) provides by way of a legal fiction that, where a corporation commits an
offence its superior officers are deemed to have committed the offence as well unless the superior officer establishes that he had
no knowledge of same or never consented thereto.
That is indeed a strange way of describing the criminal liability of a corporation. Adopting a backdoor approach as the law
does was found to be unsatisfactory by the Supreme Court, prompting the court in the case of The DPP V La Clinique
Mauricienne to clarify the law on corporate crime as follows:
(a) the criminal act must be committed by an identified physical person acting in the performance of his duties in the
company; and
(b) that person is someone who has control over the affairs of the company to such a degree that it may fairly be said that his
acts and knowledge are those of the company itself (a superior officer).
The difficulty with this approach is that it requires the identification of an individual as the defaulter and that individual must
either be a superior officer or acting with the consent of the superior officer. Unless these requirements are satisfied, the
prosecution of a corporate body would be impossible.
The French have come with a solution to overcome the present legal conundrum. Under French Law there is no need, since an
arrêt of the Cour de Cassation dated 20 June 2006 (Crim. 20 juin 2006, no. 05-85.255, Bull. Crim. no. 188),to identify any
specific employee as defaulter if it is obvious that the criminal offence was that of the corporate body.
We should do the same.
Satyajit Boolell, SC
Director of Public Prosecutions
Page 2
December 2014- Issue 43
ODPP visit to the Forensic Science Laboratory
The Office of the Director of Public Prosecutions was invited to attend a
talk at the Forensic Science Laboratory (FSL) on Tuesday 2nd December
2014.
The Director of the FSL, Mr Andrew Wade, warmly welcomed the law
officers and explained that the purpose of the exercise was to ensure that
all stakeholders were acquainted with the work done by the department.
The vision statement of the FSL was explained, re: “To be recognized as
providing an impartial, high quality and timely forensic service in
support of the justice system.” The Director emphasized that it was very
important for the public to recognise the impartiality of the FSL, and the
fact that it has been functioning independently from the police force
since year 2000, under the aegis of the Prime Minister’s Office.
Law officers of the ODPP were introduced to the internationally recognised competency methods used by the FSL, and to the
statistics (8,745 cases in 2011 and 9,088 in 2012). The challenges faced by the department were also discussed (e.g the rise in
synthetic drugs, piracy and maritime violence, increasing size of DNA database, limited space for expansion etc), as well as the
goals for the future (new laboratory, increased range of services, improve staff training etc).
Mr Sean Sohun, Forensic Scientist, presented the Chemistry and Biology Sections of the FSL and indicated that a lot of
emphasis is now being put on attending crime scenes. A national DNA database is in the process of being compiled, with
19,000 profiles having been collected so far. The main challenge with scenes of crime remains the possibility of contamination,
hence the importance of police training.
The talk was followed by a guided tour of the laboratory rooms – the whole exercise led to increased awareness of the
functioning of the department, the techniques and equipment used, and for the future, the possibility of closer collaboration
between the ODPP and the FSL.
Sulakshna Beekary-Sunassee,
Principal State Counsel
Page 3
The contemporary challenge of domestic violence in
Mauritius: An alarming issue.
December 2014- Issue 43
The issue of domestic violence is currently in an alarming state in Mauritius thereby justifying the need for the Office of the
Director of Public Prosecution to launch the domestic violence awareness raising campaign event as published in our last
newsletter. In fact in many cases, domestic violence has led to loss of lives.
Even if Mauritius has a reliable legal framework (The Protection from Domestic Violence Act 1997), to support the growing
importance for new measures that tally with the societal requirements of Mauritius in regard to domestic violence is a basic
necessity.
The causes of domestic violence have different implications which are illustrated below along with the protective policies and
measures already in place as well as the suggestions and recommendations that are likely to reinforce existing policies and
measures in the quest of constantly maximizing efficiency regarding their operations in the short and long run. Domestic
violence exists in every societal background irrespective of every socio-economic segment from the rich to the poor as well as from
every educational and religious background which consists of all categories of people from children to adult and is inclusive of
both men and women.
Children remain the most vulnerable category of people exposed to domestic violence, especially in terms of mental trauma and
physical. Depending on the kind of domestic violence they are subjected too, children could clearly be exposed to the threats of
death and physical injuries. Advanced research has shown that children can be subjected to attitudinal and performance related
problems whereby the stress of domestic violence may negatively influence their upbringing, their performance at school and in
sports as well as their continuous fulfillment. In line with the United Nations Convention on the Rights of the Child, Mauritius
has a reliable Child Protection Management System in place in order to deal with this societal problem and which comprises of
institutions such as the Child Development Unit (CDU) and the Ombudsperson for the Children.
Women are the second most vulnerable category of people that are subject to domestic violence whereby many cases leading to
the loss of life have been seen in spite of the existing policies and measures available in Mauritius. Moreover there are situations
whereby men are equally subject to domestic violence. The abovementioned campaign will help to tackle the existing lack of
public awareness regarding protection measures available in regard to domestic violence.
According to the statutory definitions in the Protection from the Domestic Violence Act 1997, domestic violence is inclusive of all
acts mentioned below and committed by a person on his partner, a child or any other person living under the same roof:
Intentionally cause or attempt to cause physical injury:
a) To voluntarily cause or attempt to cause a partner or any other persons the fear of a physical injury on oneself or on one of
the latter’s children:
Page 4
December 2014- Issue 43
b) Intimidation, harassment, mistreatment, brutality or cruelty:
c) To compel the partner or any other person by force or under threat to undertake a sexual act or others that the partner or
any other person has the right to refuse:
d) To retain or take hold of a partner or any other person against her will:
e) To cause tort to the child of a partner:
f)
To cause or attempt to cause damage to the belonging of a partner or any other person:
g) To make threat about the intention of committing any act mentioned in section (a) to (g) above.
In line with the reliable measures and policies available to support the requirements for protection from domestic violence,
victims should immediately report to the nearest police station by the most appropriate means available, such as personal visit or
phone call and to preserve any proof of the violent act such as torn clothes or pictures of injuries caused, threat messages via
phone text or emailing as well as via phone call should also be saved. Moreover in case of injuries caused, the police will give to
victim/s the form PF58 before taking her/them to hospital. Then proof will be assembled and sent to the “Forensic Science
Laboratory” for examination. Those who are victims of or are likely to be victim of domestic violence should request for a
“Protection Order” in accordance with Section 3(1) of the Protection from Domestic Violence (PDV) Act 1997. Upon request to
the Magistrate in chambers an urgent provisional protection may be granted to the victim/s.
However in spite of the reliability of the measure and policies available to support the objectives of the abovementioned
legislation, a few drawbacks still exists and the current protection from domestic violence system requires a few innovative
changes in order to maximize efficiency regarding its operations as an assurance to support the right of the victims. In fact,
despite the existence of provisional protection orders in case of urgency, if the victim requested the urgent protection on a Friday
afternoon s/he will have to wait until Monday for the needful to be done for the Provisional Protection Order to be granted. In
case of urgency the lapse of time between Friday and Monday may expose the victims to the probability of loss of life. Reforms
are clearly required in term of night duty and week-end overtime in order to make the operations of the Provisional Protection
order available anytime as and when required.
At the Office of the Director of Public Prosecutions the issue of domestic violence remains a concern to all, and a specialised
Victims and Witness Support Unit is operational to look closely at the challenges in this area, amongst others.
Mervyn Anthony,
Service to Mauritius Programme Legal Intern
Page 5
SUMMARY OF SUPREME COURT JUDGMENTS :
November 2014
MARCEL N B. J v THE STATE [2014] SCJ 392
By Hon. A. Caunhye, Judge & G. Jugessur-Manna, Judge
Purpose of Sections 14 and 16 of HIV and AIDS Act - Review of
Sentence
The Appellant pleaded guilty to the following offences under
Count 1, for possession of dangerous drugs in breach of
Section 34(1)(b) of the Dangerous Drugs Act; under Count 3,
for administering dangerous drugs to himself by means of a
syringe in breach of Section 34(1) (a) of the Act; and pleaded
not guilty under Count 2, for possession of a syringe used in
connection with the administration of dangerous drug in
breach of Section 34(1)(c) of the Act. He was convicted and
sentenced to pay a fine of Rs 3,000 under each count.
The conviction under Count 2 was challenged on the grounds
that:
o the Learned Magistrate was wrong to find the Accused
guilty in view of the proposition of the HIV and AIDS Act,
o the Accused could not be found guilty under Count 2 in
as much as he was already charged with possession of
dangerous drugs contained in a syringe,
o Section 16 of the HIV and AIDS Act was wrongly
interpreted as it provided for a complete defence to the
Accused, and
o the sentence was manifestly, harsh and excessive.
It was held that the main purpose behind enacting the HIV
and AIDS Act was to provide for a syringe exchange program
which would enable drug consumers to use safe syringes
which are infected with HIV virus. However, the evidence
clearly established that although the Appellant was registered
with a prescribed institution he did not obtain the syringe
which was found in his possession from a prescribed
institution as laid down under Section 14 of the HIV and Aids
Act. He had bought the syringe from an unlawful source
which was not a registered institution. The Appellant could
not therefore avail himself of the statutory defence laid down
under Section 16 of the HIV and AIDS Act.
December 2014- Issue 43
With regards to sentence, the Appellate Court held that the
Magistrate gave due consideration to the Appellant’s change
of plea in respect of Counts 1 and 3, that she also took into
account a previous conviction of the Appellant in respect of a
cognate offence and that there is no merit in the argument
that the Appellant as being punished twice for the same
offence as each count is based on distinct and separate facts.
The Appeal was dismissed with Costs.
DIRECTOR OF PUBLIC PROSECUTIONS V JEETUN P [2014]
SCJ 375
By Hon. E Balancy, Senior Puisne Judge and D. Chan Kan
Choeng, Judge
Larceny – Guilty Knowledge
The Respondent was charged before the District Court of
Grand Port with having been found to have in his possession,
without sufficient excuse or justification, articles, to wit: 3
metal base jacks, abstracted by means of a crime, to wit: a
larceny by persons in receipt of wages, in breach of Sections
40, 301(i) and 309(2)(a) of the Criminal Code. The charge was
dismissed against the Respondent as the Learned Magistrate
found that the prosecution failed to prove its case beyond
reasonable doubt.
The appeal against the dismissal of the information was based
on the grounds that (a) the Learned Magistrate failed to find
that the Respondent had the required guilty knowledge, (b)
failed to take into consideration that the Respondent was in
possession of the three based jacks and (c) that the
prosecution proved its case beyond reasonable doubt since
guilty knowledge could have been reasonably inferred and
therefore proved.
The Appellate Court analysed Section 40 of the Criminal Code
and came to the conclusion that following Prayag v The State
2004 SCJ 29, Section 40 created two distinct charges, that is,
(a) when the Accused “knowingly receives articles obtained by
means of a crime or misdemeanour (…) (b) and (…) when he is
Page 6
“found in possession of such articles without sufficient excuse
or justification” (…)
The Appellate Court also held that knowledge that the
property was stolen does not equate to possession of the
stolen property. To support such argument the Appellate
Court relied on the case of Nowbuth v The State [2005 SCJ
157].
Based on the contradictions of the prosecution witnesses as
well as the fact that the Respondent had barely time to react
on finding the base jacks behind the passenger seat, the
Appellate Court did not interfere with the findings of the
Learned Magistrate as it would not have been safe to infer
that the Respondent had joint or sole control over the stolen
property. The Appeal was dismissed.
PAKEROO J. v THE STATE [2014] SCJ 371
By Hon. A. Hamuth, Judge and O.B. Madhub, Judge
Competency test of Minor – Nullity – Directions to Director of
Public Prosecutions
The appellant stood charged under one count of an
information before the Intermediate Court for having on or
about 30th November 2009 committed an indecent act upon
a child under the age of 12. The complainant was then aged 10
years old.
After having heard the evidence, he Learned Magistrate
found the charge proved and convicted and sentenced the
Appellant.
However, the Appellant appealed against the conviction and
sentence and the Appellate Court decided to remit the case
back to the Magistrate with a direction to re-consider and reassess the whole evidence heard by him upon discarding the
medical evidence and to pay due attention to the previous
version of the complainant as reflected in the statement of the
accused to the police.
After having followed the above directions, the Magistrate
found the charge proved and concluded that the
inconsistencies were minor ones. The Appellant appealed
December 2014- Issue 43
against such finding and invited the Appellate Court to
follow the same course as in the case of Jeetah v The State
2014 SCJ 337 and to declare the trial to be a nullity because
the Complainant was under 14 when she gave evidence, she
did so without undergoing the competency test and her
evidence was inadmissible.
Since the victim was ten at the time of the alleged offence
and thirteen when she gave evidence, the Appellate Court
decided to follow the same course as in the case of Jeetah v
The State 2014 SCJ 337 and ordered a fresh trial before
another magistrate.
The attention of the Director of Public Prosecutions, in
exercising his constitutional discretion, was however drawn
to the fact that the offence dates back to 30th of November
2009, that it is the appellant’s second appeal, the victim will
be about 16 years old when the matter will be heard anew
and as in the case of Jeetah v The State 2014 SCJ 337 the need
for the competency test will be rendered nugatory by the
passage of time since the witness is now over 14.
MAULABOKSH M.S v THE STATE [2014] SCJ 386
By Hon. N. Devat, Judge and P. Fekna, Judge
Sentence – Mitigating Factors – Disparity of sentence
The appellant (accused no 2) was prosecuted together with
another person (accused no. 1) before the Intermediate Court
for the following charges:
o under count I, the offence of drug dealing in breach of
sections 30(1)(f)(ii) and 47(5)(a) of the Dangerous Drugs
Act against both accused; and
o under count II, the offence of facilitating the commission
of drug offences in breach of sections 36(f)(ii) of the
Dangerous Drugs Act against accused no 1 only.
Accused No. 1 and the Appellant pleaded guilty to Count I
and Accused No. 1 pleaded guilty to Count II. Each of them
were sentenced to undergo 3 years penal servitude and to pay
Page 7
December 2014- Issue 43
a fine of Rs 10,000 under Count I. The Appellant is now
challenging the sentence meted out against him because the
sentence was harsh and excessive and was wrong in principle
The Appellate Court held that, even though the incident took
and because it offended the principle of proportionality.
place in or about the month of July 2006, that same was
The Appellate Court held that the sentence was justified and reported on the 22nd of August 2006 and that the Information
that in addition to the mitigating factors of the Appellant, the was lodged in June 2009, this did not amount to an inordinate
Court had to take into account the following:
delay caused by the Prosecution as to give rise to an
o the nature of the drugs involved,
infringement of the Appellant’s right to a fair trial within a
o the fact that the drugs were packed in ten aluminum foils, reasonable time.
being the form in which such drugs are sold,
It was also held that the Learned Magistrate considered all the
o the nature of the offence charged, namely that the
points raised by the Defence and that the victim was a victim of
Appellant had it in his possession drugs for distribution,
a sexual offence and that her version was not corroborated. The
o that a clean record per se does not necessarily bestow an
Court referred to cases of Botte v R [1968 MR 80] and Nundah
automatic right to leniency
v The State [2003 SCJ 189]
o that following the case of Roopchand D v The State [2013
SCJ 416] an appellant needs to show that the sentence was On considering the evidence on record, the Appellate Court
not merely harsh and excessive but manifestly harsh and held that the Learned Magistrate came to the right conclusion
and that here has been no prejudice or miscarriage of justice
excessive.
that would make it unsafe to maintain the conviction.
The Appeal was dismissed.
The Appellate Court also held that in spite of the fact that the
BENYMADHO T v THE STATE 2014 SCJ 391
defence was not called upon to adduce evidence in mitigation
and taking all the circumstances into consideration, it is clear
By Hon. S. Peeroo, Judge and J B G Marie Joseph, Judge
that no unfairness has resulted. The appeal against conviction
Section 10 of the Constitution – right to a fair trial and sentence was dismissed.
The Appellant was prosecuted before the Intermediate Court
for attempt upon Chastity upon a specified person to wit: her BEEKARY D v THE STATE 2014] SCJ 403
daughter, in breach of Section 249 (5) (b) (c) (i) of the Criminal
By Hon. E Balancy, Senior Puisne Judge and R. Teelock, Judge
Code. He was found guilty and was sentenced to undergo 2
Nullity – Order for Fresh Trial - Irregularities
years imprisonment and to pay Rs 500 costs.
This is an Appeal both on sentence and conviction. The
The Appeal was based on the following grounds: (a) the
Appellant was charged before the District Court of Upper
Appellant’s right to a fair trial within a reasonable time under
Plaines Wilhems for the offence of assault with aggravating
Section 10 of the Constitution was infringed, (b) the Learned
circumstances under Section 228 (1) of the Criminal Code. He
Magistrate failed to consider the contradictions and
was found guilty and sentenced to 3 months imprisonment, a
discrepancies found in the victim’s versions, (c) the Learned
fine of Rs10, 000 and costs of Rs 100.
Magistrate failed to consider the contradictions between the
versions of the Prosecution witnesses, (d) that the Learned The Appellant argued that the evidence did not meet the
Magistrate was wrong to endorse the view of Prosecuting required standard to show the aggravating circumstances.
Counsel who was selective in adducing evidence before the After having duly examined the information, the record, the
Court and (e) the sentence was manifestly harsh and excessive. judgment and the sentencing procedure, the Appellate Court
Page 8
noted that practically at each stage, there were features which
were worrying and their cumulative effects were cause for
concern.
These irregularities were that the unrepresented Appellant
seemed not to be aware that he could cross examine the
makers of the documents, that is, the PF 58 certificates. In
addition to this at the time of sentencing, the record does not
show that the Learned Magistrate gave him the opportunity to
mitigate. Furthermore, the Learned Magistrate in her
judgment found the Appellant guilty of another limb of the
offence which was not averred in the information.
The Appellate Court held that based on the above, there was a
serious irregularity and therefore declared the trial to be a
nullity and ordered a fresh hearing before a different
Magistrate under Section 96(5) of the District and
Intermediate Courts Act.
STATE v KELL J C [2014] SCJ 379
By Hon. D. Beesoondoyal, Judge
Sentencing: Wounds and Blows
The accused was originally charged with having criminally and
wilfully killed one Obrayen Jean-Michel Larose. The charge was
reduced to one of wounds and blows causing death without
intention to kill, in breach of section 228(1) (3) of the Criminal
Code and the information was amended accordingly. As he
has pleaded guilty to this reduced charge, the Court found him
guilty as charged.
December 2014- Issue 43
close and dear to him and his previous conviction dated
03/09/1992 for a case of assault for which he was fined, the
Judge sentenced the accused to undergo ten (10) years penal
servitude, from which shall be deducted the whole time he
has spent on remand and to pay Rs1,000 as costs. All the
exhibits produced in Court were forfeited.
STATE v BOHOLAH B [2014] SCJ 376
By J. Benjamin. G. MARIE JOSEPH, Judge
Possession of dangerous drugs for the purpose of distribution
Accused stood charged on an amended information with the
offence of wilfully, unlawfully and knowingly possess
dangerous drugs for the purpose of distribution. In view of
the quantity of cannabis secured, the manner in which it was
concealed, its street value which exceeded Rs 1m and all the
circumstances, the accused was considered to be a drug
trafficker, in breach of sections 30(1)(f)(i), 41(3)(4) and
47(2)(5)(a) of the Dangerous Drugs Act, 2000. The dangerous
drugs being 6146.2 grams of cannabis wrapped in a large
piece of cloth. Being given the guilty plea tendered by the
accused, the Court found him guilty as charged.
In considering the sentence to pass on the accused, it was
noted that the latter had pleaded guilty to the serious offence
of possession of a significant amount of cannabis for the
purpose of distribution as a trafficker.
It was clear that the accused assaulted the deceased in a
moment when he lost his temper and got carried away. The
Court cannot, however, lose sight of the fact that the act and
conduct of the accused resulted in the death of another person,
and that there is a prevalence of such type of crimes which
need to be punished with utmost severity in order to protect
society and deter potential offenders.
Further, bearing in mind the fact that if the accused had not
been caught he would have provided a significant amount of
cannabis that would have contributed to the much unwanted
proliferation of drugs. This Court has on many occasions
before expressed the need in such circumstances and in view
of the battle against the drug scourge, to inflict an exemplary
punishment that would send the proper signal to society and,
especially, to potential offenders.
Taking into account the seriousness of the offence, the
circumstances in which it was committed, the prompt
confession of the accused, his timely guilty plea, his remorse
and regret for having taken away the life of a person who was
Having regard to the foregoing observations and after taking
into account the following mitigating factors:(1) the fact that
the accused cooperated with the police by readily making a
Page 9
clean breast after being caught; (2) his timely guilty plea and
his statement under solemn affirmation; and (3) the fact that
he has a clean record, the Judge sentenced the accused to
undergo 18 years penal servitude, from which shall be
deducted 125 days he has spent on remand and to pay a fine of
Rs 75,000 plus Rs 1,000 as costs. Exhibits were forfeited.
STATE v MURDEN J L D [2014 SCJ 377]
By Hon. J. Benjamin. G. MARIE JOSEPH, Judge
Wounds and blows causing death without intention to kill
The accused stood charged on an amended information with
having on the 1st October, 2006 committed the offence of
wounds and blows causing death without intention to kill on
the person of one Avinash Chattoo, in breach of section
228(1)(3) of the Criminal Code.He had pleaded guilty to the
charge and was consequently found guilty as charged.
In assessing the sentence, the Learned Judge took into account
the seriousness of the offence and the circumstances in which
the accused inflicted upon the deceased the fatal injury. In that
respect, it was appropriate to make certain observations as to
his conduct, which he believed calls for serious concern. As a
matter of fact, he was of violent disposition since he was going
around armed with a penknife with the intention to readily use
it, if the need arises. Further, it is to be noted from his criminal
record that prior to the incident, he was involved in a case of
serious assault.
In view of his conduct which, it should be recalled, resulted in
his taking away of the life of a man as young as him, the
accused deserves being behind bars long enough not only so as
to meet the ends of justice in this matter, but also to discourage
potential offenders along the same lines. In the light of the
above and after taking into account the fact that the accused
readily confessed and cooperated with the police, his age at the
time of the offence and his testimony in mitigation, the Judge
sentenced the accused to 9 years penal servitude, from which
shall be deducted the 1790 days he has spent on remand, and
to pay Rs 1000 as costs. Exhibits were not to be forfeited.
December 2014- Issue 43
NG HA KWONG H v THE STATE [2014 SCJ 389]
By Hon. E Balancy, Senior Puisne Judge and A.A. Caunhye,
Judge
Amendment to the information – Wounds and Blows - Assault
The Appellant pleaded not guilty to two counts on which he
was prosecuted before the District Court of Port-Louis.
Under count 1, the charge was one of insult and the alleged
victim was one Ng Chin Chang. Under count 2 the accused
was charged with wounds and blows said to have been
inflicted on one Qing Hue Ng Chin Chang, the wife of the
alleged victim in count 1.
All the grounds of appeal raised by the Appellant related to
the procedure adopted by the Learned Magistrate for the
amending of the information in order to substitute a charge
of assault to one of wounds and blows.
After the hearing of the evidence, the Learned Magistrate
delivered a judgment dismissing Count 1 as she found it
unsafe to rely on the version of Ng Chin Chang but however,
stated that Qing Hue Ng Chin Chang was a witness of truth
on whose testimony she was prepared to act. She also went on
to say that since the witness’s version indicated that the
appellant only committed assault and not wounds and blows
in accordance with Count 2, same had to be amended to
bring it in line with the evidence prior to the conviction under
Count 2.
The information was accordingly amended without any
objection from Defence Counsel and without the latter calling
any further evidence. The Appellant was found guilty under
Count 2.
The Appellate Court held that it was perfectly legitimate for
the Magistrate to convict the Appellant for the offence of
assault without the need to amend the information at all
because the offence of assault under Section 230 of the
Criminal Code is only a less serious form of violence that the
offence of wounds and blows provided in the same section.
Page 10
The Court concluded that:
o there can be no conviction for wounds and blows upon a
charge of assault without an amendment of the
information effected in such a way as to avoid any
possibility of prejudice to the accused;
o however, there can be a conviction for assault upon a
charge of wounds and blows without necessarily having
recourse to such amendment so long as no prejudice can
result to the accused in the conduct of his defence.
Based on the above and in the absence of any indication that
the Appellant was misled or prejudiced, the Appellate Court
held that the amendment of the information was not
necessarily required such that the grounds of appeal are
unfounded. The Appeal was dismissed.
ANTONIO L S v THE STATE [2014] SCJ 402
By Hon. E Balancy, Senior Puisne Judge and R. Teelock, Judge
Cause of death – Intervening events
This is an appeal from both conviction and sentence. The
Appellant was convicted by the Intermediate Court upon a
charge of involuntary homicide by imprudence in breach of
section 239 (1) of the Criminal Code coupled with sections 133
and 52 of the Road Traffic Act. Upon being found guilty, he
was fined Rs 50 000, his licence was cancelled and endorsed
and he was disqualified from holding or obtaining a driving
licence in respect of all types of vehicles for a period of three
years.
Grounds of appeal 1, 2 and 3 challenge the conviction whereas
ground 4 avers that the sentence was manifestly harsh and
excessive.
Under Ground 1, the Appellate Court held that they cannot
agree with the fact that the Learned Magistrate failed to set
down the acts constituting the imprudence warranting the
conviction. She clearly set out that “it was incumbent on the
accused to ascertain that the road was clear and that it was
totally safe to reverse on the main road. Any normally prudent
driver would not reverse on a main road as this act is in itself a
dangerous act although the driver may not be conscious of
December 2014- Issue 43
such danger”. The Court went on to state that the appellant
did not see the deceased when he checked and decided to
reverse could only show that he did not exercise the required
level of prudence of a reasonable driver. Pedestrians and road
users could not expect a vehicle to be moving in wrong
direction on a road which is why extra care had to be exercised
when reversing on any road, especially a main road
Ground 2 was not pressed upon and with regards to Ground 3,
it challenged the Magistrate’s conclusion that the pedestrian
was hit and died when the Appellant was reversing. The
Appellant however relied on the fact that the death occurred
49 days after the accident and that the Court relied on the
report which was produced.
The Appellate Court held that the production of medical
reports is permitted and it is the practice that Doctors are not
summoned unless there is a request by either the Prosecuting
Counsel or Defence Counsel. In the present matter, the
Defence did not challenge the production of the report until
after the close of the trial and on analysing the report, the
cause of death was due to a “skull fracture with brain
laceration” which could only have been caused by the accident
and not by any other intervening events.
As far as the sentence was concerned, the Appellate Court held
that the Appellant was a taxi driver who had to exercise a high
duty of care towards members of the public in exercising their
profession. The Appellant caused the death of a pedestrian
and there was no reason why he should not have seen the
deceased crossing the road whilst he was reversing in broad
daylight. The Appeal was dismissed with Costs.
STATE v TENGUR N S [2014 SCJ 409]
By Hon. J. Benjamin. G Marie Joseph, Judge
Sentence
The Accused was found guilty by a Jury for the crime of
murder in breach of sections 216, 217 and 221 (1) (a) of the
Criminal Code.
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In considering the appropriate sentence to be imposed, the
Court considered the facts of the case, the severity of the
offence, the young age of the Accused, his criminal track
record and also the amendment to section 222 (1) of the
Criminal Code which provides for the sentence of penal
servitude for life or a lesser term of penal servitude not
exceeding 60 years. In accordance with the amendment, to give
a lesser sentence, the Court is bound to be satisfied that
substantial and compelling circumstances do exist.
The Court held that the crime was committed in the most
savage, violent, brutal ad barbaric manner and the
punishment to be meted out to him should reflect the utmost
severity. The Accused was thus sentenced to undergo 40 years
penal servitude from which 223 days spent on remand as
deducted and to pay Rs 1000 as costs.
TEELUCK R. D. S v THE STATE [2014 SCJ 398]
By Hon. A. Hamuth, Judge and P. Fekna, Judge
Corroboration in sexual offences – Elements of Section 14 of the
Child Protection Act
The appellant, accused before the lower court, was convicted on
one count by the learned Magistrate of the Intermediate Court
for the offence of unlawfully causing a child to be sexually
abused by him in breach of sections 14(1)(a)(2)(a) and 18(5) of
the Child Protection Act. He was sentenced to undergo six
months imprisonment and to pay Rs 500 as costs.
He is now appealing against both his conviction and sentence.
Most of the grounds of appeal challenge the appreciation and
assessment of the evidence of the Learned Magistrate.
With regards to the other grounds of appeal the Appellate
Court held that a Magistrate can act on the sole testimony of a
complainant in a sexual offence case. But that is subject to the
condition that the complainant is a credible witness whose
testimony has stood the test of cross-examination. In the
present matter the Appellate Court stated that the Learned
Magistrate did give herself the appropriate corroboration
warning but erred when she said that she could act on the sole
testimony of the complainant when in effect there was so much
December 2014- Issue 43
which had come out which put the credibility of the witness in
question. Therefore, the Appellate Court held that it was
unsafe for the earned Magistrate to act on the uncorroborated
evidence of the complainant.
With regards to the other Ground of Appeal, the Appellate
Court went on to analyse the elements of Section 14 of the
Child Protection Act and held that the two main elements are:
(a) causing and (b) the act of sexual abuse. The word ‘cause’
was analysed and the Court held that it refers to such action or
actions without which the act of sexual abuse could not or
would not have taken place. It was therefore incumbent of the
Prosecution to identify, in evidence, which actions amounted to
the element of ‘causing’
With regards to the element of willing participation and or
unwilling participation, the Appellate Court held that it made
no difference whichever of those two elements is averred as the
offence could be committed either way. However, the
Prosecution had to amend their information in line with the
evidence which was on record or alternatively it is open to the
magistrate to amend the Information proprio motu should
there be a variance.
The Appellate Court also explained that the legislator having
used the expression ‘another person’ in section 14 subsection
(1)(a) and then, purporting to explain that very same
subsection in subsection 14(2), again using the same
expression ‘another person’ in paragraph (a) leads to the
irresistible inference that the expression is meant to have the
same meaning on both occasions.
The Appeal was allowed and the conviction was quashed as the
Prosecution had failed to establish what it averred in the
Information.
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December 2014- Issue 43
HIGHLIGHTS of YEAR 2014
2
1
3
4
5
1. Asset Recovery Workshop (ARINSA)
2. Cybercrime Workshop
3. Launching of Mauritius Criminal Law
Review 2013
4. Training for Prosecutors and Investigators
5. Sir Anthony Hooper QC visits the ODPP
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December 2014- Issue 43
HIGHLIGHTS of YEAR 2014
6
7
2
1
8
9
6 & 7. Advocacy Training 2014
8. Residential Seminar
9. Team Building Activities
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December 2014- Issue 43
HIGHLIGHTS of YEAR 2014
10
11
2
1
12
13
14
15
10 & 11. ‘Dans le noir’; 12, 13 & 14. Annual Dinner 2014;
15. Visite de courtoisie des Hautes Autorités judiciaires des îles de l’Océan Indien au bureau du
DPP
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December 2014- Issue 43
HIGHLIGHTS of YEAR 2014
16
17
19
18
20
1
2
16. Certificate Award Ceremony: Law Enforcement Officers of Rodrigues
17. Commonwealth Secretariat International Cooperation Programme held in Mauritius
18. Training to Police Prosecutors
19. UNDOC Botswana Conference: Recovering the Proceeds from Wildlife and Timber Crimes
14 and African experiences
Asian
20. Visit of the "Youth Leadership Training Program“ participants at the ODPP
I hope that in this year to come, you make mistakes. Because if you are making mistakes, then
you are making new things, trying new things, learning, living, pushing yourself, changing
yourself, changing your world. You’re doing things you’ve never done before, and more
importantly, you’re doing something.
~Neil Gaiman~
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