POLICE v ST MART M M
2017 MBG 21
POLICE v ST MART MARIE MEDGEE
Cause Number 721/16
In the District Court of Grand Port
Police
v
Marie Medgee St Mart
Judgment
The Accused stands charged with having on or about 21st July 2010, at Mahebourg, wilfully and
unlawfully made use of an injurious expression, not carrying with it the imputation of a fact, in public
to the address of one Jean Daniel Clarel St Mart (hereinafter referred to as W3), in breach of Section
296(b) of the Criminal Code. She pleaded not guilty to the charge and was represented by Counsel at
the trial.
The proceedings were held in Creole.
The Prosecutor called PC Bangard (hereinafter referred to as W2) who deposed to the effect that on
21st July 2010, he examined the locus at Colony Street, Mahebourg, in the company of W3. He
explained that the latter showed to him a boat found in front of his house on a reserve land. W2
further explained that W3 also showed to him construction material found just behind the said boat
and where he was standing, that is, in front of the boat. W2 produced a plan of the locus as Doc. A.
W2 then explained that W3 showed to him the distance between the Accused and himself when the
Accused insulted him. W2 added that the said distance was approximately 2 metres. He further added
that the locus was a public place, next to the public road. W2 was not cross-examined.
The Prosecutor then called PC Cusima (hereinafter referred to as W4) who produced the Defence
statement as Doc. B. In cross-examination, W4 confirmed that he did verify whether the Accused had
given a declaration against her brother-in-law, W3, on that day. Upon being asked whether he knows
what happened to the declaration, W4 replied in the negative. W4 was not re-examined.
The Prosecutor then called W3 who deposed to the effect that on 21st July 2010, at 10.15 hours, he
was at his place at Colony Street, Mahebourg, on the first floor. He explained that at that time, a lorry
came to deliver construction materials, upon his request, at his place. He further explained that he
came downstairs to meet the driver of the lorry on the road, that is, on Colony Street. W3 went on to
explain that he saw that there was an obstruction in front of his stairs, that is, his brother’s boat which
was on a ‘remorqueur’. He added that the front part of the ‘remorqueur’ was blocking his stairs. W3
further explained that he could not proceed to go and see the construction materials. W3 then
explained that he asked his brother, Clive St Mart, to move his ‘remorqueur’ so that he can put the
construction materials and his sister-in-law, Medgee St Mart came. W3 identified the Accused in the
dock as the said Medgee St Mart and explained that the latter started insulting him in a loud tone as
follows: “Ene gogot pas pou capave fer cacaliki. Pena personne capave bouge sa bateau la”. W3
added that she uttered same to his attention and he felt humiliated as there were several persons on the
road at that time, including the lorry driver. He explained that the distance between his sister-in-law
and himself was about 2 metres and that there was nothing between the Accused and himself when
she uttered those words. W3 added that it was in a public place. W3 then explained that on 21st July
2010, W2 came to see him and took down notes and measurements upon his indications. In crossexamination, W3 explained that he lives at Colony Street and that the boat was not on the road but in
the yard which was not fenced. Upon being asked whether his stairs is on the road, W3 replied in the
negative. Upon being asked whether they live in the same house, W3 explained that he lives upstairs
and his brother lives downstairs. He stated that the house belongs to his father and confirmed that the
incident occurred in a private yard. He stated that the Accused was in the yard. Upon being asked
whether the incident occurred in public or not, W3 stated that it occurred in the yard but in front of the
house and stairs. W3 confirmed that he remembers the incident and upon being asked whether he had
any problem with the Accused in the past, he replied in the affirmative and added that he had same
several times. Upon being asked whether he had lodged cases before against her, W3 stated that he
could not recall. Upon being asked whether it was the first time that he was deposing against her, W3
replied in the negative. He confirmed that his relationship with the Accused is not correct. Upon being
asked whether after the present incident, there have been other cases, W3 replied in the affirmative.
W3 stated that Marie Denis Clarel is his brother and the husband of the Accused. He confirmed
having lodged a case against him on that day and confirmed that he had problem with him as regards
boat. He could not remember whether he had problem with his brother at the same time. Upon being
asked whether he remembers the incident, W3 stated that he remembers the incident as regards the
Accused. Upon being asked whether, on that day, there was any other incident where his brother was
involved, W3 stated that he remembers that there was an incident but he cannot recall whether he
gave a declaration against him. Upon being asked whether he went to the police station only once or
twice on that day, W3 stated that he could not recall. Upon being told that he gave a declaration
against his brother on that day and asked whether same is possible, W3 replied in the affirmative.
Upon being asked whether both incidents occurred at the same time, W3 stated that he remembers the
time at which the Accused insulted him but do not recall whether it occurred at the same time. Upon
being asked whether he remembers whether he is called in the case against his brother, W3 stated that
he wrote what happened and has to check. He confirmed that he also wrote as regards the present case
and that he verified what he wrote before coming to Court. Upon being told that still what he said in
Court and in his statement is not similar, W3 maintained that it is similar. Upon being asked to repeat
what the Accused said to him, W3 stated that following: “Ene gogot to pas pou capave fer cacaliki,
pena personne capave bouge sa bateau la”. Upon being told that he did not mention in his statement
the word ‘cacaliki’ and that same is also not in the information before the Court, W3 stated that he did
mention same to the police. Upon his statement being shown to him, W3 confirmed his signature on
same, denied that same was written by him and agreed that he did read same and that it is correct. He
also confirmed that he gave the said statement voluntarily. Upon being told that what creates an insult
in the sentence is not included in his statement, W3 stated that what the Accused said, he repeated to
the police. He confirmed that he was a police officer whilst he gave the statement. Upon being told
that he is saying that the statement is not correct, W3 stated that only one word is missing. He denied
that on the material date, he had a problem with his sister-in-law as regards the boat and he insulted
her and denied that at no point in time she insulted him. W3 denied that at no point in time there were
persons there and that he has no witness to support his version. He explained that there was a lorry in
front of his door and that he mentioned same in his statement. He gave the lorry driver’s name as
Gooljar and upon being asked whether he knows him, he stated he knows him by Gooljar. He stated
that he does not know where the latter lives. Upon being told that he mentioned Goodar in his
statement, W3 stated that he gave the name he knows approximately. Upon being told that in his
statement, he mentioned that he resides at Mahebourg, W3 stated that he knows that he is on a lorry
parking at Mahebourg. Upon being told that in his statement, he mentioned Ahmed Goodar, W3
stated that he could now recall. He added that he could not recall all that happened in detail. Upon
being told that he stated that he wrote everything down, he stated that he did not say everything but
what was important. He denied lying in Court and maintained that on the material date, he only asked
them to move the ‘remorqueur’ and the Accused insulted him. Upon being told that the Accused has
levelled a declaration against him, W3 stated that it was because he gave a declaration against the
Accused. Upon being asked how he knew about same, he stated that he saw them at the station. W3
denied that he gave a fictitious name and that police could not trace out his witness and added that
police could have asked him for more details. He stated that he was unaware whether any member of
the public gave any statement in the present case. He maintained that member of the public was there.
He denied that he levelled a false charge against the Accused as he is not in good terms with them and
for her to be in trouble. Upon being asked whether the lorry delivered his materials, he replied in the
affirmative, adding that same was done later. He confirmed that police came on spot and saw the
materials. W3 was re-examined and he confirmed that he earlier stated that it is a public place. He
agreed that he then agreed that it is private. Upon being asked where the incident occurred, W3
explained that same occurred in front of the door, visible to the public.
The case was closed for the Prosecution.
The Accused elected to depose under oath and swore as to the veracity of her out-of-court statement.
She maintained that she never swore at W3 and added that she is not in good terms with the latter. In
cross-examination, the Accused confirmed that her relationship with the Accused is not good. Upon
being asked whether she confirms that on the material date her husband’s boat was in the yard, the
Accused replied in the affirmative and added that it was on the road. She then again stated that it was
in the yard. Upon being asked whether W3 asked her to remove the boat, the Accused replied in the
negative. Upon being asked whether she was in the yard, she replied in the affirmative and she also
confirmed that her husband was along with her. She confirmed that her husband saw all that happened
and also confirmed that her husband is a witness to confirm that she did not insult W3. She agreed
that she mentioned in her statement that she had no witness and added that she forgot. Upon being
asked why she did not mention the latter as her witness, she stated that she forgot. She agreed that had
she mentioned same, police would have recorded a statement from him and he could have deposed in
her favour. The Accused confirmed that she gave a declaration at Mahebourg Police station against
W3 as regards the fact that he insulted her. Upon being told that she does not have anything or anyone
to support her version, the Accused stated that she does not know the procedure. She denied that since
she is not in good terms with W3, when she and her husband were asked to remove the boat, she was
not happy and she insulted W3. She added that she did not insult the latter. She confirmed that on that
day there was a lorry to deliver materials and she stated that same were deposited in front of the stairs
of W3, near the trailer (remorqueur). Upon being asked whether the boat and ‘remorqueur’ were not
there as materials were deposited there, the Accused stated that the ‘remorqueur’ was not an obstacle.
Upon being asked where the boat and trailer were when the lorry came to deliver materials, the
Accused replied that they were in front of her door. She was not re-examined.
The case was closed for the Defence and there were no submissions from Defence Counsel.
Section 296(b) of the Criminal Code entitled “insult” under which the Accused presently stands
charged reads as follows:
“Any injurious expression or any term of contempt or invective, or other abusive language, not
carrying with it the imputation of a fact, is an insult (‘injure’) and any person who is guilty of the
offence shall be liable to the following penalties -
(a) …….
(b) where the offence is committed by means of words, exclamations or threats made use of in public,
a fine not exceeding 10,000 rupees;
The word ‘Insult’ has been defined in the Criminal Code as being any injurious expression or any
term of contempt or invective, or other abusive language, not carrying with it the imputation of a fact.
The requisite mens rea is a malicious intent which is however presumed in expressions which are
injurious or offensive per se «jusqu’à ce que l’auteur du propos eût prouvé qu’il ne voulait pas
injurier la personne à laquelle il l’a adressée» - Morel v. Couve (1912) MR 78 which was quoted
with approval in Carpen v. The State (2010) SCJ 105 and Neerput v. The State (2012) SCJ 166.
In the case of La Sentinelle Ltd v J.R. Dayal (2000) SCJ 92, the Supreme Court held that the use of
the letters ‘macro’ constituted an insult and not a defamation in law whilst referring to Encyclopédie
Dalloz Penal Verbo Injure –
Note 19: Est injurieuse, et non diffamatoire, l'imputation sans détermination ni précision d'un
crime ou d'un délit, car le fait, ainsi qualifié à supposer même qu'il existe, reste indéterminé et
en tout cas imprécis: "Voleur" (Crim. 31 janv. 1867, D.P. 68.1.96: 29 juill. 1899, D.P. 99.1.511);
"faussaire" (Crim. 29 juill. 1865, D.P.66.1.48); "diffamateur infâme" (Crim. 26 juin 1930, Gaz.
Pal. A 1930.2.246); "faux témoin" (Crim. 18 mai 1893, Bull. crim. No.133).
Note 27 «Constitue une injure, l'expression par elle-même outrageante comportant une
intention perfide et un dessein de malveillance: "vous n’êtes que des putains et des grues"
(Crim. 6 janv. 1948, Rec. dr. p-n. 948.278; " vous êtes de sales gens" (Crim. 14 mars 1946, Rec.
5dr. p n. 1947.148; Comp. Crim. 15 févr. 1945, ibid. 1947.147); "associé dans le mal" Crim. 17
juin 1948, ibid. 1948.212; "chevalier infatigable de la réaction dont le nom est synonyme de
turpitude et de mensonge" (Crim. 22 avr. 1950, ibid. 1950.193). De même, ont été jugé
injurieux: le passage portant qu'un journaliste "inspire du dégout, de l'horreur et publie des
balivernes de vieillard tombant dans l'enfance" (Paris, 11 e ch., 4 févr. 1953, Serafindki); la
carte postale découvert portant des mots de tendresse et d'amour à l'adresse d'une jeune fille
(Alger. 16 nov. 1905, pr c).»
The constitutive elements of the offence of insult have been laid down in the case of MOREL VS
COUVE (1912) MR 78 as follows:
“The following conditions must be fulfilled to constitute an insult (injure). (1) There must be an
expression of contempt or invective having the character of an insult, (2) It must have been addressed
to some person or corporation; (3) There must be a malicious intent intention de nuire; (4) It must be
committed in one of the manners set forth in Art. 296 par: 1, 2 or 3”.
I have borne in mind that for an offence of insult to subsist, it must not carry with it any imputation of
fact. (RE: CORALIE VS THE QUEEN (1957) MR 271. Instead, they must contain invective or
outrageous words. I shall refer to Encyclopédie Dalloz Pénal Verbo Injure, Note 27:
« La jurisprudence offre les autres exemples suivants. Constitue une injure, l'expression par ellemême outrageante comportant une intention perfide et un dessein de malveillance: "vous n'êtes que
des putains et des grues" (Crim. 6 janv. 1948, Rec. dr. p-n. 1948.278; " vous êtes de sales gens"
(Crim. 14 mars 1946, Rec. dr. pén. 1947.148; Comp. Crim. 15 févr. 1945, ibid. 1947.147); "associé
dans le mal" Crim. 17 juin 1948, ibid. 1948.212; "chevalier infatigable de la réaction dont le nom est
synonyme de turpitude et de mensonge" (Crim. 22 avr. 1950, ibid. 1950.193). De même, ont été jugé
injurieux: le passage portant qu'un journaliste "inspire du dégoût, de l'horreur et publie des
balivernes de vieillard tombant dans l'enfance" (Paris, 11e ch., 4 févr. 1953, Serafindki); la carte
postale à découvert portant des mots de tendresse et d'amour à l'adresse d'une jeune fille (Alger. 16
nov. 1905, préc.)”.
In the present case, I find the set of words “ene gogot to pas pou capave faire, penan personne pou
capave bouge sa bateau la” constitutes an insult as it contains invective, gross words not carrying
with it the imputation of a fact.
I have duly considered the evidence on record, the demeanour of the Prosecution witnesses and also
that of the Accused. The Court has noted the following:
-
It is on record from the testimony of W2 that he examined the locus on the material date and
found the boat in front of W3’s house, on the reserve land and construction material behind
the boat. It is on record that W3 was in front of the boat at the material time, that there was a
distance of about 2 metres between him and the Accused and no obstruction between them. It
is also on record that the locus was close to the public road and hence a public place;
-
W4 only produced the Defence statement and confirmed that he did check whether the
Accused had given a declaration against W3 but that he was unaware of what happened to
same;
-
It is on record from the testimony of W3 that the Accused insulted him at the material time as
follows: “Ene gogot pas pou capave fer cacaliki. Pena personne capave bouge sa bateau la”
and that he felt humiliated as there were several persons on the road, including the driver. It is
also on record that it was in a public place and that the distance between the Accused and
himself was 2 metres at that time. He made it clear and maintained that the boat was in the
private yard which was not fenced and the Accused was also in the yard but that the incident
occurred in a place visible to the public. It is on record from the version of W3 that the
relationship between him and the Accused was not good and also that he has lodged a case
against the Accused’s husband on the same date as regards the boat. He could not recall
having given any other declaration against him on that day. True it is that W3 mentioned one
additional word in Court, which is not on the information and allegedly not in his statement
but he maintained having mentioned same to the police. In any case, as mentioned above, the
Court finds that the set of words “ene gogot to pas pou capave faire, penan personne pou
capave bouge sa bateau la” constitutes an insult as it contains invective, gross words not
carrying with it the imputation of a fact;
-
The version of the Accused is to the effect that she never swore at W3, that their relationship
is not good and that in fact it was W3 who insulted her. The Court has noted that she first
stated that the boat was in the yard, then that same was on the road. She then again changed
her version to say that it was in the yard. It is also on record from her testimony that W3 did
not ask to remove the boat. The Court has also noted that although she agreed that she
mentioned in her statement that she has no witness, in Court she stated that her husband was
with her and saw all that happened. The Court has also noted that despite the fact that it is
clear from Doc. A that the materials have been deposited closer to point B and not in front of
the stairs, the Accused stated in Court that a lorry did deliver materials and that same were
deposited in front of W3’s stairs. The Court has noted various inconsistencies in the
Accused’s version and finds that same affects her credibility.
In light of the above, I find that the Prosecution case has remained credible and trustworthy and no
doubt has been cast thereon. I, accordingly, find the Accused guilty as charged.
Delivered by Yashumatee Gopaul (Mrs), Acting District Magistrate
Delivered on 15th February 2017