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Office of the Director of
Public Prosecutions
‘To No One Will We Sell, To No One Deny or Delay Right or Justice’ Chapter 40, Magna Carta 1215
E-Newsletter Issue 74
September 2017
IN THIS ISSUE: September 2017 - Issue 74
EDITORIAL TEAM
Miss Anusha Rawoah, State Counsel
Miss Zaynah Essop, State Counsel
Mrs Pooja Autar-Callichurn , State Counsel
Mrs Shaaheen Inshiraah Dawreeawoo, State Counsel
Miss Neelam Nemchand, Legal Research Officer
Miss Pooja Domun, Legal Research Officer
PAGE
Editorial 1
Crime and Prejudice 2-3
New appointments in the judiciary of England and Wales 4
Training To Malagasy Delegation On The Functioning And The Role Of The Director of Public Prosecutions As A Major Player In The Good Governance
5 – 6
The Right to Silence and Adverse Inference 7 – 8
The Eastern and South Africa Anti-Money Laundering Group (ESAAMLG) AML/CFT Assessors Training
9 – 10
Minimum Age of Criminal Responsibility : An effective filter? 11 – 12
Training course on “Introduction to the Prosecution of Offences” 13
List of new callees to the Mauritian Bar: September 2017 14
Happy Retirement 15
Case Summary 16 - 20
The views expressed in the articles are those of the particular authors and should under no account be considered as binding on the Office.
EDITORIAL
Page 1
September 2017 - Issue 74
Anusha Rawoah State Counsel
Dear Readers,
We are pleased to bring to you the 74th issue of our monthly newsletter. In this
issue, the Director of Public Prosecutions, Mr Satyajit Boolell, SC reflects on the
topical issue of victims of crimes and the need to provide for protection of their
rights. We also take note of the appointment of the new Lord Chief Justice of
England and Wales. We also acclaim the appointment of Lady Hale, as the first
woman to have been elevated to the post of President of the Supreme Court of
England and Wales.
Furthermore, we bring to you a review on the visit of a Malagasy delegation to our office. The delegation,
comprising of professionals from various fields, were provided with an overview of the Mauritian legal system as
well as on the role of the office of the Director of Public Prosecutions.
Readers will also benefit from article on the fundamental right of a person charged with a criminal offence to
remain silent, as enshrined in section 10(7) of the Constitution. The issue of whether an adverse inference can be
drawn when a person exercises this right is also addressed. Furthermore, an article is provided by our law officer
who attended an ‘assessors training’ in Tanzania, hosted by the Eastern and Southern Africa Anti-Money
Laundering Group (ESAAMLG). One of our former pupils discusses on the criminal liabilities of children in
Mauritius as well as the concept of the Minimum Age of Criminal Responsibility prevalent in other countries.
Moreover, our office has, in collaboration with the Civil Service College, officially launched a training course on
“Introduction to the Prosecution of Offences” in August 2017. Further to this collaboration, tailor-made trainings
will be given on a monthly basis by our law officers to public officers of different Ministries.
In the same bid, we take the opportunity to congratulate the new callees to the Mauritian bar. We also convey our
best wishes to CPL Danraz Soborun who was posted to the Office of the Director of Public Prosecutions, and who
has recently retired from service. Finally, in our usual endeavour to provide our readers with an update on the
judgments delivered by the Supreme Court, we include summaries of same at pages 16 to 20.
We wish you a pleasant read and welcome your comments and suggestions at oddpnewsletter@govmu.org.
Crime and Prejudice
Page 2
September 2017 - Issue 74
To every crime there is a victim. A fundamental question arises here: What is the
fate of the victim once he or she reports the crime to the police? Unlike an
accused party who, by and large, enjoys a plethora of rights expressly listed in the
Constitution, our laws are, save for a few exceptions, silent on the treatment of
victims in the criminal justice process.
To start with, once a crime is reported, the State takes over, from the enquiry to
charging and prosecuting an offender. Where is the place of the victim of the
crime in this system? The victim is a mere bystander and is kept in the dark as to the progress of the enquiry.
The victim is never told whether the offender has been granted bail, nor is there any concern for his safety.
There is little time or concern about the emotional, physical and financial effects of the crime on the victim and
his family. The victim does not even know, before a trial whether he may ask for a copy of his statement given
years back. His testimony becomes a memory test.
When a case comes for trial, the Code of Ethics for Barristers precludes a prosecutor from seeing or conferring
with a victim of crime as regards the trial case. As such, unaided, he is expected to navigate his way through the
trial process. It is probably his first encounter with the criminal justice system. The victim is likely to come face to
face with the offender in the precincts of the court room. Not only will the victim be subject to a ruthless cross-
examination, but there is also no guarantee that he will be treated with respect and dignity.
Many jurisdictions around the world including Australia, the United States, South Africa have gone the extra
mile to restore the principle of equality of arms by reconciling the interests of victims with those of accused
parties.
The Republic of Kenya in its 2010 Constitution has an enshrined Constitutional provision, placing an obligation
on its Parliament to enact legislation providing for the protection of rights and welfare of victims of crime
(Section 50(9) Kenyan Constitution). The Charter of Victim’s Rights and Declaration of Principles Governing the
Treatment of Victims adopted in Australia provides for rights to treat the victims with courtesy, respect and
compassion.
Page 3
September 2017 - Issue 74
Satyajit Boolell, SC Director of Public Prosecutions
Similarly, the USA has enacted the Crimes Victims’ Rights 2004 for a number of enforceable rights, most notably
the right to be reasonably protected from an accused party; the right to restitution under the law; the right to
notification of public court and parole proceedings and of any release of the accused; the right not to be excluded
from public court proceedings under most circumstances; the right to confer with the prosecutor; the right to
proceedings free from unwarranted delays; and the right to be treated fairly and with respect to one’s dignity
and privacy.
In England, the Crown Prosecution Service implementing the EU Directives establishing minimum standards on
the rights, support and protection of victims of crime, provides a right for victims to be informed of prosecution
decisions and to have such decisions reviewed.
The review is an entirely fresh examination of all the evidence and circumstances of the case. It is now common in
the UK to have a Victim Impact Assessment produced in a court of law to enable the judge to reach a proper
verdict taking into account the impact of the crime on the victim.
It is time for us to reflect on the need to provide for victims’ rights, and to act on our reflections. Victims can no
longer be the silent part of the system. As a good starting point, I would advocate that victims of road accidents
be authorized to be represented in a criminal trial, offering them the possibility of seeking compensation in the
course of the same trial for the prejudice suffered as a result of the accident. There will be no need for a civil suit
to follow. This is the case in France …and after all aren’t we the ones who pride ourselves of our hybrid system of
justice?
New appointments in the judiciary of England and Wales
Page 4
September 2017 - Issue 74
On 2nd October 2017, Sir Ian Burnett became the new Lord Chief Justice of England and Wales. Sir Burnett
hence takes up the most senior judicial position in England and Wales after his appointment has been formally
approved by the Queen. Former Temple Garden Chambers barrister, Sir Burnett becomes the youngest Lord
Chief Justice of England and Wales in over 50 years.
On the same day, Lady Brenda Hale has been sworn in as the President of the Supreme Court of England and
Wales. She has as such, become the first woman to serve in this role. Lady Hale is in fact one of only two women
to have ever been appointed to the Supreme Court (alongside Lady Jill Black). She is also the first woman
appointed to be a law lord, in 2004. Lady Hale’s elevation to President of the Supreme Court is the pinnacle of a
successful legal career in which she has become one of the most forthright influences. Lady Hale was sworn in
alongside Deputy President Lord Mance, and three new Justices; Lady Black, Lord Lloyd-Jones and Lord Briggs,
bringing the Supreme Court to its full complement of 12 Justices. The appointment of Lady Hale, as the first
woman president of the Supreme Court has raised hopes that she will be able to do even more to promote gender
and ethnic diversity in the legal profession.
The Supreme Court is in fact the final court of appeal in the UK for civil cases, and for criminal cases from
England, Wales and Northern Ireland. It hears cases of the greatest public or constitutional importance affecting
the whole population.
Anusha Rawoah State Counsel
Training To Malagasy Delegation On The Functioning And The Role Of The Director of Public Prosecutions
As A Major Player In The Good Governance.
Page 5
September 2017 - Issue 74
A delegation of participants consisting of the National Representatives of Madagascar was welcomed by the
Office of the Director of Public Prosecutions on the 1st September 2017. The Participants were mainly
professionals of 25 – 38 years, from different areas such as civil society, media, psychology, private sector,
tourism, law, public sector amongst others. They were warmly welcomed by the Director of Public Prosecutions,
Mr Satyajit Boolell, SC, who provided a brief introduction on the independence of the Director of Public
Prosecutions (ODPP) as guaranteed under the Constitution of Mauritius; the decision-making process of
whether to prosecute a case or not. The aim of the training was to empower the new generation from Madagascar
who are engaged in developing the required technicalities as well as the sense of ethics.
The training was conducted primarily for the purpose of exchanging information on the functioning and the
role of the ODPP as a major player of good governance. The presentation was conducted by Mrs Johan Moutou-
Leckning, Senior Assistant Director of Public Prosecutions.
Initially, a brief introduction was provided on the evolution of the legal history in Mauritius. The audience had
an in-depth insight of the functions and powers of the DPP under Section 72 of the Constitution of Mauritius
and the structure of the ODPP. Moreover, a distinction was drawn between the role and functions of the
prosecution, the police and other investigative agencies in the Criminal Justice System, the circumstances in
which the DPP can intervene at the level of investigations and the ethical guidelines to be followed by lawyers.
Last but not the least, the 3 pillars on which the ODPP essentially rests namely: Fairness, Independence and
objectivity were elaborated.
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September 2017 - Issue 74
The training also shed light on the different units which exist at the ODPP namely the Piracy Unit, Victim and
Witness Support Unit, Serious Fraud and Tax Education Unit, International Cooperation/ Mutual Legal
Assistance and Extradition Unit and the Cybercrime Unit.
Furthermore, an overview was provided on some of the publications made by the ODPP such as the monthly
Newsletter, Mauritius Criminal Law Reports, “Tanya so Zistwar”, and on training courses provided by officers of
the ODPP to investigators from various Ministries. During the interactive session, several questions were raised
by the Malagasy participants on the following issues:
• The relationship between the ODPP and our Courts of Justice.
• The Character of Certificate
• Public Interest and the Decision making Process
• Private Prosecution
• Role of the Chief Justice in the Judiciary
• Independence of the ODPP from the Legislative and Executive arm
• International training sessions attended by officers of the ODPP.
The training proved to be very participative and fruitful for the participants.
Mrs Moutou-Leckning, Senior Assistant DPP Pooja Domun, Legal Research Officer
Sharlveena Appiah, YEP Trainee
The Right to Silence and Adverse Inference
Page 7
September 2017 - Issue 74
One of the fundamental rights guaranteed by our Constitution is the right of a person charged with a criminal
offence to remain silent. This is provided for in Section 10(7) of the Constitution which states that no person who
is tried for a criminal offence shall be compelled to give evidence at the trial.
However to what extent is the right to silence an absolute right enjoyed by the accused considering the
constitutional protection given to it?
As highlighted in the case of R v Shummoogum & Ors [1977 MR 1], section 10(7) is couched in negative terms as it
does not expressly say that the accused has a right to silence, rather he shall not be compelled to give evidence.
However, does this allow the Court to draw a negative conclusion from the exercise of this right by the accused?
In the UK, prior to 1994, the accused enjoyed an unrestricted right to silence when being interviewed under
caution. However, with the introduction of the Criminal Justice and Public Order Act 1994, namely sections 34 to
37, the court or jury is now allowed to draw adverse inferences from silence as appear proper in the
circumstances specified in the Act.
In Mauritius, any statement which may be construed as denying an accused of his right to silence is wrong in
law, vide the case of R v Wahedally [1973 MR 103. Though there is no express provision in the law which limits
this right, it does not prevent a trial judge from commenting on the accused’s silence.
It is important to note that such comment though must not amount to an invitation to the jury to form an
adverse view from the fact that the accused remained silent.
In the case of Fullee v R [1992 SCJ 77], the Court observed that “the Constitution no doubt confers on any accused
the sacred right to remain silent but the Constitution does not forbid our Courts to draw, in appropriate
circumstances, certain inferences from an accused’s silence when the circumstances are such that one would
expect some form of explanation from him.” The rationale behind this being that if a person is not guilty, he
would want to promptly claim his innocence rather than remaining silent and giving the impression that he has
something to hide.
In the case of Rossan MAR v The State [2015 SCJ 454], the accused waited for six days to claim her innocence, to
which the Court commented that it could not “exclude the possibility of her having tried to be clever by coming
up with a well thought version in the face of the incriminating evidence against her with a view to exculpate
herself.” It was held that drawing of an adverse inference by the trial Judge in this case, did not amount to a
breach of the Constitution nor any unfairness.
Page 8
September 2017 - Issue 74
The case of Andoo v The Queen [1989 MR 241] can also be cited here where it was held that an accused’s “right to
silence, however, is exercised at his risk and peril when, at the close of the case for the Prosecution, a prima facie
case has been clearly established since the burden then shifts on him to satisfy the Court that it should not act on
the evidence adduced by the Prosecution. We need only repeat what was said by Sir A. Herchenroder C.J in
Ramkalawon v. R, [1914 MR 124], namely that the observation of Beccaria should never be forgotten – “imperfect
proofs, from which the accused might clear himself, and does not, become perfect.”
On the other hand, in the case of Carpenen G. N. V The State & Reine De Carthage G. v The State [2014 SCJ 382],
the Learned Judge made the following comment “one would have expected him to react had he been innocent”. It
was held that this amounted to a serious breach of the appellant’s constitutional right.
Reference can also be made to the case of Murray (John) v UK (1996) 22 E.H.R.R. 29 where it was held that:
"Whether the drawing of adverse inferences from an accused's silence infringes Article 6 (European Convention
of Human Rights) is a matter to be determined in the light of all the circumstances of the case, having particular
regard to the situations where inferences may be drawn, the weight to be attached to them by national courts in
their assessment of the evidence and the degree of compulsion inherent in the situation."
Although the law does not expressly provide for adverse inference to be drawn, case law shows that this practice
has been adopted in some situations where the Court was satisfied that the prosecution was able to prove beyond
reasonable doubt that the appellant was not genuine. Vide the case of Ramdeen v R [1985 MR 125].
Therefore, the right of an accused to silence, despite being a fundamental principle provided by the Constitution,
is exercised at the latter’s own risk and peril because there is no obligation on the Court not to draw an adverse
inference.
Artee Gunness Legal Research Officer
The Eastern and South Africa Anti-Money Laundering Group (ESAAMLG) AML/CFT Assessors Training
Page 9
September 2017 - Issue 74
The Eastern and Southern Africa Anti-Money Laundering Group held an assessor training workshop from the
8th to the 14th September 2017 at Zanzibar Beach Resort Hotel, Zanzibar - Tanzania. The participants were from
different Eastern and Southern African countries including Angola, Zambia, Uganda, South Africa, amongst
others. The participants were divided into groups which included a member from each of the institutions i.e the
Police, the Financial Intelligence Unit, the Revenue Authority, the Prosecution, the Ministry of Finance and the
Bank.
The Financial Action Task Force (FATF) and the ESAAMLG
The Financial Action Task Force (FATF) is an inter-governmental body whose purpose is the development and
promotion of policies, both at national and international levels, to combat money laundering and terrorist
financing. The Task Force is therefore a "policy-making body" which works to generate the necessary political will
to bring about national legislative and regulatory reforms in these areas.
The objectives of the FATF are to set standards and promote effective implementation of legal, regulatory and
operational measures for combating money laundering, terrorist financing and other related threats to the
integrity of the international financial system.
The FATF has developed a series of Recommendations that are recognised as the international standard for the
combatting of money laundering and the financing of terrorism and proliferation of weapons of mass
destruction.
The ESAAMLG is an Associate member of the FATF. The ESAAMLG was set up to combat money laundering and
terrorist financing by applying the FATF recommendations.
I find it helpful at this stage to reproduce the mission statement of the ESAAMLG to understand its role and its
aims:
“To consolidate and sustain the combined efforts to combat money laundering and terrorist financing and
proliferation in the Eastern and Southern Africa Region through effective implementation of AML/CFT [anti
money laundering and combating the international standards in all ESAAMLG member countries.”
The ESAAMLG assessors are called upon to carry out a mutual evaluation of Eastern and Southern African
countries by assessing their compliance to the FATF standards to improve anti-money laundering regimes. This
is achieved by looking at how the legal framework is being applied by the different institutions of a country i.e
the police, the Financial Intelligence Unit (FIU), the Revenue authorities, the Prosecution, the Bank and other
financial institutions to fight money laundering.
Page 10
September 2017 - Issue 74
The training started with an opening note by the executive members of the ESAAMLG Secretariat. The
participants were assessed on their knowledge and understanding of the FATF Recommendations, Methodology
and Procedures. The aim behind this exercise was to enable them to assess the areas of weaknesses and to focus
the training on improving those areas.
As part of the training, the participants were asked to assess the fictitious Kingdom of Pseudopolis and had been
provided with key documents by Pseudopolis. The participants were assigned practical exercises which included
the drawing up of a Mutual Evaluation Report and exercises on technical compliance, risk and context and
effective assessment. Feedback was given on the exercises submitted and this was followed by interactive sessions
amongst the participants and the trainers.
The different groups were called upon to carry mock on-site interviews of the Pseudopolis officials i.e the police,
the FIU, the bank, the prosecutor, etc. The purport of the interviews was to gather information from the officials
and use this information for the drafting of the Mutual Evaluation Report.
At the end of the training, the participants were awarded a certificate of participation.
The training was both a fulfilling and enriching learning experience as it was an opportunity for me to
understand the FATF recommendations and how to assess a country using the FATF recommendations. It also
enabled me to work with participants from different institutions of various countries. I was part of the green
group and this enabled me to bond with the other members.
Ms Nitisha Seebaluck State Counsel
Minimum Age of Criminal Responsibility : An effective filter?
Page 11
September 2017 - Issue 74
"If it is empty of ends, the law can hardly be said to be attractive in the means it employs.”
- Lon L. Fuller
The need to maintain social order and public confidence in the criminal justice requires
that everyone be accountable for his acts and doings. However, when it concerns
accountability of children, whose extent of culpability is often doubtful, the decision as to
whether to prosecute is more difficult. There are two competing interests which come into
play (1) the victim and his family's need for justice and (2) the public interest in
prosecuting a child. How then do we decide when should a child be criminally responsible? What should be the filter when
deciding whether to prosecute a child? Is age an effective one?
There exists in many countries, the Minimum Age of Criminal Responsibility (MACR) which is the minimum age below which
children shall be presumed not to have the capacity to infringe penal laws and can neither be prosecuted nor be held
criminally responsible (as opposed to the capacity of a child to infringe criminal law).
Under Article 40(3)(a) of the Convention on the Rights of the Child, State Parties have an obligation to seek to promote the
establishment of a MACR. Principle 4.1 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice
(The Beijing Rules) then lays down that the MACR should not be fixed too low an age level bearing in mind the facts of
emotional, mental and intellectual maturity. Furthermore, Article 17(4) of the African Charter on the Rights and Welfare of the
Child provides that there shall be a MACR.
Though some countries have adopted MACRs, other countries, such as France, have not.
Adopting the MACR approach can be appealing to the extent that it ensures equality since it guarantees a uniform threshold
for criminal responsibility of children.
Nonetheless, deciding on a MACR can be an unconquerable task. There is neither an international consensus on what the
MACR should be nor a universal MACR in practice. In fact there exists a wide range of MACRs, ranging from 7 years in some
countries to 18 years in others. Furthermore, according to the UN Committee on the Rights of the Child, setting the MACR
below 12 is ‘not to be internationally acceptable’. This inability to decide on a specific age as threshold for potential criminal
liability of children does cast some doubt as to whether the MACR is a useful mechanism.
Furthermore, there exists a variability in the timing of a child's cognitive and emotional development and his chronological age.
The timing of such development may differ from children to children, often depending on their socialisation process. Therefore,
although there exists a pattern, a specific chronological age will not necessarily imply a specific mental age and capacity of
discernment, namely to distinguish the right from the wrong. In other words, whether a child might have the element of
culpability does not necessarily depend on his chronological age. It should be noted that in some countries, such as Sudan, the
determining factor for a child's criminal responsibility is puberty.
Moreover, a direct consequence of adopting the MACR is that if a child below the MACR commits an offence, he cannot be held
criminally responsible. The MACR therefore creates an irrefutable presumption that a child below the MACR cannot be
Page 12
September 2017 - Issue 74
prosecuted. The effect is that it might result in turning a blind eye to criminality when it concerns children below the MACR.
For instance, when faced with children committing serious war crimes, do those children just below the MACR escape the risk
of criminal liability whilst their counterparts who are just above the MACR risk criminal liability? Or, if we look at the English
murder case of James Bulger (where two youngsters were convicted for murder committed at the age of 10 years, the MACR in
England being 10 years), if the two accused parties were in a country where the MACR was any age above 10 years, it would not
have been possible to prosecute them despite their clear mens rea.
On top of that, whilst the idea behind the MACR is to promote the best interests of the child, this very MACR might turn out to
be a weapon used against children. Children may become preys and be used by crime syndicates and abusive adults to commit
offences (particularly drugs, begging and sexual offences). On the one hand, the crime syndicates plan to escape criminal
liability by not doing the acts themselves whereas on the other hand, the children (at times the parents as well) are comforted
by the MACR which acts as a shield for them, protecting them from any potential prosecution.
Under Mauritian law there is no MACR. The key determining factor for child prosecution is discernment and this discernment
capacity at the time of the offence is best proved by an expert report. Section 44 of the Criminal Code provides that where the
child is under 14 years and it is determined that he acted without discernment, he shall be acquitted. Importantly, Section 44
does not lay down a MACR, the more so that The Juvenile Offenders Act 1935 provides for situations where a juvenile under 14
years is tried by the Juvenile Court.
Interestingly, previously in England, there existed the doli incapax, a legal presumption that children under 14 did not know
the difference between right and wrong and were therefore incapable of committing an offence. This presumption could be
rebutted by proof that the child knew what he was doing was seriously wrong, not merely naughty or mischievous.
In Mauritius, it is the DPP who decides whether a child would be prosecuted (Section 11 (9) The Juvenile Offenders Act 1935).
The DPP takes this decision on basis of two important considerations: the sufficiency of evidence (which includes evidence as to
the child's discernment capacity) and the public interest of putting a child on trial (which includes the element of best interests
of the child).
This existing Mauritian approach in no way denies that children should in appropriate circumstances, bear the consequences
(under the juvenile court system) of their acts whilst ensuring the deterrent effect, namely that a child would be dealt with
appropriately in case of offending. It should also be pointed out that if ever a prosecution is not opted for, there is the
alternative of administering a caution without the child undergoing a criminal trial.
In light of the above analysis, it is therefore questionable, whether the MACR is an effective filter. It appears that to best
recognise the importance of childhood when dealing with potential child offenders, the criterion of child's ability to understand
right and wrong at the time of the offence, is more appropriate.
Ms Naazish Sakauloo Former Pupil
Training course on “Introduction to the Prosecution of Offences”
Page 13
September 2017 - Issue 74
The Office of the Director of Public Prosecutions, in collaboration with the Civil Service College, has officially launched the
training course on “Introduction to the Prosecution of Offences” on 10 August 2017. Mr Denis Mootoo, Acting Senior Assistant
DPP and Prof. Ramesh Durbarry from the Civil Service College gave an introductory speech. The aim of this training
programme is to impart fundamental knowledge about the criminal justice system in Mauritius, to the public officers from
various ministries.
The topics for the training are as follows:
• Introduction to the Office of the Director of Public Prosecutions
• Powers of the Director of Public Prosecution
• The Constitution
• The Mauritian Legal System
• Role of prosecutors
• Delegated powers
• Code of Ethics
• The decision to prosecute: two stage test
The lectures are conducted on four half days. Certificates of attendance are awarded to the participants on the last day of the
training. Two training sessions have already been successfully organised in August and September.
Following requests from the Civil Service College, we endeavour to dispense other training sessions over the forthcoming
months.
Ms Keshini Dhunnoo Legal Research Officer
Page 14
September 2017 - Issue 74 List of new callees to the Mauritian Bar:
September 2017
The Mauritius Bar has, since the 22nd September 2017, 27 new members. They are:
1. Meveric Nicholas Ng Liet Hing,
2. Benjamin Mathieu Marie Joseph,
3. Rebecca Kim Niouk Tsang Man Kin,
4. Abdool Rahim Salehmohamed,
5. Marie Rosiane Johanne Hague,
6. Billy Andrew Li Hing Duen,
7. Irvin Nigel Collendavelloo,
8. Chetan Keshav Matar,
9. Ghireesh Nitraj Bundhoo,
10. Harsha Devi Servansingh,
11. Reena Luxmi Jogeedoo-Penthiah,
12. Karvidessen Chinsamy Arian,
13. Hans Lall Nepaul,
14. Kessaven Payandi Pillay,
15. Muhammad Yousuf Alimohamed,
16. Ahmed Mooneer Salehmohamed,
17. Inza Isra Arzoo Dauharry,
18. Bhavish Sharma Sewraz,
19. Aleeyah Lallmahomed,
20. Risha Pooja Hulman,
21. Louis Adrien Wong Sun Thiong,
22. Girish Kumar Prayag,
23. Tanzeen Banu Auleear,
24. Bibi Zahraa Auchoybur,
25. Vidisha Vimi Sunkur,
26. Peraanendhi Mauree
27. Mary Chrisinta Chavrimootoo
The Office of the Director of Public Prosecutions congratulates the new barristers especially Mr Ghireesh Nitraj Bundhoo, Ms
Vidisha Vimi Sunkur, Mr Kessaven Payandi Pillay, Ms Risha Pooja Hulman, Mr Billy Andrew Li Hing Duen, Mrs Reena Luxmi
Jogeedoo-Pentiah, Mr Girish Kumar Prayag, Ms Peraanendhi Mauree, Mr Benjamin Mathieu Marie Joseph and Ms Tanzeen
Banu Auleear who were pupils at the Office.
Page 15
September 2017 - Issue 74 Happy Retirement
We would like to extend our sincere gratitude to CPL Danraz
Soborun for his service to the Office of the Director of Public
Prosecutions (‘ODPP’).
CPL Soborun has 41 years of service in the Mauritius Police
Force. He was seconded to the Attorney General’s Office on the
22nd April 2002.
He started working in the Morality Section of the ODPP. He has
served the Office with full dedication for 15 years and was a
valued member of our big family.
We wish him a relaxing retirement and extend our best wishes in his life.
Page 16
September 2017 - Issue 74 SUMMARY OF SUPREME COURT JUDGMENTS:
August 2017
CHOOMKA M.S. v. THE STATE 2017 SCJ 302
By Hon. D. Beesoondoyal, Judge & Hon. A.D. Narain, Judge
Version of witness not put at enquiry stage; breach of right
to a fair hearing
The appellant was prosecuted before the District Court of
Rivière du Rempart under two counts of an information
charging him with the offences of: (a) assaulting an agent of
the civil authority, in breach of section 159 of the Criminal
Code (under count 1); and (b) molesting a public officer, in
breach of section 3(1)(a) and (2) of the Public Officers’
Protection Act (under count 2). He pleaded not guilty under
both counts and was represented by Counsel. He was
convicted and sentenced to pay a fine of Rs 4,000 under count
1 and Rs 2,000 under count 2 and to pay Rs 100 as costs.
There were originally six grounds of appeal. On the day of the
hearing, learned Counsel for the appellant dropped ground
6. As regards grounds 2 and 3 which pertained to count 2 of
the information, learned Counsel for the respondent took the
stand that, on the authority of Jhootoo v The State [2013 SCJ
373], the conviction under count 2 was not being supported
inasmuch as the version of Mr Ramah, the witness in
question, had not been put to the appellant at enquiry stage.
He was of the view that such shortcoming amounted to a
breach of the appellant’s right to a fair hearing in so far as
count 2 was concerned.
Whilst the Court was not prepared to state that a failure to
put a charge to an accused party at enquiry stage invariably
results in a breach of his right to a fair hearing under section
10 of the Constitution, they were of the considered view that,
in this particular case, the fact that the appellant was called
upon to give his defence in relation to count 1 only and the
charge under count 2 was never put to him rendered the
conviction under count 2 unsafe (see Easton V The State and
Anor [2012 SCJ 55]).
The remaining three grounds of appeal read as follows –
“1. The finding of guilt under count 1 is wrong and should be
quashed in as much as the Learned Magistrate was wrong to
conclude that Witness No.2, Miss Beegun, was a witness of
truth and did not depart from her statement on material
issues when in fact there are inconsistencies in her
declaration, her statement given to the police and her
testimony in court.
4. The convictions under both counts are unsafe because the
Learned Magistrate failed to address her mind to the fact that
both witnesses no 2 & 3 work together, witness No 2 had an
argument with the Appellant before the alleged offence and
no independent witness supported their respective versions.
5. The Learned Magistrate was wrong to reject the solemnly
affirmed version of the appellant and the defence witnesses in
view of the fact that they had deposed in a coherent manner,
their respective testimonies were not shaken in cross
examination and on a proper appreciation of all the facts of
the case, she should have given the appellant the benefit of
the doubt”.
All of the above three grounds challenge the findings of fact of
the learned Magistrate.
Ground 1 failed as the Court was unable to say that the
Magistrate went wrong in her conclusion that “the witness did
not depart from her statement on material issues”. Moreover,
having seen and heard the witness depone, the Learned
Magistrate was entitled to assess the latter as being a witness
of truth.
Ground 4 also failed as there was no evidence on record to
support the contention that witness Beegun had an argument
with the appellant before the alleged offence. In fact, quite
glaringly, the first line of the Appellant’s cross-examination
reads: “I never had any problem with Miss Beegun or Mr
Ramah”. For these reasons, the Court was of the view that this
ground of appeal cannot have been seriously taken.
With regards to ground 5, the Court did not agree that the
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Learned Magistrate made a series of wide and stereotyped
statements in her judgment as regards her assessment of the
witnesses who deposed before her. Having seen and heard
the witnesses deposed before her, the Learned Magistrate was
perfectly entitled to assess the manner in which they deposed
and to take this into account when deciding which version
she preferred to believe. This ground also failed.
The conviction and sentence was accordingly quashed under
count 2 only. The conviction and sentence under count 1 was
maintained. The appeal was otherwise dismissed.
DIRECTOR OF PUBLIC PROSECUTIONS v JOTTEE D 2017
SCJ 291
By Hon. A.F. Chui Yew Cheong, Judge and Hon. O.B.
Madhub, Judge
Duties of police officer; release of detainee on bail;
solicitation of bribe
This is an appeal by the Director of Public Prosecutions
against the acquittal of the respondent who was prosecuted
before the Intermediate Court on a charge of bribery in
breach of section 4(1)(b) and (2) of the Prevention of
Corruption Act.
The two grounds of appeal argued are as follows –
“Ground of Appeal
(1) The learned Magistrate erred in holding, that the act of
releasing Mr Boobhun was not “an act which was facilitated
by the duties” of the accused and wrongly dismissed the case
against the accused.”
Additional Ground of Appeal
Because notwithstanding the case of DPP v Coureur, the
learned Magistrate failed to appreciate that all the elements
of the offence have been proved.”
The only question before the Court was, as the learned
Magistrate put it, “The next question is whether or not this
gives rise to liability under section 4(1)(b) and (2) of the
Prevention of Corruption Act.”
As per the findings of the learned Magistrate he had no issue
to have found proved by the prosecution the following
elements – (a) public official, (b) intention, (c) from another
person, and (d) gratification. However he considered that two
elements of the offence have not been proved, namely -
(a) “an act which was facilitated by his duties”; and
(b) “for another person”.
The learned Magistrate’s analysis is based on the premise
that the appellant, being of the rank of a police constable, did
not have the power to release or to detain a suspect nor could
he go against the instructions of the Assistant Commissioner
of Police, on whom devolved this power. Hence he concluded
that the prosecution had to prove that it was part of a police
constable’s duties to release a detainee on bail, which it failed
to do.
The learned Magistrate sought support from the case of
Independent Commission Against Corruption v J Seeneevassen
[2012 SCJ 328].
It is noted that in the present appeal the charge was in
relation to “an act which is facilitated by his duties”. It has
been proved that the respondent did solicit monies from Mr
Boobhun. The purpose of that solicitation as per the
information is to “cause (Mr Boobhun) the latter to be
released from police custody”.
The Act at section 4 has provided for two scenarios. Firstly
“an act in the execution of his functions and duties” (see for
example subsection (1)(a)) and secondly “an act which is
facilitated by his functions or duties” (see for example
subsection (1)(b)).
It is clear that if the accused (respondent) was not a police
officer, the more so that he was with the team that conducted
the enquiry in the suspected case against the respondent, he
could not have credibly asked the respondent for the “bribe”.
The functions of the respondent, as a police officer, provided
him credibility and opportunity to make the solicitation. It is
clear that he could have effectively made that solicitation
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because he was a police officer, who was involved in the
enquiry. Even if it was not directly part of his duties to release
the detainee on bail, he could have influenced the decision-
making. It is not denied that solicitation there was and once
same was made, the fact that the bribe was not remitted does
not nullify the solicitation.
The next issue which the learned Magistrate highlighted is
whether the solicitation was for the respondent himself or for
another person. The learned Magistrate concluded that this
was one of the elements of the offence, and thus has to be
proved by the prosecution, that is either the solicitation was
for the benefit of the respondent himself or other persons.
From the evidence on record, and as found by the learned
Magistrate, the sum of Rs 5,000 was solicited to be shared
amongst himself and his colleagues. The question which
arises here, as per the trial Court reasoning, the prosecution
had to prove the proportion or amount that was meant for
the respondent himself or alternatively for the other
colleagues.
It is clear from the evidence that the solicitation was proved
beyond reasonable doubt by the prosecution, and the money
solicited was to be shared amongst the respondent and his
colleagues. We do not consider that it was the duty of the
prosecution to go further and prove which proportion should
go to whom, given the purport of the provision at subsection
4(2). This is the more so that unless there is a clear-cut
confession on that issue, it will be quasi impossible to infer
such apportionment from circumstantial evidence. This is
putting an extra burden on the prosecution, which we
consider has no “raison d’être”.
The prosecution having established that the respondent had
solicited a gratification, the presumption applies, and it is for
the accused (respondent) to satisfy the court that it should
not act on the evidence adduced by the prosecution (vide
Andoo v The Queen [1989 MR 241]). In the present matter the
respondent has chosen not to adduce any evidence.
In the circumstances, the Court considered that the
prosecution has indeed proved the offence for which the
accused had been charged and upheld both grounds of
appeal. They consequently quashed the decision of not guilty
entered by the learned Magistrate and entered a finding of
guilty as charged.
The matter was to be remitted to the lower Court and that the
Presiding Magistrate designate another magistrate to hear
evidence on the appropriate sentence to be passed and
proceed to sentence, as the Learned Magistrate who heard
the case is no longer a member of the judiciary.
ISSUR S. v. THE STATE 2017 SCJ 301
By Hon. D. Beesoondoyal, Judge and Hon. G. Jugessur –
Manna, Judge
Short, sharp shock; imposition of custodial sentence;
previous convictions
The appellant was prosecuted before the District Court of
Upper Plaines Wilhems under one count of an information
for the offence of issuing cheque without provision, in breach
of section 330B(1) of the Criminal Code. He pleaded guilty to
the charge and, after conducting a hearing, the learned
Magistrate sentenced him to undergo six months’
imprisonment and to pay Rs 100 as costs.
The only ground of appeal, which is against sentence, reads
as follows –
“Because the learned magistrate imposed a sentence which
was manifestly harsh and excessive and disproportionate in
the circumstances.”
Learned Counsel for the respondent has submitted that the
Learned Magistrate was right to impose a custodial sentence
in view of the gravity of the offence committed by the
appellant and the number of previous convictions he had for
cognate offences. According to him, a “short, sharp shock”
was warranted in the circumstances. However, he submitted
that the sentence of six months’ imprisonment was
disproportionate, harsh and excessive and should be
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reduced. In his view, after carrying out a comparative
analysis with cases of a similar nature, a sentence of three
months’ imprisonment was found to be more apt. Reference
was made to the cases of Peerbaccus v The State [2017 SCJ
195], Alighan v The State [2015 SCJ 53], Constant v The State
[2014 SCJ 238] and Sawmy v The State [2000 SCJ 152].
Learned Counsel accordingly prayed that the appeal be
allowed on the basis of a reduction of the term of custodial
sentence only.
Learned Counsel for the appellant concurred with the stand
of the respondent and invited us to reduce the sentence from
six to three months’ imprisonment.
After giving due consideration to the submissions of both
parties and taking into account the long list of previous
convictions of the appellant for the same offence and his
failure to mend his ways, despite having been granted a
conditional discharge on no less than three occasions, the
Court was satisfied that the appellant richly deserved a term
of imprisonment.
The appeal was therefore allowed and the sentence of
imprisonment reduced from six months to one of three
months.
SOWAMBUL R v STATE 2017 SCJ 311
By Hon. D. Beesoondoyal, Judge and Hon. G. Jugessur-Manna,
Judge
Breach of right to a fair trial; inconsistency of witness; unsafe
conviction
The appellant was prosecuted before the District Court of
Savanne on a charge of “wounds and blows” in breach of
section 230(1) of the Criminal Code. He pleaded not guilty to
the charge. He was convicted and sentenced to pay a fine of
Rs. 2000 and Rs.100 as costs. He initially appealed against
his conviction on six grounds. However, learned Counsel for
the appellant dropped four of the grounds and maintained
only grounds 1 and 6 which read as follows:
“Ground 1 - The conviction of the appellant (then Accused)
should be quashed inasmuch as there have been
fundamental breaches of his right to a fair trial guaranteed
under Section 10 of the Constitution;
Ground 6 - The Learned Magistrate was wrong to have
convicted the appellant (then accused) based on the evidence
on record and the submission of Counsel. Particulars: (i)
There were several inconsistencies in the version of Witness
No.1. (ii) The injuries as described in the PF 58 were different
from those described in the statements in and out of Court of
Witness No. 2.”
According to the trial Court’s record, the prosecution’s case
rested on the evidence of the enquiring officer PC Unoruth,
the complainant Mr. Sylvio Momus and the latter’s PF 58.
The complainant gave a very brief account of the
circumstances of the incident in examination-in-chief.
Under cross examination, he explained that the appellant
and Mr. Murday were not in good terms, the appellant threw
two rocks at the level of his waist, when he was hit “he turned
back” (sic) and saw the appellant going and his foreman
confirmed to him that the appellant had hit him. He,
therefore, believed that the appellant must have thrown the
rocks at him. Upon being questioned further on the fact that,
in his statement dated 10 December 2013, he had stated that
one Mr. Ajay had assaulted him, he denied same and
maintained that he had mentioned the name of the
appellant, Ravi Sowambul.
PC Unoruth’s testimony before the trial Court was to the
effect that he interviewed the accused (appellant) at Tyack on
30 August 2014 and, after he informed him of the charge,
warned him and explained to him his constitutional rights,
he declined to give a statement. In cross-examination, when
asked in what circumstances he met the accused, he stated
that he met him on the road on a public holiday when he was
controlling traffic. He further stated that he did not put up
any entry to that effect. The appellant gave evidence under
solemn affirmation and he denied having assaulted Mr.
Momus. He explained that, on the material date and time,
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“First they ignore you, then they laugh at you, then
they fight you, then you win.”
- Mahatma Gandhi
he was attending a prayer at Surinam and he returned home
at around 2.00 p.m. It was only in 2014 that the police
informed him of the charge levelled against him by Mr.
Momus.
With respect to ground 6, Counsel for appellant has
submitted that the Magistrate failed to take into
consideration the inconsistencies in the deposition of witness
Momus and, in a stereotyped and “cliché” language,
convicted the appellant. He further submitted that the
conviction is not safe and should be quashed. For his part,
learned Counsel for the respondent conceded that the
Magistrate erred in not considering the inconsistencies in the
evidence adduced before her and that such omission
rendered the conviction unsafe.
Having given due consideration to the evidence adduced
before the lower Court, to the judgment delivered by the
Magistrate and to the submissions made before the present
Court, the Judges in the present case reiterated that an
appellate Court is always reluctant to interfere with the
findings of facts of the lower Court unless the Magistrate has
made a wrong appreciation of the facts and come to an
unreasonable conclusion (see The Director of Public
Prosecutions v. A. Hinga [2014 SCJ 303]).
In the present case, the learned Judges noted that the
Magistrate, in her judgment, briefly stated in three lines the
contention of the prosecution and that of the appellant
without carefully analysing the totality of their evidence as it
transpires from the record. She did not consider the
inconsistencies in the evidence of the complainant, but
instead used a series of stereotyped statements when
assessing his evidence. The learned Judges concluded that
the Magistrate wrongly concluded that she had no reason to
doubt the complainant’s version as being true when his PF 58
clearly does not lend colour to his version. The learned
Judges also concluded that the Magistrate completely failed
to take into account that: (a) the complainant did not
actually see the appellant hitting him and it was his foreman
who allegedly informed him that the appellant had hit him;
and (b) the foreman, who was allegedly an eye witness, was
not called by the prosecution as a witness to confirm the
version of the complainant. They were of the view that it was
incumbent upon the Magistrate to come up with a judgment
containing the points for determination, the decision and the
reasons for the decision, in compliance with section 197(2) of
the Courts Act.
There is no hard and fast rule as to how this mandatory
requirement should be implemented. However, the
judgment, when read as a whole, must reflect that the
Magistrate was fully alive and did address her mind to all the
issues, which have to be determined in order to establish the
guilt of an accused party. The requirements of section 197(2)
of the Courts Act not having been met in the present case, it
was concluded that the judgment is flawed and it cannot
stand as the Magistrate made a wrong appreciation of the
evidence on record. The appeal thus succeeded under
ground 6 and the remaining grounds of appeal were not
considered.
The appeal was thus allowed and the conviction and the
sentence quashed.
Recommended