Newsletter Du DPP

8/20/2019 Newsletter Du DPP

1/18

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 50

August 2015


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IN THIS ISSUE:

August 2015- Issue 50

EDITORIAL TEAM

Ms Sulakshna Beekarry, Principal State Counsel

Ms Zaynah Essop, State Counsel

Miss Anusha Rawoah, State Counsel

Miss Shaaheen Inshiraah Dawreeawoo, Temporary State Counsel

Ms Pooja Autar-Callichurn , Temporary 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]

PAGE

Editorial 1

Welcoming the Commission of Enquiry on Drugs 2

University of 3rd Age Mauritius: Legal Issues facing the Elderly 3

Court of Criminal Appeal: Botha JJ v The State [2015] SCJ 267 4

The ethics of cross-examination 6

Disqualification: Below the minimum period or partial – circumstances in which it can beinvoked.

8

Mission Statement: Cybercrime: Are we ready for it? 9

Une description audacieuse d’un été chez le Directeur des Poursuites Publiques 10

Court Cases Summary 11

The views expressed in the articles are those

of the particular authors and should under

no account be considered as binding on the

Office.


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EDITORIAL

Page 1


We share a few snapshots of the current training being given by the ODPP to University of 3rd Age, Mauritius (U3AM) on

issues of interest to our senior citizens, from domestic violence to the legal framework for the protection of the elderly.

Shakeel Bhoyroo looks at the recent Court of Criminal Appeal judgment in JJ Botha v The State [ 2015 SCJ 267] and the guiding

principles on what constitutes a “ commencement d’ execution” for the purposes of defining an attempt to possess dangerous

drugs. Rishi Hardowar addresses the topical issue of road traffic offences, more particularly the issue of disqualification.

Zaynah Essop gives her very interesting perspective on cross examination of witnesses.

Kevin Rangasamy reports on his time at the Ecole Nationale de La Magistrature in Paris last month.

The latest court judgments are also summarized for our readers benefit

We wish you a pleasant reading

Sulakshna Beekarry- Sunassee,

Principal State Counsel

Dear readers,

We are pleased to present the August edition of the ODPP Monthly Newsletter . In this issue,

we have discussed some legal topics of interest, as well as addressed recent court judgments .

The Director of Public Prosecutions welcomes the setting up of the Commission of Enquiry on

Drugs and gives his perspective on the benefits that can be drawn from this initiative.


4/18

Welcoming the Commission of Enquiry on Drugs

Page 2


If, in my view, on the basis of the volume and quantity of cases lodged before courts, progress has been slow as regards dealers

and traffickers, the people who are let down most badly are those growing number of drug addicts who find themselves in the

vicious circle of a revolving prison door and a failure by society to rehabilitate them and offer them a second chance. Too many

of our drug addicts walk into prisons and come out as dealers. Rehabilitation, as opposed to retribution and punishment only,

will therefore have to be redefined. Of equal importance is the compatibility of the Dangerous Drugs Act with current reality,

which needs to be assessed.

In an interview given to journalist Anju Ramgulam in Express Dimanche, Johnny (anonymous name) gives an insightful

account of the world of drug addiction. He reveals his “naiveté” and attractions to this illusory and deceitful world. This is why

it has become so urgent to destroy certain myths. The tendency of some European countries like the Netherlands and Portugal with a relaxed attitude to cannabis is having a direct influence on the youth of our country leading them, into believing that

consumption of cannabis is harmless. These countries have now learned at their own expense that their relaxed policy has had

the contrary effect of boosting the use of all kinds of drugs.

Cannabis is an extremely dangerous drug. It acts as a gateway to other illicit drugs. There is scientific evidence that it impairs

memory, cripples judgment and the ability to learn. In high doses, it can cause addiction, paranoia and psychosis and provoke

schizophrenia. Liberalisation myths may have captured some advanced States but the sad truth may well be that talking down

the damage done by drugs can only boost their consumption among the youth.

The Commission of Enquiry will be a golden opportunity for parents of drug victims, social workers and society in general to

come forward with their perspectives and proposals.

Rehabilitation of drugs addicts is the area where we have to win the battle against drugs. For a better tomorrow.

Mr Satyajit Boolell SC,

Director of Public Prosecutions

As a society, we should all rejoice at the decision of Government to set up a Commission of

Enquiry on Drugs and take comfort in the fact that the Commission will be presided by former

Supreme Court Judge Paul Lam Shang Leen.

It is more than two decades since the Rault Commission was set up, in the 1980s, and it is high

time that we take stock of the current drug scourge in Mauritius. I understand that the

Commission’s work will focus on an assessment of the drugs problem in prisons as well as the

recent popularity of synthetic drugs like Wasabi, Black Mamba, Kat and Salvia to name a few.

More importantly attention will be given to trace the masterminds of the drugs trade and not just

the couriers (mules) or consumers.


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University of 3rd Age Mauritius: Legal Issues facing

the Elderly

Page 3


The ODPP, in collaboration with University of 3rd

Age (Mauritius), is delivering courses to our senior citizens on the legal issues facing them.

The first course organised on 5th August 2015 saw the attendance of some 125 participants. They were informed of their status

and rights as elderly persons as set out in the Protection of Elderly Persons Act 2005. The first key lecture was delivered by Mrs J.

Moutou-Leckning, Senior Assistant DPP.

The inauguration was done by Mr S Boolell SC, DPP and Mr A Parsuramen G.O.S.K, Founder, U3AM.

Mrs Sulakshna Beekarry-Sunassee introduced the office of the DPP to the participants through a presentation of the ODPP’s

work and initiatives these past years.


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Court of Criminal Appeal: Botha JJ v The State

[2015] SCJ 267

Page 4


At the Hotel, during check in, she was closely monitored by the police and the police found the Appellant, observing her. The latter was

constantly monitoring the movement of the said Marisca Scannell, gave a false name to the hotel for reservation purposes, earlier to the hotel

receptionist and upon arrest by police officers, occupied a room in the same hotel, check in the same hotel on the same morning that the said

Marisca Scanell arrived in Mauritius.

During her stay in the hotel, the said Marisca Scannell received several calls from the foreign contact. She was asked to walk to the room

occupied by the appellant; later she was instructed to remain in her room as she would have to deliver the drugs to somebody at the hotel on

the next day, that is, on the 5th March 2009. But during the night of the 4th March 2009, she started to have internal bleeding and had not

yet purged the drugs, so she was taken to the hospital.

The Appellant on his part did not know that the said Scannell was not in the hotel. On the 5th March 2009, he was asked by the same contact

who contacted Scannell to go to Curepipe to pick up money to hand over to the said Scannell druing delivery purposes. During the voyage to

Curepipe, appellant was tailored by the police when, according to police officers, he saw them, changed route, avoided police vigilance, came

to Movenpick, destroyed his SIM card to destroy evidence and checked out, although he had already paid for a late check out. He was

intercepted by the police at that point and he admitted that he knew that he was in Mauritius to take something illegal.

The Appellant in his out of court statement explained how he was asked to collect money namely 2000 USD on the morning of the 5th March

to remit to the said Marisca Scannell. He even stated having been instructed to keep watch over her and later on the 5th March 2009, he

started to look for her near the swimming pool but could not find her. He then got a call to the effect that the said lady was bleeding from the

foreign contact and according to him he packed his luggage and was to checked out from the room when he was intercepted by police.

The issue which was raised both at trial and on appeal relates as to whether in the present case, as can be gleaned from the evidence, there

was a commencement of execution, which in law constitutes one of the elements of the offence of attempt.

The Learned trial Judge went on to consider the following passage in Dalloz, Répertoire Pénal, mai 2009 under the heading Tentative at Note28 –

« La chambre criminelle admet aussi que soient retenus des actes qui sont objectivement plus éloignés de la consommation de

l’infraction . C’est alors leur proximité temporelle avec l’infraction qui autorise à les rattacher à celle-ci. Il semble en fait que la situation

de proximité temporelle compense souvent une relation de causalité moins directe. C’est ainsi que des actes, qui sont très proches de la

consommation de l’infraction, sont qualifiés de commencement d’exécution bien qu’ils ne participent pas de sa constitution matérielle.

Leur proximité temporelle permet alors de présumer avec certitude un passage à l’acte .»

This month, the Supreme Court (Court of Criminal Appeal), delivered judgment in the case of Botha J.J v

The State 2015 SCJ 267 quashing the term of 33 years penal servitude and Rs 300 000 fine imposed on the

appellant by the Criminal Division of the Supreme Court, on appeal.The circumstances of the case were summarised by the Court of Criminal Appeal as follows: One South

African National in the name of Marisca Scannell reached Mauritius on the 4th March 2009. She was

searched by the police and accompanied to Movenpick Hotel where she would be residing during her stay

in Mauritius. She had swallowed some 471.7 grams of heroin dissimulated in 41 pellets.


7/18Page 5


The learned Judge then concluded as follows –

“I am of the view that the accused had done everything that he could possibly do in an attempt to possess the drugs. There was one last

line which was left for him to cross and he was waiting for the appropriate time to cross it, inasmuch as that did not depend on him but

on the drugs being purged out by the courier and being ready to be taken over physically by him. Having considered the facts and thelaw on the subject, I find the element of “commencement d’exécution” proved.”

The Court of Criminal Appeal went on to elaborate as to what constitutes an attempt as per has been defined in section 2 of the

Interpretation and General Clauses Act 1974

““attempt”, in relation to an offence, means a commencement of execution which has been suspended or has failed in its effect through

circumstances independent of the will of the person making the attempt.”

It went on to restate the legal principles enumerated in French law relating to the distinction between commencement of execution and

preparatory acts, referring to French Jurisprudence fromNote 34 and 51 of Garcon Code Penal Annote:

34. L’intention n’est donc pas réputée pour le fait si elle ne s’est pas manifestée par des actes extérieurs, qui constituent le

commencement d’exécution . Sans doute, les actes préparatoires peuvent annoncer l’intention mauvaise de l’agent ; dans une certaine

mesure, ils manifestent extérieurement la pensée et même la résolution délictueuse. Mais ils sont encore trop éloignés du délit pour ne

pas laisser place au repentir possible de l’agent et pour démontrer une intention définitive. Objectivement, le délit n’est pas commencé

et le préjudice social n’apparaît pas encore; subjectivement, le projet manifesté par une simple préparation ne prouve pas encore que

l’agent soit un malfaiteur dangereux.

51. La distinction de l’acte préparatoire et du commencement d’exécution se ramène donc à la distinction des actes qui tendent

médiatement et indirectement au crime et des actes qui y tendent immédiatement et directement. La doctrine ne peut, croyons-nous,

fournir aucun critérium plus précis. Certains faits seront clairement préparatoires parce que, bien que tendant au délit, ils sont encoreéloignés de ce délit, ils l’annoncent, mais ne le réalisent pas; d’autres seront certainement des actes d’exécution : ce sont tous ceux qui

consistent dans l’exécution du délit lui-même. Mais entre ces actes préparatoires et ces actes d’exécution se placent ceux qui

commencent l’exécution et qui constituent la tentative à deux conditions: 1o qu’ils tendent directement au délit ; 2o qu’ils soient

accomplis dans l’intention d’exécuter ce délit. Telle est, au fond, si nous l’avons bien comprise la doctrine de M. Garraud, dans sa

seconde édition.”

The Court of Criminal Appeal came to the following conclusion in relation to the issue of attempt:

(i) The commencement of execution should be among the last acts before the consummation of the offence.

(ii) In the present case, there is nothing in evidence on record linking the appellant to the act of possession. It was imperative for the

appellant to at least have approached Miss Scannell, meet her, speak to her or any sort of interaction between the two; in other words,

there should have been some overt acts connecting appellant to the drugs

(iii) Since the appellant did not approach Miss Scannell, there was no lien de causalité entre le comportment et l’infraction consommé; so no

“ proximite temporelle” existed

Mr Shakeel Bhoyroo,

State Counsel


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The ethics of cross-examination

Page 6


The barrister can therefore be said to have a discretion as to the conduct and subject matter of cross-examination. However, it is

also the duty of counsel to ensure that such discretion is not misused. Too often, we see in court that witnesses are subjected to gruelling cross-examination by counsel. What is the purpose of cross-examination? Do barristers have an ethical duty towards

the witness and towards the court when conducting cross-examination? Does the court have a duty to intervene in cases where

witnesses are subjected to fierce cross-examination?

According to lackstone’s Criminal Practice 2015, at paragraph F7.4, the object of cross-examination is as follows: (a) to elicit

from the witness evidence supporting the cross-examining party’s version of the facts in issue; (b) to weaken or cast doubt upon

the accuracy of the evidence given by the witness in chief; and (c) in appropriate circumstances, to impeach the witness’

credibility.

Paragraph 11.3(e) of the Code of Ethics for Barristers provides that, ‘a barrister when conducting proceedings in court shall not

make statements or ask questions which are merely scandalous or intended or calculated only to vilify, insult or annoy a witness

or some other person.’ Paragraph 11.3(i) of the said Code states that, ‘a barrister when conducting proceedings in court shall not

try to mislead or do anything tending to frighten or coerce the witness.’ Hence the duties on barristers in relation to cross-

examination are, and always have been, ethical duties, not merely duties in relation to the application of rules of evidence.

Let us therefore identify a few mistakes which ought to be avoided in cross-examination:

(1)Tone and manner: An ‘intimidating manner’ is not permitted and there is no room for cross-examination in the ‘nature of a

taunts’ (Randall v The Queen [2002] 1 WLR 2237 at [10]);

(2)Language: Violent and abusive language should be avoided. The cross-examiner should not ‘browbeat or bulldoze’ the

witness; Should a barrister have a momentary lapse with respect to language used it is best to withdraw and start again;

(3)Sarcasm: In R v Robinson [2001] 153 CCC (3rd) 398, the Ontario Court of Appeal considered sarcasm as a serious breach of

counsel’s duty whilst in the United States, there is authority for the proposition that persistent use of sarcasm amounts to

contempt of court (Hawk v Superior Court 42 Cal App 3d 127);

(4)Aggressiveness: It is not proper to lose one’s temper and become cross with the witness. Self-control is the aim;

(5)Badgering: As a working rule, counsel cannot torment, tease or nag a witness;

Section 10(2)(e) of the Constitution provides that, ‘every person who is charged with a criminal

offence shall be afforded facilities to examine, in person or by his legal representative, the

witnesses called by the prosecution before any Court, and to obtain the attendance and carry outthe examination of witnesses to testify on his behalf before that Court on the same conditions as

those applying to witnesses called by the prosecution.’ Furthermore, section 107 of the Criminal

Procedure Act provides that, after examination-in-chief, ‘every witness may then be cross-

examined by counsel for the defence or by the accused through the Judge.’ The right of a person

to cross-examine a witness, as set out in those provisions, flows from the very nature of the

adversarial system.


9/18Page 7


At paragraph F7.14 of lackstone’s Criminal Practice 2015, we read that ‘the trial judge has a discretion to prevent any questions

in cross-examination which, in his opinion, are unnecessary, improper or oppressive. Cross-examination is a powerful weapon

entrusted to counsel, and should be conducted with restraint and a measure of courtesy and consideration which a witness is

entitled to expect in a court of law (Mechanical General Inventions Co. Ltd v Austin [1935] AC 346, per Lord Sankey LC at pp.

359-60). Thus, it is no part of the duty of counsel for the defence to embark on lengthy cross-examination on matters which are

not really in issue (Kalia (1974) 60 Cr App R 200).’ The Court has always had the authority to control the proceedings and to

enforce proper standards of behaviour. Failure to exercise that control jeopardises a fair trial. The Privy Council in Randall v

The Queen [2002] 1 WLR 223795 stated that the responsibility of the judge is to ensure that the proceedings are conducted in an

orderly and proper manner and to that end “if counsel begin to misbehave he must at once exert his authority to require the

observance of accepted standards of conduct”. In this respect, it is the duty of the trial judge, under the general law, to prevent

cross-examination that goes beyond permissible limits and this is so even if it is not objected to by counsel for an accused.”

The law is not a game and the court process is not about ambushing or humiliating witnesses. Each counsel ought to carry out a

balancing exercise in assessing the effect of questioning upon an actual witness who is to be cross-examined whilst bearing in

mind one’s ethical duties under the Code of Ethics for Barristers. What is required at the end of the day is that a fair trial has

been conducted, fair trial to both the prosecution and the defence. The duty to ensure to ensure that a fair trial is carried out

rests ultimately on the Court. Control of cross-examination therefore is best left to the Court!

Zaynah Essop,

State Counsel


10/18

Disqualification: Below the minimum period or

partial – circumstances in which it can be invoked.

Page 8


(A) Disqualification below the minimum period provided by law

It is not denied that ‘although the minimum sentence prescribed by section 123F of the Act will normally be imposed by the

Court, yet section 52 of the Act gives a discretion to the Court not to impose the minimum sentence laid down in the Second

Schedule to the Act, including the disqualification/cancellation of the licence of the offender where there are ‘special reasons’

which dictate otherwise. (Ramtohul v State [1992] MR 240 and Douce [2005] SCJ 238.)

“ A ‘special reason’ within the exception is one which is special to the facts of the particular case, that is special to the facts which

constitute the offence. It is, in other words, a mitigating or extenuating circumstance, not amounting in law to a defence to the

charge. Yet directly connected with the commission of the offence and one which the Court ought to take into consideration

when imposing punishment. A circumstance peculiar to the offender as distinguished from the offence is not a ‘special reason’

within the exception.” (R v.Crossen [1939] 1 NI 106 as cited in Jeetun s. v State [2009] SCJ 364).(B) The issue of Partial Disqualification

Moreover, in Attig v State [2012] SCJ 95 it was held that ‘whether the disqualification of a licence should be extended to all types

of vehicles will depend, among other factors, on the nature of the offence and, more particularly, on the mischief that the

legislator was trying to deal with in providing for such a measure. Drinking alcohol affects the reflexes of a driver, his reaction

time, his ability to control his vehicle and his ability to assess and successfully deal with situations that he is likely to be

confronted with when driving. Once a driver has shown that he can disregard the safety measures embedded in the law with

respect to drinking and driving, it would serve no purpose to restrict him from driving one type of vehicle but to allow him to

continue driving other types of vehicles. For the measure to be effective, the disqualification should extend to all types of vehicles

unless there are good grounds for not doing so.’

Further in the case of Seesurrun v State [2015] SCJ 272, it was held that the imposition of partial disqualifications based on the

personal conditions of the life of driver such as the need of the vehicle for his everyday job, a clean record (good driving record)

do not amount to special reasons which would have prompted the Court to impose disqualification on specific types of vehicle.

Therefore, the rule remains that the Courts will usually impose the minimum disqualification period unless there are ‘special

reasons’ not to do so.

Mr Rishi Hardowar, State Counsel

A first time offender found guilty, by a court of law, for driving under the influence of alcohol

above the prescribed limit shall be liable to ‘a fine of not less than 10,000 rupees nor more than

25,000 rupees and to imprisonment for a term not exceeding 6 months. ’ (Section 123 (F) (3) of theRoad Traffic Act) plus a minimum of 8 months disqualification period of his driving licence.

The issues to be canvassed are two fold, firstly (A) can a disqualification below the minimum

period be imposed by the Court and secondly (B) can the accused benefit from a partial

disqualification?


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Mission Statement: Cybercrime: Are we ready for it?

Page 9


The ‘Ecole Nationale de la Magistrature’(ENM) in France provides courses throughout the year in various fields and provides the

continuous assessment programme reserved for French Magistrates and Judges. These courses are also open to other countries

including Mauritius.

In June 2015, a course on cybercrime was held at Sevres, Paris. Some eminent speakers, from Judges with a wealth of experience

in cybercrime, practitioners, to IT experts from the French Ministry of Defence took part in delivering lectures which were both

highly technical and adapted to the less tech savvy individuals. The innovation this year was the participation of Google France.

They gave an insight on the world of high technology, the role of the internet and the risks which inevitably follow through.

Google now covers 90% of the all search engine users in the world. The frightening pace at which Google and its competitors are

creating new devices that connect to each other through cyberspace provides a new platform for cybercriminals to work on.

Connected watches, glasses or implanted chips under the skin are now becoming the norm in France.

Criminals are moving away from drug trafficking and are slowly investing in cybercrime which can be more lucrative and

crucially more difficult to detect. There are two main branches of cybercrime. The common offences of swindling, embezzlement,

insult, defamation or child pornography are now being perpetrated through cyberspace, whether it is on social media or

otherwise. The other side is the hacking of systems which can put at risk major organisations or states. These hackers will either

use their expertise to steal information to sell it on to the highest bidder or cripple organisations themselves when hired.

France is investing massively in the fight against cybercrime and even then they are playing catch up all the time. It is unclear at

this stage how much we, in Mauritius, are serious about fighting this new scourge. Perhaps, we are only being saved by the fact

that we do not represent a worthwhile target for international cybercriminals … for the time being.

Mr Kevin Rangasamy, State Counsel


12/18

Une description audacieuse d’un été chez le

Directeur des Poursuites Publiques

Page 10


bon stage permet d’intégrer une routine, de comprendre des procédures et des automatismes que personne ne peut transmettre

sur les bancs d’une faculté. Enfin, il y a ceux qui ne pensent rien des stages, ces derniers étant généralement une perte de temps,

l’occasion de signer un registre deux fois par jours et d’ajouter une ligne sur un CV.

Personnellement, je ne suis pas sorti du bureau du Directeur des Poursuites Publiques après trois mois en me disant “ah oui !effectivement c’était une bonne expérience !”. En réalité je ne me suis rien dit du tout. Parfois les mots ne suffisent pas pour

exprimer les idées, mais pour les besoins de la cause, je vais tacher de faire un effort. Aucun stage ne m’a apporté autant que

celui que j’ai commencé il y a trois mois.

Apprendre. Ne connaissant rien du droit de notre pays, je connais aujourd’hui par coeur des sections de notre Code Pénal, j’ai eu

l’opportunité d’étudier nos évolutions jurisprudentielles et ce magnifique melting-pot juridique qu’est le droit mauricien.

Rencontrer. Mon stage n’aurait jamais été aussi agréable, sans les personnes que j’ai eu la chance de côtoyer. Des futurs avocats

aux avocats du bureau, en passant par les autres étudiants, je pense que les meilleurs moments de mon séjour sont ceux passés

à vos cotés.

Comprendre. Certaines choses ne s’apprennent pas dans les livres, encore moins dans un article comme celui-ci. Travailler dans

l’une des institutions essentielles pour le bon fonctionnement de notre système juridique permet d’avoir un point de vue unique

sur les dynamiques et les enjeux de la scène mauricienne.

Les évènements ont fait que ma période de stage a été agrémentée de morceaux particulièrement épicés. Revenir sur l’ensemble

de ce qui s’est passé pendant mon séjour demande une liberté dont je ne dispose pas, alors je dirai simplement que si vous avez

pour ambition de travailler au bureau, entrainez-vous à être vifs et prêts à vous adapter à toutes les situations, vous en aurez

besoin.

La premiere phrase que l’on ma adressée à mon arrivée était : “Vous avez de l’audace de demander à travailler pour nous”. Cet

article ne représente que l’impression subjective de son auteur et reste donc, une opinion. S’il est conseillé de ne pas être subjectif

lorsque l’on écrit sur une institution comme celle du DPP, j’ai justement choisi de faire preuve d’audace et d’écrire un article

honnête et direct. Mon dernier mot sera dirigé à toutes les personnes que j’ai eu l’occasion de rencontrer: merci pour vos conseils,

votre aide et votre soutien, et merci de m’avoir donné la chance de travailler chez vous.

Mr Emmnanuel Luchmun, Pupil

France

Un stage est une période, passée dans un milieu professionnel, permettant à un individu de mieux

se préparer à intégrer le monde du travail. Le cadre est posé. La définition d’un stage n’a rien de

complexe, dans ce cas, quels sont les critères à remplir pour sortir du “milieu” après trois mois et sedire “ah oui ! c’était effectivement une bonne expérience !”, quels sont les critères d’un bon stage?

Certains pourraient dire que le seul critère est la qualité de l’apprentissage: le fait de découvrir de

nouvelles notions pour devenir meilleur dans sa profession. Pour d’autres il s’agit de nouer des

contact avec les individus et ainsi commencer à se former un réseau. Il y a aussi l’idée qu’un bon


13/18

CURUM D v THE STATE OF MAURITIUS ANOR [2015] SCJ 235

Hon. A.F.Chui Yew Cheong, Judge and Hon. O.B.Madhub, Judge

Application deduction of pretrial detention.

On 22 September 2006, the applicant – now a prisoner servingsentence - was sentenced by the Intermediate Court to undergo

various terms of imprisonment and penal servitude for drugs related

offences. He now applies for a review of the sentences imposed on

him so that the time he spent as pretrial detention be counted as

served sentence and be deducted from his initial sentences. There is

no objection to the application subject to the discretion of the Court

to deduct the appropriate quantum of time spent on remand.

It is not disputed that the applicant has spent 579 days as pretrial

detention in the police cell and on remand. That such time spent in

custody prior to sentencing should have been taken into account by

the trial Court by means of an arithmetical deduction from the

proper and appropriate sentence is now settled case law.

As regards to the calculation of this arithmetical deduction the Court

referred to the case of Dookee Ajay v State of Mauritius [2012] UKPC

21 in which it was held that a credit of 80 to 100 % of the pre trial

detention can be given.

The Court thus decided to reduce the sentences passed upon the

Applicant by 464 days i.e. 80% of 579 days.

THE STATE v ERRAPAH S [2015] SCJ 248

Hon. G-Jugessur – Manna, Judge

Sentence Murder - Deduction

The accused stands charged with the offence of murder for having,

on the 29 May 2011, criminally, wilfully and with premeditation,

killed one Louis Lakshmann Rao Yenkadu in breach of sections 215,

216, 217 and 222(1)(a) of the Criminal Code, to which he pleaded

guilty. He was found guilty as charged.

It arose out of the confession of the accused that on the 29 May 2011,

the latter and his friend Josian Laverdure decided to steal batteries

from a store at Marie Jeannie, Rose Belle to remove and sell the lead

found in them. The accused brought along with him a sabre to

facilitate the removal of lead from the batteries. After having

removed some batteries from the store, he was caught by the

watchman who started swearing at him. Realizing that he was

Page 11

August 2015- Issue 50SUMMARY OF COURT JUDGMENTS: July2015

THE STATE v BANGAREE P [2015] SCJ 249

Hon.G.Jugessur-Manna, Judge

Murder Manslaughter - Sentence

The Accused was initially charged with the offence of murder. On the

day of the trial, the Prosecution reduced the charge to that of manslaughter for having criminally and willfully kill, one Mr.

Teeluckdharry Patut Roy in breach of Sections 215 and 223(3) of the

Criminal Code, to which he pleaded guilty. He was thus found guilty

as charged.

The facts of the case were that on 12th April 2008 at about 6.30 pm

the accused met his friend Jessen at a tobacco shop at Rivière Des

Anguilles and they consumed three bottles of beer. Thereafter they

left for Senville Restaurant and ordered a bottle of rhum ‘Seven Seas’

among other drinks and some food. Thereat, they met with Gian, the

deceased, to whom they served a drink. It is noted that the accused

knew the victim for more than four years. Some four months prior to

the incident, accused’s father had remitted a sum of Rs150 to the

deceased to purchase a measuring tape but the latter had used the

money to buy alcoholic drinks. Each time, the accused would request

for the money, the deceased would swear at him till the latter

preferred to abandon his request. According to the accused, Gian

used to swear, make noise and nasty remarks when he was drunk.

After the restaurant was closed, the accused and Jessen continued to

drink under a tree, when the deceased approached them anew,

asking for a cigarette. Upon being refused, the deceased got angry

and started swearing at the accused. Jessen slapped the deceased and

the latter fell on the ground. The accused and Jessen dragged the

deceased in a sugar cane field and they violently dealt him numerous

fisticuff blows on the face and the stomach. They left the deceased in

the sugar cane field and after purchasing a bottle of beer, they came

back on the spot. Seeing the deceased moving and mourning, they

realized that the latter might report them to the police. The accused

violently hit the deceased at the neck with his foot while Jessen hit the

latter at his head with the empty bottle of beer. They removed the

clothes of the deceased and set fire with a view of dissipating the

evidence and left the deceased in the sugar cane f ield.

After having taken all the necessary factors into consideration; that is

the fact that the accused cooperated with the police and that he

pleaded guilty at the first opportunity and his young age, the Court

sentenced him to undergo 27 years penal servitude.


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3.The learned Judge failed to consider that since accused never

contacted Ms Scannell, never went to her room, never talked to her or

did any overt positive act to take possession of the drugs, all his other

acts are in law remote enough from the actual taking possession of

the drugs and therefore merely amount to “actes préparatoires”.

4.The learned Judge failed to consider that even if accused may have

been prosecuted for other drug offences, or have the necessary mens

rea he cannot be found guilty of attempting to possess, as he never

committed the penultimate act of taking possession of the drugs.

The grounds of appeal in essence challenge the finding of the learned

trial Judge that the acts of the appellant, as borne out by the evidence

on record, do constitute the offence of attempt to possess drugs for

the purpose of delivery. The Appellate Court went on to state that on

a charge of attempt to possess drugs, the prosecution must establish

not only knowledge but also overt acts connecting the accused to the

drugs. After having relied on several cases the Court held that the

crucial issue therefore was as to whether the acts of the accused party

showed that he had gone beyond “ Actes preparatoires” and had

embarked into the executor process of the offence charged.

The Appellate Court went on to hold that the evidence on record was

not sufficient to establish the offence of attempt to possess the drugsin as much as:

(i)There is nothing in the evidence on record which links the

appellant to the act of possession

(ii)The facts which were adduced in the present case were totally

different from those in the case of Narayanasawmy where the

Appellant had a close connection and interaction with the lady who

had swallowed the drug pellets and from which the Court concluded

that he had gone beyond mere “actes preparatoires” and embarked

on a “commencement d’execution”

(iii)Even if one were to assume that the Appellant had the necessary

guilty knowledge, it can neither be said that he had done all that he

could possibly have done in his endeavor to take possession of the

drug pellets not that he was only prevented from completing the

operation by the intervention of the police.

(iv)The evidence also showed that the Appellant had never even

approached the lady. Accordingly it cannot be said that there was a

“lien de causalite entre le comportement et l’infraction consommé”

Page 12

August 2015- Issue 50recognized and that the matter would be reported to the police, the

accused there and then decided to kill the watchman in order not to

get into trouble with the police.

Accused in a statement from the dock expressed remorse and offered

apologies to the family of the deceased. The Court in sentencing the

Accused took into account his timely plea of guilty, the period spend

on remand, the fact that he cooperated with the police, his remorse

and the fact that he promised to mend his ways.

He was thereafter sentenced to undergo 38 years of penal servitude.

In view of the fact that there was no exceptional circumstances on

record which would justify a 100 % deduction, only 80 % was

deducted from his time spent on remand.

BOTHA J.J N v THE STATE [2015] SCJ 267

Hon. Matadeen, Chief Justice, Hon. S. Peeroo and Hon. D. Chan Kan

Cheong, Judge

Attempt Proximite temporelle - Drugs

This is an appeal from a judgment of the learned trial Judge who

found the appellant guilty of the offence of attempting on or about 05

March 2009 to possess 471.7 grams of heroin for the purpose of

delivery and who, after making a finding that the appellant was a

drug trafficker, sentenced him to undergo 33 years’ penal servitude

and to pay a fine of Rs 300,000. It was averred in the information

that the attempt was manifested by a commencement of execution which failed in its effect through circumstances independent of the

will of the appellant.

The appellant appealed against the judgment of the learned trial

Judge on the following four grounds –

1.The learned Judge erred in concluding that the element of

“commencement d’exécution” was proved, when in fact several acts

would have to be done by the accused before taking possession of the

drugs, and the penultimate act to take possession was never reached.

2.The learned Judge erred in considering that the intended payment

of 2000 USD to Ms Scannell constituted a “lien de causalité

(suffisament étroit et direct) entre le comportement et l’infraction

consommée” when what is required is an “act” (actus reus) of the

accused that would lead straightforwardly to the commission of the

complete offence of possession. The intention to remit the 2000 USD

could be taken at its best as “ une intention” (mens rea) to take

possession but not attempt at possession.


15/18

material in that it has a direct bearing to the elements of the offence

and to the credibility of the witnesses for the prosecution.

[7] The Learned Magistrate was wrong in law and on the facts to find

the accused guilty in view of the evidence on record” .

The Appellant questioned the judgment of the learned Magistrate

who found that the version of witness No.2 has been “corroborated”

by that of Witness No.3, especially in view of the inconsistencies in the

testimonies of the two witnesses.

The Court referred to the test stated in the case of R v Beck [1982] 74

CAR 221 with regards to corroborative evidence. Based on the test the

Court held that corroborative evidence does not have to be exactly in

every respect as the primary evidence already adduced. The grounds failed and the Court concluded that the Learned Magistrate had the

opportunity of observing the demeanour of the witnesses and the

Appellate Court did not find anything on record that would amount

to a wrong direction from the Learned Magistrate.

The other grounds also failed and the appeal was dismissed with

costs.

RUHOMAUN FAWAZOODDIN v THE STATE [2015] SCJ 246

Hon. N. Devat, Judge and Hon. P. Fekna, Judge

Interpretation of the law of larceny

The appellant stood charged before the District Court of Grand Port

with:

[1] under Count I, with the offence of larceny in breach of section

301(1) of the Criminal Code; and

[2] under count II, with the alternative offence of possession of stolen

property in breach of section 40 and 301(1) of the Criminal Code.

He pleaded not guilty to both counts. The learned Magistrate found

him guilty under count I and dismissed the alternative count. She

then sentenced the appellant to pay a fine of Rs 2000 plus Rs 100 as

costs. The appellant purported to challenge his conviction pursuant

to eight grounds of appeal. However, on the day of the hearing,

counsel appearing for him dropped grounds 1, 4, 5, 6 and 7 so that

we are left only with two grounds, namely grounds 2 and 3.

The grounds read as follows:

“[ 2] That the learned Magistrate failed in his interpretation of the law

concerning larceny

Page 13

August 2015- Issue 50THE STATE v DOORGAPARSAD [2015] SCJ 273

Hon. P. Fekna, Judge and Hon. O.B.Madhub, Judge

Insult Test of Mem ory

The appellant stood charged before the District Court of

Pamplemousses with one count of insult in breach of section 296(a)

of the Criminal Code. In fact, it was averred that on 16 February 2012

at Triolet she wilfully and unlawfully, by means of words not carrying

with them an imputation of fact, use an injurious expression to the

address of one Saraswatee Parbotheeah, which words were not made

use of in public. The information was subsequently amended to give

the particulars of the impugned words.

The learned Magistrate found her guilty as charged and sentenced

her to pay a fine of Rs 5000 plus Rs 100 as costs. The Appellant is now

appealing against the said judgment. Grounds 2 and 3 were dealt

together and read as follows:“[ 2]. The Learned Magistrate erred in finding that the complainant

had repeated the very insulting words which appear in the body of

the information.

[3]. The Learned Magistrate misdirected himself when he found that

those offensive words are to be found in the charge which the police

put to the accused as evidenced by the defence statement on record.”

The Appellate Court held that the magistrate was right to find that

there was no inconsistency between the three instances where the

impugned words have been referred to. The Court further held that it

is an established principle that the process of giving evidence in court

should not be turned into a test of memory. The Court further added

that where words which have been uttered by an accused party in

creole are the basis of a charge, the evidence given in that connection

should not be made to sound like an exercise in the precise use of

specific words.

Grounds 4, 5, 6 and 7 were further dealt together as they concern the

issue of alleged inconsistencies in the prosecution’s evidence and theyread as follows:

“[ 4] The learned Magistrate completely misdirected himself on the

facts when he found that the version of the main witness had been

corroborated by witness No.3.

[5] The learned Magistrate failed to direct his mind to all the

inconsistencies in the evidence of the prosecution.

[6] The learned Magistrate was wrong to fleetingly discard the

contradiction as regards the location of the houses as not being


16/18

THE STATE v GOWRYDOSS [2015] SCJ 250

Hon. G.Jugessur-Manna, Judge

Murder Guilty Plea - Sentence

Both accused stood charged with having criminally and wilfullykilled one Mr. Prithviraj Ajaye Kumar Nosib, on the 22nd of May

2009, in breach of sections 215 and 223(3) of the Criminal Code.

Both accused pleaded guilty to the charge. Based on their plea, they

were found guilty as charged.

Accused No.2 met with Accused No.1 and they became friends. One

year prior to the incident, he made the acquaintance of the deceased

whom he knew as Nikhil through “chat plus” and Nikhil used to give

him some money. Since some time, as he was short of money, he planned together with Accused No. 1 to rob Nikhil who he knew was a

rich guy.

On the 22 May 2009, both accused met Nikhil at La Brasserie and

they all proceeded to an abandoned house in a deserted area. The

accused brought along with them a bandage and a kitchen knife.

Accused No.1 removed a knife from the back pocket of his trousers

and placed it at the neck of Nikhil while accused No. 2 tried to tie up

his hands. Both accused struggled to immobilize Nikhil but the latter

was showing resistance and even proposed to give them some money.Both accused refused the proposal and asked for his credit cards and

pin code. In the course of the struggle, accused No. 2 immobilized

Nikhil on the floor while accused No.1 placed his knee on the latter’s

abdomen and stabbed him at the chest.

After having taken all the mitigating factors into consideration, the

Court went on to conclude that the manner in which the deceased

was killed showed that both accused had utter disrespect for human

life and had for petty gains violently attacked a vulnerable and

honest man who had blindly followed them. They were thus

sentenced to undergo 28 years penal servitude.

Page 14

August 2015- Issue 50[3] That the learned Magistrate failed in finding the Appellant guilty

of abstraction as there was no evidence to that effect.”

The judgment of the learned Magistrate showed, according to the

appellate court, that she analysed all the relevant facts as well as the

applicable law in details before coming to the conclusion that the

actions of the appellant led to the irresistible conclusion that he had

been acting as the owner of the phone since he kept it in his

possession and appeared to exercise proprietary rights over it. Thus,

both the elements of ‘appropriation’ and ‘intention frauduleuse’ have

been established.

The Appellate Court further held that it would only interfere with the

finding of facts of a trial court where those findings are perverse and

it found nothing perverse with the reasoning of the Magistrate and

therefore have found no grounds to interfere with same.

GOPY A. v THE STATE OF MAURITIUS AND ANOR [2015] SCJ 274

Hon. A.F.Chui Yew Cheong, Judge and Hon. A.D.Narain, Judge

Time Spent on Remand - Deduction

This was an application by a prisoner undergoing sentence for the

offence of offering drugs for personal consumption, for a review of his

sentence and for the second respondent to amend his records so that

the “period of 8 months” spent by him on remand be counted as

served sentence and be deducted from his initial sentence.

On 6 June 2013, the applicant was sentenced by the Intermediate

Court to undergo 2 years’ imprisonment. The learned Magistrate

bore in mind the serious nature of the offence, the quantity of drugs

secured and the applicant’s previous convictions but did not take

into account the time spent by the applicant on remand awaiting

trial and pending appeal.

It is not disputed that the applicant spent 4 days on remand in police

cell awaiting trial and 245 days on remand pending appeal. The

second respondent has stated that it has no objection to the sentenceof the applicant being reviewed subject to the Court’s discretion to

deduct the appropriate quantum of the time spent on remand.

The Court, after having taken into consideration the case of

Callachand Mohamed Iqbal Anor v The State [2008] PRV 44, held

that there was no reason which had been put forward as to why credit

to the extent of 100 % should be given for the time spent in custody

on remand, hence the Court decided to deduct only 80%.


17/18

2.Because the learned Magistrate did not address her mind to the fact

that the footprint evidence allegedly found in the complainant’s house

was too tenuous to be accepted as proof of the Appellant’s guilt.

At the hearing of the Appeal observations were made with regards tothe aspect of evidence and the Respondent thereafter decided not to

resist the appeal.

It is not disputed that the only evidence connecting the accused to the

room from which the larceny of money and some items of jewellery of

a total value of about Rs 100,000 had been stolen were footprints

found on the floor of such room and alleged to be theappellant’s.

PS Luchmun had produced four transparent plastic slides bearing

footprints and deposed to the following effect, as appears also fromthe learned Senior District Magistrate’s judgment:

“……… and added that as Examiner of long-standing at the Crime

Records Office, since 17th Century, (sic) two persons cannot have

identical prints, and in his 21 years of career, he had not seen anyone

with the same prints as another person.”

Witness Luchmun did not say in chief in what exact capacity he was

giving evidence, apart from saying that he was an examiner of

longstanding at the Crime Records Office, nor what was his

competence and experience in the examination of such evidence as

footprints. It was only in cross-examination by the appellant, that he

said that it was the second time in his career of twenty one years that

he had a case concerning footprints. He had also not personally gone

on the locus nor taken the prints therefrom.

It was abundantly clear to the Court from the tenor of the evidence

and the findings of the learned Magistrate that it was not possible for

the Magistrate, nor was it possible for this Court, on appeal, to

objectively determine on what premises witness Luchmun basedhimself to conclude that the footprint collected from the spot in the

room matched the specimen voluntarily provided by the appellant.

There was no demonstration of the process which led to and justified

such conclusion.

What was cause for concern in the present matter was that the court

at first instance accepted, without more, the evidence of the purported

“expert” who had said that he had found the specimen footprint from

the appellant identical to the footprint collected from the locus, and

Page 15

August 2015- Issue 50JAWAHEER v THE STATE [2015] SCJ 236

Hon. Chief Justice Matadeen and Hon. D.Chan Kan Cheong, Judge

Remission or Parole

This appeal was originally heard before a differently constituted

Bench. One of the Judges having passed away before judgment could

be delivered, this appeal had, with the agreement of legal advisers on

both sides, to be heard anew.

The appellant was prosecuted with 3 co-accused for drug dealing,

namely possession of cannabis for the purpose of selling in breach of

sections 30(1)(f)(i), 45(1), 47(5)(a) and 48 of the Dangerous Drugs Act

(Act 41 of 2000) under count 1 of an information before the

Intermediate Court. The appellant, who was represented by Counsel,

was convicted upon his own plea of guilty after initially pleading not

guilty. He was sentenced to undergo 3 years’ penal servitude and to

pay a fine of Rs.25, 000.The only ground of appeal was against the sentence and read as

follows:-

“ Because the sentence passed on the appellant (then accused No.2) is

wrong in principle, manifestly harsh and excessive and

disproportionate with the other sentence passed on the co-accused

parties.”

In light of the case of Mertz v The State [2012] SCJ 382 the Court held

that the non-eligibility of the Appellant for remission or parole did

not render the sentence unconstitutional.

BEGUE N v THE STATE [2015] SCJ 252

Hon. A. Hamuth, Judge and G.Jugessur-Manna, Judge

Larceny by Means of Scaling Expert evidence Footprints

The appellant was convicted for the offence of larceny by means of

scaling in breach of section 309 (1) of the Criminal Code and he was

sentenced to undergo six months imprisonment and to pay Rs 100 as

costs. He had pleaded not guilty and was not assisted by counsel.

The Accused appealed against both his conviction and sentence. The

grounds were as follows:

1.Because the learned Magistrate ought not to have relied on the

evidence of footprints adduced by the prosecution inasmuch as (i) the

Prosecution failed to establish that such evidence was being provided

by experts and (ii) this evidence lacked the certainty that is required

for its admissibility.


18/18

(a)grounds 2 and 3 of the initial grounds and the two additional

grounds which all challenge the appreciation of the evidence by the

learned Magistrate; and

(b)ground 5 of the initial grounds which relates to sentence.

The grounds at (a) above were not being pressed. In relation the

ground against sentence at (b) above, the only contention of Counsel

for the Appellant was that the time spent on remand should be

ordered to count as served sentence.

Counsel on both sides agreed that the time spent on remand

amounted to 38 months and that in accordance with established

principles, 80 per cent of that period should count as served

sentence. In the circumstances, the Court held that a period of 30.4 months should be reckoned as served sentence and ordered

accordingly. The appeal was otherwise set aside with costs.

August 2015- Issue 50 without a detailed explanation by the witness of what exactly he

based himself on to conclude as he did.

The Appellate Court thus held that it is the practice, and rightly so,

for experts giving evidence of handwriting or of fingerprints to show

in their report by reference to photographs of the specimen and the

collected evidence, the process which leads to and justifies their

conclusion.

It was also well settled that the purpose of “expert” evidence was to

assist the Court, which had to be personally satisfied that the

conclusion is well founded. In other words the Court was not to

accept the expert’s findings at face value without submitting it to an

appropriate test.

The Appellate Court went on to say that it must satisfy itself that the

reason(s) given by the expert for coming to the conclusion that he did

is demonstrably valid, reliable and borne out by an objective

evaluation and assessment. That is why, for example, fingerprint

experts call attention to the similarities in the formation of the ridges

of particular fingers or parts of the palm to justify their findings.

Consequently the court must not follow without questioning

everything that the expert says. Experts are there only to assist the

court to determine a fact in issue. It is for the court to satisfy itself

that the conclusion of the expert is or is not sound, based on the

information relied upon by the expert, the process of the comparison,the inferences drawn by the expert to arrive at the relevant findings,

and the reason(s) for his conclusion(s).

Hence the Court held that the prosecution had failed to establish the

expertise of PS Luchmun in the field of footprint. The appeal was

thus allowed and the conviction and sentence quashed.

JOLI J. T v THE STATE [2015] SCJ 256

Hon. E. Balancy, Senior Puisne Judge and Hon. P. Fekna, Judge

The appellant was prosecuted before the Intermediate Court on twocharges of sodomy (Counts 1 and 2) in breach of section 250 (1) of the

Criminal Code and one charge of rape (Count 3) in breach of section

249 (1) and (1A) of the Criminal Code. He pleaded not guilty to all

three Counts. At the end of the trial, the learned Magistrate

dismissed count 2 for lack of evidence but found him guilty of

sodomy under Count 1 and rape under Count 3. The learned

Magistrate sentenced the accused to two years imprisonment under

Count 1 and to five years penal servitude under Count 3.

The Grounds of appeal were as follows:

“Many of life’s

failures areexperienced by

people who did notrealize how close

they were tosuccess when they

gave up.”

– Thomas Edison

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