Office of the Director of Public Prosecutions E

Office of the
Director of
Public
Prosecutions
E-Newsletter
Issue 47
May 2015
‘To No One Will We Sell, To No One
Deny or Delay Right or Justice’
Chapter 40, Magna Carta 1215
IN THIS ISSUE:
May 2015- Issue 47
PAGE
Editorial
1
Fair trial or hysteria?
2
Privy Council upholds regulatory powers of the Financial Services Commission
3
Trafficking in Persons course at ILEA, Gaborone, Botswana
4
13th HOPAC ( Prosecution: Staying ahead of the curve)
5
« La course des drogues synthétiques est-elle rattrapée par le droit pénal?»
7
Obituary: Judge Shaheed Bhaukaurally
9
The concept of the benefit of doubt and evidence beyond reasonable doubt
10
Court Cases Summary
12
EDITORIAL TEAM
Ms Sulakshna Beekarry, Principal State Counsel
Ms Zaynah Essop, State Counsel
Miss Anusha Rawoah, State Counsel
Miss Shaaheen Inshiraah Mohung , 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]
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
May 2015- Issue 47
Dear Readers,
The month of April has been a special one for the Office of the Director of Public
Prosecutions of Mauritius as we hosted the Head of Prosecution Agencies Conference. I was
lucky to have had the benefit of talking to the participants and was amazed to find out that
our Newsletter is very much appreciated by senior prosecutors in other jurisdictions.
In this issue, the DPP discusses the lessons to be drawn from the US case of Trisha Meilli who was assaulted and raped. Mr
Boolell SC is of the view that no arrest must be effected on preconceived ideas and that a fair trial is a must.
Nitish Bissessur talks about synthetic drugs and the current gap in our legislation in relation to these new drugs. Kevina P.
Mootien and Anusha Rawoah attended a course on Trafficking in Persons at the International Law Enforcement Academy
(ILEA) in Botswana.
You will, as usual, find a summary of the latest judgments given by our Courts in April 2015. The judgment of the Judicial
Committee of the Privy Council in the case Rainbow Insurance Company Limited v the FSC and Others is also reported on.
Lastly, we want to offer our deepest condolences to the bereaved family and friends of Judge Shaheed Bhaukaurally. He was
known for his perseverance, kindness and humility.
Ashley Victor
Public Relation Officer
Page 1
May 2015- Issue 47
Fair Trial or Hysteria?
In the wake of the Baltimore riot in the US, where six police officers are indicted for the death of
Freddie Gray, I am reminded of the case of Trisha Meilli and the importance of the presumption
of innocence.
Trisha, a young woman working for a Wall Street Investment bank, was mercilessly attacked and
raped in Central Park on 19 April 1989. She was so badly beaten that she almost died and
Cannot, even now, remember anything about the attack. The case became famous internationally and a symbol of urban crime,
of the dangers of New York in particular, and of racial tensions.
Almost immediately suspicion fell on a group of African-Americans and Hispanics who had been roaming the park that night.
The police spoke of “wilding”, a term used to describe the behavior of her attackers, so brutal and savage was the attack that
night.
It did not take long for arrests to be effected and after many hours of interrogation, confessions were obtained from five juvenile
males, four black and one hispanic. Even though the confessions were confused and contradictory they were central to
obtaining convictions. The five juveniles received sentences ranging from 5 to 15 years.
More than a decade after the original court case, a man by the name of Matias Reyes who was arrested for murder and four
different rapes in the Manhattan District, told the police that he had one more crime to admit, it was the attack on Miss Meilli
the Central Park jogger and that he had acted alone. At first his claim was dismissed but after the examination of semen found
on the socks of Miss Meilli, the DNA showed that it belonged to Reyes. He gave a consistent account how he committed the
attack and the rape. The five juveniles were immediately released and compensated for the injustice suffered as a result of the
time spent in jail.
The case illustrates the deficiency of a criminal justice system where guilt was determined in an atmosphere of hysteria causing
authorities and the public to become deaf to the normal rules of justice, and to the normal considerations of evidence.
We should draw lessons from the case of Trisha Meilli. No arrest must be effected on a script written in advance. No person,
albeit a suspect, should suffer humiliation for the sake of it, by parading him or her handcuffed in public glare. The community
we all belong to has a legitimate interest to punish criminals but this should be based on cogent evidence, the lifeblood of a fair
trial.
Mr Satyajit Boolell SC,
Director of Public Prosecutions
Page 2
May 2015- Issue 47
Privy Council upholds regulatory powers of the
Financial Services Commission
In a judgment delivered on the 20th of April 2015, Honourable Lord Hodge of the Judicial Committee of the Privy Council
(JCPC) dismissed an appeal by Rainbow Insurance Company against the Financial Services Commission (FSC). The Supreme
Court on 18 October 2010, had refused to entertain a Judicial Review application following the decision of the FSC to suspend
with immediate effect the registration of the Insurance Company as an insurer for general insurance and life insurance
business. Empowered by section 50 of the Insurance Act 2005, the FSC appointed an administrator to manage the business.
The FSC’s decision was said to be taken on the basis of sections 18 to 29 (regulation of insurers) and sections 41 to 53
(investigation, suspension and cancellation of registration) of the Insurance Act 2005. This decision was challenged on the
grounds of: (1) procedural unfairness as a result of absence of proper consultation (2) illegality and abuse of power due to lack
of lawful basis and improper delegation of powers, (3) irrationality pertaining to discrimination in the calculation of
“recoverables” and celerity of the FSC’s decision and (4) breach of the Insurer’s legitimate expectation that it had not been
given sufficient time to adapt to the FSC’s new regulatory requirements. The gist of the complaint was that the Insurer was not
given a proper opportunity to formulate and agree with the FSC’s decision before suspension.
The Board first justified the exclusion of factual disputes from the scope of Judicial Review. It was highlighted that the Court
must allow a margin of discretion to the FSC in relation to matters of professional and regulatory judgment. While it
considered that there was no substance in grounds 2 and 3, the Board dwelled on the legal implications of procedural
unfairness and legitimate expectation before rejecting grounds 1 and 4. In relation to the first ground, it reiterated the
principle that “there is no general common law duty on a public body to consult persons who may be affected by a proposed
measure before it is adopted […] there may be an obligation to consult arising out of a statutory scheme or as a consequence of
having created a legitimate expectation” (R (Moseley) v Haringey London Borough Council [2014] 1 WLR 3947). The Board ruled
that section 44(1)(b) does not envisage such consultation “in all circumstances” and that “fairness does not require such
consultation”.
The Board addressed the ground of “breach of legitimate expectation” by primarily distinguishing between procedural and
substantive right legitimate expectation and by laying down the principle that a sufficient public interest can override a
legitimate expectation. Although it has been observed from previous cases that: “fairness requires that a change of policy
cannot be made abruptly because it would defeat the legitimate expectation of an individual or group” ( R v Inland Revenue
Commissioners, EX p Unilever plc [1996] STC 681), the Board held that the FSC was exercising regulatory powers “in the
interests of policy holders and other third party interests”. In the Board’s view, there could have been no legitimate expectation
that the FSC would act in contradiction with Section 6 of the Financial Services Development Act 2001 (repealed and replaced
by the Financial Services Act 2007) which provides for the duty to suppress illegal practices.
Mr. Ajmal Toofany
The Judgment may ne found at: https://www.jcpc.uk/cases/jcpc-2013-0065.html
Legal Research Officer
Page 3
May 2015- Issue 47
Trafficking in Persons course at ILEA, Gaborone,
Botswana
In April 2015, we (Anusha Rawoah and Kevina P. Mootien) attended a course on Trafficking in Persons at the International Law
Enforcement Academy (ILEA) in Gaborone, Botswana, together with Miss. Sooraya Gareeboo, Mrs. Priya Ramjeeawon-Varma,
Mrs. Asha Pillay-Nababsing and Mrs. Magalie Lambert-Henri, of the Attorney General’s Office.
The ILEA was established in 2000 following an agreement between the United States and Botswana in view of their long
standing and close cooperation in law enforcement and their mutual interest in combatting transnational crime.
Mauritius is a member of the ILEA Gaborone since 2001.
The course was delivered by special agents of the US Homeland Security Investigations (HIS) and the Immigration and Customs
Enforcement (ICE). Participants included law enforcement officers as well as prosecutors from Namibia, Seychelles, Botswana,
Kenya, Swaziland and Mauritius.
The course consisted of carefully selected topics relevant to all participating jurisdictions: identification of trafficking in persons
indicators, investigation and evidence gathering techniques as well as support and assistance to victims. During the training we
also had the opportunity to discuss the respective legislative framework of each of the jurisdictions, while at the same time
identifying weaknesses in the said laws. The discussions and various break-out sessions proved to be immensely helpful to
identify the possibility of international co-operation amongst the participating jurisdictions in their common endeavour to
combat trafficking in persons. As prosecutors, we have no doubt acquired the skills which would be relevant in assisting the
police in any of their future investigations geared towards trafficking in persons.
As ILEA alumni, the training obtained from highly skilled instructors at the academy has indeed added a broader perspective
to our prosecutorial toolkit, whether at the stage of advising the police or during the prosecution of criminal cases before our
courts. As criminal offences know no boundaries, it becomes incumbent on all countries to collaborate and co-operate with each
other in their fight against crime and upholding the rule of law.
Anusha D. Rawoah, State Counsel & Kevina P. Mootien , Ag. Senior State Counsel
Page 4
May 2015- Issue 47
13th Heads of Prosecuting Agencies Conference,
“Prosecution: Staying ahead of the curve”
The Office of the Director of Public Prosecutions Mauritius hosted the 13th Heads of Prosecuting Agencies Conference
(HOPAC), from 15th to 18th April 2015 at St Regis Resort, Le Morne.
The theme chosen for the 13th Heads of Prosecuting Agencies Conference : “ Prosecution: Staying ahead of the curve”, and the
conference programme, were geared towards discussions on themes ranging from financial crimes to vulnerable witnesses.
HOPAC is a forum for the heads of prosecuting agencies in selected common law and related jurisdictions to meet and discuss
about their challenges and share solutions.
The Hon. Attorney General, Mr. Yerrigadoo delivered the opening speech for the Conference. The number of participants has
more than doubled since the first meeting. HOPAC represents a favourable platform where only prosecutors from the highest
level of prosecuting agencies can have fruitful discussions on topics of interest to them all and uphold the rule of law.
Some 30 delegates from Commonwealth Countries were present for HOPAC 2015 in Mauritius, including Australia, Bermuda,
Canada, Brunei, Scotland, Ireland, Kenya, Singapore, England, Turks and Caicos Island, Uganda, Guernsey Channel Island,
Namibia, New Zealand, Bahrain, Northern Ireland and Hong Kong. The conference programme focused on themes of great
importance in the fight against crime, namely : hearsay; terrorism; mutual legal assistance; cybercrime; financial crimes;
training, development and appraisal of public prosecutors; joint investigation and prosecution team; and deferred prosecution
agreements.
The DPP, Mr Satyajit Boolell, SC led a discussion on the theme: “ Deferred Prosecution Agreements”.
At a time where the common law world celebrates the 800th anniversary of the Magna Carta, Professor Nicholas Cowdery AM
QC, Adjunct Professor of Law, Sydney Institute of Criminology, Faculty of Law, University of Sydney, former DPP for Australia
gave an overview on the inspiration and value that embodies the Magna Carta in the English common law system.
The first HOPAC was held in Sydney, Australia in 1991. the conference is held biennially. The subsequent conference were held
in Ottawa, Canada [1993]; London, England [1995]; Wellington, New Zealand [1997]; Suva, Fiji [1999]; Edinburg, Scotland
[2001]; Darwin, Australia [2003]; Belfast, Northern Ireland and Dublin, Ireland [2005]; Quebec, Canada [2007]; Cape Town,
South Africa [2009]; Singapore [2011]; Hong Kong [2013] and Mauritius in 2015.
Mr. Satyajit Boolell SC, DPP for Mauritius, has participated in the last 12th HOPAC held in Hong Kong in 2013 with the theme: ‘
Challenge to a modern prosecution service moving with the time”. Mr. Boolell SC, was invited to lead the discussion on the “
The independence and control of prosecutions: the role of the courts and prosecutorial responsibility”.
Jouana Genave
Training officer under Service to Mauritius Programme
Page 5
May 2015- Issue 47
Highlights of the 13th Heads of Prosecuting Agencies
Conference:
The 13th Heads of Prosecuting Agencies Conference delegates and the Attorney General Mr. Ravi Yerrigadoo at St Regis Resort, Le Morne
Mr Satyajit Boolell, SC DPP for Mauritius
Mr Rory Field, DPP for Bermuda
Mr Ravi Yerrigadoo, Attorney General for
Mauritius
Mr Siong Thye Tan, Deputy Attorney General,
Singapore
Prof. Nicholas Cowdery AM, QC Former
DPP for Australia
Mr Lloyd Babb SC, DPP New South Wales,
Australia
Page 6
«La course des drogues synthétiques est-elle
rattrapée par le droit pénal?»
May 2015- Issue 47
L’évolution du processus de fabrication illicite des substances synthétiques pose de nouveaux défis aux autorités de contrôle de drogues à
travers le monde. Si les méthodes de dépistage des nouvelles drogues synthétiques progressent à un rythme arithmétique, en revanche, les
nouvelles astuces criminelles, concernant la fabrication desdites drogues, avancent de manière géométrique. Le terme 'drogue synthétique'
désigne les substances psychoactives fabriquées par un processus chimique dont les principaux éléments psychoactifs ne sont pas dérivés de
substances présentes à l'état naturel. Exemples : la MDMA, ou plus récemment la méphédrone communément appelée « M’CAT » ou encore
le cannabis synthétique .Ainsi, les drogues de synthèse sont marquées par l’apparition et le développement rapide des « legal highs »
présentées aux consommateurs comme des alternatives licites aux drogues illicites. De surcroit, l’émergence rapide de ces substances, leur
popularité croissante et le manque d’informations quant aux éventuels risques pour la santé sont autant de facteurs qui font de l’utilisation
grimpante des nouvelles substances psychoactives une question préoccupante pour les autorités nationales chargées de lutter contre ce
nouveau fléau.
Problème Juridique : Force est de constater que les réglementations légales face à la multiplication des drogues de synthèse ont toujours une
« longueur de retard » par rapport à l’évolution des produits. Faisons un constat, la législation anti-drogue (Dangerous Drugs Act, 2000)
prévoit une liste des produits stupéfiants ou médicamenteuses (Annexes 1, 2, 3).Par conséquent, si les molécules d’un nouveau produit s’en
rapproche mais ne correspond pas à la définition moléculaire des produits listés, il n’est pas considéré comme une drogue illicite et ne peut
donner lieu à des poursuites pénales. Les « drug designers » ou « chimistes de l’ombre » arrivent à contourner l’interdiction de
commercialisation des molécules classées parmi les stupéfiants en choisissant les molécules naturelles ou synthétiques les plus proches avant
que celles-ci ne soient à leur tour interdites. Il s’agit d’une véritable exploitation des vides juridiques par les trafiquantsm, d’où l’intérêt d’une
réponse pénale adaptée(I) qui néanmoins peut demeurer « lettre morte » sans prévoir les moyens efficaces pour lutter contre ce nouveau
fléau(II).
(I)Intérêts d’une réponse pénale adaptée
A. Intérêt Juridique : La législation anti-drogue a intégré certaines conventions internationales parmi lesquelles figure la « Convention
against illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 ». Cependant, il faut toutefois noter que la liste des substances
interdites par ces conventions, ratifiées par Maurice, est une liste non-exhaustive. En occurrence, les législations sur le combat anti-drogue
sont constamment modifiées suite à une très grande diversification des produits synthétiques et leur usage. D’ailleurs, la Commission
Européenne est invitée périodiquement « à évaluer si de nouveaux produits chimiques devraient être ajoutés à la liste des substances non-
classifiées afin de mieux contrôler leur circulation et leur entrée sur le marché illicite» (Conseil de l’union Européenne, Pacte Européen pour
la Lutte contre les Drogues de Synthèse, 28 octobre 2011).
Parallèlement, le législateur a fini par insérer, en 2013 à Maurice, le cannabis synthétique à l’Annexe 1(2ème partie) de notre loi sur les
stupéfiants (Government Notice 242/2013). Néanmoins même si cette mesure s’avérait nécessaire, elle peut demeurer insuffisante. Cette
insuffisance se manifeste par l’émergence de nouveaux produits dont la molécule s’apparente au cannabis synthétique mais qui ne
s’identifie pas exactement au THC (Tétrahydrocannabinol, molécule naturellement présente dans le cannabis) ou qui peut ne pas être
composée de cannabinoïdes.
Page 7
May 2015- Issue 47
Cependant , de bon sens, on pourrait se rabattre vers les précurseurs « chimiques » (substances listées dans l’annexe 4 du DDA) prévus par
la section 33 du Dangerous Drugs Act . En amont, il s’agit des précurseurs qui sont utilisés pour la fabrication desdites drogues. Mais ces
dispositions légales se heurtent à un obstacle. Les précurseurs sont parfois masqués et transformés en une substance différente à partir de
laquelle ils pourront être aisément extraits à un stade ultérieur .C’est ce qu’on appelle les pré-précurseurs permettant aux organisations
criminelles d’échapper aux réglementations pertinentes
B. Intérêt Pratique :
La particularité du marché des drogues synthétiques se manifeste par des sources d’approvisionnement qui se rapprochent de plus en plus
des lieux de consommation car leur fabrication peut se faire par des petits laboratoires ne nécessitant aucune grande infrastructure.
Cumulativement, «ces nouvelles substances psychoactives sont souvent vendues sur internet, ce qui les rend accessibles à un large éventail
de consommateurs potentiels» (Evaluation 2011, par l’UE, de la menace que représente la criminalité organisée). De surcroit, ce qui alimente
l’émergence de ces substances sur le marché illicite tant national qu’international , c’est qu’à la différence des drogues dites «
traditionnelles», elles peuvent être consommées de multiples façons: par voie intra-nasale, orale, intraveineuse, ou encore par inhalation.
Certains auteurs surnomme ce phénomène : La polytoxicomanie - qui consiste à mélanger ou consommer en alternance toute une gamme
de substances synthétiques et non synthétiques.
Outre les intérêts pratiques pour une répression adaptée, il faut constater que ces produits ont un effet pervers indéniable sur la santé
publique. A titre d’exemple , entre 2010 et 2011, l'American Association of Poison Control Centers a rapporté 4500 appels impliquant une
toxicité par cannabis de synthèse.
(II) Les moyens pour lutter efficacement contre ce nouveau fléau
A. Mesures à caractère législatif
«En vue d’un traitement plus efficace, et surtout plus réactif, du problème posé par la multiplication des drogues de synthèse , la mission
d’information propose qu’ils soient classées dans le tableau des stupéfiants, non pas par molécules, mais par familles de molécules
structurellement proches , en procédant par analogie.» (Rapport sur la Mission d’Information sur les toxicomanies, G.Barbier, Sénateur,
2015, Paris). Cette approche permet d’englober un plus grand nombre de substances synthétiques ainsi que leur précurseurs et leurs préprécurseurs permettant au droit pénal de rattraper la multiplication des drogues de synthèse. Cette démarche a été suivi par plusieurs
législations anti-drogues notamment en Grande Bretagne et aux Etats-Unis. Une telle approche est vivement souhaitable au niveau
national.
B. Autres mesures envisageables
Une coopération active dans le cadre des arrangements bilatéraux entre plusieurs Etats ainsi que le partage d’informations concernées
entre lesdits Etats revêtent une importance capitale afin de combattre l’émergence de ces nouvelles drogues car le trafic de drogues est
inévitablement vêtu d’un caractère transnational. Il s’agit d’atteindre et de réduire l’offre de ces produits par une coopération étroite en
matière pénale par une échange d’information ponctuelle par des autorités compétentes.
Mr.Nitish Bissessur,
Legal Research Officer
Page 8
May 2015- Issue 47
Obituary: Judge Shaheed Bhaukaurally
It is with great sadness that we learnt of the sudden departure of Judge Shaheed Bhaukaurally on 23rd April last. He
was aged 64.
Honourable Bhaukaurally joined the civil service as Extra Clerical Assistant in 1970. He was subsequently appointed
Clerical Officer, Court Clerk, Court Officer and Senior Court Officer. After a licence and a Maîtrise en Droit in the
1980s, he was called to the Bar in Mauritius in 1987.
Then followed a long career in the public service, at the Attorney General’s Office and the Magistracy, until his
appointment as Puisne Judge in 2009.
For those of us who have known him as a colleague we shall always remember his warmth and kindness, and the bond
he shares with us all. He guided us in our work and could relate to our little concerns and worries.
For those of us who have known him as a lecturer on Criminal Law on the Bar Vocational Course, we preserve the
memories of many colourful anecdotes and of a light and effective teaching method.
We also remember him for always showing compassion and for being a true gentleman.
He will be deeply missed.
Ms S.Beekarry
Principal State Counsel
Page 9
The concept of the benefit of doubt and evidence
beyond reasonable doubt.
May 2015- Issue 47
The notion of the benefit of doubt is central to the issue of the presumption of innocence as a fundamental principle of our
Criminal Justice System. This concept implies that an accused is presumed to be innocent until proven guilty beyond all
reasonable doubt by a court of law. When the evidence put forward against an accused in relation to a criminal charge leveled
against latter fails to pass the reliability test that will naturally prove the evidence as a compelling proof to justify the charge
beyond all reasonable doubt, then the accused is likely to reap the benefit of doubt; That means leading towards a judgment
that will quash the charge.
The definition of the benefit of doubt is clear; the very existence of the doubt which can be regarded as being of reasonable
standard undermines the reliability of the evidence/s put forth to support a criminal charge due to the fact that the evidence
was supposed to be beyond all reasonable doubt and the burden of the proof lies on the State; Thereby justify the fact that the
charge is voidable and at the same time minimize the risk of a wrongful conviction.
The essence of the benefit of doubt stems from the fact that in law the accused is under no obligation to prove or disprove
anything and the burden of the proof lies on the state in the name of which the cases are filed and this irrespective of the
possibility that the evidence/s has or have been introduced by an accused. In fact the elements of the charge against an
accused must be proven beyond all reasonable doubt by the state as an issue of accountability and the burden of the proof
cannot be shifted to the accused even if it happened that s/he is the one who has introduced the evidence. Once the
reasonableness of the doubt is confirmed, the benefit of doubt must prevail and the element/s of the charge has/have to be
quashed unless the law has been wrongly interpreted in regard to the charge; This will constitute the basis to justify a
successful appeal.
The notion of the benefit of doubt is heavily related but not limited to criminal charge and it is also applicable to other legal
situations such as perverting the course of justice, corruption charge and asylum seekers and so on. In Burhoo K.K. V. ICAC
and ANOR 2012 SCJ 211,Following the prosecution that was undertaken against the appellant before the Intermediate Court on
a charge of public official using his position for gratification in breach of Section 7(1) and 83 of the Prevention of Corruption
Act (POCA): Notwithstanding his not guilty plea he was sentenced to undergo six months imprisonment in the light of the
elements of the evidences used against him that are clearly beyond all reasonable doubt. Perverting the course of justice is a
common law charge relating to a triable offence that must be proven beyond all reasonable doubt.
A charge relating to the offence of perverting the course of justice in Mauritius is voidable unless the reliability test of the
standard of reasonableness which implies that the evidence/s used are beyond all reasonable doubt, has been met. Perverting
the course of justice consists of offence such as; tampering with evidence/s, undertaking act/s of intimidation and/ or threat
against a case witness or juror and threatening and/ or intimidating a judge.
Page 10
May 2015- Issue 47
An accused against whom the charge of perverting the course of justice has been leveled may be subject to the benefit of doubt
if the element/s of the charge leveled against him/ her failed to meet the requirement of the standardized reasonableness test.
If the question regarding the where, when, why and how the offence of perverting the course of justice have been committed
failed to meet the reasonableness test of being reasonably free of doubt, then the charge against an accused must be quashed.
The case R v. Constance Briscoe (2014) where former UK Judge Briscoe was arrested in October 2012 and suspended from the
judiciary, and charged with attempting to pervert the course of justice before being finally sentenced to a 16 months
imprisonment is one of the leading contemporary cases regarding the reasonableness test where the evidences leveled against
the accused were clearly beyond reasonable doubt.
In his sentencing remarks Mr Justice Jeremy Barker has somewhat remind the world that respect of the law is for everybody
irrespective of individual status whereby it reads; “From the insights I have had into the character of the each of you during
this case, I regret that it is one of arrogance by educated individuals who considered that respect for the law was for others”.
The issue of asylum seekers in regard to refugees is another important issue whereby the test of evidence/s beyond all
reasonable doubt are essential to support application. According to the United Nation High Commissioner for Refugees
(UNHCR),“The burden of proof’ and ‘standard of proof’ are used in the law of evidence in common law countries. In those
common law countries which have adopted sophisticated systems for adjudicating refugee claims, legal arguments may revolve
around whether the applicant has met the requisite evidentiary standard or degree of proof for demonstrating that he or she is
a refugee”.
The notion of the benefit of doubt and the concept of evidences beyond all reasonable doubt are altogether of utmost
importance to maximize efficiency in the administration of justice. Thereby ensures the requirement to constantly minimize
the risk of wrongful conviction in the supreme interest of justice. In their judgement regarding the appeal, HonourableBalancy
Judge and HonourableMungly-Gulbul Judge dismissed the appeal with cost supported by a conclusion which confirms the
validity of the Intermediate Court’s judgement given that the elements of the evidences against the appellant are clearly beyond
all reasonable doubt; “We are of the view that the Magistrate’s conclusions regarding these witnesses, cannot be impeached.
She had the benefit of seeing the witnesses depone before her in court and assess their credibility and we do not find her
findings to be perverse such as to warrant our intervention”.
Mervyn Anthony,
Service to Mauritius Programme Legal Intern
Page 11
SUMMARY OF COURT JUDGMENTS: April 2015
DIRECTOR OF PUBLIC PROSECUTIONS v PRAKASH CHOONYA
[2015 SCJ 118]
By Hon. A. Caunhye, Puisne Judge and G Jugessur-Manna Puisne
Judge
Rape, Credibility, Unwillingness
May 2015- Issue 47
Street in the District of Port Louis, he was unlawfully and by
imprudence, whilst driving a goods vehicle, the unwilling cause of
homicide of one Stiven Duprat.
The Appellant had been prosecuted for an offence of Rape under
count 1 and damaging motor vehicle under count 2. He pleaded
guilty to count 2 and not guilty to count 1. He was sentenced to pay
a fine under count 2 and the charge under count 1 was dismissed.
Following a short trial, the Learned Magistrate found him guilty as
charged and passed upon him a sentence comprising a fine of Rs
80,000, disqualification from holding or obtaining any driving
licence with respect to all types of vehicle for a period of three years,
and cancellation of his driving licence.
During the trial the complainant repeatedly stated that her mind
went blank and could not recall how the incident occurred. On
more than 50 occasions, she kept repeating that she could not
remember anything and her state of health was so bad that she
could not relate what has taken place.
There was no independent eye witness at the trial and the court
rested on circumstantial evidence from the statement of the accused,
the plan, the photos of the vehicle taken during the reconstruction
exercise and the vehicle examinations report.
Despite being repeatedly confronted with her previous statements
by counsel for the prosecution, she failed to come up with a
sufficiently coherent version. All the grounds of appeal have
challenged the appreciation of the evidence. Counsel for the
Appellant submitted that the Magistrates have wrongly dismissed
the testimony of the complainant outright, without first weighing,
assessing and criticizing that part of her testimony relating the
issue of consent.
The Respondent did not dispute that there was sexual intercourse
and his defence was that the complainant had consented to the
sexual intercourse.
The issue of consent was made a live issue in the course of the cross
examination of the complainant. The Magistrates concluded that
“she failed to impress us as being a credible and reliable witness”.
The Judges concluded that it was perfectly legitimate for the trial
magistrates to come to the conclusion as they did. The appeal was,
therefore, dismissed with costs.
ROBERT FRANKLIN DE SOUZA TROMPEUSE v THE STATE [2015
SCJ 114]
By Hon. E. Balancy, Senior Puisne Judge and N. Devat Judge
Unwilling Cause of Homicide, conviction and sentence quashed
The Appellant had been prosecuted before the Intermediate Court
on an Information which averred that on the 12th February 2010 at
the junction of Intendance and Chaussee
During cross examination, the version of the prosecution was put to
him to the effect that whilst he was driving along Royal Road and
had reached the Junction of that road and Intendance Street, he did
not stop and this resulted in the collision with the auto cycle.
Counsel for the defence submitted that there was no evidence of
imprudence on the part of his client and the findings of the
Magistrate was erroneous as there was no damage on the front wheel,
on the front tyres and the mudguard of the auto cycle.
The Court allowed the appeal and quashed the conviction on the
basis that the version for the prosecution may only be one, and
cannot change on appeal.
STATE v MADARAM MARIE ANGE [2015 SCJ 130]
By Hon P. Fekna, Judge
Wounds and Blows causing death without intention to kill
The accused was charged with having, on or about the 5th of
September 2010, wilfully and unlawfully inflicted wounds and blows
upon the person of one Louis Lindsay James Madaram without
intention to kill but which wounds and blows nevertheless caused the
death of the latter.
The accused pleaded guilty to the charge. Based on her unequivocal
plea, the Court found her guilty as charged.
The manner in which the incident occurred could be gathered from
the two unsworn statements given by the accused to the police and
Page 12
May 2015- Issue 47
which were produced in the course of the hearing. It was not
disputed that the accused and the deceased were civilly married in
September 2007 and that they were living together at Rivière Noire
with their two children.
It was the version of the accused that, soon after the marriage, their
relationship began deteriorating since the deceased started having
an affair with another woman. Violent discussions would break out
often between them, in the course of which, the deceased would beat
her up. The assaults took a variety of forms and included blows with
bare hands, biting and, at least on two occasions, the use of a knife
with threats to seriously injure her and to kill her.
It was the version of the accused that, on the day of the incident, the
deceased insulted her and told her to go away for good thereby
intimating that their relationship was over. At some point in time,
Lindsay turned round and came towards her whilst uttering
insulting words to her address; he then lifted his arm which
indicated to the accused that he was about to hit her. The accused
reached for the knife in her rear pocket, took it out and stabbed
Lindsay at his stomach. She heard him cry out in pain and she let go
of the knife which remained stuck in the stomach of the deceased
Having duly considered all the circumstances of the present case, the
learned Judge sentenced the accused to undergo 13 years’ penal
servitude. Since accused had spent some time on remand, it was
ordered that 80% of that time be deducted from the sentence since
there were no justifications which have been put forward for a 100%
discount. The accused was also ordered to pay Rs 1000 as costs.
NELSON M. A. C. v THE STATE [2015 SCJ 127]
By Hon. A. Hamuth, Judge and Hon. O.B. Madhub, Judge
Drugs, sentence disproportionate
The appellant was charged with the offence of possession of heroin
for the purpose of distribution (Drug Dealing) in breach of sections
30(1)(f)(ii), 45(1) and 47(5)(a) of the Dangerous Drugs Act, before the
Intermediate Court. As per the case against her, 0.580 gram of brown
powder, found to reveal the presence of heroin upon examination
and enclosed in 10 aluminium foils, the value of which was estimated
at Rs 8,700 wrapped in a black tape, was found on the accused. A
sum of Rs 6,000 was also seized during the police raid, and which
was connected with the drugs found upon the person of the accused.
The appellant (then accused) pleaded guilty to the charge of drug
dealing and the Learned Magistrate of the Intermediate Court after
having taken both the personal circumstances and the trend of
sentences imposed in similar cases, imposed a sentence of 3 years
imprisonment, which was less than the mandatory sentence of not
less than 5 years penal servitude provided under the law, as she
considered the same to be “too harsh” in line with the ruling of the
Supreme Court in the case of S Bhinkah v The State [2009 SCJ 102].
There was only one ground of appeal before the Appeal Court,
namely that the sentence was “harsh and excessive”. Counsel for the
appellant had laid great emphasis on the fact that only 0.580 gram of
brown powder, which on analysis revealed the presence of heroin,
was secured from the accused, therefore the sentence was
disproportionate.
The Learned Judges took note that the Learned Magistrate had
considered the seriousness of the offence and the penalty as provided
for under the law, namely a fine not exceeding one million rupees
together with penal servitude for a term which shall not be less than 5
years and not more than 25 years. Secondly, it was also observed that
the learned Magistrate had taken on board the personal situation of
the accused. Thirdly, the public policy and the concerns which drugs
raises for society. She had then reviewed the sentencing practices of
the court in respect of similar offences. In addition, she had
considered whether the minimum sentence of 5 years would be
greatly disproportionate to what would have been appropriate for
this case, before inflicting a 3 years penal servitude together with a
fine of Rs 15,000.
The court held that the Learned Magistrate was right in sentencing
the appellant 3 years penal servitude together with Rs 15,000 fine.
Hence, the appeal was dismissed with costs.
THOUGHT OF THE MONTH
« Courage is that it takes to stand up and speak;
courage is also what it takes to sit down and listen »
-Winston Churchill
Page 13