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E-newsletter - Issue 91

April 2019

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 91 April 2019

Page 2

Editorial Team

In this Issue

Ms Anusha Rawoah, Senior State Counsel

Mrs Shaaheen Inshiraah Dawreeawoo, State Counsel

Ms Veda Dawoonauth, Temporary State Counsel

Ms Neelam Nemchand, Legal Research Officer

Ms Pooja Domun, Legal Research Officer

Ms Genisha Raudhay, Communication/Liaison Officer

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 3

ODPP VIDEO

• Mr AH SEN Jean Michel, Principal State Counsel 5

Courtesy Visit of Justice Madan Bhimarao Lokur 7

Reviewing the scheduling of Cannabis and Cannabis-related

substances within the International Drug Control Conventions 9

QuickFacts 12

Case Summary 15

E-newsletter - Issue 91 April 2019 Page 3

Editorial Dear Readers,

Welcome to the 91st issue of our monthly e-newsletter. In

this issue, in the ODPP Video section, our law officer

provides an insight of a recent Supreme Court judgment,

elaborating on the legal notion of ‘self-defence’.

On a different note, the ODPP was pleased to receive the

visit of Justice Madan Bhimarao Lokur, retired judge of

the Supreme Court of India. An overview of his visit to

the ODPP is provided. Also, you will read an article on the

recent recommendations made by the World Health

Organisation, to the United Nations Secretary-General, on

the possibility to review the status of cannabis and

cannabis-related substances under international

conventions.

Our usual rubric ‘Quick Facts’ is found at page 12. In this

issue, we give an insight of the various offences under

the Beach Authority (Use of Public Beach) Regulations

2004 and their penalties. Finally, summaries of recent

Supreme Court Judgments are found at page 15.

We wish you a pleasant read and always welcome

your comments on [email protected].

Anusha Rawoah

Senior State Counsel

mailto:[email protected]




April 2019

ODPP VIDEO


Case Commentary and the notion of Self-Defence under Mauritian law

Click on the ‘Play’ icon below to view video

https://youtu.be/Lv8FFl-juVs


April 2019

ARTICLES


It was with great honour and privilege that Mr Satyajit Boolell, SC Director of

Public Prosecutions, received the visit of Justice Bhimarao Lokur at the office

on 26 March 2019. Also present were Mr Rashid Ahmine, Deputy Director of

Public Prosecutions and Mrs Moutou-Leckning, Senior Assistant Director of

Public Prosecutions.

Justice Madan Bhimarao Lokur is a retired judge of the Supreme Court of

India who has been at the forefront of judicial activism in India in view of

promoting and protecting rights of vulnerable people in India. Justice Lokur

has established himself as a legal polymath at the Supreme Court of India.

His rich career path and wide experience make invaluable reading and give

an insight in a man whose life has been devoted to the practice of the law.

In 1977, he obtained his LLB. degree from the Faculty of Law, Delhi

University. His professional path started in July 28, 1977 when he enrolled as

an advocate. He practised in the Delhi High Court and the Supreme Court of

India in civil, criminal, constitutional, revenue and service matters. He was

appointed as Additional Solicitor General of India in July, 1998. He was then

appointed as Additional Judge of the Delhi High Court on February 19,1999

and as Permanent Judge on July 5, 1999. He was appointed as Chief Justice

of the Gauhati High Court on June 24, 2010. He was transferred as the Chief

Justice of the Andhra Pradesh High Court on November 15, 2011. He was

appointed as a Judge of the Supreme Court of India on June 4, 2012. He has

retired on December 30, 2018.

Justice Lokur has always been an achiever who has a keen interest on

matters pertaining to judicial reforms, computerization of courts, judicial

education, legal aid and services, juvenile justice and ADR. In effect, he was

a Member and later, Judge in charge of the Mediation and Conciliation

Project Committee of the Supreme Court of India since its inception on 2005

till 2018. He was the Judge in Charge (presently Chairperson) of the E-

Committee of the Supreme Court if India from 2012. He also chaired the One

Man Juvenile Justice Committee from 2013 till 2018 set up under Effective

Implementation of the Juvenile Justice (Care and Protection of Children) Act.

Additionally, he was the Chairperson of the Supreme Court Legal Services

Committee from September 2017 till October 2018, and the Executive

Chairperson of the National Legal Services Authority from October 2018 till

December 2018.

Courtesy Visit of Justice Madan

Bhimarao Lokur

Mr Satyajit Boolell, SC

Director of Public Prosecutions (Left);

Justice Madan Bhimarao Lokur, Retired

Judge, Supreme Court of India (Right)


Page 8

The visit of Justice Lokur has been beneficial to all members of the legal

profession in Mauritius as he has shared his experiences and in particular, his

thoughts on the evolution of the law in India and the role judges have to play

in the promotion and protection of the rights of the most vulnerable people in

society. Legal professionals in Mauritius have fully benefited from the wisdom

of Justice Lokur and engaged in an effective dialogue about the legal and

human rights issues during a talk held at the Institute for Judicial and Legal

Studies of Mauritius (IJLS) during his visit.

Justice Madan Bhimarao Lokur, Retired Judge, Supreme Court of

India (Left):

Mr Rashid Ahmine, Deputy Director of Public Prosecutions (Right)

A Courtesy Visit of

Mr Justice Madan

Bhimarao Lokur to

the DPP


Marijuana is the leading drug of choice when it comes to illicit drug

trafficking. As time passes, however, an increasing number of

governments are starting to recognise its medicinal value, its potential to

fight the opioid crisis and organised crime as well as the possibility for it

to become a viable and lucrative industry if its production, trade and

consumption become legal. Policy shifts are underway. With Canada

becoming the second nation, after Uruguay in 2013, to legalise

recreational marijuana use at federal level in 2018, and even having a

legal national marijuana marketplace, the international press has been

drawing much attention to the contentious issue of whether the

international policies are now outdated.

The three major international drug control conventions are the Single

Convention on Narcotic Drugs of 1961, the Convention on

Psychotropic Substances of 1971 and the United Nations

Convention against Illicit Traffic in Narcotic Drugs and Psychotropic

Substances of 1988. They place cannabis and cannabis products under

the strictest controls. Growing tensions are being felt as the laws and

practice in Member States’ jurisdictions are being reformed, beyond the

boundaries which the treaties can legally accommodate, to provide

access to the use of cannabis for medical and non-medical purposes. In

the United States for example, some states are legalising cannabis by

ballot or legislative votes since 2012, starting with Colorado where

marijuana consumption is legal for adults over the age of 21.

As international pressure increases, the United Nations might be

considering reviewing its position on the control of marijuana. This is,

perhaps, to be expected as it is under the current leadership of

Secretary-General António Manuel de Oliveira Guterres, former Prime

Minister of Portugal, who played a key role in decriminalizing all drugs in

his country in 2001.

The UN’s health agency, the World Health Organisation, made formal

recommendations by way of letter addressed to the Secretary-General,

on the 24th of January 2019, following a thorough investigation of

cannabis and cannabis-related substances by its Expert Committee on

Drug Dependence. Their potential for harm, dependence and abuse from

a public health perspective, as well as their therapeutic usefulness were

all evaluated before the making of informed recommendations.

Reviewing the scheduling of Cannabis

and Cannabis-related substances

within the International Drug Control

Conventions


Page 10

The first recommendation concerned the removal of the whole-plant cannabis

and cannabis resin from the most restrictive category (Schedule IV) of the

1961 Convention such that they would only be classified under Schedule I,

the least restrictive category, within the 1961 Convention. The second

recommendation was for dronabidol to be deleted from Schedule II of the

1971 Convention and added to Schedule I of the 1961 Convention. The

third recommendation was that tetrahydrocannabinol be added to Schedule I

of the 1961 Convention and be deleted from Schedule I of the 1971

Convention. The fifth recommendation was in regards to the deletion of

extracts and tinctures of cannabis from Schedule I of the 1961 Convention.

The sixth recommendation pertained to cannabidiol preparations and was

that preparations considered to be pure cannabidiol and not containing more

than 0.2 percent of delta-9-tetrahydrocannabinol should not be classified

within the International Drug Conventions. This is an important

recommendation as this means that pure cannabidiol is not to be placed

under international drug control as the substance was not found to have

psychoactive properties, and presents no potential for abuse or dependence.

The seventh and last recommendation was in relation to the addition to

Schedule III of the 1961 Convention of the preparations produced by

chemical synthesis or as preparation of cannabis which are compounded as

pharmaceutical preparations with one or more other ingredients and in such

manner that dronabinol cannot be recovered by readily available means or in

a yield which would be a risk to public health.

The new recommendations will have to be voted on by the UN’s Commission

on Narcotic Drugs before amendments, if any, can be brought to the

International Drug Control Conventions. The global implications of such

amendments are enormous.

If the Commission on Narcotic Drugs adopts these recommendations, the

United Nations would be setting a significant precedent which Member States

might be tempted to follow. Mauritius has been a member of the United

Nations since 1968. It was also a former member of the Commission on

Narcotic Drugs (1997-2001), established by the Economic and Social

Council of the UN. As a signatory nation to the UN conventions, Mauritius

had passed domestic legislation to fulfil its treaty obligations and prohibit

cannabis and cannabis products. Should the UN move towards a smoother

approach to cannabis, Mauritius could opt to review its own laws.

z\

Reviewing the

scheduling of

Cannabis and

Cannabis-related

substances within the

International Drug

Control Conventions

Anusha Sheila Aubeelack

Temporary State Counsel


April 2019

QUICK FACTS


Quick Facts

Examples of offences under the Regulations

Damage, or interfere with any flora, including

trees and grasses on a public beach

Beach Authority (Use of

Public Beach)

Regulations 2004

Penalty for contravention of

the regulations

Fine not exceeding 10,000

rupees and imprisonment for a

term not exceeding one year

Remove, deface, damage or

destroy any sign or post placed

on a public beach

Source: www.coloursofmauritius.com

Source: emtouree.com


Page 13

Light a fire outside a place

designated by the Authority

Leave a fire unattended at such designated

place until the fire is completely extinguished

Source: www.shutterstock.com

Source: weluvmu.com

Deposit or leave any object, including any

rubbish or litter on the public beach, except in

receptacle or within an area provided for that

purpose

Damage, remove or otherwise interfere

with any floats or buoys

Deposit or dispose of any waste or rubbish, oily

liquid, acid or other chemical or toxic or

polluting substance into the marine

environment on a public beach

Abandon a vessel, motor vehicle or any other

property on a public beach

Source: www.deamstime.com


April 2019

SUPREME COURT

JUDGMENTS

SUMMARY


Page 15

CANGY J.B.C v THE STATE [2019 SCJ 87]

By Hon. Chief Justice, Mr. K.P.Matadeen, Hon Judge,

Mr. D. Chan Kan Cheong, Hon Judge Mrs. G.

Jugessur-Manna

Attempt at Manslaughter – Court of Criminal Appeal –

the use of the word “confession” – the element of

Intention to Kill – Sentence manifestly harsh and

excessive

The Appellant was charged before a Judge and a Jury

with attempt at manslaughter. He pleaded not guilty but

he was found guilty by a majority verdict of 8 to 1. He was

thereafter sentenced to 10 years’ penal servitude.

The appellant challenged his conviction and sentence on

no less than 12 grounds. At the hearing of the appeal,

the appellant dropped several grounds. The remaining

grounds of appeal read as follows:

“3. The learned Judge misdirected the Jury by making

them believe that he would give them the option of an

alternative count so that they would return an alternative

verdict if they find Appellant not guilty of Attempt at

Manslaughter.

4. The learned Judge misdirected the Jury by making

them believe that they could come up with an Alternative

verdict where in truth no alternative counts were given to

them and they were convened to give a verdict only with

the count relating to Attempt at Manslaughter.

8. The Judge misdirected the Jury by using the word

“confession” several times before them. There was never

a “confession” in law for an attempt at manslaughter in the

out of court statement to the police. The verdict of guilty

obtained in such circumstances is therefore unsafe.

9. The Judge has failed to leave an alternative verdict to

the Jury. The Jury has been left with “all or nothing”

choice, which renders the conviction unsafe.

10. The Judge misdirected the Jury on the issue of

intention to kill. The intention to kill has been equated to

inflicting violence, which is a much lower threshold. The

conviction so obtained is therefore unsafe.

12. The sentence is manifestly harsh and excessive.”

The grounds were grouped and were threefold:

i. the learned judge was wrong not to leave an

alternative verdict to the jury (grounds 3, 4 and 9);

ii. the learned Judge misdirected the jury by using the

word “confession” in relation to the appellant’s out of

court statement to the police (ground 8);

iii. the learned Judge misdirected the jury on a material

element of the offence, namely the “intention to kill”

(ground 10).

The facts of the case were as follows: The complainant

broke up with the Appellant and they were both students

at the time. On the material day, the complainant was on

her way back home from tuition with her friend and whilst

they were passing in front of the Appellant’s premises, the

latter approached the complainant to talk to her but she

refused. The Appellant then removed a knife and stabbed

the complainant in her belly and at other parts of her

body.

She managed to grab and snatch the knife which broke

and she sustained a laceration between her right thumb

and index in the process. She then fell down and whilst

she was on the ground, the Appellant dealt her blows and

kicks before leaving the spot where several persons had

gathered. She suffered a penetrating wound at her

abdomen and bowels which required for a survival

operation and lacerations at various other parts of her

body. According to her, the appellant threatened to kill her

during the assault and would have done so if she had not

disarmed him.

SUMMARY OF SUPREME COURT JUDGMENTS: April 2019


Page 16

As far as grounds 3,4, and 9 were concerned, the Court

held that not every alternative verdict must be left to the

jury unless it was an “obvious alternative”.

In his summing up the Judge is not obliged to direct the

jury about the option of finding the accused guilty of an

alternative offence, even if that option is available to them

as a matter of law.

In relation to ground 8, which was in relation to the use of

the word “confession” by the Judge in his summing up,

the Court of Appeal after perusing the out of court

statements of the Appellant, held that the Learned Judge

made an infelicitous and ill-advised used of the word

“confession” when he referred to the partial admissions

contained the Appellant’s written statements.

However, they held that the impugned extracts of the

summing up of the Judge must not be read in isolation

and out of context. They further held that what matters is

that the summing up on its whole was a fair summing up

and put the issues fairly before the jury, giving correct

directions of law and including an accurate review of the

main factual issues and evidence. Conclusively, it was

held that the summing up met the standard of objectivity

and was presented fairly to the jury.

Ground 10 was in relation to the element of the intention

to kill. According to the Appellant, the Learned Judge

equated “intention to kill” to inflicting violence which was a

lower threshold. The Court held that the criticisms levelled

at the directions of the learned Judge on the issue of

“intention to kill” are unwarranted and unjustified. In fact, it

was held that the learned Judge painstakingly directed the

jury on this element of the offence.

Ground 12 which was in relation to the sentence meted

out. The Court held that the learned Judge adopted the

accepted principles in sentencing by laying emphasis on

the need for proportionality and individualization of the

sentence and the need to decide each case on its own

merits. It was held that same was not manifestly harsh

and excessive.

For the reasons above, the Court find no merit in any of

the grounds of appeal and same was accordingly

dismissed.

THACOOR R. v THE STATE [2019 SCJ 101]

By Hon. Judge, Mr. P. Fekna

Swindling – Challenging Conviction

The Appellant was charged before the District Court of

Pamplemousses for the offence of “swindling” in breach of

Section 330 of the Criminal Code. He pleaded not guilty

to the information. The learned Magistrate found him

guilty as charged and he was sentenced to undergo one-

month imprisonment which was suspended and converted

into 70 hours of Community Service. The Appellant is now

challenging his conviction based on four grounds of

appeal which essentially purport to put into question the

findings of facts by the learned Magistrate.

The complainant stated that in the month of November

2013, he intended to travel to India for the purposes of

getting married there. The Appellant approached him and

made him understand that the he was a travel agent and

could do the needful for him. He was showed bank

cheques and by acting in that way, the complainant

believed that the appellant was a person of means. The

Appellant further took the complainant to Moka and

showed him a man who was allegedly his employer in the

business of organizing travel tours.

Finally, the appellant called a person on his cellular phone

and made the complainant understand that the person on

the other side of the line was from India. The complainant

had a conversation with that person in the Hindi language.

The issue of the complainant intending to get married in

India was discussed and the person stated that he ‘would

introduce [the complainant] to people’, implying that those

persons could organise his wedding.

The complainant thereafter remitted the sum of Rs 25,000

for the buying of the air ticket. The Appellant subsequently

requested for another Rs 10,000.


Page 17

By January 2014 the trip to India had not been finalized.

He called the Appellant and the latter pretended the

complainant never remitted any sum of money to him.

The matter was reported to the police.

In his statements to the police, the Appellant admitted that

he knew the complainant and explained that he had a

fight with his neighbors and the complainant also got

involved in the incident. Since then the complainant had a

grudge against him and every now and again, the

complainant would get drunk and call the appellant and

threaten to level a false charge against him in order to

trap him because of the bad blood between them.

Ground 4 reads as follows:

“The learned Magistrate should have made an

assessment of the bad blood relationship between the

appellant and witness no. 2 and the possible motives of

witness no. 2”.

The Court perused the judgment of the Learned

Magistrate which showed that the latter was fully alive to

this issue which was the very crux of the defence of the

Appellant and was dealt with in her judgment. In

determining whose version was plausible, the Learned

Magistrate rightly examined the demeanors of the parties

before reaching a decision as to whom she ought to

believe. She found that the appellant appeared to be a

cunning person who was trying to weave his way out of

the charge whereas the complainant was clear and

straightforward when he gave evidence in Court. Hence

the Appellate Court was not prepared to interfere with the

findings of facts of the learned Magistrate.

As far as Ground 2 and 3 were concerned, they read as

follows:

“(2). The learned Magistrate erred in her assessment of

the evidence given by the appellant since there is no

proper finding as to whether the learned Magistrate

believed the version of the appellant or not. There was a

duty on the part of the learned Magistrate to assess the

version of the appellant and to thereafter decide whether

such version is true or false”.

(3). The learned Magistrate’s findings are perverse,

unwarranted and unreasonable, inasmuch as she should

not have concluded that the prosecution had established

the appellant’s guilt beyond reasonable doubt based on

the evidence put before her.”

The learned Magistrate was in presence of two versions,

namely one from witness no. 2 and one from the

appellant, and erred in opting to act solely on the

evidence of witness no. 2 on the ground that the appellant

appeared to be a cunning person”.

It was held that the learned Magistrate considered that:

[a] the witness was well-composed which was indicative

of him being confident;

[b] he was accurate and unchanging in the version of the

facts that he gave; and

[c] he successfully withstood the test of cross-

examination.

The learned Magistrate based on the above found that the

witness was worthy of belief and that he had spoken the

truth.

The appeal was accordingly dismissed with costs.

LACLOCHE J.C.B v THE STATE [2019 SCJ 93]

By Hon. Chief Justice, Mr. K.P. Matadeen, Hon Judge

Mrs. N. Devat, Hon Judge, Mr. D. Chan Kan Cheong

Attempt at Manslaughter – Court of Criminal Appeal –

the use of the word “confession” – the element of

Intention to Kill – Sentence manifestly harsh and

excessive

The appellant was prosecuted before a Judge and a Jury

for having on or about 7 December 2012 at Ruisseau des

Creoles, Port Louis, committed the offence of

manslaughter on the person of Ameerchand Rughooa in

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

Appellant pleaded not guilty to the charge. he was found

guilty as charged by a Jury by a majority verdict of 7 to 2.


Page 18

He was sentenced by the learned Presiding Judge to

undergo 23 years’ penal servitude. The evidence adduced

by the prosecution consisted of the testimony of the

deceased’s wife, Mrs Bacsou, the medical evidence of Dr

M. Sajjid Aungraheeta, the Surgical House Officer, who

examined Ameerchand Rughooa upon his admission at

Dr Jeetoo Hospital around midnight on 6 December 2012

following injuries sustained.

The medical evidence of Dr Gungadin who had performed

a post-mortem examination on the deceased, the medico-

legal report, photographs of the post-mortem examination,

photographs and plan of the scene where the offence

took place, the various exhibits secured by the police

during the enquiry, the evidence of the Forensic Scientist

on his examination of the exhibits and the statements

given to the police by the appellant.

The cause of death according to Dr Gungadin was shock

due to ruptured spleen.

Mrs Bacsou gave a detailed account of the event of the

6th December 2012. She related that she was married to

Ameerchand Rughooa, the deceased, and was living with

him in a rented room in a house situated at Ruisseau des

Creoles, Port Louis. In the rented house lived four other

families, amongst whom were the appellant, his father, his

sister Doris and another sister.

The four families, including the deceased and herself,

were sharing a single toilet and a bathroom. There was

also a single water meter and at the end of each month

the water bill would be divided equally amongst all the

tenants. Doris was responsible for collecting money from

the tenants and for settling the bills.

At the beginning, the deceased’s relationship with the

other tenants, including the appellant and his family, was

civilised. However, gradually, relationship with the

appellant became tense due to housekeeping matters,

non-payment of water bills by Doris and cuts in their water

supply.

On 06.12.2012 at about 10 pm, the deceased went to buy

cigarettes in a nearby shop. Mrs. Bacsou accompanied

him to the front door of the house and from there watched

him going towards the main road.

She saw the appellant in company of Yanish and Papou

who are brothers and who lived opposite her rented

house. They were all talking and swearing loudly. The

deceased gazed at them, turned towards her and stated:

“Gate amene mo sabre.” She asked the deceased for

what purpose and the latter retorted “mais mo laisse sa

trois couillon la batte moi kuma lot fois la?”

She went inside the house and picked up a box in which

was a sabre. The deceased snatched the box from her

hands and made his way towards the appellant and the

two others. She followed the deceased and saw the

appellant and his two friends also walking towards the

deceased.

There were an exchange of swear words which

culminated in an argument on the bridge between the

deceased and the appellant, Yanish and Papou in the

course of which the deceased brandished the sabre. The

appellant sprung on the deceased, pulled him by his T-

shirt and tried to snatch the sabre from him whilst

slapping and punching him in the face.

She tried to intervene but the appellant pushed her, swore

at her and threatened to do her bodily harm. The sabre

fell on the bridge and upon the appellant’s instructions,

Papou put his foot on the sabre and prevented her from

picking it up.

Yanish and Papou held the deceased by his arms whilst

the appellant continued to give him blows on his face and

body and hitting him several times on the head with the

handle of a knife given to him by Yanish. The deceased

fell and whilst he was down on the road in a weakened

state, the appellant knocked his head repeatedly on the

tarred road and kicked him on his abdomen and sides of

the body. The deceased was injured at his head and was

bleeding.


Page 19

The appellant denied: (i) the presence of Akshay

Jhingoor (Papou) during the fight; (ii) that Papou and

Yanish held the deceased by his arms whilst he

repeatedly hit the latter until he was in a state of

weakness and could not defend himself; (iii) that

Yanish gave him a knife; and (iv) that after he gave the

first blow to the deceased and the latter fell down, he

(the deceased) was no longer a threat to him. The

appellant did not admit that the degree of violence

used to assault the deceased was such that the latter

had his spleen and kidney ruptured.

The grounds were as follows:

Ground 1

The Learned Judge was wrong to ask Learned

Counsel appearing for the State to answer back to the

closing speech of Counsel appearing for the Appellant

whilst at the same time refusing Counsel for the

Appellant to reply to same.

Ground 2

The Learned Judge was wrong not to explain to the

members of the Jury what the elements of Provocation

are.

Ground 6 The Learned Judge did not refer at all to the

case of the Defence in a balanced way thus poisoning

the mind of the members of the Jury.

Ground 7 The Jury’s decision was perverse as no

reasonable Jury with the evidence adduced could have

come to the conclusion that the Appellant had the

intention to commit manslaughter.

Ground 8

The Learned Judge was wrong not to refer the

members of the Jury the forensic results on the sabre

and the DNA of the Appellant found on the clothes of

the deceased, thus not directed (non direction of the

Judge) the Jury on an important component.

Ground 9

The Learned Judge failed in his summing up to refer

that the sabre was contaminated by Police Officers as

per the evidence adduced.

Ground 10

No reasonable Jury could have come to the decision that

there is no Self Defence in the teeth of evidence adduced,

thus making the finding of the jury perverse.

Ground 11

The Learned Judge failed to refer to the physical

impossibility of the evidence adduced by witness Mrs

Bacsou, as described in the medical report of Dr

Gungadin and as per the Doctor’s testimony

Ground 12

The Learned Judge did not refer at all to the fact that

witness Bacsou was found lying on the issue of false

teeth (fausse dents) as borne out by the evidence of Dr

Gungadin and the photos of the deceased at the

mortuary.

Ground 14

That the Learned Judge was wrong in not giving the

“Lucas Direction” to the jury in relation to the potential lies,

if any, found by the jury in statements given to police by

the Appellant.

Ground 17

That in view of the evidence adduced, no reasonable jury

could have come to the conclusion that there is

manslaughter in the absence of any evidence to support

the elements of manslaughter as per section 223 of the

Criminal Code.

Ground 19

Sentencing

That in all the circumstances of the case to sentence is

against the principle of proportionality.”

Under Ground 1, the record showed that at the close of

the case for the defence, after Counsel for the

prosecution and Mr Valayden had addressed the Jury, the

learned Presiding Judge stated the following to Counsel

for the prosecution: “Yes, Mr Ah Sen. Re re-mark in law.”


Page 20

“Speak less than you know; have more than you

show”

–William Shakespeare

It was held that the exchange between the Learned

Judge and Counsel for the prosecution could hardly be

qualified as an invitation by the learned Judge to

Counsel for the prosecution to reply to the closing

speech of Counsel for the defence. It was further held

that such remarks could not have negatively impacted

on the mind of the jury. The ground of appeal was

dismissed.

Under Ground 2, the court held that provocation was

not made a live issue before the Jury. The case for the

appellant rested solely on self-defence. In fact, learned

counsel for the Appellant failed to point out what

evidence on record could in his view, amount to

provocation. Ground 2 was accordingly dismissed.

Under Grounds 6, 8, 9, 11 and 12 which were argued

together, the Court held that there was no duty from

the Learned Judge to rehearse each and every

inconsistency and contradiction in the evidence of a

witness, be it for the prosecution of the defence as

they were canvassed in the submissions made by

counsel for the prosecution and the defence. The

Court did not find any justification in the appellant’s

complaints and criticisms levelled against the learned

Presiding Judge.

Under Grounds 7, 10 and 17 it was submitted that on

the evidence adduced, the jury’s decision finding the

appellant guilty of the offence of manslaughter was

perverse. The Appellate Court pointed out from the

outset that the appellant made no complaint against

the direction of the Learned Judge to the Jury on the

issue of self-defence and intention to kill.

There was also no complaint against the direction of

the Learned Judge to the Jury that they were entitled

to find proved that the appellant inflicted on the

deceased violence and injuries which caused him

death.

It was further held that the prosecution having satisfied

the Jury that the appellant could not have acted in

necessary self-defence, the Jury could not be faulted for

having rejected the appellant’s defence of self-defence

and his contention that he did not have the requisite

intention to kill. The arguments of Counsel in support of

the criticisms levelled against the verdict of the Jury were

unfounded and devoid of merit. Grounds 7, 10 and 17

equally failed.

Ground 14 was that the Learned Judge was wrong in not

giving the Lucas Direction to the Jury in relation to

potential lies, if any, found by the Jury in statements given

to the police.

In his summing up the Judge is not obliged to direct the

jury about the option of finding the accused guilty of an

alternative offence, even if that option is available to them

as a matter of law.

It was further held that there was no need for the learned

Judge to give a Lucas Direction to the jury as it was clear

that the prosecution never relied on any lie of the

appellant to support evidence of his guilt. Ground 14 was

dismissed.

As far as Ground 19 was concerned, the Court held that

the sentence was certainly not one where a reasonable

man would go away with burning and justified sense of

grievance. It was in fact held to be on the low side. The

Court was also of the view that there were no such

particular and exceptional circumstances as contended by

the appellant which would justify a lesser sentence.

For the above reasons, the appeal was dismissed.


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