Office of the Director of Public Prosecutions E-Newsletter · Miss Neelam Nemchand, ... Anusha...

Office of the Director of

Public Prosecutions

‘To No One Will We Sell, To No One Deny or Delay Right or Justice’ Chapter 40, Magna Carta 1215

E-Newsletter Issue 74

September 2017

IN THIS ISSUE: September 2017 - Issue 74

EDITORIAL TEAM

Miss Anusha Rawoah, State Counsel

Miss Zaynah Essop, State Counsel

Mrs Pooja Autar-Callichurn , State Counsel

Mrs Shaaheen Inshiraah Dawreeawoo, State Counsel

Miss Neelam Nemchand, Legal Research Officer

Miss Pooja Domun, Legal Research Officer

PAGE

Editorial 1

Crime and Prejudice 2-3

New appointments in the judiciary of England and Wales 4

Training To Malagasy Delegation On The Functioning And The Role Of The Director of Public Prosecutions As A Major Player In The Good Governance

5 – 6

The Right to Silence and Adverse Inference 7 – 8

The Eastern and South Africa Anti-Money Laundering Group (ESAAMLG) AML/CFT Assessors Training

9 – 10

Minimum Age of Criminal Responsibility : An effective filter? 11 – 12

Training course on “Introduction to the Prosecution of Offences” 13

List of new callees to the Mauritian Bar: September 2017 14

Happy Retirement 15

Case Summary 16 - 20

The views expressed in the articles are those of the particular authors and should under no account be considered as binding on the Office.

EDITORIAL

Page 1

September 2017 - Issue 74

Anusha Rawoah State Counsel

Dear Readers,

We are pleased to bring to you the 74th issue of our monthly newsletter. In this

issue, the Director of Public Prosecutions, Mr Satyajit Boolell, SC reflects on the

topical issue of victims of crimes and the need to provide for protection of their

rights. We also take note of the appointment of the new Lord Chief Justice of

England and Wales. We also acclaim the appointment of Lady Hale, as the first

woman to have been elevated to the post of President of the Supreme Court of

England and Wales.

Furthermore, we bring to you a review on the visit of a Malagasy delegation to our office. The delegation,

comprising of professionals from various fields, were provided with an overview of the Mauritian legal system as

well as on the role of the office of the Director of Public Prosecutions.

Readers will also benefit from article on the fundamental right of a person charged with a criminal offence to

remain silent, as enshrined in section 10(7) of the Constitution. The issue of whether an adverse inference can be

drawn when a person exercises this right is also addressed. Furthermore, an article is provided by our law officer

who attended an ‘assessors training’ in Tanzania, hosted by the Eastern and Southern Africa Anti-Money

Laundering Group (ESAAMLG). One of our former pupils discusses on the criminal liabilities of children in

Mauritius as well as the concept of the Minimum Age of Criminal Responsibility prevalent in other countries.

Moreover, our office has, in collaboration with the Civil Service College, officially launched a training course on

“Introduction to the Prosecution of Offences” in August 2017. Further to this collaboration, tailor-made trainings

will be given on a monthly basis by our law officers to public officers of different Ministries.

In the same bid, we take the opportunity to congratulate the new callees to the Mauritian bar. We also convey our

best wishes to CPL Danraz Soborun who was posted to the Office of the Director of Public Prosecutions, and who

has recently retired from service. Finally, in our usual endeavour to provide our readers with an update on the

judgments delivered by the Supreme Court, we include summaries of same at pages 16 to 20.

We wish you a pleasant read and welcome your comments and suggestions at [email protected].

Crime and Prejudice

Page 2


To every crime there is a victim. A fundamental question arises here: What is the

fate of the victim once he or she reports the crime to the police? Unlike an

accused party who, by and large, enjoys a plethora of rights expressly listed in the

Constitution, our laws are, save for a few exceptions, silent on the treatment of

victims in the criminal justice process.

To start with, once a crime is reported, the State takes over, from the enquiry to

charging and prosecuting an offender. Where is the place of the victim of the

crime in this system? The victim is a mere bystander and is kept in the dark as to the progress of the enquiry.

The victim is never told whether the offender has been granted bail, nor is there any concern for his safety.

There is little time or concern about the emotional, physical and financial effects of the crime on the victim and

his family. The victim does not even know, before a trial whether he may ask for a copy of his statement given

years back. His testimony becomes a memory test.

When a case comes for trial, the Code of Ethics for Barristers precludes a prosecutor from seeing or conferring

with a victim of crime as regards the trial case. As such, unaided, he is expected to navigate his way through the

trial process. It is probably his first encounter with the criminal justice system. The victim is likely to come face to

face with the offender in the precincts of the court room. Not only will the victim be subject to a ruthless cross-

examination, but there is also no guarantee that he will be treated with respect and dignity.

Many jurisdictions around the world including Australia, the United States, South Africa have gone the extra

mile to restore the principle of equality of arms by reconciling the interests of victims with those of accused

parties.

The Republic of Kenya in its 2010 Constitution has an enshrined Constitutional provision, placing an obligation

on its Parliament to enact legislation providing for the protection of rights and welfare of victims of crime

(Section 50(9) Kenyan Constitution). The Charter of Victim’s Rights and Declaration of Principles Governing the

Treatment of Victims adopted in Australia provides for rights to treat the victims with courtesy, respect and

compassion.

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Satyajit Boolell, SC Director of Public Prosecutions

Similarly, the USA has enacted the Crimes Victims’ Rights 2004 for a number of enforceable rights, most notably

the right to be reasonably protected from an accused party; the right to restitution under the law; the right to

notification of public court and parole proceedings and of any release of the accused; the right not to be excluded

from public court proceedings under most circumstances; the right to confer with the prosecutor; the right to

proceedings free from unwarranted delays; and the right to be treated fairly and with respect to one’s dignity

and privacy.

In England, the Crown Prosecution Service implementing the EU Directives establishing minimum standards on

the rights, support and protection of victims of crime, provides a right for victims to be informed of prosecution

decisions and to have such decisions reviewed.

The review is an entirely fresh examination of all the evidence and circumstances of the case. It is now common in

the UK to have a Victim Impact Assessment produced in a court of law to enable the judge to reach a proper

verdict taking into account the impact of the crime on the victim.

It is time for us to reflect on the need to provide for victims’ rights, and to act on our reflections. Victims can no

longer be the silent part of the system. As a good starting point, I would advocate that victims of road accidents

be authorized to be represented in a criminal trial, offering them the possibility of seeking compensation in the

course of the same trial for the prejudice suffered as a result of the accident. There will be no need for a civil suit

to follow. This is the case in France …and after all aren’t we the ones who pride ourselves of our hybrid system of

justice?

New appointments in the judiciary of England and Wales

Page 4


On 2nd October 2017, Sir Ian Burnett became the new Lord Chief Justice of England and Wales. Sir Burnett

hence takes up the most senior judicial position in England and Wales after his appointment has been formally

approved by the Queen. Former Temple Garden Chambers barrister, Sir Burnett becomes the youngest Lord

Chief Justice of England and Wales in over 50 years.

On the same day, Lady Brenda Hale has been sworn in as the President of the Supreme Court of England and

Wales. She has as such, become the first woman to serve in this role. Lady Hale is in fact one of only two women

to have ever been appointed to the Supreme Court (alongside Lady Jill Black). She is also the first woman

appointed to be a law lord, in 2004. Lady Hale’s elevation to President of the Supreme Court is the pinnacle of a

successful legal career in which she has become one of the most forthright influences. Lady Hale was sworn in

alongside Deputy President Lord Mance, and three new Justices; Lady Black, Lord Lloyd-Jones and Lord Briggs,

bringing the Supreme Court to its full complement of 12 Justices. The appointment of Lady Hale, as the first

woman president of the Supreme Court has raised hopes that she will be able to do even more to promote gender

and ethnic diversity in the legal profession.

The Supreme Court is in fact the final court of appeal in the UK for civil cases, and for criminal cases from

England, Wales and Northern Ireland. It hears cases of the greatest public or constitutional importance affecting

the whole population.

Anusha Rawoah State Counsel

Training To Malagasy Delegation On The Functioning And The Role Of The Director of Public Prosecutions

As A Major Player In The Good Governance.

Page 5


A delegation of participants consisting of the National Representatives of Madagascar was welcomed by the

Office of the Director of Public Prosecutions on the 1st September 2017. The Participants were mainly

professionals of 25 – 38 years, from different areas such as civil society, media, psychology, private sector,

tourism, law, public sector amongst others. They were warmly welcomed by the Director of Public Prosecutions,

Mr Satyajit Boolell, SC, who provided a brief introduction on the independence of the Director of Public

Prosecutions (ODPP) as guaranteed under the Constitution of Mauritius; the decision-making process of

whether to prosecute a case or not. The aim of the training was to empower the new generation from Madagascar

who are engaged in developing the required technicalities as well as the sense of ethics.

The training was conducted primarily for the purpose of exchanging information on the functioning and the

role of the ODPP as a major player of good governance. The presentation was conducted by Mrs Johan Moutou-

Leckning, Senior Assistant Director of Public Prosecutions.

Initially, a brief introduction was provided on the evolution of the legal history in Mauritius. The audience had

an in-depth insight of the functions and powers of the DPP under Section 72 of the Constitution of Mauritius

and the structure of the ODPP. Moreover, a distinction was drawn between the role and functions of the

prosecution, the police and other investigative agencies in the Criminal Justice System, the circumstances in

which the DPP can intervene at the level of investigations and the ethical guidelines to be followed by lawyers.

Last but not the least, the 3 pillars on which the ODPP essentially rests namely: Fairness, Independence and

objectivity were elaborated.

Page 6


The training also shed light on the different units which exist at the ODPP namely the Piracy Unit, Victim and

Witness Support Unit, Serious Fraud and Tax Education Unit, International Cooperation/ Mutual Legal

Assistance and Extradition Unit and the Cybercrime Unit.

Furthermore, an overview was provided on some of the publications made by the ODPP such as the monthly

Newsletter, Mauritius Criminal Law Reports, “Tanya so Zistwar”, and on training courses provided by officers of

the ODPP to investigators from various Ministries. During the interactive session, several questions were raised

by the Malagasy participants on the following issues:

• The relationship between the ODPP and our Courts of Justice.

• The Character of Certificate

• Public Interest and the Decision making Process

• Private Prosecution

• Role of the Chief Justice in the Judiciary

• Independence of the ODPP from the Legislative and Executive arm

• International training sessions attended by officers of the ODPP.

The training proved to be very participative and fruitful for the participants.

Mrs Moutou-Leckning, Senior Assistant DPP Pooja Domun, Legal Research Officer

Sharlveena Appiah, YEP Trainee

The Right to Silence and Adverse Inference

Page 7


One of the fundamental rights guaranteed by our Constitution is the right of a person charged with a criminal

offence to remain silent. This is provided for in Section 10(7) of the Constitution which states that no person who

is tried for a criminal offence shall be compelled to give evidence at the trial.

However to what extent is the right to silence an absolute right enjoyed by the accused considering the

constitutional protection given to it?

As highlighted in the case of R v Shummoogum & Ors [1977 MR 1], section 10(7) is couched in negative terms as it

does not expressly say that the accused has a right to silence, rather he shall not be compelled to give evidence.

However, does this allow the Court to draw a negative conclusion from the exercise of this right by the accused?

In the UK, prior to 1994, the accused enjoyed an unrestricted right to silence when being interviewed under

caution. However, with the introduction of the Criminal Justice and Public Order Act 1994, namely sections 34 to

37, the court or jury is now allowed to draw adverse inferences from silence as appear proper in the

circumstances specified in the Act.

In Mauritius, any statement which may be construed as denying an accused of his right to silence is wrong in

law, vide the case of R v Wahedally [1973 MR 103. Though there is no express provision in the law which limits

this right, it does not prevent a trial judge from commenting on the accused’s silence.

It is important to note that such comment though must not amount to an invitation to the jury to form an

adverse view from the fact that the accused remained silent.

In the case of Fullee v R [1992 SCJ 77], the Court observed that “the Constitution no doubt confers on any accused

the sacred right to remain silent but the Constitution does not forbid our Courts to draw, in appropriate

circumstances, certain inferences from an accused’s silence when the circumstances are such that one would

expect some form of explanation from him.” The rationale behind this being that if a person is not guilty, he

would want to promptly claim his innocence rather than remaining silent and giving the impression that he has

something to hide.

In the case of Rossan MAR v The State [2015 SCJ 454], the accused waited for six days to claim her innocence, to

which the Court commented that it could not “exclude the possibility of her having tried to be clever by coming

up with a well thought version in the face of the incriminating evidence against her with a view to exculpate

herself.” It was held that drawing of an adverse inference by the trial Judge in this case, did not amount to a

breach of the Constitution nor any unfairness.

Page 8


The case of Andoo v The Queen [1989 MR 241] can also be cited here where it was held that an accused’s “right to

silence, however, is exercised at his risk and peril when, at the close of the case for the Prosecution, a prima facie

case has been clearly established since the burden then shifts on him to satisfy the Court that it should not act on

the evidence adduced by the Prosecution. We need only repeat what was said by Sir A. Herchenroder C.J in

Ramkalawon v. R, [1914 MR 124], namely that the observation of Beccaria should never be forgotten – “imperfect

proofs, from which the accused might clear himself, and does not, become perfect.”

On the other hand, in the case of Carpenen G. N. V The State & Reine De Carthage G. v The State [2014 SCJ 382],

the Learned Judge made the following comment “one would have expected him to react had he been innocent”. It

was held that this amounted to a serious breach of the appellant’s constitutional right.

Reference can also be made to the case of Murray (John) v UK (1996) 22 E.H.R.R. 29 where it was held that:

"Whether the drawing of adverse inferences from an accused's silence infringes Article 6 (European Convention

of Human Rights) is a matter to be determined in the light of all the circumstances of the case, having particular

regard to the situations where inferences may be drawn, the weight to be attached to them by national courts in

their assessment of the evidence and the degree of compulsion inherent in the situation."

Although the law does not expressly provide for adverse inference to be drawn, case law shows that this practice

has been adopted in some situations where the Court was satisfied that the prosecution was able to prove beyond

reasonable doubt that the appellant was not genuine. Vide the case of Ramdeen v R [1985 MR 125].

Therefore, the right of an accused to silence, despite being a fundamental principle provided by the Constitution,

is exercised at the latter’s own risk and peril because there is no obligation on the Court not to draw an adverse

inference.

Artee Gunness Legal Research Officer

The Eastern and South Africa Anti-Money Laundering Group (ESAAMLG) AML/CFT Assessors Training

Page 9


The Eastern and Southern Africa Anti-Money Laundering Group held an assessor training workshop from the

8th to the 14th September 2017 at Zanzibar Beach Resort Hotel, Zanzibar - Tanzania. The participants were from

different Eastern and Southern African countries including Angola, Zambia, Uganda, South Africa, amongst

others. The participants were divided into groups which included a member from each of the institutions i.e the

Police, the Financial Intelligence Unit, the Revenue Authority, the Prosecution, the Ministry of Finance and the

Bank.

The Financial Action Task Force (FATF) and the ESAAMLG

The Financial Action Task Force (FATF) is an inter-governmental body whose purpose is the development and

promotion of policies, both at national and international levels, to combat money laundering and terrorist

financing. The Task Force is therefore a "policy-making body" which works to generate the necessary political will

to bring about national legislative and regulatory reforms in these areas.

The objectives of the FATF are to set standards and promote effective implementation of legal, regulatory and

operational measures for combating money laundering, terrorist financing and other related threats to the

integrity of the international financial system.

The FATF has developed a series of Recommendations that are recognised as the international standard for the

combatting of money laundering and the financing of terrorism and proliferation of weapons of mass

destruction.

The ESAAMLG is an Associate member of the FATF. The ESAAMLG was set up to combat money laundering and

terrorist financing by applying the FATF recommendations.

I find it helpful at this stage to reproduce the mission statement of the ESAAMLG to understand its role and its

aims:

“To consolidate and sustain the combined efforts to combat money laundering and terrorist financing and

proliferation in the Eastern and Southern Africa Region through effective implementation of AML/CFT [anti

money laundering and combating the international standards in all ESAAMLG member countries.”

The ESAAMLG assessors are called upon to carry out a mutual evaluation of Eastern and Southern African

countries by assessing their compliance to the FATF standards to improve anti-money laundering regimes. This

is achieved by looking at how the legal framework is being applied by the different institutions of a country i.e

the police, the Financial Intelligence Unit (FIU), the Revenue authorities, the Prosecution, the Bank and other

financial institutions to fight money laundering.

Page 10


The training started with an opening note by the executive members of the ESAAMLG Secretariat. The

participants were assessed on their knowledge and understanding of the FATF Recommendations, Methodology

and Procedures. The aim behind this exercise was to enable them to assess the areas of weaknesses and to focus

the training on improving those areas.

As part of the training, the participants were asked to assess the fictitious Kingdom of Pseudopolis and had been

provided with key documents by Pseudopolis. The participants were assigned practical exercises which included

the drawing up of a Mutual Evaluation Report and exercises on technical compliance, risk and context and

effective assessment. Feedback was given on the exercises submitted and this was followed by interactive sessions

amongst the participants and the trainers.

The different groups were called upon to carry mock on-site interviews of the Pseudopolis officials i.e the police,

the FIU, the bank, the prosecutor, etc. The purport of the interviews was to gather information from the officials

and use this information for the drafting of the Mutual Evaluation Report.

At the end of the training, the participants were awarded a certificate of participation.

The training was both a fulfilling and enriching learning experience as it was an opportunity for me to

understand the FATF recommendations and how to assess a country using the FATF recommendations. It also

enabled me to work with participants from different institutions of various countries. I was part of the green

group and this enabled me to bond with the other members.

Ms Nitisha Seebaluck State Counsel

Minimum Age of Criminal Responsibility : An effective filter?

Page 11


"If it is empty of ends, the law can hardly be said to be attractive in the means it employs.”

- Lon L. Fuller

The need to maintain social order and public confidence in the criminal justice requires

that everyone be accountable for his acts and doings. However, when it concerns

accountability of children, whose extent of culpability is often doubtful, the decision as to

whether to prosecute is more difficult. There are two competing interests which come into

play (1) the victim and his family's need for justice and (2) the public interest in

prosecuting a child. How then do we decide when should a child be criminally responsible? What should be the filter when

deciding whether to prosecute a child? Is age an effective one?

There exists in many countries, the Minimum Age of Criminal Responsibility (MACR) which is the minimum age below which

children shall be presumed not to have the capacity to infringe penal laws and can neither be prosecuted nor be held

criminally responsible (as opposed to the capacity of a child to infringe criminal law).

Under Article 40(3)(a) of the Convention on the Rights of the Child, State Parties have an obligation to seek to promote the

establishment of a MACR. Principle 4.1 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice

(The Beijing Rules) then lays down that the MACR should not be fixed too low an age level bearing in mind the facts of

emotional, mental and intellectual maturity. Furthermore, Article 17(4) of the African Charter on the Rights and Welfare of the

Child provides that there shall be a MACR.

Though some countries have adopted MACRs, other countries, such as France, have not.

Adopting the MACR approach can be appealing to the extent that it ensures equality since it guarantees a uniform threshold

for criminal responsibility of children.

Nonetheless, deciding on a MACR can be an unconquerable task. There is neither an international consensus on what the

MACR should be nor a universal MACR in practice. In fact there exists a wide range of MACRs, ranging from 7 years in some

countries to 18 years in others. Furthermore, according to the UN Committee on the Rights of the Child, setting the MACR

below 12 is ‘not to be internationally acceptable’. This inability to decide on a specific age as threshold for potential criminal

liability of children does cast some doubt as to whether the MACR is a useful mechanism.

Furthermore, there exists a variability in the timing of a child's cognitive and emotional development and his chronological age.

The timing of such development may differ from children to children, often depending on their socialisation process. Therefore,

although there exists a pattern, a specific chronological age will not necessarily imply a specific mental age and capacity of

discernment, namely to distinguish the right from the wrong. In other words, whether a child might have the element of

culpability does not necessarily depend on his chronological age. It should be noted that in some countries, such as Sudan, the

determining factor for a child's criminal responsibility is puberty.

Moreover, a direct consequence of adopting the MACR is that if a child below the MACR commits an offence, he cannot be held

criminally responsible. The MACR therefore creates an irrefutable presumption that a child below the MACR cannot be

Page 12


prosecuted. The effect is that it might result in turning a blind eye to criminality when it concerns children below the MACR.

For instance, when faced with children committing serious war crimes, do those children just below the MACR escape the risk

of criminal liability whilst their counterparts who are just above the MACR risk criminal liability? Or, if we look at the English

murder case of James Bulger (where two youngsters were convicted for murder committed at the age of 10 years, the MACR in

England being 10 years), if the two accused parties were in a country where the MACR was any age above 10 years, it would not

have been possible to prosecute them despite their clear mens rea.

On top of that, whilst the idea behind the MACR is to promote the best interests of the child, this very MACR might turn out to

be a weapon used against children. Children may become preys and be used by crime syndicates and abusive adults to commit

offences (particularly drugs, begging and sexual offences). On the one hand, the crime syndicates plan to escape criminal

liability by not doing the acts themselves whereas on the other hand, the children (at times the parents as well) are comforted

by the MACR which acts as a shield for them, protecting them from any potential prosecution.

Under Mauritian law there is no MACR. The key determining factor for child prosecution is discernment and this discernment

capacity at the time of the offence is best proved by an expert report. Section 44 of the Criminal Code provides that where the

child is under 14 years and it is determined that he acted without discernment, he shall be acquitted. Importantly, Section 44

does not lay down a MACR, the more so that The Juvenile Offenders Act 1935 provides for situations where a juvenile under 14

years is tried by the Juvenile Court.

Interestingly, previously in England, there existed the doli incapax, a legal presumption that children under 14 did not know

the difference between right and wrong and were therefore incapable of committing an offence. This presumption could be

rebutted by proof that the child knew what he was doing was seriously wrong, not merely naughty or mischievous.

In Mauritius, it is the DPP who decides whether a child would be prosecuted (Section 11 (9) The Juvenile Offenders Act 1935).

The DPP takes this decision on basis of two important considerations: the sufficiency of evidence (which includes evidence as to

the child's discernment capacity) and the public interest of putting a child on trial (which includes the element of best interests

of the child).

This existing Mauritian approach in no way denies that children should in appropriate circumstances, bear the consequences

(under the juvenile court system) of their acts whilst ensuring the deterrent effect, namely that a child would be dealt with

appropriately in case of offending. It should also be pointed out that if ever a prosecution is not opted for, there is the

alternative of administering a caution without the child undergoing a criminal trial.

In light of the above analysis, it is therefore questionable, whether the MACR is an effective filter. It appears that to best

recognise the importance of childhood when dealing with potential child offenders, the criterion of child's ability to understand

right and wrong at the time of the offence, is more appropriate.

Ms Naazish Sakauloo Former Pupil

Training course on “Introduction to the Prosecution of Offences”

Page 13


The Office of the Director of Public Prosecutions, in collaboration with the Civil Service College, has officially launched the

training course on “Introduction to the Prosecution of Offences” on 10 August 2017. Mr Denis Mootoo, Acting Senior Assistant

DPP and Prof. Ramesh Durbarry from the Civil Service College gave an introductory speech. The aim of this training

programme is to impart fundamental knowledge about the criminal justice system in Mauritius, to the public officers from

various ministries.

The topics for the training are as follows:

• Introduction to the Office of the Director of Public Prosecutions

• Powers of the Director of Public Prosecution

• The Constitution

• The Mauritian Legal System

• Role of prosecutors

• Delegated powers

• Code of Ethics

• The decision to prosecute: two stage test

The lectures are conducted on four half days. Certificates of attendance are awarded to the participants on the last day of the

training. Two training sessions have already been successfully organised in August and September.

Following requests from the Civil Service College, we endeavour to dispense other training sessions over the forthcoming

months.

Ms Keshini Dhunnoo Legal Research Officer

Page 14

September 2017 - Issue 74 List of new callees to the Mauritian Bar:

September 2017

The Mauritius Bar has, since the 22nd September 2017, 27 new members. They are:

1. Meveric Nicholas Ng Liet Hing,

2. Benjamin Mathieu Marie Joseph,

3. Rebecca Kim Niouk Tsang Man Kin,

4. Abdool Rahim Salehmohamed,

5. Marie Rosiane Johanne Hague,

6. Billy Andrew Li Hing Duen,

7. Irvin Nigel Collendavelloo,

8. Chetan Keshav Matar,

9. Ghireesh Nitraj Bundhoo,

10. Harsha Devi Servansingh,

11. Reena Luxmi Jogeedoo-Penthiah,

12. Karvidessen Chinsamy Arian,

13. Hans Lall Nepaul,

14. Kessaven Payandi Pillay,

15. Muhammad Yousuf Alimohamed,

16. Ahmed Mooneer Salehmohamed,

17. Inza Isra Arzoo Dauharry,

18. Bhavish Sharma Sewraz,

19. Aleeyah Lallmahomed,

20. Risha Pooja Hulman,

21. Louis Adrien Wong Sun Thiong,

22. Girish Kumar Prayag,

23. Tanzeen Banu Auleear,

24. Bibi Zahraa Auchoybur,

25. Vidisha Vimi Sunkur,

26. Peraanendhi Mauree

27. Mary Chrisinta Chavrimootoo

The Office of the Director of Public Prosecutions congratulates the new barristers especially Mr Ghireesh Nitraj Bundhoo, Ms

Vidisha Vimi Sunkur, Mr Kessaven Payandi Pillay, Ms Risha Pooja Hulman, Mr Billy Andrew Li Hing Duen, Mrs Reena Luxmi

Jogeedoo-Pentiah, Mr Girish Kumar Prayag, Ms Peraanendhi Mauree, Mr Benjamin Mathieu Marie Joseph and Ms Tanzeen

Banu Auleear who were pupils at the Office.

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September 2017 - Issue 74 Happy Retirement

We would like to extend our sincere gratitude to CPL Danraz

Soborun for his service to the Office of the Director of Public

Prosecutions (‘ODPP’).

CPL Soborun has 41 years of service in the Mauritius Police

Force. He was seconded to the Attorney General’s Office on the

22nd April 2002.

He started working in the Morality Section of the ODPP. He has

served the Office with full dedication for 15 years and was a

valued member of our big family.

We wish him a relaxing retirement and extend our best wishes in his life.

Page 16

September 2017 - Issue 74 SUMMARY OF SUPREME COURT JUDGMENTS:

August 2017

CHOOMKA M.S. v. THE STATE 2017 SCJ 302

By Hon. D. Beesoondoyal, Judge & Hon. A.D. Narain, Judge

Version of witness not put at enquiry stage; breach of right

to a fair hearing

The appellant was prosecuted before the District Court of

Rivière du Rempart under two counts of an information

charging him with the offences of: (a) assaulting an agent of

the civil authority, in breach of section 159 of the Criminal

Code (under count 1); and (b) molesting a public officer, in

breach of section 3(1)(a) and (2) of the Public Officers’

Protection Act (under count 2). He pleaded not guilty under

both counts and was represented by Counsel. He was

convicted and sentenced to pay a fine of Rs 4,000 under count

1 and Rs 2,000 under count 2 and to pay Rs 100 as costs.

There were originally six grounds of appeal. On the day of the

hearing, learned Counsel for the appellant dropped ground

6. As regards grounds 2 and 3 which pertained to count 2 of

the information, learned Counsel for the respondent took the

stand that, on the authority of Jhootoo v The State [2013 SCJ

373], the conviction under count 2 was not being supported

inasmuch as the version of Mr Ramah, the witness in

question, had not been put to the appellant at enquiry stage.

He was of the view that such shortcoming amounted to a

breach of the appellant’s right to a fair hearing in so far as

count 2 was concerned.

Whilst the Court was not prepared to state that a failure to

put a charge to an accused party at enquiry stage invariably

results in a breach of his right to a fair hearing under section

10 of the Constitution, they were of the considered view that,

in this particular case, the fact that the appellant was called

upon to give his defence in relation to count 1 only and the

charge under count 2 was never put to him rendered the

conviction under count 2 unsafe (see Easton V The State and

Anor [2012 SCJ 55]).

The remaining three grounds of appeal read as follows –

“1. The finding of guilt under count 1 is wrong and should be

quashed in as much as the Learned Magistrate was wrong to

conclude that Witness No.2, Miss Beegun, was a witness of

truth and did not depart from her statement on material

issues when in fact there are inconsistencies in her

declaration, her statement given to the police and her

testimony in court.

4. The convictions under both counts are unsafe because the

Learned Magistrate failed to address her mind to the fact that

both witnesses no 2 & 3 work together, witness No 2 had an

argument with the Appellant before the alleged offence and

no independent witness supported their respective versions.

5. The Learned Magistrate was wrong to reject the solemnly

affirmed version of the appellant and the defence witnesses in

view of the fact that they had deposed in a coherent manner,

their respective testimonies were not shaken in cross

examination and on a proper appreciation of all the facts of

the case, she should have given the appellant the benefit of

the doubt”.

All of the above three grounds challenge the findings of fact of

the learned Magistrate.

Ground 1 failed as the Court was unable to say that the

Magistrate went wrong in her conclusion that “the witness did

not depart from her statement on material issues”. Moreover,

having seen and heard the witness depone, the Learned

Magistrate was entitled to assess the latter as being a witness

of truth.

Ground 4 also failed as there was no evidence on record to

support the contention that witness Beegun had an argument

with the appellant before the alleged offence. In fact, quite

glaringly, the first line of the Appellant’s cross-examination

reads: “I never had any problem with Miss Beegun or Mr

Ramah”. For these reasons, the Court was of the view that this

ground of appeal cannot have been seriously taken.

With regards to ground 5, the Court did not agree that the

Page 17


Learned Magistrate made a series of wide and stereotyped

statements in her judgment as regards her assessment of the

witnesses who deposed before her. Having seen and heard

the witnesses deposed before her, the Learned Magistrate was

perfectly entitled to assess the manner in which they deposed

and to take this into account when deciding which version

she preferred to believe. This ground also failed.

The conviction and sentence was accordingly quashed under

count 2 only. The conviction and sentence under count 1 was

maintained. The appeal was otherwise dismissed.

DIRECTOR OF PUBLIC PROSECUTIONS v JOTTEE D 2017

SCJ 291

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

Madhub, Judge

Duties of police officer; release of detainee on bail;

solicitation of bribe

This is an appeal by the Director of Public Prosecutions

against the acquittal of the respondent who was prosecuted

before the Intermediate Court on a charge of bribery in

breach of section 4(1)(b) and (2) of the Prevention of

Corruption Act.

The two grounds of appeal argued are as follows –

“Ground of Appeal

(1) The learned Magistrate erred in holding, that the act of

releasing Mr Boobhun was not “an act which was facilitated

by the duties” of the accused and wrongly dismissed the case

against the accused.”

Additional Ground of Appeal

Because notwithstanding the case of DPP v Coureur, the

learned Magistrate failed to appreciate that all the elements

of the offence have been proved.”

The only question before the Court was, as the learned

Magistrate put it, “The next question is whether or not this

gives rise to liability under section 4(1)(b) and (2) of the

Prevention of Corruption Act.”

As per the findings of the learned Magistrate he had no issue

to have found proved by the prosecution the following

elements – (a) public official, (b) intention, (c) from another

person, and (d) gratification. However he considered that two

elements of the offence have not been proved, namely -

(a) “an act which was facilitated by his duties”; and

(b) “for another person”.

The learned Magistrate’s analysis is based on the premise

that the appellant, being of the rank of a police constable, did

not have the power to release or to detain a suspect nor could

he go against the instructions of the Assistant Commissioner

of Police, on whom devolved this power. Hence he concluded

that the prosecution had to prove that it was part of a police

constable’s duties to release a detainee on bail, which it failed

to do.

The learned Magistrate sought support from the case of

Independent Commission Against Corruption v J Seeneevassen

[2012 SCJ 328].

It is noted that in the present appeal the charge was in

relation to “an act which is facilitated by his duties”. It has

been proved that the respondent did solicit monies from Mr

Boobhun. The purpose of that solicitation as per the

information is to “cause (Mr Boobhun) the latter to be

released from police custody”.

The Act at section 4 has provided for two scenarios. Firstly

“an act in the execution of his functions and duties” (see for

example subsection (1)(a)) and secondly “an act which is

facilitated by his functions or duties” (see for example

subsection (1)(b)).

It is clear that if the accused (respondent) was not a police

officer, the more so that he was with the team that conducted

the enquiry in the suspected case against the respondent, he

could not have credibly asked the respondent for the “bribe”.

The functions of the respondent, as a police officer, provided

him credibility and opportunity to make the solicitation. It is

clear that he could have effectively made that solicitation

Page 18


because he was a police officer, who was involved in the

enquiry. Even if it was not directly part of his duties to release

the detainee on bail, he could have influenced the decision-

making. It is not denied that solicitation there was and once

same was made, the fact that the bribe was not remitted does

not nullify the solicitation.

The next issue which the learned Magistrate highlighted is

whether the solicitation was for the respondent himself or for

another person. The learned Magistrate concluded that this

was one of the elements of the offence, and thus has to be

proved by the prosecution, that is either the solicitation was

for the benefit of the respondent himself or other persons.

From the evidence on record, and as found by the learned

Magistrate, the sum of Rs 5,000 was solicited to be shared

amongst himself and his colleagues. The question which

arises here, as per the trial Court reasoning, the prosecution

had to prove the proportion or amount that was meant for

the respondent himself or alternatively for the other

colleagues.

It is clear from the evidence that the solicitation was proved

beyond reasonable doubt by the prosecution, and the money

solicited was to be shared amongst the respondent and his

colleagues. We do not consider that it was the duty of the

prosecution to go further and prove which proportion should

go to whom, given the purport of the provision at subsection

4(2). This is the more so that unless there is a clear-cut

confession on that issue, it will be quasi impossible to infer

such apportionment from circumstantial evidence. This is

putting an extra burden on the prosecution, which we

consider has no “raison d’être”.

The prosecution having established that the respondent had

solicited a gratification, the presumption applies, and it is for

the accused (respondent) to satisfy the court that it should

not act on the evidence adduced by the prosecution (vide

Andoo v The Queen [1989 MR 241]). In the present matter the

respondent has chosen not to adduce any evidence.

In the circumstances, the Court considered that the

prosecution has indeed proved the offence for which the

accused had been charged and upheld both grounds of

appeal. They consequently quashed the decision of not guilty

entered by the learned Magistrate and entered a finding of

guilty as charged.

The matter was to be remitted to the lower Court and that the

Presiding Magistrate designate another magistrate to hear

evidence on the appropriate sentence to be passed and

proceed to sentence, as the Learned Magistrate who heard

the case is no longer a member of the judiciary.

ISSUR S. v. THE STATE 2017 SCJ 301

By Hon. D. Beesoondoyal, Judge and Hon. G. Jugessur –

Manna, Judge

Short, sharp shock; imposition of custodial sentence;

previous convictions


Upper Plaines Wilhems under one count of an information

for the offence of issuing cheque without provision, in breach

of section 330B(1) of the Criminal Code. He pleaded guilty to

the charge and, after conducting a hearing, the learned

Magistrate sentenced him to undergo six months’

imprisonment and to pay Rs 100 as costs.

The only ground of appeal, which is against sentence, reads

as follows –

“Because the learned magistrate imposed a sentence which

was manifestly harsh and excessive and disproportionate in

the circumstances.”

Learned Counsel for the respondent has submitted that the

Learned Magistrate was right to impose a custodial sentence

in view of the gravity of the offence committed by the

appellant and the number of previous convictions he had for

cognate offences. According to him, a “short, sharp shock”

was warranted in the circumstances. However, he submitted

that the sentence of six months’ imprisonment was

disproportionate, harsh and excessive and should be

Page 19


reduced. In his view, after carrying out a comparative

analysis with cases of a similar nature, a sentence of three

months’ imprisonment was found to be more apt. Reference

was made to the cases of Peerbaccus v The State [2017 SCJ

195], Alighan v The State [2015 SCJ 53], Constant v The State

[2014 SCJ 238] and Sawmy v The State [2000 SCJ 152].

Learned Counsel accordingly prayed that the appeal be

allowed on the basis of a reduction of the term of custodial

sentence only.

Learned Counsel for the appellant concurred with the stand

of the respondent and invited us to reduce the sentence from

six to three months’ imprisonment.

After giving due consideration to the submissions of both

parties and taking into account the long list of previous

convictions of the appellant for the same offence and his

failure to mend his ways, despite having been granted a

conditional discharge on no less than three occasions, the

Court was satisfied that the appellant richly deserved a term

of imprisonment.

The appeal was therefore allowed and the sentence of

imprisonment reduced from six months to one of three

months.

SOWAMBUL R v STATE 2017 SCJ 311

By Hon. D. Beesoondoyal, Judge and Hon. G. Jugessur-Manna,

Judge

Breach of right to a fair trial; inconsistency of witness; unsafe

conviction


Savanne on a charge of “wounds and blows” in breach of

section 230(1) of the Criminal Code. He pleaded not guilty to

the charge. He was convicted and sentenced to pay a fine of

Rs. 2000 and Rs.100 as costs. He initially appealed against

his conviction on six grounds. However, learned Counsel for

the appellant dropped four of the grounds and maintained

only grounds 1 and 6 which read as follows:

“Ground 1 - The conviction of the appellant (then Accused)

should be quashed inasmuch as there have been

fundamental breaches of his right to a fair trial guaranteed

under Section 10 of the Constitution;

Ground 6 - The Learned Magistrate was wrong to have

convicted the appellant (then accused) based on the evidence

on record and the submission of Counsel. Particulars: (i)

There were several inconsistencies in the version of Witness

No.1. (ii) The injuries as described in the PF 58 were different

from those described in the statements in and out of Court of

Witness No. 2.”

According to the trial Court’s record, the prosecution’s case

rested on the evidence of the enquiring officer PC Unoruth,

the complainant Mr. Sylvio Momus and the latter’s PF 58.

The complainant gave a very brief account of the

circumstances of the incident in examination-in-chief.

Under cross examination, he explained that the appellant

and Mr. Murday were not in good terms, the appellant threw

two rocks at the level of his waist, when he was hit “he turned

back” (sic) and saw the appellant going and his foreman

confirmed to him that the appellant had hit him. He,

therefore, believed that the appellant must have thrown the

rocks at him. Upon being questioned further on the fact that,

in his statement dated 10 December 2013, he had stated that

one Mr. Ajay had assaulted him, he denied same and

maintained that he had mentioned the name of the

appellant, Ravi Sowambul.

PC Unoruth’s testimony before the trial Court was to the

effect that he interviewed the accused (appellant) at Tyack on

30 August 2014 and, after he informed him of the charge,

warned him and explained to him his constitutional rights,

he declined to give a statement. In cross-examination, when

asked in what circumstances he met the accused, he stated

that he met him on the road on a public holiday when he was

controlling traffic. He further stated that he did not put up

any entry to that effect. The appellant gave evidence under

solemn affirmation and he denied having assaulted Mr.

Momus. He explained that, on the material date and time,

Page 20


“First they ignore you, then they laugh at you, then

they fight you, then you win.”

- Mahatma Gandhi

he was attending a prayer at Surinam and he returned home

at around 2.00 p.m. It was only in 2014 that the police

informed him of the charge levelled against him by Mr.

Momus.

With respect to ground 6, Counsel for appellant has

submitted that the Magistrate failed to take into

consideration the inconsistencies in the deposition of witness

Momus and, in a stereotyped and “cliché” language,

convicted the appellant. He further submitted that the

conviction is not safe and should be quashed. For his part,

learned Counsel for the respondent conceded that the

Magistrate erred in not considering the inconsistencies in the

evidence adduced before her and that such omission

rendered the conviction unsafe.

Having given due consideration to the evidence adduced

before the lower Court, to the judgment delivered by the

Magistrate and to the submissions made before the present

Court, the Judges in the present case reiterated that an

appellate Court is always reluctant to interfere with the

findings of facts of the lower Court unless the Magistrate has

made a wrong appreciation of the facts and come to an

unreasonable conclusion (see The Director of Public

Prosecutions v. A. Hinga [2014 SCJ 303]).

In the present case, the learned Judges noted that the

Magistrate, in her judgment, briefly stated in three lines the

contention of the prosecution and that of the appellant

without carefully analysing the totality of their evidence as it

transpires from the record. She did not consider the

inconsistencies in the evidence of the complainant, but

instead used a series of stereotyped statements when

assessing his evidence. The learned Judges concluded that

the Magistrate wrongly concluded that she had no reason to

doubt the complainant’s version as being true when his PF 58

clearly does not lend colour to his version. The learned

Judges also concluded that the Magistrate completely failed

to take into account that: (a) the complainant did not

actually see the appellant hitting him and it was his foreman

who allegedly informed him that the appellant had hit him;

and (b) the foreman, who was allegedly an eye witness, was

not called by the prosecution as a witness to confirm the

version of the complainant. They were of the view that it was

incumbent upon the Magistrate to come up with a judgment

containing the points for determination, the decision and the

reasons for the decision, in compliance with section 197(2) of

the Courts Act.

There is no hard and fast rule as to how this mandatory

requirement should be implemented. However, the

judgment, when read as a whole, must reflect that the

Magistrate was fully alive and did address her mind to all the

issues, which have to be determined in order to establish the

guilt of an accused party. The requirements of section 197(2)

of the Courts Act not having been met in the present case, it

was concluded that the judgment is flawed and it cannot

stand as the Magistrate made a wrong appreciation of the

evidence on record. The appeal thus succeeded under

ground 6 and the remaining grounds of appeal were not

considered.

The appeal was thus allowed and the conviction and the

sentence quashed.

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