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Office of the Director of Public Prosecutions ‘To No One Will We Sell, To No One Deny or Delay Right or Justice’ Chapter 40, Magna Carta 1215 E-Newsletter Issue 76 November 2017
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-NewsletterIssue 76
November 2017
IN THIS ISSUE:November 2017 - Issue 76
EDITORIAL TEAM
Miss Anusha Rawoah, Ag. Senior State Counsel
Miss Zaynah Essop, Ag. Senior 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
Marriage of Convenience 2
Is it time for a Fraud Act in Mauritius? 4
Training Course for Officers of Cadastral Office and Public Infrastructure, Rodrigues 8
Panel Discussion on “Juvenile Justice” 10
Prosecution of Trafficking in persons cases (Litigation Surgery) 13
List of new appointees 14
Case Summaries 15
The views expressed in the articles are those ofthe particular authors and should under noaccount be considered as binding on the Office.
EDITORIAL
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November 2017 - Issue 76
Anusha RawoahAg. Senior State Counsel
Dear Readers,
Welcome to the 76th issue of our monthly newsletter. In this issue, the Director of
Public Prosecutions, Mr Satyajit Boolell, SC discusses the topic of ‘marriage of
convenience’, making allusion to a judgment recently delivered by the UK’s Supreme
Court.
Moreover, two former pupil barristers at the office have analysed the law relating to
fraud in Mauritius and compared same with the provisions of the UK Fraud Act 2006.
Also, in its usual endeavour to provide ongoing training to law enforcement officers,
the Office of the DPP carried out a training with officers of the Cadastral Office and
Commission for Public Office Infrastructure in Rodrigues whereby various legal
predicaments were discussed. Furthermore, on behalf of the office, Mrs Moutou-
Leckning, Senior Assistant DPP formed part of the panelists in a talk organized by the
Association ‘Kinouété’ on ‘juvenile justice’. Also, an overview is provided to our readers
on a seminar organized by the United Nations Office on Drugs and Crime (‘UNODC’)
on “Prosecution of Trafficking in persons cases (Litigation Surgery)” in Pretoria.
We also extend our congratulations to the recent appointment of our law officers to
senior positions and we welcome new appointees to our office. Finally, summaries of
judgments delivered recently by the Supreme Court of Mauritius are provided in this
issue.
Marriage of Convenience
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conditions for a non-citizen to marry a citizen of Mauritius in the relevant provisions of Part IV of the Civil Status Act. It
requires strict compliance with these conditions since a non-citizen automatically acquires the status of a resident of Mauritius
by virtue of being a spouse of a citizen of Mauritius. The Civil Status Act accordingly provides for the publication of a proposed
civil marriage by a non-citizen. Once published, any person who has any ground to object to the celebration may in turn lodge
a notice of objection of the proposed marriage with the Registrar of Civil Status. It is at this stage that the authorities can
intervene to prevent a marriage of convenience.
If the genuineness of the proposed marriage is suspected, the Home Affairs Division of Prime Minister’s Office (with the
concurrence of Passport and Immigration Office) will lodge a notice of objection of the proposed marriage with the Registrar of
Civil Status. The Registrar will in turn convene the parties, enquire into the matter and decide whether to uphold or reject the
objection. The decision of the Registrar can in turn be challenged on appeal to a Judge in Chambers, who can order to quash or
uphold the decision of the Registrar.
In the case of Vikram Sing v Registrar of Civil Status & Ors 2017 SCJ 35, the applicant Vikram Sing a non-citizen, had made a
publication of his proposed marriage to a citizen of Mauritius in August 2016. The Home Affairs Division of the Prime
Minister’s Office suspecting the genuineness of the marriage had raised an objection to the effect that “as a non-citizen, (he
was) trying by all means to marry a Mauritian citizen for the sole purpose to acquire automatically the status of resident”. The
Judge in Chambers, Mrs A.D Narain upheld the decision of the Registrar taking into account the fairness of the hearing before
the Registrar. She acquiesced implicitly that the sole purpose of the marriage was one of convenience to enable the appellant to
acquire the status of resident.
The meaning of “sole purpose” can be gathered from a recent judgment delivered by the UK Supreme Court, in Sadovska v
SoS for the Home department [2017] UKSC 54. In that case, Miss Sadovska who had lived and worked in UK lawfully for
several years had intended to marry one Mr Malik, a Pakistani citizen who was unlawfully staying in UK since his student visa
had expired for some years. In compliance with the law, they published their intention of the proposed marriage. On the day
they went to the Registrar’s Office to get married, they were both questioned by the UK immigration authorities and arrested
on the grounds that the marriage was one of convenience.
According to media reports, marriages of convenience or “sham marriages” are on the
increase at an alarming rate. For the first quarter of the year, some eleven cases involving
African and European nationals are being investigated. They involve foreign workers who
have overstayed their work permit and fake students who have entered Mauritius on
student visas and whose visas have now expired.
What is a marriage of convenience and how do we define it for legal purposes?
Our law does not specifically deal with sham marriages but instead lays down the
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In other words, in line with the EU Directive 2004/38/EC which was applicable to UK as member State of Europe, the marriage
was being “contracted for the sole purpose of enjoying the right of free movement and residence (in UK) under the Directive
that someone would not have otherwise”. That was the decision of the Immigration Tribunal which was subsequently
challenged and it went all the way to the UK Supreme Court.
The UK apex court made two important qualifications to the notion of “sole purpose”.
First, "the notion of ' sole purpose' should not be interpreted literally (as being the unique or exclusive purpose) but rather as
meaning that the objective to obtain the right of entry and residence must be the predominant purpose of the abusive
conduct.”
Second, it pointed out that “a marriage cannot be considered as a marriage of convenience simply because it brings an
immigration advantage, or indeed any other advantage”.
Moreover, the Supreme Court addressed the question of “onus of proof” in such cases. It stated that one of the most basic rules
of litigation is that “he who asserts must prove”. It was not for Ms Sadovska to establish that the relationship was a genuine and
lasting one. It was for the authorities (Home Department ) to establish that it was indeed a marriage of convenience. The onus
is therefore on the immigration authorities to establish that the marriage is one of convenience and not the other way round.
In the Sadovska case, both Ms Sadovska and Mr Malik claimed their rights under the European Convention of Human Rights.
Article 8.1 guarantees the right to respect for private and family life, although under Article 8.2 interference is justified if it is in
accordance with the law and "necessary in a democratic society" to achieve a legitimate aim. Article 12 guarantees the right of
"men and women of marriageable age … to marry and to found a family, according to the national laws governing the exercise
of [the] right.”
Similar human rights guarantees were sought in the case of Vikram Sing. However, the judge gave little credence to these
guarantees stating that the right to marry “the person of one’s choice or “liberte nuptiale”, while being “d’ordre public” and
enshrined in international human rights instruments to which Mauritius is a party, is subject to the laws of the land where the
marriage is to be celebrated.
Finally, it should not escape the vigilance of our investigators that a marriage of convenience is arguably a conspiracy contrary
to section 109 of the Criminal Code (Supplementary) Act as it entails an agreement between two persons to commit a wrongful
act, which is against public order. Whilst the non-citizen is likely to face a deportation, his or her local accomplice may well
have to answer a charge of conspiracy in court.
Satyajit Boolell, SCDirector of Public Prosecutions
Is it time for a Fraud Act in Mauritius?
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What is Fraud?
Fraud is when trickery is used to gain a dishonest advantage, which is often financial, over another person. There are many
words used to describe fraud: Scam, con, swindle, extortion, sham, double-cross, hoax, cheat, ploy, ruse, hoodwink, confidence
trick. Fraud can be committed against individuals or businesses. Financial frauds are a form of theft/ larceny which occur when
a person or entity takes money or property, in an illicit manner, with the intent to gain a benefit from it. Such crimes usually
involve some form of deceit, subterfuge or the abuse of a position of trust, which distinguishes them from common theft or
robbery. High and unrealistic returns for small amounts of investment, easy and risk-free investment are some features of
financial frauds. Some types of fraud are Debit/ Credit card frauds, Identity Thefts, Insurance Frauds, Pyramid Schemes,
Phishing, Skimming, Advance fee scams, Funds transfer scams amongst others.
Law against Fraud in UK
The Annual Fraud Indicator 2016 estimates the cost of fraud in the UK at £193bn a year. Traditionally there was no substantive
offence of fraud in England and Wales. Conspiracy to defraud and fraudulent trading were the closest ones; however neither is
truly a general fraud offence. The Fraud Act 2006 (FA 2006) came to force on 15 January 2007. FA 2006 was based largely on
the suggestions in the Law Commission’s report on Fraud in 2002 and a Home Office consultation in May 2004 entitled Fraud
Law Reform, which advised for reform because the deception-based offences in the Theft Act 1968 and the Theft Act 1978 were
too explicit, overlapped and was outdated. FA 2006 creates a single offence of fraud which may be perpetrated in one of three
ways:
1. False representation (s.2)
A person is in breach of this section if he — (a) dishonestly makes a false representation, and (b) intends, by making the
representation — (i) to make a gain for himself or another, or (ii) to cause loss to another or to expose another to a risk of loss.
2. Failing to disclose information (s.3)
A person is in breach of this section if he — (a) dishonestly fails to disclose to another person information which he is under a
legal duty to disclose, and (b) intends, by failing to disclose the information — (i) to make a gain for himself or another, or (ii)
to cause loss to another or to expose another to a risk of loss.
3. Abuse of position (s.4)
A person is in breach of this section if he— (a) occupies a position in which he is expected to safeguard, or not to act against,
the financial interests of another person, (b) dishonestly abuses that position, and (c) intends, by means of the abuse of that
position— (i) to make a gain for himself or another, or (ii) to cause loss to another or to expose another to a risk of loss.
Fraud Act 2006 repealed the many deception offences which were known to be complicated. Each mode of commission requires
that the offence be committed intentionally, dishonestly and with intention to gain or cause a loss to another. The offences are
conduct based rather than result based, while the old law required proof of an operative deception (that a victim was deceived),
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Fraud Act 2006 requires only dishonest conduct with the requisite intent. Fraud is an either way offence, where the case can be
tried either in the Magistrate court or in the Crown court. The actus reus of Section 4 requires the defendant, by act or
omission, to abuse a position in which the person is expected to safeguard the financial interests of another.
Law against Fraud in Mauritius
In Mauritian law, there is neither a substantive offence of fraud, nor an offence of conspiracy to defraud. There are, however,
offences where an element of fraud exists, such as larceny, embezzlement or swindling.
The elements of the offence which the prosecution needs to prove in order to substantiate a charge of swindling are:
(1) The perpetrator employed either a false name, false quality, cheque or fraudulent pretences to create the expectation of
either a fictitious operation, imaginary power/credit or a chimerical event;
(2) The perpetrator obtained the remittance of;
(3) by such means as aforesaid;
(4) The criminal dishonest intention of perpetrator to appropriate the property;
Section 330 does not condemn an accused party for only having lied to the victim. The fraudulent pretences employed by the
Accused need to have been the determining cause which provoked the remittance of the fund or property by the victim.
The elements of swindling
1) Using a false name (l’utilisation d’un faux nom):
When using a false name there is no need to show that fraudulent pretences were also used. However, for it to be punishable,
the false name must have a determined cause and effect to such an extent that it caused a remittance. E.g using a stolen bank
card
2) False quality (une fausse qualité):
An example would be an individual who extracts money from people by pretending to be a policeman. A person could also use
a lost quality if he/she possessed that quality in the past but which he/she no longer possesses. Section 330 of the Mauritian
Penal Code does not encompass the usurpation of authority or official functions but shall be dealt with and prosecuted under
section 182 of the Mauritian Penal Code.
3) Examples of fraudulent pretences (manoeuvre frauduleuse):
I. The intervention of a third party (L’intervention d’un tiers)
This intervention would normally be called upon to bring credence to the lies proffered by the perpetrator and that would in
law constitute fraudulent pretence.
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Three characteristics must obtain before the intervention of a third party can transform a mere lie into a fraudulent pretence:
a. le tiers intervenant doit être indépendant et agir en son nom personnel ;
b. il ne suffit pas que l’intervention du tiers soit autonome, il faut que ce tiers soit intervenu à la demande même de l’escroc, que
l’intervention ait été provoquée par ce dernier ;
c. l’intervention du tiers doit avoir été active et déterminante
II. Abuse of his true character - (L’abus de la qualité vraie)
In this case the victim bought a plot of land from the accused and later came to know that accused was not the owner. The
victim was never given the plot of land nor has he been refunded his deposit made to the accused.
HELD:
It is not always necessary that an abus de qualité vraie be accompanied by false pretences, intervention of third party, and
production of documents. There is “manoeuvre frauduleuse” simply when the true quality of the accused gives weight so as to
give an appearance of truth to a lie to obtain the trust of the victim and to make him believe in the existence of the fictitious
operation.
4) Fictitious operation (une fausse entreprise)
The omission concerns one of the very essential elements of swindling by employing fraudulent pretences, namely the
inducement in someone of the belief that an undertaking exists.
5) An imaginary credit (crédit imaginaire)
An example would be where the accused falsely pretended that he was the owner of a shop for the delivery of goods on credit.
The use of this manoeuvre and the delivery of the goods were casually connected.
6) An imaginary power (pouvoir imaginaire)
This involves leading the victim into believing that he/she possesses an imaginary power or an authority, contrary to the reality
to which the victim so desires.
7) Chimerical event (l’evénement chimérique)
The event needs to be imaginary at the moment the fraudulent pretences are exercised.
8) Intention and Prejudice
The swindler should have voluntarily and with all consciousness invented the fraud in view of obtaining something from the
person. However, it is not necessary to show that the victim was prejudiced, so long that it can be proved that the thing was
obtained fraudulently, even if it did not belong to the victim. Also, the prosecution does not have to prove that the accused has
made a profit out of swindling.
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The lacunas in our Mauritian Law on Swindling
With the French Code Penal 1994, the law on swindling “Escroquerie” in France has evolved to such an extent that it
criminalises also “abuse of a true character” (l’abus d’une qualité vraie). In the Interim Report on “Reform of Criminal
Code”[May 2016], the Law Reform Commission of Mauritius recommended that section 330 of the Criminal Code be replaced
and repealed by a new section, inspired by Articles 313-1 and 313-2 of the 1994 French Penal Code. This recommendation was
made so as to simplify the offence of swindling by providing, inter alia, as a fraudulent means “abuse of a true character.”
Under the current Criminal law “l’abus d’une qualité vraie” on its own does not constitute swindling. Sometimes under the
Mauritian Jurisprudence as seen above, “l’abus d’une qualité vraie” offences are characterised as fraudulent pretences to
provoke a remittance. Moreover, a person who acts beyond his mandate would not be guilty of swindling. If l’abus d’une qualité
vraie is associated with other pretences such as the intervention of a third party, or the production of a document constituting
fraudulent pretences, then swindling would be established.
Is it time for reform?
Where fraud offences have been noticed to increase at an alarming rate worldwide and where criminals are using latest
innovation and technology to advance Fraud related crime internationally, we have to ask the question, whether the Law of
Mauritius is suitable enough to combat Fraud. Developed countries like the UK and France have already reorganised their
Fraud Laws to adapt to this modern society. It is not irrational to fear that some criminals might indeed take advantage of
countries with an outdated Fraud law, to commit massive Fraud scams, where they finally can succeed to escape punishment of
such crimes.
With the new section as recommended by the Law Reform Commission, there will be no need to characterise pretences and it
will only require showing the existence of a true character, abused by its perpetrator which was so determined that it caused
the victim to make remittance.
However, departing from the proposal of the Law Reform Commission, we suggest that the Fraud Act 2006 of the UK can also
inspire us to influence the transformation of our timeworn law into a new separate Act which will hit the bull’s eye.
This is due to the fact that, FA 2006, which has been created mainly through the influence of the Law Commission report (UK),
is more recent than the French law. FA 2006 creates a single offence of fraud which may be perpetrated in one of three ways,
thus condemning the offence in a more precise and subtle manner. It will also help to cover the whole of modern Fraud. FA
2006 is simple and more importantly it is a conduct based offence. By having our own law derived in this way, Fraudsters who
were not entirely successful of their dishonest act, could also be successfully prosecuted. Hence it is hoped that our swindling
offence be amended and Fraudsters understand that will be indeed tougher to ‘get away with murder.’
Mr Akeelesh Caussy & Ms Vaneesha Ghunsam,Former Pupils Barrister
Training Course for Officers of Cadastral Office and Public Infrastructure, Rodrigues
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From the 8th to the 10th of November 2017, a training course was organized by the Office of the DPP for officers of
the Cadastral Office and Commission for Public Office Infrastructure in Rodrigues. The team comprised of the
Director of Public Prosecutions, Satyajit Boolell, SC; Mr Mootoo Senior Assistant DPP; Mrs Ramano Senior
Assistant DPP and Mr Bhoyroo Ag. State Counsel.
The aim of the course was to give an overview of the relevant legislation and to address particular legal issues
which crop up daily in their work. Concrete case scenarios were discussed such as:
(i) The problem of inheritance and divorce settlement for holders of state land leases. The problem arises
because the lessee of State land cannot acquire (or transfer) property rights in the building on the state
land. Practical solutions were discussed
(ii) Under section 22 of the State Lands Act, there is a clear prohibition against squatters, and the procedure
for evicting squatters was explained. The notice to quit must be signed by the Island Chief Executive and
served by a technical officer with the assistance of the police.
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(i) Illegal tapping from the water network. The CWA Act, section 49A and the CWA Regulations make it an
offence to interfere with the communication pipe of the CWA.
(ii) Public roads have not been gazetted in Rodrigues. Strictly speaking, this failure is not important to
secure a conviction for the offence of involuntary homicide and for RTA offences because gazetting is not
an element of an offence. However, gazetting is important under section 3 of the Roads Act to distinguish
between urban and rural roads.
There was also a presentation on the gathering of evidence (exhibits, defence statement) as well as on deponing
in court (examination in chief, cross and re-examination). The procedure for memory refreshing and previous
inconsistent statements was explained.
There was a positive response from the officers concerned who actively participated in the discussions.
Mr Denis MootooSenior Assistant DPP
Panel Discussion on “Juvenile Justice”
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The discussion proved to be an opportunity for the various stakeholders to discuss the issue of Juvenile Justice,
current practices and to address the potential shortcomings of the Juvenile Offenders Act (JOA) of 1935 with
reference being made to the 2015-2016 report of the Ombudsperson for Children.
The panel discussion started with Mr Hervé Lassémillante. His intervention was focused mainly on the need for
a humane rather than punitive approach towards juvenile offenders. He pressed on the need to analyse the
behavioural aspect of the child whenever the latter is brought to justice. He also advanced that the availability
and the use of qualified personnel in the field of human sciences would be highly desirable in order to
understand the sociological and psychological dimensions surrounding the child.
The second speaker, Mrs Moutou-Leckning, Senior Assistant DPP reviewed the different legal dimensions of
juvenile justice in Mauritius and she stressed on the need to revisit the term ‘child beyond control,’ a term that
does not exist in any child psychiatry manual and which is a unique notion used in the legal framework and
practice in Mauritius. Her main recommendation was to abolish the notion of ‘child beyond control.’ Her speech
also highlighted the need to give more training in child psychology to police officers, prosecutors and personnel
of the remand centres in order to better assist them and for the proper management of juvenile justice. During
her presentation, Mrs Moutou-Leckning also made reference to the measures in place to help a child beyond
control namely: counselling and appropriate referrals including medical/mental health care; parenting schemes
and throughout care and aftercare. Elaboration was also made regarding the role of the DPP’s Office in the
Juvenile Justice Administration.
With respect to the bail and detention of juvenile offenders, statistics showed that there is an increased number
of juveniles who are not released on bail for minor offences. Recommendations were also made that wherever
Minors in conflict with the law have become a growing concern for the
Mauritian society, to such an extent that it has endangered the social
coherence within the country. In order to open the debate on the
legislations currently in force with respect to juveniles and on the
Conventions signed by Mauritius in this respect, the Association
‘Kinouété’ organised a talk on juvenile justice on 27 September 2017.
Among the panellists were present: Mr Hervé Lassémillante, Deputy
Chairperson of the National Preventive Mechanism Division; Mrs Johan
Moutou-Leckning, Senior Assistant DPP; Mrs Hansa Munbauhal-
Sreepaul, Coordinator at the Child Development Unit (CDU) and Mr
Ismail Bawamia, Investigator at the Ombudsperson for Children’s Office.
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possible, for minor offences, juveniles should be released on parole and that bail should not be exorbitant and
also, that when a child is remanded, they should not be in contact with convicted juveniles.
On another note, Mrs Moutou-Leckning suggested the introduction of a diversionary measure in our law. Before
concluding her discussion, the issue on the age of criminal responsibility was also addressed. At present, there is
no minimum age of criminal responsibility in our law. The JOA does not fix the minimum age below which
children are presumed not to have the capacity to infringe penal law. The difficulty that prosecution faces is that
as provided by Section 44 of the Criminal Code, it is imperative to decide whether the child is capable of
discernment. Mrs Moutou-Leckning thus reiterated the need to amend the JOA in order to provide for the age of
criminal responsibility, an age which could vary between 12 and 14 and to define the exact extend of liability to be
incurred by the juvenile.
For Mr Ismail Bawamia, his main focus was on the need for a child-centred approach and the need for an
appropriate structure that would provide the child with adequate love and attention so as to mitigate their
behavioural problem. He then pointed out the present state of overwork in correctional and rehabilitation
centres. Mr Bawamia also made a review of the measures proposed in the 2015-2016 Report of the Ombudsperson
for Children.
Ms Hansa Munbauhal-Sreepaul, Coordinator at the CDU, recalled the various Child Protection Services that are
available in instances where a case of child abuse is reported. With the use of statistics, we noted that from
January to August 2017, 3 574 cases were registered at the Child Protection Service.
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The underpinning legislations which exist to protect children from all forms of harm were also touched upon,
namely: The Child Protection Act 1994, The Child Protection Act Amendment 2005, The Institution for Welfare
and Protection of Children Regulations 2000, The Child Protection Act (Foster Care) Regulations 2002, The
Combating of Trafficking in Persons Act, among others. Mrs Munbauhal-Sreepaul reminded the participants
that the Ministry of Gender Equality, Child Development and Family Welfare is in the process of preparing a
comprehensive Children’s Bill with the aim of providing a Children’s Act that would consolidate the various
pieces of legislation on children’s rights, and to harmonise all laws in line with the Convention on the Rights of
the child, especially in the areas of adoption and juvenile justice. Among other topics discussed were: How to
report cases of violence against children and actions taken for cases of uncontrollable juvenile.
At the end of the interventions from the panellists, the assistance which consisted of representatives from various
associations working in the field of children’s rights as well as representatives of various ministries and other
state bodies and University students among others, suggested more concerted efforts among the various
stakeholders. They jointly advocated that the relevant authorities should take up the points and issues discussed,
some of which have been debated for several years. Questions were also put to the panellists and this was
moderated by Mr Désiré Dian, Barrister. The discussion proved to be very fruitful and interactive. The Office of
the DPP would like to thank the Association Kinouété and Mr Michel Vieillesse for organising this event.
Mrs Johan Moutou-Leckning, Senior Assistant DPPMs Pooja Domun, Legal Research Officer
Prosecution of Trafficking in persons cases (Litigation Surgery)
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The United Nations Office on Drugs and Crime (‘UNODC’), in collaboration with the Global Action against Trafficking in
Persons and the Smuggling of Migrants (‘GloAct’) and the Africa Prosecutors Association (‘APA’) held a 3-day seminar on
“Prosecution of Trafficking in persons cases (Litigation Surgery)” from the 17th to the 19th October 2017 in Pretoria. Participants
included prosecutors from South Africa, Swaziland, Botswana, Zambia, Zimbabwe, Seychelles, Namibia, Tanzania, Lesotho,
Malawi, Egypt, Mozambique and Mauritius.
The seminar was a follow-up of the October 2016 meeting and through these, the UNODC is seeking to provide substantive
support to trafficking in persons cases that potentially could be or were at the time being prosecuted in the relevant courts in
order to increase the chance of successful prosecution.
The objectives of the seminar were:
• To reflect on progress made in cases discussed in October 2016 and share good practices and lessons learnt;
• To discuss with Prosecutors applicable principles of international law in new and pending cases;
• To discuss any questions of law arising from their cases with reference to international and regional jurisprudence on the
matter;
• To discuss potential and existing evidential challenges in prosecuting their TIP cases and brainstorm possible solutions;
• To discuss possible litigation strategies for the different cases; and
• Facilitate cross-border and trans-regional cooperation and networking between prosecutors of different jurisdictions where
the matters are transnational in nature.
Over the last three years, the Office of the Director of Public Prosecutions has been actively involved in the capacity building of
law enforcement in the detection and efficient enquiry of such cases. Challenges remain as both law enforcement and
prosecution strive to combat this form of modern day slavery where victims are very often willing participants.
There has however been a successful shift in the mind-set of all stakeholders in understanding and perceiving human
trafficking cases as modern day slavery. The crucial characteristic to be looked for in a Trafficking in Persons case is first and
foremost the treatment of a fellow human being as a lucrative commodity with or without that person’s consent.
Ms Kevina Poollay MootienSenior State Counsel
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1. Mr Denis Mootoo, Senior Assistant DPP
2. Mrs Asha Ramano, Senior Assistant DPP
3. Mr Mehdi Manrakhan, Assistant DPP
4. Mrs Sulakshana Beekarry, Assistant DPP
5. Mr Rajkumar Baungally, Assistant DPP
6. Mr Mohammad Isme Azam NEEROOA –
Ag. Assistant DPP
7. Mr Vijay APPADOO – Ag. Assistant DPP
8. Mr Moti LALLAH – Ag. Chief State
Attorney
9. Mrs Daneesha DABEESING RAMLUGAN –
Ag. Principal State Attorney
10. Mrs Anuradha PURRYAG-RAMFUL – Ag.
Principal State Counsel
11. Mr Roshan SANTOKHEE – Ag. Principal
State Counsel
12. Ms Pareemala Devi MAUREE – Ag.
Principal State Counsel
13. Mr Akhil Anand RAMDAHEN – Ag. Senior
State Counsel
14. Mr Mohamad Shakeel BHOYROO – Ag.
Senior State Counsel
15. Mr Abdool Raheem TAJOODEEN – Ag.
Senior State Counsel
16. Ms Anusha Devi RAWOAH – Ag. Senior State
Counsel
17. Ms Kesri SOOCHIT – Ag. Senior State Counsel
18. Mrs Chitra SERVANSING-BHURUTH – Ag.
Senior State Counsel
19. Mr Nithiraj BISNATSINGH – Ag. Senior State
Counsel
20. Mr Patmanaden RANGASAMY – Ag. Senior
State Counsel
21. Mrs Dushuina PYNDIAH – Ag. Senior State
Counsel
22. Mrs Varsha Devi BIEFUN-DOORGA – Ag.
Senior State Counsel
23. Ms Zaynah Bibi ESSOP – Ag. Senior State
Counsel
24. Mrs Ashwina JALLOO – Ag. Senior District
Magistrate
25. Mr Noel Antoine THOMASOO – Ag. Senior
State Counsel
26. Mr Muhammud Dzedhaan BHATOO – Ag.
Senior State Counsel
List of new appointments
The Office of the Director of Public Prosecutions welcomes the new appointees who have joined the office from
the Judiciary and the Attorney General’s Office (“AGO’). We also extend our congratulations to law officers who
have been promoted to senior positions.
Page 15
November 2017 - Issue 76SUMMARY OF SUPREME COURT JUDGMENTS:
October 2017
SEETHARAMDOO A v THE STATE 2017 SCJ 407
By Hon. Mrs. R. Teelock, Judge and Hon. Judge Mr. Oh San-
Bellepeau, Judge
Sentence – breach of Appellant’s right – mitigation - remit
The Appellant pleaded guilty to a charge of sexual
intercourse with a minor under the age of 16. He was
convicted by the Intermediate Court and sentenced to three
years’ penal servitude. He appealed against the sentence.
The Respondent conceded and the Appellate Court was
agreeable that the Appellant was not explained his right to
adduce evidence and offer mitigation at the sentencing
stage.
The Appellate Court went on to hold that this was a serious
flaw in the sentencing procedure. They further held that the
Magistrate of the Intermediate Court should hold a hearing
on sentence where both the prosecution and defence would
be given the opportunity to duly adduce relevant matters
for the purposes of sentencing. The sentence of 3 years’
penal servitude was quashed and the case remitted to the
Learned Magistrate to carry out a hearing.
ROHEEMUN A v THE STATE & ANOR 2017 SCJ 395
By Hon. Mrs. N. Devat, Judge and Hon. Judge Mr. D. Chan
Kan Cheong, Judge
Sentence – Time spent on remand
This is an application for a review of the sentence passed on
the applicant so as to take into account the time spent by
him in custody pending the determination of his appeal.
The Applicant was sentenced before the Intermediate Court
to undergo 3 years penal servitude for assault with corrosive
substance causing the loss of the use of both eyes in breach
of Section 228A(1)(2)(b) of the Criminal Code.
It was common ground amongst the parties that the
Applicant has spent 242 days in custody prior to the
determination of his appeal. The Supreme Court upon
setting aside the appeal did not make any order with
regard to the time spent in custody by the Applicant.
Upon the Applicant’s application, the Court granted the
review and ordered that the whole of the period spent in
custody by the Applicant prior to the determination of his
appeal be deemed to be served sentence and be deducted
from the sentence of 3 years’ penal servitude passed upon
him.
PITTEA T v THE STATE 2017 SCJ 382
By Hon. Mr. J. Benjamin G. Marie Joseph, Judge and Hon
Mrs. A. D. Narain, Judge
Involuntary homicide – Victim’s faute - imprudence
The Appellant was appealing against his conviction for the
offence of Involuntary Homicide by Imprudence in breach
of Section 239(1) of the Criminal Code. He was sentenced to
pay a fine of Rs 50,000 and further ordered that the
Appellant be disqualified from holding or obtaining any
driving license with respect to all types of vehicles for a
period of 3 years and cancelling and endorsing his driving
licence.
The Appellate Court came to the conclusion that the
finding of imprudence made by the Learned Magistrate
was not warranted because of the following reasons:
Page 16
November 2017 - Issue 76(a) the accident took place at the Caudan roundabout on
8th of October 2002 at 6.05 pm,
(b) the traffic was dense and hence the appellant could not
have been proceeding at a high speed,
(c) the appellant who was driving a contract bus did not
have a clear frontal view at the time and only saw the
victim when the latter was at about 1.80 metres from him
so that he would not have had enough time in the
circumstances to avoid the collision, and
(d) the victim suddenly crossed the road instead of using
one of the two pedestrian crossings in the close vicinity.
The victim’s own act was there “si grossiere qu’elle fait
disparaitre, en realite, toute faute de la part de l’auteur
materiel de l’homicide”.
The conviction was quashed and the appeal was allowed.
PITTEA T v THE STATE 2017 SCJ 402
By Hon. Mrs. N. Devat, Judge and Hon Mrs. G. Jugessur –
Manna, Judge
Sentence – Previous conviction – Section 211 of the Criminal
Procedure Act
The Appellant was prosecuted before the District Court of
Flacq under two counts of an information for the offences
of driving motor vehicle with alcohol concentration above
the prescribed limit in breach of Sections 123 F(1)(a)(3)(5)
and 52 of the Road Traffic Act and driving motor vehicle
whilst under disqualification in breach of Section 53
(4)(b)(i) of the Act. He pleaded not guilty to both counts.
Under a motion by the prosecutor count II was dismissed.
The Appellant was found guilty under Count I.
In sentencing the Appellant, the Learned Magistrate
referred to the Appellant’s previous conviction for a
cognate offence in 2013 and sentenced him to pay a fine of
Rs 20,000 and to undergo 6 months imprisonment. She
also disqualified him from holding or obtaining a driving
licence for a period of one year and endorsed his licence.
At the hearing of the appeal the Respondent conceded that
there was a serious irregularity in sentencing the appellant
as the court record did not show that the Appellant’s
certificate of previous conviction was put to him at the
sentencing stage. The Appellate Court was in agreement
and stated that before passing sentence the Court must be
satisfied that the procedure under Section 211 of the
Criminal Procedure Act was followed and that the previous
conviction was proved or admitted by the Accused.
The sentence was quashed and the case remitted for a fresh
hearing in relation to sentence.
GHURBIR B.N. & ANOR v THE STATE 2017 SCJ 369
By Hon. Mrs. R. Teelock, Judge and Hon Mr. P. Fekna, Judge
PF 58 – Serious irregularity – Right at sentencing stage
The Appellants were charged before the District Court of
Moka with the offence of “assault” in breach of Section 230
(1) of the Criminal Code. They pleaded not guilty to the
charge. They were sentenced to pay a fine of Rs 1500.
The Appellants dropped several grounds of appeal and
thereafter both the Respondent and the Appellant moved
that the case be remitted back to the District Court for a
fresh hearing.
Ground 1 reads as follows:
“The PF 58 was produced by the police prosecutor and
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November 2017 - Issue 76Appellants deem it improper for that: (a) accused was
inops consili and they were not granted a fair chance to
cross-examine on the said document; (b) furthermore, the
learned Magistrate relied on the PF 58”.
The Appellate Court held that it was incumbent on the
learned Magistrate to inform the Appellants of the nature
of the motion of the prosecutor and to inform them that
they had the right to move that the maker of the medical
report, be tendered for cross examination.
From there onwards, it was for the Appellants to decide
whether either of them wanted to cross examine the doctor
or not. Moreover, PF 58 should have been read over and
explained to them if they did not understand English or
they should have been informed that they had the right to
read the documents.
The Appellate Court went to hold that the court record
should reflect that such an exercise was carried out by the
Learned Magistrate.
The trial was declared a nullity in view of the serious
irregularities which occured.
The conviction and sentence were quashed and the case
was remitted to the District Court for a fresh hearing to be
held before a differently constituted bench.
“Whatever words we utter should be
chosen with care for people will hear them
and be influenced by them for good or ill.”
- Buddha
