Office of the Director of Public Prosecutions E

Office of the
Director of
Public
Prosecutions
E-Newsletter
Issue 42
November 2014
‘To No One Will We Sell, To
No One Deny or Delay Justice’
Chapter 40, Magna Carta 1215
November 2014- Issue 42
IN THIS ISSUE:
1
Editorial
2
The Truth-Seekers
4
‘Dans le Noir’, launching ceremony of domestic violence leaflet
Renforcer l’accessibilité pour promouvoir une société inclusive
5
Managing children who are out of control and handling their rights:
A daunting societal challenge
7
Residential seminar for Law Officers of ODPP
9
Case Summary: October 2014
10
EDITORIAL TEAM
Miss Anusha Rawoah, State Counsel
Mrs Zaynah Essop, State Counsel
Mr Ashley Victor, Public Relations Officer
Mr Nitish Bissessur, LRO
Mr Yashvind Kumar Rawoah, LRO
Mr Ajmal Toofany, LRO
Ms Jouana Genave
We look forward to hear about
your comments/suggestions on:
[email protected]
EDITORIAL
November 2014- Issue 42
Dear Readers,
Too often we underestimate the capacity of the person with disability to perform well in our society. Time has
shown that people with disability can achieve a lot in life provided that they are given the necessary tools and
information to do so, that infrastructures are adequately made for them and that their basic rights as a human
being are respected. Even if this world is moving very fast, it was only in December of 2006 that the Convention
on the Rights of Persons with Disabilities was adopted by the United Nations. The Convention was a major step
towards changing the perception of disability and ensured that societies recognize that all people ought to be
provided with the opportunities to live life to their fullest potential, whatever that may be. Its purpose is to
promote, protect and ensure the full and equal enjoyment of all human rights by persons with disabilities. It
covers a number of key areas such as accessibility, personal mobility, health, education, employment, habilitation
and rehabilitation, participation in political life, and equality and non-discrimination. The Convention was
ratified by Mauritius on 25th September 2007. Article 9 of the Convention provides that persons with disability
should have access to information.
According to a 2004 British study, persons with disabilities are more likely to be victims of violence. Women and
girls with disabilities are particularly vulnerable to abuse. It is crucial therefore that persons with disabilities be
given information about the fact that various forms of abuse amount to a criminal act and that such act is
punishable by law. It is in this context that, on 28th October 2014, the Victim and Witness Support Unit of the
Office of the Director of Public Prosecutions launched the publication of an informative leaflet on domestic
violence in Braille.
As human beings, in our everyday life, we are called upon to make choices, whether good or bad. However, it is the
very essence of every human being to ‘be’ love and to ‘act’ with love. Let us therefore make the choice of raising our
consciousness, change our perception towards persons with disabilities and consider them as our equal.
Hopefully, with this change in perception, we can go one step towards improving their life. As Mother Teresa used
to say, ‘I alone cannot change the world, but I can cast a stone across the waters to create many ripples.’
Zaynah Essop
State Counsel
Page 1
November 2014- Issue 42
The Truth-Seekers
“Answer the question!”
“Yes or No!!”
“You can explain later!!!”
These verbal upper-cuts are often heard within the tiny confines of our courtrooms. In our centuries-old adversarial system there
are many players: we have the lawyer (or prosecutor) trying to test the credibility of an important witness, we have the witness
trying as best he or she possibly can to give a coherent version of the facts in a foreign environment, we have the magistrate trying
to filter the evidence; and last but not by all means least, we have the court usher trying to maintain the decorum. At times the
lawyer makes an important breakthrough: inconsistencies or contradictions crop up between what the witness has just said
under oath and what the witness told the police two or three (or even more) years ago. It is often said that trial is not a test of
memory, so do these inconsistencies matter? On the one hand, the inconsistencies are important to the extent that they go to the
reliability of the witness. It is commonly thought that an untruthful witness will invariably be caught out as he or she tries to
embellish the facts and invent matters which never occurred in the hope of appearing to be convincing. Hence the importance of
a previous written statement which may be used as a gauge of the truthfulness of a witness. On the other hand, if too much
importance is placed on inconsistencies, this may lead invariably to a distortion of the facts where the witness has genuinely made
a mistake in narrating the details to the police or to the court.
In the search for the truth what then would be the best way forward for everyone concerned? The traditional approach of our
system has given rise to the innocuous phrase of “leaving matters in the hands of the court”. The court is supposed to analyse all
the evidence which has been painstakingly placed on record and to take into account the fact that a particular witness may not
have been able to express him or herself fully because of the stresses and strains of testifying in court. Other means of analysis
which are also used are whether the witness has been able to give a good explanation for the inconsistencies and the weight of the
evidence as a whole.
In the search for the truth there are perhaps two further guides which may assist the truth-seeker. The first guide is the logic of
the evidence. Whereas the demeanour of the witness is ultimately a subjective matter, the logic of his or her evidence is a useful
objective criteria. In the ancient art of rhetoric it was said that the character of the speaker played an important role in
persuading an audience as to the validity of an argument. The audience would trust the speaker because of his reputation and,
consequently, the audience would more readily accept the arguments of the speaker rather than those of anybody else.
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November 2014- Issue 42
Sometimes an argument may win the day because the speaker played on the biases of the audience. Then there is also the merits
of the case. In other words, the argument is seen to be convincing because it makes sense. Similarly, the evidence of a witness
may be found to be truthworthy because it has a logic of its own and is plausible.
A second guide is that the witness must be placed in an environment where he or she has the full opportunity to narrate all the
facts. It does not amount to much if the court has only been told half of the story. In England and Wales there has been a
quantum leap in the approach of everyone towards the treatment of witnesses in court, especially vulnerable witnesses. The
Ministry of Justice, for example, has adopted a witness charter which ensures standards of care in the criminal justice system.
Standard one states, “as a witness, you will be treated fairly and with respect according to your needs irrespective of race,
religion, background, gender, age, sexuality or any disability. Where required, additional support will be provided and any
reasonable adjustments will be made to ensure that you have equal access to information and support services.”
Other standards establish that a witness will be provided with support (standards nine and ten), and given information about
the court process (standard eleven). The witness must also feel safe and secure in the court environment (standard fourteen).
What then is the reality in our courtrooms? Are witnesses thrown unwittingly into the arena without being informed (by an
independent person) of what is expected of them, and what to expect? Are witnesses kept apart from other people on the court
premises? Are they given basic amenities, especially if the summons is for 930 hrs but the case is taken later? Are witnesses
given an opportunity to read their statements before going to the witness box? In the UK there is a proper framework to allow
witnesses to do so. And timing is important because where the witness is given the statement just before trial this reduces the
risk that the witness learns it by heart.
In sum, the search for the truth is the concern of everyone involved in the legal process and the risk of distorting the facts may be
reduced by adopting an objective approach in analysing the evidence of a particular witness and by ensuring that the witness
has had the best possible opportunity to express him or herself. In order to do so, the time is opportune to take stock of how
witnesses are treated in the legal process and perhaps we may develop a witness charter of our own to address the issues raised.
Mr Denis Claude Desire Mootoo
Ag Assistant DPP
Victim and Witness Support Unit
Page 3
‘Dans le Noir’
Launching ceremony of domestic violence leaflet
November 2014- Issue 42
Domestic violence is a serious crime which breaks lives and families. Very often children become collateral victims for life.
Despite the fact that over the years tremendous progress has been made to improve the situation, statistics remain worrying.
90% of victims of domestic violence are women. Hence, on 28th October 2014, on the occasion of the International White Cane
Safety Day, the Victim and Witness Support Unit (VWSU) of the Office of the Director of Public Prosecutions launched an
informative leaflet on domestic violence in Braille at the Rajsoomer Lallah lecture hall. The purpose of the leaflet is to inform
victims of domestic violence of the various legal avenues available to a victim and the procedure to be followed in such
circumstances. It has also been published in English, French and Creole. Representatives of non-governmental organisations,
members of the press and officers of the ODPP were present at the launching.
The first part of the launching ceremony was held in the dark (‘Dans le Noir’) as all guests were invited to enter a totally black
room and they were asked to find their own way to their seat. The purpose of such exercise was to sensitize people as to the
day-to-day difficulties faced by handicapped people. The latter are vulnerable persons who may also be victims of domestic
violence. In his welcoming speech, Mr Satyajit Boolell SC, DPP, laid emphasis on the negative effects of domestic violence on
our society and the need to disseminate information about such problems to handicapped persons as well. They have a right to
access to information. Miss Aarthi Burthony, blind and on placement at the ODPP, highlighted the various difficulties
encountered by blind people and she provided some solutions as to how our infrastructures could be improved accordingly.
Her speech has been reproduced in this issue. Mr Mervyn Anthony, on his part, said that the fight for the change in
perception for social integration of handicapped persons concerns each and everyone of us, including members of the public,
private and public institutions, ministries, NGOs, religious organisations and parastatal bodies. Mr Anthony is deaf and
suffers from a handicap in his speech and mobility. He is currently doing a placement at the ODPP.
During the second part of the launching ceremony, Mr Reynolds Permal, President of Lizie Dan La Main, Mr Alain Ah-Vee
from Ledykasyon Pu Travayer, Miss Sooraya Sohawon, student and artist, and Mr Ajmal Toofany from the ODPP were
thanked for their invaluable contribution to the publication of the leaflet.
Zaynah Essop, State Counsel
Victim and Witness Support Unit
Page 4
Renforcer l’accessibilité pour
promouvoir une société inclusive
November 2014- Issue 42
L’accessibilité est le maître mot pour l’insertion des personnes à déficience visuelle dans toutes les sphères de la vie. La Canne
blanche dont la journée internationale est observée le 15 Octobre est l’outil indispensable à l’aide duquel les non-voyants et mal
voyants arrivent à se déplacer sans assistance sur une infrastructure accessible.
Au sein de la République de Maurice, en vertu de la section 3 (a) (ii) du ‘Building Control Act 2012’, les bâtiments doivent être
accessibles à tous les types d’handicap. Il ne suffit pas d’avoir une rampe en dehors du bâtiment pour que les personnes
handicapées puissent y accéder. Des aménagements raisonnables doivent également être présents à l’intérieur du bâtiment.
Dans un bâtiment accessible, il y a des inscriptions en braille dans les ascenseurs qui sont également équipés d’une synthèse
vocale et portent l’option d’une touche placée à un niveau atteignable pour les personnes sur fauteuil roulant. Il doit y avoir des
indications écrites dans un langage simple pour que les sourds retrouvent facilement leur chemin et des indications en image
pour les handicapés intellectuels.
Dans une société inclusive, l’infrastructure publique (les routes et trottoirs) et le transport en commun sont accessible à tout type
d’handicap comme prévu dans l’article 9 de la Convention des Nations Unis sur les Droits des Personnes Handicapées signée et
ratifiée par l’Etat mauricien. Il doit être souligné que l’Etat mauricien a émis une réserve sur l’article 9(2) de la Convention pour
cause de contrainte budgétaire. Cela est regrettable car l’infrastructure publique de l’île en 2014 est inaccessible aux personnes à
déficiences visuelles.
Pour preuve, le 15 octobre dernier, un mal voyant âgé de vingt ans est intervenu sur les ondes d’une radio privée pour expliquer
les difficultés auxquelles il fait face pour traverser la route de manière autonome à un feu rouge sur lequel l’option de l’indication
sonore a été enlevée. Contacté à cet effet, une source officielle du ministère de l’infrastructure publique a déclaré que l’option de
l’indication sonore a dû être enlevée sur les feux rouges pour cause de bruit assourdissant qui dérange les membres du public.
Alors que le gouvernement ne peut investir à rendre l’infrastructure publique accessible aux personnes à déficience visuelle ;
l’option d’accessibilité est enlevée là où elle est présente. Dans une société inclusive, l’être humain doit être au centre de la
réflexion. Hors le principe d'égalité doit primer sur la notion de tranquillité publique.
Selon ladite convention il n'y a pas que les infrastructures qui doivent être accessible aux non-voyants et mal voyants. Les
informations doivent leur être communiquées en format accessible. Ainsi pour optimiser leur chance de réussite au sein de notre
système éducatif national, ils ont besoin d'avoir des matériels de lecture en format accessible, notamment en braille, audio ou
caractères agrandis.
Aujourd’hui la technologie avancée sous la forme d’équipements spécialisés participe à l’autonomisation des personnes qui vivent
avec un handicap visuel. Les horloges et montres en Braille et parlante indiquent l’heure, les détecteurs de couleur indiquent
vocalement la couleur des vêtements, l’usage d’un ordinateur et d’un téléphone portable est possible aussi longtemps que ces
derniers sont équipés d’une synthèse vocale et les machines de lecture tel que le Eye Pal Solo transmettent des textes imprimés en
audio.
Page 5
November 2014- Issue 42
Il est maintenant révolu le temps où nous devions prendre des notes en braille en cours sur une machine de braille manuel dont
le bruit dérange. Les preneurs de notes braille électronique même si équipés d’une synthèse vocale fonctionnent silencieusement,
permettant de prendre des notes en braille sans déranger.
À l’aide de ces équipements spécialisés, les non-voyants et mal voyants sont performant dans leur métier respectif. Une société
inclusive met l’emphase sur l’évaluation et la prise en compte des inégalités de départ des personnes handicapées et conditionne
l’environnement afin que ce soit ce dernier qui s’adapte à ces personnes et non l’inverse. La sonorité produite par ces
équipements devrait être considérée comme des troubles normaux face à l’intégration de l’être humain.
Les employeurs ont traditionnellement attribué des travaux administratifs aux sourds, des travaux manuels aux handicapés
intellectuels et le poste de réceptionniste aux handicapés visuel. Les personnes handicapées ont la capacité d’être hautement
performant dans différents métiers à tous les niveaux d'une organisation, voir même au sommet de l'administration des affaires.
Effectivement, dans les pays développés ; les personnes handicapées ont libre accès au métier de leur choix sans être pénalisées
de ne faire partie d’une profession quelconque sur la base de leur handicap. L’achat des équipements spécialisés et les
aménagements raisonnables représentent très souvent un fardeau financier pour les employeurs qui s’appuient sur la section
13(a) (ii) de notre législation nationale, nommément le ‘Equal Opportunities Act’ (EOA) pour se justifier.
À titre comparatif, force est de constater que les dispositions de l’article 13(a) (ii) du ‘EOA’, est en contravention avec l’article 27(i)
de la Convention dite “ United Nations Convention on the Rights of Persons with Disabilities”, pourtant ratifiée par l’île Maurice
en 2010. Ainsi, ladite Convention dispose que l’employeur doit veiller à ce que des aménagements raisonnables soient apportés
aux personnes handicapées en milieu de travail.
Cependant la législation nationale compétente, quant à elle prévoit une exception concernant l’idée de l’aménagement
raisonnable. Il peut y avoir dérogation de ces aménagements raisonnables du moment que la fourniture desdits moyens
imposerait un fardeau injustifiable sur l’employeur. Il est regrettable que la formulation de l’article 13(a) (ii) de l’EOA comporte
des termes larges avides de précision et de clarté. Ce faisant, l'employeur dispose d'une grande marge de manœuvre quant à
l'acquittement de ses obligations, au détriment du chercheur d'emploi handicapé. Il serait recommandable de mettre en place
des critères pouvant déterminer ce qui est et ce qui n’est pas justifiable pour un employeur dans la mesure du possible. Cette
lacune légale freine le développement du pays vers une société inclusive.
L'Ile Maurice a du chemin à parcourir et l'heure du changement pour l'émancipation des handicapés est arrivée. Il est fortement
recommandé d’aménager les bureaux où travaillent les personnes handicapées au rez-de-chaussée. Les employeurs et les
membres du personnel peuvent aussi bien se déplacer pour rencontrer l’employé handicapé au lieu que ce soit le contraire. Pour
finir, la mentalité joue un rôle important dans l’effort de rendre le lieu de travail accessible aux personnes handicapées.
Aarthi Burtony
Service to Mauritius Programme Legal Intern
Page 6
November 2014- Issue 42
Managing children who are out of control and
handling their rights: A daunting societal challenge
Managing children who are out of control has emerged as a challenging contemporary societal, legal and economic issue given
the constantly growing amount of children that are naturally concerned. The national legislations concerning the rights of
children should be subject to a constant evolution to tally the requirements of societal evolutions. The provisions of the United
Nation Convention on the Rights of the Child (UNCRC) is a binding requirement for State parties to implement measures,
policies and legislations to ensure adequate protections towards a joyful life and proper upbringing of children. It is an issue
that should be dealt with cautiously and in a holistic approach, given the fact that the way these issues are handled will
determine what the adult of tomorrow will become. Nowadays children who are out of control emerge from every societal level
from the rich to the poor and this emergence stems from different reasons individually.
Some of these out of control children are subject to continuous downfall, others are just determined to go on the wrong path
because they just can’t digest the strict control and pressure of their parents whom they just want to prove wrong and finally
others are just societal victims who naturally develop a mindset of revenge in a world where all they can trust are themselves.
The preamble of the UNCRC is clear about the special care and assistance children are entitled to from the State as well the
required policies for the development of family environment to promote an atmosphere of happiness, love and understanding to
support their proper upbringing. Of course, efforts have been made and policies have been implemented to try to meet these
requirements with the implementation of authoritative, empowerment and reform institutions like the Ombudspersons for the
Children, the Child Development Unit and the Rehabilitation Youth Centre. However, the trend of children who are out of
control with cases reported frequently in the media raised a lot of questions as well as the need to rethink a strategy to counter
this downfall. The main question is whether these abovementioned institutions are supported by adequate technical human
resources to achieve their mission efficiently.
Vision, guidance, leadership, passion and inspiration are all that are required to give back to these children the joy of life and the
right to be able dream again, thereby giving way to a new beginning. Authority, guarding, pressure and exclusion without vision,
leadership, passion and inspirational presence are logically bound to face resistance from children and youth in regard to the
problems currently facing the Rehabilitation Youth Centre (RYC) as frequently highlighted in the local media. Naturally, it is
important to ensure that the requirements are done for the security of the employees of the RYC but it is equally a major
responsibility of the State to provide the required professional coaching staff to inspire the required change in attitude of these
out of control children who are equally offenders in spite of their age. The RYC is not a gateway for the creation of offenders of
tomorrow but it is meant to be a reform institution that will inspire change in the attitude of these out of control children and
youth in order to revive their childhood or youth days with the chance for a joyful life and make them responsible adults of
tomorrow. A professional coaching staff is one who is gifted with the skills, knowledge, attitude and approach to inspire positive
change towards a new beginning. All that is required is the right person in the right place.
Page 7
November 2014- Issue 42
Children and youth who are exposed to mistreatment and subject to the misfortune of the tragedies of life such as irresponsible
parents, separated parents and violent parents among others, deserve a second chance for an upliftment towards a happy living
because most of those in such cases are lost souls who need protection, love and guidance in the quest of a new beginning.
Article 3.1 of the UNCRC imposes a binding duty on State parties to ensure that in all actions concerning children, whether
undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies are
undertaken in the best interests of the child and shall be a primary consideration.
On the other hand, efficient parental responsibility is required for those children and youth whose behaviour make them out of
control just because they are unable to digest the strict pressure, severe attitude and frequent authoritative mood of their parents
that make them lose faith in themselves and deprive them of the requirements of a joyful life in contravention with Article 3.1 as
highlighted above, thereby pushing them towards constant resistance in almost everything. The efficient undertaking of parental
responsibilities should become a legally binding requirement on every parent because any drawback at this stage is likely to have
a negative influence on the mindset, attitude and behaviour of the child. The evolution of society must therefore pave the way
towards the evolution of protection of the law which should include the provision of empowerment measures to support the right
to a joyful life that is fundamental for the confidence and proper upbringing of the child.
The Child Protection Act is outdated and the protection provided are mainly focused on the security of the child. The statutory
provisions regarding protection of the child currently require adequate expansion through appropriate amendments in order to
enlarge the scope of protection of the child in line with societal evolution and international legal development at the level of the
United Nation.
Some children and youth have arrogant attitude and therefore the Juvenile Offenders Act has every reason to exist. While
children are entitled to protection of their rights, there are certain limits that they need to observe in order to ensure that they do
not contravene with the laws of the land. If they bypass these limits then the Juvenile Offenders Act is here to ensure that they
are subject to appropriate reforming punishments. As part of their upbringing, these children should be made aware of their
responsibility in regard to their acts.
Managing children who are out of control is naturally a daunting issue for the State and other stakeholders including parents
but the above findings highlight the assurance that a holistic approach in line with conventional duties are more likely to be
fruitful.
Mervyn Anthony
Service to Mauritius Programme Legal Intern
Page 8
November 2014- Issue 42
Residential seminar - ODPP
The Office of the Director of Public
Prosecutions organised its residential seminar
last month. Topics such as drink driving
offences and corporate criminal liability were
discussed. All law officers participated in team
building activities. It was also an opportunity
for those who recently joined the Office as Temporary State Counsel to socialise with their new colleagues.
Ashley Victor,
Public Relations Officer
Page 9
SUMMARY OF SUPREME COURT JUDGMENTS
October 2014
CHINAPYEL D v THE STATE OF MAURITIUS [2014 SCJ 330]
By Hon. K.P. Matadeen, Chief Justice & Hon. N. Devat, Judge
Cancellation Order – Special Circumstances
The appellant pleaded guilty to the offences of (i) failing to
produce his driving licence or a photocopy thereof at the
request of a police officer and (ii) using an uninsured auto
cycle, in breach of the Road Traffic Act (“the Act”). He was
convicted and sentenced to pay a fine of Rs 800 and Rs 1000
respectively. With respect to the second count, the learned
Magistrate also ordered that he be disqualified from holding
or obtaining a driving licence for all types of vehicles for a
period of two weeks, and that his licence be cancelled and
endorsed.
The cancellation order was challenged on the grounds that it
was manifestly harsh, excessive and disproportionate and
that the learned Magistrate had failed to take into account
that the appellant had no previous conviction for the offence
of “using uninsured motor vehicle”. Learned Counsel for the
appellant submitted that in ordering the cancellation of the
appellant’s driving licence, the learned Magistrate had failed
to take into consideration that the appellant was a taxi driver,
that driving was his only means of livelihood, and that he
had never been convicted for a cognate offence.
In terms of the Second Schedule to the Act, the offence of
using an uninsured vehicle carries an obligatory cancellation,
disqualification and endorsement of the offender’s licence.
Section 52 of the Act, however, confers a special discretion
upon the Court not to make such compulsory orders when
there are “special reasons” to order otherwise.
Reference was made to Jones v English [1951 2 All ER 853],
November 2014- Issue 42
where it was held that “the onus of proof establishing special
reasons is on the defendant”.
It was for the appellant, therefore, to adduce sufficient
evidence constituting special reasons to justify the exercise by
the learned Magistrate of her discretion under section 52 of
the Act. If the appellant, whose rights to adduce evidence in
mitigation were explained to him by the learned Magistrate,
as was apparent from the record, confined himself to a mere
statement that he was a taxi driver without more, he cannot
now criticize the learned Magistrate for having acted on
whatever evidence was before her and imposed the
compulsory cancellation order.
Quoting Mauree v The State [2008 MR 152] and Roochurn v
The State [2009 SCJ 389], it was repeatedly held by this Court
that “special reason” is a mitigating or extenuating factor
directly connected to the commission of the offence, and not
to circumstances personal to the offender, and that working
as a taxi driver does not constitute a special reason (Ghoorah
v The State [2008 SCJ 302]).
The appeal was accordingly dismissed with costs.
AUCHARAZ R v THE STATE OF MAURITIUS [2014 SCJ 327]
By Hon. O.B. Madhub, Judge & Hon. P. Fekna, Judge
Insult - failure to make proper analysis of evidence
Both accused appealed against their conviction, on charges of
insult in breach of section 296(a) of the Criminal Code.
In relation to both accused, learned counsel for the State did
not support the judgment of the lower court for the following
reasons. In relation to accused 1, the ‘incriminating words’ as
set out in the information did not tally with the evidence that
was adduced.
Page 10
November 2014- Issue 42
In relation to accused 2, the learned magistrate had to deal
with the evidence of each accused parties separately and as
such the latter failed to make a proper analysis.
The Appellate Court concluded that both convictions were
unsafe and they were accordingly quashed.
ARABUNDOO I v THE STATE [2014 SCJ 346]
By Hon. S. Bhaukaurally, Judge & D. Chan Kan Cheong, Judge
Mental illness – Probation report – Sentence
The appellant was prosecuted before the Intermediate Court
for the offence of attempt upon chastity upon a child under the
age of 12 in breach of section 249(3) of the Criminal Code. The
appellant pleaded guilty and he was sentenced to undergo
imprisonment for a period of 12 months with hard labour and
was ordered to pay Rs 500 as costs.
The learned Magistrate had suspended the sentence and called
for a social enquiry report with a view to consider making a
community service order on him. Nonetheless, unfavourable
replies had been received from the institutions contacted to
accommodate him for community work due to the mental
status of the appellant as well as his inability to communicate.
Subsequently, the Magistrate had no alternative than that to
impose the sentence of 12 months’ imprisonment.
The appellant challenged the sentence on the ground that it
was harsh, manifestly excessive and disproportionate. The
Appellate Court was of the view that the point was well taken
and the matter was postponed to be put for Mention to secure
the attendance of a Probation Officer.
JEETAH A K v THE STATE [2014 SCJ 337]
By Hon. E. Balancy, SPJ, Hon. S. Peeroo, Judge & Hon. P.
Fekna, Judge
Child Competency Test
This was an appeal against a judgment of the Intermediate
Court whereby the appellant was convicted for the offence
of causing a child to be sexually abused and sentenced to
undergo three years penal servitude, under sections
14(1)(a), 2(a) and 18(5) (b) and (5A) of the Child Protection
Act.
According to the submissions of counsel for appellant
having regard to the definition of child in various
Mauritian enactments, a competency test should always be
held when a witness is under the age of 18. As the main
witness was 13 years old at the time of giving testimony, she
ought to have been subjected to the competency test before
her evidence was received. As this was not done, counsel for
appellant considered that the conviction of the appellant
should have been quashed. On the other hand, learned
counsel appearing for the respondent submitted that a
child witness should be subjected to a competency test
before deposing on oath or solemn affirmation is still found
to be 10, such that the 13 year old witness in the present case
could depose under solemn affirmation, as she did, without
being examined as to her competency to so depose.
The Appellate Court considered that our Mauritian law is
silent on the precise “cut-off” age below which a competency
test must be held and guidance should be sought in
English law. Accordingly, as a general rule, the child, who
is below the age of 14, must be subjected to the competency
test before being allowed to take the oath or solemn
Page 11
November 2014- Issue 42
affirmation under section 106 of the Criminal Procedure
Act. The court declared the trial to be a nullity and remits
the case for a fresh trial before another Magistrate of the
Intermediate Court.
converted into a period of 500 days’ imprisonment, starting
at the end of the term of imprisonment of 18 years.
ARIYAKRISHNAN G v THE STATE [2014 SCJ 365]
By Hon. E. Balancy, Senior Puisne Judge & N. Devat, Judge
STATE v JEAN LOUIS W J [2014 SCJ 363]
By Hon. J. Benjamin. G. Marie Joseph, Judge
Review of sentence - Converting unpaid fine into
imprisonment
Sentencing: Wounds and Blows
This was an application under section 5(1) of the Criminal
Procedure (Amendment) Act 2007 for a review of the
sentence of penal servitude for life inflicted on the applicant
after he was found guilty under four counts of an
information for the offence of unlawfully procuring the
importation of heroin into Mauritius qua trafficker in
breach of the Dangerous Drugs Act 1986.
In the light of previous sentences passed in similar cases by
the criminal division of the Supreme Court, Learned
Counsel for the applicant submitted that the sentence for
life imprisonment should be replaced by a sentence of
penal servitude not exceeding 30 years inclusive of the
custodial sentence which he had asked the Court to
substitute to a fine of Rs 100,000 imposed in respect of two
other counts. He also stated that the applicant had a clean
record at the time that the offence was committed and that
the applicant had been on good behavior during his
imprisonment since he was transferred to Phoenix Prison.
Counsel for the respondent submitted that the appropriate
sentence would be between 32 and 37 years’ imprisonment
given the substantial amount of heroin involved.
The Learned Judges concluded that the case was indeed a
very serious. They ordered that the fine of Rs 100,000 to be
The accused was originally charged with having committed
the crime of manslaughter on the person of Judex Malbrook.
The charge was reduced to one of wounds and blows causing
death without intention to kill in breach of section 228(1)(3)
of the Criminal Code and the information was amended
accordingly. As he has pleaded guilty to the reduced charged,
the Court found him guilty as charged.
Taking the mitigating factor into consideration, the Judge
sentenced the accused to undergo 10 years imprisonment,
from which has been deducted the 278 days he has spent on
remand, and to pay Rs 1000 as costs. Exhibits were ordered
to be forfeited.
La pensée du mois
"L'homme bon ne regarde pas
les particularités physiques
mais sait discerner ces
qualités profondes qui
rendent les gens humains et
donc frères!"
Martin Luther King
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