Issue 17 - Office of the Director of Public Prosecutions

‘To No One Will We Sell
To No One Deny Or Delay Justice’
Chapter 40, Magna Carta 1215
The Monthly Legal
Update Newsletter
June 2012
Issue 17
Office of the
Director of
Public Prosecutions
EDITORIAL
Dear Readers,
In this current issue, we give you a resumé of the training workshop organised by the Office of Director of Public Prosecutions, in collaboration with the US Embassy, on the interesting theme of „the treatment of child victims and witnesses in the criminal justice system.‟ Eminent speakers at the training workshop were Mrs Tara
Neda (Assistant United States Attorney of the District of New Mexico, USA), Mrs Stephanie Knapp (FBI
Agent and forensic interview specialist) and Mr Stacey Smielada (Special Agent, FBI).
We have also included for the benefit of our readers a paper on the circumstances in which witnesses may be
recalled, the relevant procedure to be followed and the discretion of the judge or magistrate to allow such motion.
As usual, the summary of the latest judgments can be read at pages 5-7 of this issue. A special tribute is paid to
late Mr Rajsoomer Lallah at page 10. We also seize this opportunity to welcome the new temporary state
counsels who have recently joined the Office of the Director of Public Prosecutions and the Attorney General‟s
Office. A list of their names has been published at page 12. We also include for the sake of completeness the
names of the newly appointed Magistrates.
We reiterate that members of the Bar are invited to consult the conference website for the 2nd IAP African and
Indian Ocean Regional Conference which will be held in August 2012, and to register, to ensure the success of
the event organised under the theme „Partners in upholding the rule of law.‟
I wish you a pleasant reading.
Zaynah Essop
State Counsel
Contributors
Editorial Team
Sulakshna Beekarry , Principal State Counsel
Zaynah Essop, State Counsel
Anusha Rawoah, State Counsel
Keshri Soochit, State Counsel
Feedback
We invite your comments and suggestions for
future issues of The Monthly Legal Update
Newsletter. We may be contacted at:
[email protected]
Selveenah Adapen, State Counsel
Dhzedaan Bhatoo, State Counsel
Page 1
Issue 17
IN THIS ISSUE
1.
Child victims and witnesses in the criminal justice process, Training workshop …………… Pgs 3-4
2.
Summary of judgments …………………………………………………………………………..Pgs 5-7
3.
Congratulations to Mr Pierre Rosario Domingue…………...………………………………….Pg 7
4.
Recalling of prosecution witnesses ……………………………………………………………… Pgs 8-9
5.
Obituary - Rajsoomer Lallah ……………………………………………………………………..Pg 10
6.
Extract of interview of Rajsoomer Lallah, Le Mauricien………………………………………..Pg 11
7.
Update - Continuous Professional Development ………………………………………………. Pg 12
8.
List of newly appointed magistrates and temporary state counsels …………………………… Pg 12
2nd IAP AFRICAN AND INDIAN OCEAN REGIONAL CONFERENCE UPDATE
The 2nd Regional Conference for the Africa-Indian Ocean Region is shaping up, with the on-going registration
of participants and an increased number of speakers. The event, as our readers are aware, will take place at the
Sofitel, Flic en Flac, from 26 to 29 August next.
Barristers, Attorneys and Prosecutors (Police and Ministries) are invited to consult the website at http://
iapmauritius.gov.mu for further information and registration.
The conference aims at contributing to the advancement of the Rule of Law in the African-Indian Ocean Region. Themes earmarked for discussion include Prosecutions and Human Rights, Corruption Offences, Piracy
in the Indian Ocean, Witness Protection and Asset Recovery.
The Conference will also host the „Atelier francophone sur la lutte contre l‟impunité.‟ Speakers intervening at
this plenary session will include: Mr Francois Falletti (Procureur Général près de la Cour d‟Appel de Paris et
ancien President de l‟AIPP), Mr Hugo Sada (Délégué à la Paix, à la démocratie et aux droits de l‟homme de
l‟Organisation Internationale de la Francophonie), Mr Jean Fils Kleber Ntamack (Procureur de la République
près la Cour d‟Appel de Garoua, Cameroun), Mr Basile Elombat (Ancien Procureur de la République de Yaounde, Vice Président de la République près la Cour d‟Appel de Garoua, Vice Président de l‟AIPP et l‟AIPPF)
and Mr Romaric Azalou (Ancien Procureur près le Tribunal de Première Instance de Cotonou, Président du
Tribunal de Ouidah, Benin et Vice Président de l‟AIPPF).
SEATS ARE LIMITED - PLEASE REGISTER EARLY
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Issue 17
Child Witnesses and Victims in the Criminal Justice System
Training Workshop
6th-8th June 2012, Intercontinental Hotel, Balaclava
As a nation, it is our duty to support child witnesses and victims of crime, often considered as vulnerable persons, to ensure that a fair, effective and humane criminal justice system is in place. However, research around
the world has shown that child witnesses are routinely confused and intimidated in court, often not understanding the questions that are being put to them or the court process itself. Our criminal justice system is
certainly no different. A survey of cases involving children, where the cases are completely dependent on
their testimony, reveal that the rate of failure is very high.
It is in this context therefore that the Director of Public Prosecutions, Mr Satyajit Boolell, SC, has invited the US
Embassy to provide a training workshop on this issue. The workshop was held from the 6 th to the 8th of June
2012 at the Intercontinental Hotel in Balaclava. The purpose of the training workshop was to bring together
the various stakeholders involved, that is, representatives of the Police Force, the Child Development Unit and
of various non-governmental organisations around the country, members of the judiciary, counsels and attorneys from both the Office of the Director of Public Prosecutions and of the Attorney General’s Office and a
member from the Mauritius Bar Association.
In her opening remarks, Honourable Chui Yew Cheong, Supreme Court Judge, referred to the case of Muljee V
The State [2011 SCJ 315] which was an involuntary homicide case where the main witness for the prosecution was a 13-year old girl. The latter had seen the violent manner in which the victim died. During the trial,
she started feeling dizzy, her examination in court had to be stopped and she did not attend court again. In
that judgment, the Learned Judges commented that our legal system needs to be updated with regard to a
class of witnesses who are particularly vulnerable, i.e child witnesses, and their rights should properly be addressed. Justice Cheong was of the view that had that witness been provided with adequate support before,
during and after the trial, a completely different outcome would have been obtained. During her speech, she
encouraged the participants to adopt a holistic approach in dealing with child victims and witnesses.
Along the same line, Mr Satyajit Boolell, SC, DPP, in his welcoming speech, reiterated the need to have a coordinated approach among the various parties involved in order to provide support before, during and after the
trial stage to those vulnerable witnesses. He was of the considered view that the proper psychological support should be provided. The people dealing with child victims and witnesses should at the very outset assess
their level of understanding such that the right questions can be put to them. He laid a lot of emphasis on the
responsibility of the press to respect the child’s privacy when reporting cases such that their identity is not
revealed. During his welcoming speech, the DPP announced that Mr Iqbal Kalla has kindly accepted his request to prepare a cartoon booklet explaining the steps involved in the criminal justice system. This booklet
will be distributed to children in schools around the island.
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Issue 17
On his part, Mr Troy Fitrell, Charge d’Affaires at the US Embassy, was very pleased to be part of the organisation of that training workshop which was long overdue. For Mr Fitrell, to treat children as little adults is to
mistreat them. The provision for care and protection to the most vulnerable members of the criminal justice
system should be considered as part of the universal values.
Tara Neda, Assistant United States Attorney of the District of New Mexico, USA, explained that there are constraints when considering the rights of the child since the rights of the accused party as well as the rights of
the community should be taken into account as well. As far as child witnesses are concerned, the degree of
trauma suffered by them needs to be determined. If a child cannot testify whilst being face to face with the
accused, then the child should be testifying in a separate room with a prosecutor, defence counsel and a responsible party present there. The need for speedy trials and the giving of evidence via live television link are
of utmost importance. On the issue of juvenile cases, on a comparative basis, such proceedings in the US are
not considered as criminal matters and the juvenile is not considered as a criminal. Any decision given by the
court in such matters is called an adjudication as opposed to a judgment. The juvenile therefore does not have
a criminal record since the purpose of juvenile legislation in the US is to rehabilitate the person.
Stephanie Knapp, FBI Agent, talked about the principles of forensic interviewing techniques. According to her,
the goal of forensic interview is to obtain a statement from a child in a developmental, unbiased and truthseeking manner that will support accurate and fair decision-making in the criminal justice and child welfare
systems. One should always approach a case by looking at it through the eyes of a child. And for her, a certain
level of skills is required to interrogate a child. It is crucial for parents to teach their children to use correct
terms when showing different parts of their body such that it is easier to determine the occurrence of a sexual
offence upon a child.
In his address, Mr Stacey Smielada, Special Agent, FBI, explained that he deals with interviewing accused parties. Amongst the various qualities which an interviewer should have are sincerity, be in control, patience and
persistence, be an actor and be polite. It is of crucial importance to be as cooperative and friendly with the
suspect as possible since the purpose of it all is to give the prosecution the best chance to win their case.
At the end of the training workshop, representatives from the various stakeholders were invited to present a
number of resolutions taken in order to improve the criminal justice system for dealing with child victims and
witnesses. All the parties agreed to adopt a holistic and coordinated approach in facilitating the process. Both
the Judiciary and the Office of the DPP agreed to put in place a fast-track procedure for such cases and to make
provision for the giving of evidence by live television link.
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Issue 17
Please find below a summary of the
latest judgments for May 2012
David Dean Leung How V The State [2012 SCJ 196]
SPJ. Matadeen & J. Balancy
Drugs – Inference – ‘For purpose of cultivation’
The Appellant was prosecuted before the lower court
under count 1 for the unlawful possession of 76 cannabis seeds for the purpose of cultivation. He was found
guilty and the Learned Magistrate sentenced him to undergo 3 years’ penal servitude. He appealed to the effect that the Learned Magistrate had wrongly concluded, on the evidence before her, that the cannabis seeds
were for cultivation.
The Learned Judges were of the view that an irresistible
inference that the Appellant’s possession of the gandia
seeds were indeed for the purpose of cultivation in the
light of the following basic facts:
occupiers, make an entry in his cash book and as soon as
possible deposit with the Cashier of the District Council
the sums remitted to him.
Mohajur A. v. The State [2012 SCJ 177]
JJ. Bhaukaurally & Chan Kan Cheong
Failing to submit to breath test – Presumption – Alcohol concentration
The appellant was prosecuted and convicted before the
District Court of Grant Port on 3 counts as follows:
a)
b)
c)
driving without due care and attention – breach of
section 123C(1)(a) of the RTA;
failing to submit to a breath test – breach of section
123G(1)(a)(2) of the RTA; and
driving a motor vehicle with alcohol concentration
above the prescribed limit – breach of section 123F
(1)(3) & (5) of the RTA

Gandia seeds are used for cultivating gandia
plants;
The appeal was against conviction in relation to counts 2
and 3.

Large number of seeds found in the possession of
the Appellant;
Count 2

The manner in which he kept them;

His implicit admission, in his statement from the
dock, that he believed the seeds to be capable of
growing;

His cock and bull story as to how he obtained the
gandia seeds and why he kept them in the way he
did.
Appeal set aside with costs.
Seeboruth v The State [2012 SCJ 173]
SPJ Matadeen & J. Devat
Embezzlement – Evidence
Appellant was prosecuted and convicted by the District
Court of Grand Port for the offence of embezzling a sum
of money which was delivered to him for a work with
the condition that same be used for a specific purpose.
He appealed against conviction and same was allowed
as it was held that the evidence did not support the
averment in the information. The evidence showed that
appellant was required to collect rental money from
stall occupiers in the markets coming under the jurisdiction of the District Council, issue a receipt to these
Page 5
The learned Magistrate did not make a finding as to
whether the prerequisites of the offence under section
123G(1)(a) and (2) were established. Also, he failed to
give consideration to a requirement of section 123H
which empowers a police officer to demand a specimen of
breath only when investigating an offence under section
123D, 123E and 123F. No evidence of any such investigation was adduced by the prosecution.
Count 3
Section 123(H)(6) of the RTA does create a presumption
of driving with proportion of alcohol in the blood exceeding the prescribed limit when a person inter alia refuses
to submit himself to a breath test. However such submission to the test must have been required under section
123G, which, was not the case.
The appeal was thus allowed for counts 2 and 3.
Issue 17
Director of Public Prosecutions V Jeeha
[2012 SCJ 187]
JJ. Devat & Chan Kan Cheong
Unequivocal plea of guilty - Conviction
The Respondent was prosecuted under 2 counts for failing to wear seat belt and for using hand held telephone
whilst driving. He had pleaded guilty to count 1 and not
guilty to count 2. The Learned Magistrate, after hearing
all evidence, dismissed both counts. Concerning count
1, the DPP appealed against its dismissal on the ground
that the learned Magistrate was wrong in law to dismiss
that count in view of the respondent’s unequivocal and
unambiguous plea of guilty.
Learned Counsel for the appellant submitted that in
view of the unambiguous plea of guilty of the respondent, the trial Court ought to have convicted and proceeded to sentence the respondent. Cases cited by
learned Counsel in support of her submissions were:The DPP v J.P. Aumont [1989 SCJ 338], The DPP v B.
Bundhoo [1998 SCJ 443] and The DPP v A.H.
Ramdeen [2005 SCJ 198].
The Appellate Court agreed with such submission in the
light of s72(1) and (2) of the District and Intermediate
Courts (Criminal Jurisdiction) Act. They were of the
considered view that it was the duty of the Magistrate to
enter a conviction and proceed to sentence the respondent. A departure from that duty would have been warranted in the face of either (a) an ambiguous plea of
guilty, (b) a plea of guilty to an information disclosing
no offence or (c) a plea of guilty by mistake of fact or of
law, in which case the Magistrate ought to have invited
the respondent to reconsider his plea.
In the present case, there was nothing in the court record to suggest that the Magistrate was faced with any
one of the above situations. On the contrary, the Respondent had given an unequivocal plea of guilty which
was re-affirmed that, in the course of giving evidence
under oath, he had twice admitted in no uncertain terms
that he was not wearing a seat belt at the material time.
The Learned Magistrate was therefore wrong in reaching her conclusion.
Appeal allowed and case remitted to the Magistrate
with a direction to convict the Respondent under count
1 and to proceed to sentence accordingly.
Page 6
Faugoo v State of Mauritius [2012 SCJ 172]
SPJ Matadeen & J. Devat
Cancellation of driving licence – Influence of alcohol
This is an appeal against the order of cancellation of the
appellant’s driving licence by the District Court of Riviere
du Rempart following a plea of guilty to a charge of driving
a motor vehicle under the influence of an intoxicating
drink in breach of section 123E(1)(a) of the Road Traffic
Act.
The complaint of the appellant was that the learned Magistrate has failed to judiciously exercise her discretionary
power under section 52 of the Act when ordering the cancellation of his driving licence, in view of the insufficiency
of the evidence on record.
The Court found that the evidence reveals that the appellant did, whilst driving his vehicle with 108 milligrams of
alcohol per 100 millilitres of blood, as revealed by the Forensic Science Laboratory report, knock against a telecom
pole causing Rs 12,000 worth of damages. This constituted
sufficient evidence on the basis of which the learned Magistrate acted to exercise her discretion and order the cancellation of the appellant’s driving licence. Further, the
appellant was given the opportunity of adducing evidence
in mitigation.
Appeal dismissed.
Neerput v The State [2012 SCJ 166]
JJ. Balancy & Mungly-Gulbul
Averment of fundamental element of ‘insult’
The appellant was prosecuted and convicted by the District Court of Grand Port under two counts of an information which purported to charge the offence of insult
under section 296 of the Criminal Code.
The appeal was allowed and the Court held that both
counts of the information clearly failed to disclose the offence of insult since they averred that the accused did wilfully and unlawfully make use of an “injurious expression
to the address of another person” without stating the fundamental element which would convey the offence of insult under section 296, namely that the injurious expression did not carry with it the imputation of a fact.
Issue 17
Soomarah v The State [2012 SCJ 175]
JJ. Caunhye & Chan Kan Cheong
Defective information – Failing to pay penalty – Exceeding speed limit

The Court had found no question of any seriousness
raised which would indicate that the matter is of
such great general or public importance that it
ought to be submitted to the Judicial Committee.
The appellant was convicted on a charge of ‘failing to
pay penalty when exceeding the speed limit’. The Court
allowed the appeal inasmuch as the information was
defective and did not disclose an offence known to law.

On the issue of the sentence inflicted on the applicant, the Court found that the Judicial Committee of
the Privy Council has repeated ad nauseum that it
will not interfere with a criminal sentence unless
there is “something so irregular or so outrageous as
to shake the very basis of justice.”
The Court held that:

the appellant could only be prosecuted ‘for the
offence in respect of which he was issued with
the notice, i.e. for the offence of ‘driving at a
speed in excess of the prescribed speed limit’
contrary to the provisions of section 124(4)a) of
the Act;

there exists in law no offence for ‘failing to pay
the specified penalty when issued with a fixed
penalty notice’ as has been incorporated in the
information; and

the failure to pay the specified penalty in such
circumstances would have only entailed a higher
penalty in the eventuality of a conviction for the
offence charged i.e. ‘driving at a speed in excess
of the prescribed limit’.
Dhooharika v Director of Public Prosecutions
[2012 SCJ 170]
SPJ. Matadeen & J. Angoh
Leave to appeal to Judicial Committee of Privy
Council
This is an application for leave to appeal to the Judicial
Committee of the Privy Council from a judgment of the
Supreme Court finding the applicant guilty of contempt
of court and sentencing him to imprisonment for a term
of three months.
CONGRATULATIONS TO
MR PIERRE ROSARIO DOMINGUE
Our sincere congratulations to Mr Pierre Rosario
Domingue, Chief Executive Officer of Law Reform
Commission, who has been appointed by the International Association of Prosecutors as draftsman, together with Mr Nicolas Richard Cowdery,
former DPP of New South Wales for the drafting
of the illustrative guidance on prosecution standards entitled ‘A Handbook on the status and role
of Prosecutors.’
The International Association of Prosecutors and
the United Nations Office on Drugs and Crime
have agreed to this collaborative project by
drawing on the various prosecutorial standards
which have been developed over the years, including the IAP Standards for Prosecutors and
other useful tools and materials.
The Court refused the leave and held that:

Page 7
The proceedings before the Supreme Court did
not involve any interpretation of the sections of
the Constitution mentioned in the affidavit and
that the Supreme Court was neither called upon
to make nor has made any final decision on questions as to the interpretation of the sections of
the Constitution.
According to the IAP, a broad outline is expected
to be available at our regional conference in
Mauritius next month for a first consultation.
Further consultation will take place during the
IAP Annual Conference later in the year with a
view to launching the final product in 2013.
Issue 17
Recalling of prosecution witnesses
According to section 107 of the Criminal Procedure Act, every witness may be examined by Counsel for the State, may
then be cross-examined either by Defence counsel or by the accused through the judge, and may be re-examined by Counsel for the State as to any new matter which has arisen during cross-examination. The general rule therefore is that once a
witness has been examined as described, he will not be called again.
However, there may be some instances where a witness may be recalled. Those shall be examined below:
(a) To give evidence in rebuttal in relation to new evidence adduced or a new defence raised
In the case of F. Collins v R [1932 MR 41], two witnesses were recalled about the date of the offence after the defence
had ushered evidence with a view to establish that the relevant goods could not have been removed. When these witnesses were called on the first occasion, they were not cross-examined as to the exact date of the offence. One of the grounds
of appeal raised was that the Learned Magistrate was wrong to have allowed the prosecutor to recall two witnesses in rebuttal as no new fact was brought forward by the witnesses called by the defence. The Court held: ‘We are satisfied as we
were in that case that the action of the magistrate in allowing the prosecutor to recall evidence was not calculated to do injustice to the
accused and we find that the prosecution was entitled to rebut the evidence called by the defence to try and establish the exact date especially when the witnesses for the prosecution had not been cross-examined on that point.’
In Boolkah v The Queen [1960 MR 44], a new defence was raised at a very late stage after the relevant prosecution witnesses had already deposed. The Court was of the following view: „We wish to observe that the defence regarding the possession
of the milk was raised at the eleventh hour, since we find that Health Inspector Lecordier deposed for the prosecution to the effect that, as
he had reason to suspect the quality of the milk which the accused was carrying, he requested the latter to sell to him a litre of milk for
which he paid 50 cents. He was not cross-examined at all: a very surprising thing in the light of the appellant’s subsequent evidence to the
effect that he had told M. Lecordier that the milk was intended for his own consumption. We think that that part of the appellant’s
evidence should strictly not have been admitted, unless it was agreed that Inspector Lecordier should be recalled and re-examined
on the new defence raised. If the magistrate considered this lack of cross-examination as an additional reason for rejecting the defence,
we think he was perfectly justified. Magistrates and legal practitioners should be alive to the necessity of complying with the rule of evidence which requires that no evidence should be admitted for the defence involving a witness, who has already deposed for the prosecution, unless that witness has been cross-examined on the issues raised for the first time in defence. This principle is only an application of
the rule that whenever the accused, in defence, gives evidence which the prosecution could not foresee, the prosecution is entitled to contradict it. There are cases, of course, where for instance as a result of mere forgetfulness, a witness for the prosecution is not crossexamined on a matter raised for the first time in defence. The difficulty is then overcome by the recall of the witness concerned.’
(b) To deal with an assertion by defence counsel which is not supported by the evidence
Where an assertion is made in defence counsel‟s opening or closing speech, the Judge or the Magistrate has a discretion to
allow the recall of a prosecution witness on the basis that the matter relating to the recall of the witness had arisen ex improviso. In R v Sullivan [1923] 1 KB 47, a trial for the murder of a woman was held. Evidence was given on behalf of the
prosecution that the prisoner had been seen near the scene of the murder shortly before it was committed and on several of
the preceding days; that certain articles which had been left by the murderer in the cottage where the murder was committed had previously been seen in the possession of the prisoner. The latter gave evidence on his own behalf in which he set
up an alibi and denied that he was in the neighbourhood of the scene of the murder when it was committed, or that the
articles found in the cottage belonged to him. By direction of the Judge, certain witnesses for the prosecution were recalled to rebut the evidence given by the prisoner. Counsel for the prisoner in his closing speech suggested that the husband of the murdered woman might have committed the murder, and also commented on the fact that certain articles
found in the cottage were not found till two days after the murder. The Judge directed that the two police constables who
searched the cottage should be recalled to say when and where the articles were found. The husband of the murdered
woman was also recalled to deny the suggestion made against him. It was held in that case that witnesses had been
Page 8
Issue 17
recalled not for the purpose of repeating their evidence, but for the purpose of rebutting the case set up by the prisoner in
his evidence and of meeting the suggestion made by counsel for the prisoner in his speech to the jury – namely, that the
murder had been committed by the husband, and that therefore witnesses were properly called even after counsel for the
prisoner had made his speech to the jury. (Reference is to be made to the case of R v Joseph, 56 Cr.App.R. 60, for recalling of witnesses in relation to assertion in defence counsel‟s opening speech).
(c) If the interests of justice so requires
In Phelan v Back [1972] 1 WLR 273, a recorder, hearing an appeal against conviction, recalled and questioned a prosecution witness at the conclusion of all the evidence and after the speech of the counsel for the appellant. The purpose was to
enable him to refresh his memory of a witness‟ evidence. No shorthand note was available and, if the witness had not
been recalled, the recorder would not have found the case proved. Counsel for the appellant declined the recorder's invitation to cross-examine and address him further. It was held that a judge when sitting alone or with magistrates and without
a jury has a discretion to allow evidence to be called after the normal point at which such evidence would be excluded, if
the interests of justice require it and if, in the exercise of his discretion, he thinks it is proper to do so.
(d) Other instances
In R V Grant [1958] Crim.L.R. 42, CCA, both counsel went to see the judge during an adjournment in the course of the
summing up. They told him of certain information they had which indicated that two prosecution witnesses might have
committed perjury. The judge felt there was nothing he could do but concluded his summing up. Allowing the appeal, it
was held that the witnesses should have been recalled.
Discretionary power of the Judge or Magistrate to recall a witness
The judge has a discretionary power to recall, or allow the recall of, witnesses at any stage of the trial prior to the conclusion of the summing up and of putting such questions to them as the exigencies of justice require, and the Court of Appeal
will not interfere with the exercise of that discretion unless it appears that an injustice has thereby resulted (See: Archbold
2011, at paragraph 8-251; Beekaree V The Queen [1961 MR 54]; Francois V R [1989 MR 209]; The State V Rakesh
Kumar Laka & Anor [1998 SCJ 235]; R V Sullivan, supra).
Where a motion for recalling of witnesses will not be allowed
As per Archbold 2011, para 8-251, it is highly irregular in a trial before a jury to recall a witness who has already given
evidence merely for the purpose of giving the evidence again (R V Sullivan (supra)).
A motion for the recalling of a witness may also be rejected whereby counsel has failed to put questions to him out of
mere omission. In Archbold, para 8-252, the case of R V Wilson [1977] Crim LR 553 was referred to. In Wilson, the
Court of Appeal doubted that they would have exercised their discretion in the same way as the judge where counsel for
the prosecution had inadvertently omitted to ask about the defendant's record at the proper time. See also: Zakir Hussain
V The State [1994 MR 149]; The State V Rakesh Kumar Laka & Anor, supra].
Right of defence counsel to cross-examine a witness recalled
If a witness for the Crown is recalled by the judge or by leave of the judge, the defendant's counsel is allowed to crossexamine him on the new evidence given: R. v. Watson [1834] 6 C. & P. 653 (See also: Archbold 2011, para 8-251).
Time for recalling a witness
A motion for the recalling of a witness may be allowed at any stage of the trial prior to the conclusion of the summing up
(see: Archbold 2011, para 8-251).
(Other relevant cases for recalling of witnesses: Martin V R [1912 MR 106]; Donald Francis V The Queen [1940 MR
31]; The State V Diouman and Aulum [2004 SCJ 77]).
Zaynah Essop, State Counsel
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Issue 17
OBITUARY
Rajsoomer Lallah
Born September 1933
It is with great sadness that we learnt about the sudden demise of Rajsoomer
Lallah, one of the greatest legal minds the country has known. Judge Lallah
was always courteous to counsels and, for the younger generation, he never
missed an opportunity to say a word of encouragement.
His contribution to the Human Rights Committee was exceptionally well
appreciated. When Mauritius presented its report to the Human Rights
Committee, Justice Lallah, for obvious reasons, did not form part of the
Committee but his colleagues on the Committee were full of praise for him
in their introductory remarks. It was a moment of pride for the Mauritian
delegation.
Mr Lallah had his vision of what our system of justice should be. In an interview given to Le Mauricien daily on 4th February 2009, he stated that each individual had a right to efficient justice, and
“un recours effectif veut dire une justice prompte à mon avis.” When he was Chief Justice in 1994 he
had made proposals for a reform plan whereby all districts would have a High Court vested with the
jurisdiction of the Supreme Court (eg. in family matters and civil disputes). Such regionalisation
would have left to the Supreme Court exclusive jurisdiction in constitutional matters, administrative
law, electoral cases and appeal cases only. In so doing our Supreme Court Judges would have had
more time to devote to important cases and to deliver timely justice. As he added, “il y a une vérité
incontestée dans l‟adage Justice delayed is Justice denied.”
The ODPP newsletter publishes at page 11 an extract of his interview given to Le Mauricien on 4th
February 2009 on the reform of our judicial system.
ODPP Newsletter
Page 10
Issue 17
Extract of interview of Mr Rajsoomer Lallah
Le Mauricien, 4th February 2009
Votre évaluation de l’organisation Chef Juge en 1994, j‟avais proposé un
plan dont l‟aspect fondamental était
judiciaire à Maurice…
une réforme basée sur la régionalisation
des cours. Mon idée, c‟était de doter
Après l‟indépendence du pays, il y a eu tous les districts d‟une High Court. Ces
pas mal d‟évolution dans le domaine cours auraient été investies de la
judiciaire à Maurice. La Cour suprême compétence de la Cour Suprême dans
s‟est vu conférer la compétence de gar- plusieurs matières, telles que le droit de
antir un recours à toute violation des la famille et les disputes civiles. Ce
droits humains prescrits dans notre système de régionalisation aurait laissé
Constitution et autres dispositions lé- à la Cour Suprême, la compétence exgislatives, reprenant largement les clusive en matière constitutionnelle, en
droits énoncés dans le Pacte. Il y a droit administrative, en droit électoral
aussi des dispositions constitutionnelles et en appel. Les juges de notre Cour
pour que les juges, les magistrats et les Suprême auraient eu plus de temps à
juristes de l‟Attorney General ou du consacrer aux affaires importantes,
DPP soient nommés par une instance pour une justice prompte et un recours
indépendente, précisément pour gar- effectif. Il y a une vérité incontestée
antir leur impartialité et indépendence dans l‟adage „Justice delayed is justice
dans l‟exercise de leurs fonctions, sans denied‟. Toute ré-organisation fondadiscrimination.
mentale requiert une volonté politique
et une volonté similaire de la part du
judiciaire.
Dans quelle mesure, notre pays donne
pleinement un recours effectif à nos
concitoyens?
Maurice devrait-elle continuer à avoir
recours au Conseil de la Reine?
Malheureusement, comme dans
beaucoup d‟autres pays, l‟organisation
judiciaire elle même, et non pas les
juges et les magistrats, ne répond pas
pleinement aux responsabilités que leur
a conférées la Declaration Universelle
et le Pacte. Un recours effectif veut
dire une justice prompte à mon avis.
Maurice continue à pécher à cet égard,
malgré toutes les réformes proposées
depuis le rapport de Lord Mackay. Il y
a aussi eu récemment une augmentation du nombre de juges à la Cour Suprême. Ce qui démontre une préoccupation sans cesse garantissant tant au
niveau judiciaire que du gouvernement.
Néamoins, le problème ne peut être
résolu simplement par un nombre accru
de juges. Le problème est fondamentale.
C‟est l‟organisation judiciaire
meme qui doit être revue. Quant j‟étais
Page 11
En ce qui concerne le recours au Conseil Privé de la Reine, les opinions ont
toujours été partagées à Maurice, notre
passé colonial et notre histoire en général nous ont légué des préjugés et une
méfiance quelque peu tenace. En tant
que pays souverain, nous aurions pu
nous passer des juges étrangers dans
nos affaires internes, sans toutefois
renier des instances internationales,
telle la Cour Internationale et d‟autres
instances des Nations Unies. C‟est
pour cela que je pense que les juges de
la Cour Suprême devraient avoir plus
de temps à consacrer à leurs jugements,
surtout en appel, en droit constitutionnel et en droit administratif. C‟est vrai
que les juges du Conseil Privé ont
beaucoup d‟expérience siégeant en appel ultime mais si nos juges pouvaient
siéger en appel ultime et avaient plus de
temps à consacrer aux affaires les plus
importantes, leur expérience ne serait
pas moins riche que celle des juges du
Conseil Privé.
Les juges opèrent dans un cadre constitutionnel différent de celui des hommes
politiques. Ces derniers sont quelque
peu encouragés par des considérations
électorales, malheureusement enterinées jusqu‟aujourd‟hui dans notre
Constitution de par les considérations
éthniques et/ou religieuses qui caractérisent le soit-disant Best Loser System.
On m‟a souvent accusé d‟être trop radical et irréaliste dans un pays comme
Maurice, tant en ce qu‟il s‟agit du recours au Conseil Privé que du Best
Loser System.
En politique, nous
avons bien vu que la victoire d‟Obama
est le résultat du fait qu‟il s‟est toujours
présenté au public en tant qu‟Américain et non pas en tant que candidat
d‟une minorité. D‟autre part, en ce
qu‟il s‟agit du judiciaire, je suis convaincu qu‟à Maurice, si les juges de
notre Cour suprême opèrent dans l‟environnement de la ré-organisation
ébauchée au cours de cet entretien, ils
obtiendront l‟expérience et la sagesse
dont les juges du Conseil Privé ont fait
preuve, soutenus par le serment d‟impartialité et de justice par lequel ils sont
liés de par la Constitution.
Les procès qui trainent pendant des
années, serait-ils des exemples du
manque de recours effectif à Maurice?
Notre système judiciaire commence à
se faire une réputation pour des procès
où les jugements se font longuement
attendre, même en matière constitutionnelle. Sans que nous la réalisions,
les longs procès coûtent beaucoup à
l‟Etat et à la population. Cet argent
aurait pu dans une certaine mesure
servir à la réforme.
Issue 17
UPDATE - CPD TRAINING
NEWLY APPOINTED MAGISTRATES
NEW REGULATIONS MADE UNDER
SECTION 17(2) OF THE INSTITUTE FOR
JUDICIAL AND LEGAL STUDIES ACT 2011
Mrs Manjula Potie-Bhoojharut
(Mahebourg District Court)
Members of the legal profession are hereby informed
that on 8th June 2012, the Judicial and Legal Studies
Board, with the approval of the Chief Justice, made
the Institute for Judicial and Legal Studies
(Continuing Professional Development Programme)
Regulations 2012.
Under regulation 2, every law practitioner and legal
officer shall, for not less than 12 hours in every year,
participate in such Continuing Professional Development Programme as may be devised, organised and
conducted by the Institute.
The yearly fee payable in respect of the 12 hours
Continuing Professional Development Programme
has been determined in the Schedule to the Regulations.
The Regulations shall come into operation on 3 September 2012.
The above Regulations were published in the Legal
Supplement to the Government Gazette of Mauritius
No 65 of 23 June 2012.
Mr Neeshal Jugnauth
(Pamplemousses District Court)
Miss Uroosah Rawat
(Rose-Hill District Court)
Mrs Lona Dinya
(Curepipe District Court)
Mr Prithiviraj Balluck
(Port-Louis District Court)
NEWLY APPOINTED STATE COUNSEL
OFFICE OF DIRECTOR OF
PUBLIC PROSECUTIONS
Miss Nitisha Seebaluck
Mr Jihad Nazir
Miss Chitralata Soobagrah
Mr Vignesh Ellayah
Mr Rishi Hurdowar
Mrs Bhamini Prayag-Rajcoomar
Mrs Yusra Nathire-Beebeejaun
Mrs Jade Ngan Chai king
Mrs Vidya Mungroo-Jugurnath
THOUGHT OF THE MONTH
ATTORNEY GENERAL’S OFFICE
‘True nobility is not about
being better than anyone else.
It’s about being better than
you used to be.’
Mr Damodarsingh Bissessur
Mr Nader Ali Caunhye
Miss Kamlesh Domah
Miss Jade Lam Thuon Mine
Miss Bibi Halemoon Maherally
Mr Nirmal Meettook
Mrs Asha Pillay-Nababsingh
Dr Wayne Dyer
Page 12
Issue 17