Office of the

Director of
Public
Prosecutions
E-Newsletter
Issue 50
August 2015

To No One Will We Sell, To No One

Deny or Delay Right or Justice

Chapter 40, Magna Carta 1215

IN THIS ISSUE:

August 2015- Issue 50

PAGE

Editorial

Welcoming the Commission of Enquiry on Drugs

University of 3rd Age Mauritius: Legal Issues facing the Elderly

Court of Criminal Appeal: Botha JJ v The State [2015] SCJ 267

The ethics of cross-examination

Disqualification: Below the minimum period or partial circumstances in which it can be

invoked.

Mission Statement: Cybercrime: Are we ready for it?

Une description audacieuse dun t chez le Directeur des Poursuites Publiques

10

Court Cases Summary

11

EDITORIAL TEAM
Ms Sulakshna Beekarry, Principal State Counsel
Ms Zaynah Essop, State Counsel
Miss Anusha Rawoah, State Counsel
Miss Shaaheen Inshiraah Dawreeawoo, Temporary State Counsel
Ms Pooja Autar-Callichurn , Temporary State Counsel
Mr Ashley Victor, Public Relations Officer
Mr Nitish Bissessur, LRO
Mr Yashvind Kumar Rawoah, LRO
Mr Ajmal Toofany, LRO
Miss Toshika Bobeechurn, LRO
Miss Jouana Genave, LRO

We look forward to receiving

your comments/suggestions on:
odppnewsletter@gmail.com
The views expressed in the articles are those
of the particular authors and should under
no account be considered as binding on the
Office.

EDITORIAL

August 2015- Issue 50

Dear readers,
We are pleased to present the August edition of the ODPP Monthly Newsletter . In this issue,
we have discussed some legal topics of interest, as well as addressed recent court judgments .

The Director of Public Prosecutions welcomes the setting up of the Commission of Enquiry on
Drugs and gives his perspective on the benefits that can be drawn from this initiative.
We share a few snapshots of the current training being given by the ODPP to University of 3rd Age, Mauritius (U3AM) on
issues of interest to our senior citizens, from domestic violence to the legal framework for the protection of the elderly.
Shakeel Bhoyroo looks at the recent Court of Criminal Appeal judgment in JJ Botha v The State [ 2015 SCJ 267] and the guiding
principles on what constitutes a commencement d execution for the purposes of defining an attempt to possess dangerous
drugs. Rishi Hardowar addresses the topical issue of road traffic offences, more particularly the issue of disqualification.
Zaynah Essop gives her very interesting perspective on cross examination of witnesses.
Kevin Rangasamy reports on his time at the Ecole Nationale de La Magistrature in Paris last month.

The latest court judgments are also summarized for our readers benefit
We wish you a pleasant reading

Sulakshna Beekarry- Sunassee,

Principal State Counsel

Page 1

August 2015- Issue 50

Welcoming the Commission of Enquiry on Drugs
As a society, we should all rejoice at the decision of Government to set up a Commission of
Enquiry on Drugs and take comfort in the fact that the Commission will be presided by former
Supreme Court Judge Paul Lam Shang Leen.
It is more than two decades since the Rault Commission was set up, in the 1980s, and it is high
time that we take stock of the current drug scourge in Mauritius. I understand that the
Commissions work will focus on an assessment of the drugs problem in prisons as well as the
recent popularity of synthetic drugs like Wasabi, Black Mamba, Kat and Salvia to name a few.
More importantly attention will be given to trace the masterminds of the drugs trade and not just
the couriers (mules) or consumers.
If, in my view, on the basis of the volume and quantity of cases lodged before courts, progress has been slow as regards dealers
and traffickers, the people who are let down most badly are those growing number of drug addicts who find themselves in the
vicious circle of a revolving prison door and a failure by society to rehabilitate them and offer them a second chance. Too many
of our drug addicts walk into prisons and come out as dealers. Rehabilitation, as opposed to retribution and punishment only,
will therefore have to be redefined. Of equal importance is the compatibility of the Dangerous Drugs Act with current reality,
which needs to be assessed.
In an interview given to journalist Anju Ramgulam in Express Dimanche, Johnny (anonymous name) gives an insightful
account of the world of drug addiction. He reveals his naivet and attractions to this illusory and deceitful world. This is why
it has become so urgent to destroy certain myths. The tendency of some European countries like the Netherlands and Portugal
with a relaxed attitude to cannabis is having a direct influence on the youth of our country leading them, into believing that
consumption of cannabis is harmless. These countries have now learned at their own expense that their relaxed policy has had
the contrary effect of boosting the use of all kinds of drugs.
Cannabis is an extremely dangerous drug. It acts as a gateway to other illicit drugs. There is scientific evidence that it impairs
memory, cripples judgment and the ability to learn. In high doses, it can cause addiction, paranoia and psychosis and provoke
schizophrenia. Liberalisation myths may have captured some advanced States but the sad truth may well be that talking down
the damage done by drugs can only boost their consumption among the youth.

The Commission of Enquiry will be a golden opportunity for parents of drug victims, social workers and society in general to
come forward with their perspectives and proposals.
Rehabilitation of drugs addicts is the area where we have to win the battle against drugs. For a better tomorrow.

Mr Satyajit Boolell SC,

Director of Public Prosecutions

Page 2

August 2015- Issue 50

University of 3rd Age Mauritius: Legal Issues facing
the Elderly

The ODPP, in collaboration with University of 3rd Age (Mauritius), is delivering courses to our senior citizens on the legal issues
facing them.
The first course organised on 5th August 2015 saw the attendance of some 125 participants. They were informed of their status
and rights as elderly persons as set out in the Protection of Elderly Persons Act 2005. The first key lecture was delivered by Mrs J.

Moutou-Leckning, Senior Assistant DPP.

The inauguration was done by Mr S Boolell SC, DPP and Mr A Parsuramen G.O.S.K, Founder, U3AM.
Mrs Sulakshna Beekarry-Sunassee introduced the office of the DPP to the participants through a presentation of the ODPPs
work and initiatives these past years.

Page 3

August 2015- Issue 50

Court of Criminal Appeal: Botha JJ v The State
[2015] SCJ 267
This month, the Supreme Court (Court of Criminal Appeal), delivered judgment in the case of Botha J.J v
The State 2015 SCJ 267 quashing the term of 33 years penal servitude and Rs 300 000 fine imposed on the
appellant by the Criminal Division of the Supreme Court, on appeal.
The circumstances of the case were summarised by the Court of Criminal Appeal as follows: One South
African National in the name of Marisca Scannell reached Mauritius on the 4th March 2009. She was
searched by the police and accompanied to Movenpick Hotel where she would be residing during her stay
in Mauritius. She had swallowed some 471.7 grams of heroin dissimulated in 41 pellets.
At the Hotel, during check in, she was closely monitored by the police and the police found the Appellant, observing her. The latter was
constantly monitoring the movement of the said Marisca Scannell, gave a false name to the hotel for reservation purposes, earlier to the hotel
receptionist and upon arrest by police officers, occupied a room in the same hotel, check in the same hotel on the same morning that the said
Marisca Scanell arrived in Mauritius.
During her stay in the hotel, the said Marisca Scannell received several calls from the foreign contact. She was asked to walk to the room
occupied by the appellant; later she was instructed to remain in her room as she would have to deliver the drugs to somebody at the hotel on
the next day, that is, on the 5th March 2009. But during the night of the 4th March 2009, she started to have internal bleeding and had not
yet purged the drugs, so she was taken to the hospital.
The Appellant on his part did not know that the said Scannell was not in the hotel. On the 5th March 2009, he was asked by the same contact
who contacted Scannell to go to Curepipe to pick up money to hand over to the said Scannell druing delivery purposes. During the voyage to
Curepipe, appellant was tailored by the police when, according to police officers, he saw them, changed route, avoided police vigilance, came
to Movenpick, destroyed his SIM card to destroy evidence and checked out, although he had already paid for a late check out. He was
intercepted by the police at that point and he admitted that he knew that he was in Mauritius to take something illegal.
The Appellant in his out of court statement explained how he was asked to collect money namely 2000 USD on the morning of the 5th March
to remit to the said Marisca Scannell. He even stated having been instructed to keep watch over her and later on the 5th March 2009, he
started to look for her near the swimming pool but could not find her. He then got a call to the effect that the said lady was bleeding from the
foreign contact and according to him he packed his luggage and was to checked out from the room when he was intercepted by police.
The issue which was raised both at trial and on appeal relates as to whether in the present case, as can be gleaned from the evidence, there
was a commencement of execution, which in law constitutes one of the elements of the offence of attempt.
The Learned trial Judge went on to consider the following passage in Dalloz, Rpertoire Pnal, mai 2009 under the heading Tentative at Note
28

La chambre criminelle admet aussi que soient retenus des actes qui sont objectivement plus loigns de la consommation de
linfraction. Cest alors leur proximit temporelle avec linfraction qui autorise les rattacher celle-ci. Il semble en fait que la situation
de proximit temporelle compense souvent une relation de causalit moins directe. Cest ainsi que des actes, qui sont trs proches de la
consommation de linfraction, sont qualifis de commencement dexcution bien quils ne participent pas de sa constitution matrielle.
Leur proximit temporelle permet alors de prsumer avec certitude un passage lacte.

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August 2015- Issue 50

The learned Judge then concluded as follows

I am of the view that the accused had done everything that he could possibly do in an attempt to possess the drugs. There was one last
line which was left for him to cross and he was waiting for the appropriate time to cross it, inasmuch as that did not depend on him but
on the drugs being purged out by the courier and being ready to be taken over physically by him. Having considered the facts and the
law on the subject, I find the element of commencement dexcution proved.
The Court of Criminal Appeal went on to elaborate as to what constitutes an attempt as per has been defined in section 2 of the
Interpretation and General Clauses Act 1974

attempt, in relation to an offence, means a commencement of execution which has been suspended or has failed in its effect through
circumstances independent of the will of the person making the attempt.
It went on to restate the legal principles enumerated in French law relating to the distinction between commencement of execution and
preparatory acts, referring to French Jurisprudence from Note 34 and 51 of Garcon Code Penal Annote:

34. Lintention nest donc pas rpute pour le fait si elle ne sest pas manifeste par des actes extrieurs, qui constituent le
commencement dexcution. Sans doute, les actes prparatoires peuvent annoncer lintention mauvaise de lagent; dans une certaine
mesure, ils manifestent extrieurement la pense et mme la rsolution dlictueuse. Mais ils sont encore trop loigns du dlit pour ne
pas laisser place au repentir possible de lagent et pour dmontrer une intention dfinitive. Objectivement, le dlit nest pas commenc
et le prjudice social napparat pas encore; subjectivement, le projet manifest par une simple prparation ne prouve pas encore que
lagent soit un malfaiteur dangereux.
51. La distinction de lacte prparatoire et du commencement dexcution se ramne donc la distinction des actes qui tendent
mdiatement et indirectement au crime et des actes qui y tendent immdiatement et directement. La doctrine ne peut, croyons-nous,
fournir aucun critrium plus prcis. Certains faits seront clairement prparatoires parce que, bien que tendant au dlit, ils sont encore
loigns de ce dlit, ils lannoncent, mais ne le ralisent pas; dautres seront certainement des actes dexcution: ce sont tous ceux qui
consistent dans lexcution du dlit lui-mme. Mais entre ces actes prparatoires et ces actes dexcution se placent ceux qui
commencent lexcution et qui constituent la tentative deux conditions: 1o quils tendent directement au dlit ; 2o quils soient
accomplis dans lintention dexcuter ce dlit. Telle est, au fond, si nous lavons bien comprise la doctrine de M. Garraud, dans sa
seconde dition.
The Court of Criminal Appeal came to the following conclusion in relation to the issue of attempt:
(i) The commencement of execution should be among the last acts before the consummation of the offence.
(ii) In the present case, there is nothing in evidence on record linking the appellant to the act of possession. It was imperative for the
appellant to at least have approached Miss Scannell, meet her, speak to her or any sort of interaction between the two; in other words,
there should have been some overt acts connecting appellant to the drugs
(iii) Since the appellant did not approach Miss Scannell, there was no lien de causalit entre le comportment et linfraction consomm; so no
proximite temporelle existed

Mr Shakeel Bhoyroo,
State Counsel

Page 5

August 2015- Issue 50

The ethics of cross-examination
Section 10(2)(e) of the Constitution provides that, every person who is charged with a criminal
offence shall be afforded facilities to examine, in person or by his legal representative, the
witnesses called by the prosecution before any Court, and to obtain the attendance and carry out
the examination of witnesses to testify on his behalf before that Court on the same conditions as
those applying to witnesses called by the prosecution. Furthermore, section 107 of the Criminal
Procedure Act provides that, after examination-in-chief, every witness may then be crossexamined by counsel for the defence or by the accused through the Judge. The right of a person
to cross-examine a witness, as set out in those provisions, flows from the very nature of the
adversarial system.
The barrister can therefore be said to have a discretion as to the conduct and subject matter of cross-examination. However, it is
also the duty of counsel to ensure that such discretion is not misused. Too often, we see in court that witnesses are subjected to
gruelling cross-examination by counsel. What is the purpose of cross-examination? Do barristers have an ethical duty towards
the witness and towards the court when conducting cross-examination? Does the court have a duty to intervene in cases where
witnesses are subjected to fierce cross-examination?
According to Blackstones Criminal Practice 2015, at paragraph F7.4, the object of cross-examination is as follows: (a) to elicit
from the witness evidence supporting the cross-examining partys version of the facts in issue; (b) to weaken or cast doubt upon
the accuracy of the evidence given by the witness in chief; and (c) in appropriate circumstances, to impeach the witness
credibility.

Paragraph 11.3(e) of the Code of Ethics for Barristers provides that, a barrister when conducting proceedings in court shall not
make statements or ask questions which are merely scandalous or intended or calculated only to vilify, insult or annoy a witness
or some other person. Paragraph 11.3(i) of the said Code states that, a barrister when conducting proceedings in court shall not
try to mislead or do anything tending to frighten or coerce the witness. Hence the duties on barristers in relation to crossexamination are, and always have been, ethical duties, not merely duties in relation to the application of rules of evidence.
Let us therefore identify a few mistakes which ought to be avoided in cross-examination:
(1)Tone and manner: An intimidating manner is not permitted and there is no room for cross-examination in the nature of a
taunts (Randall v The Queen [2002] 1 WLR 2237 at [10]);
(2)Language: Violent and abusive language should be avoided. The cross-examiner should not browbeat or bulldoze the
witness; Should a barrister have a momentary lapse with respect to language used it is best to withdraw and start again;
(3)Sarcasm: In R v Robinson [2001] 153 CCC (3rd) 398, the Ontario Court of Appeal considered sarcasm as a serious breach of
counsels duty whilst in the United States, there is authority for the proposition that persistent use of sarcasm amounts to
contempt of court (Hawk v Superior Court 42 Cal App 3d 127);
(4)Aggressiveness: It is not proper to lose ones temper and become cross with the witness. Self-control is the aim;
(5)Badgering: As a working rule, counsel cannot torment, tease or nag a witness;

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August 2015- Issue 50

At paragraph F7.14 of Blackstones Criminal Practice 2015, we read that the trial judge has a discretion to prevent any questions
in cross-examination which, in his opinion, are unnecessary, improper or oppressive. Cross-examination is a powerful weapon
entrusted to counsel, and should be conducted with restraint and a measure of courtesy and consideration which a witness is
entitled to expect in a court of law (Mechanical & General Inventions Co. Ltd v Austin [1935] AC 346, per Lord Sankey LC at pp.
359-60). Thus, it is no part of the duty of counsel for the defence to embark on lengthy cross-examination on matters which are
not really in issue (Kalia (1974) 60 Cr App R 200). The Court has always had the authority to control the proceedings and to
enforce proper standards of behaviour. Failure to exercise that control jeopardises a fair trial. The Privy Council in Randall v
The Queen [2002] 1 WLR 223795 stated that the responsibility of the judge is to ensure that the proceedings are conducted in an
orderly and proper manner and to that end if counsel begin to misbehave he must at once exert his authority to require the
observance of accepted standards of conduct. In this respect, it is the duty of the trial judge, under the general law, to prevent
cross-examination that goes beyond permissible limits and this is so even if it is not objected to by counsel for an accused.
The law is not a game and the court process is not about ambushing or humiliating witnesses. Each counsel ought to carry out a
balancing exercise in assessing the effect of questioning upon an actual witness who is to be cross-examined whilst bearing in
mind ones ethical duties under the Code of Ethics for Barristers. What is required at the end of the day is that a fair trial has
been conducted, fair trial to both the prosecution and the defence. The duty to ensure to ensure that a fair trial is carried out
rests ultimately on the Court. Control of cross-examination therefore is best left to the Court!

Zaynah Essop,
State Counsel

Page 7

August 2015- Issue 50

Disqualification: Below the minimum period or
partial circumstances in which it can be invoked.
A first time offender found guilty, by a court of law, for driving under the influence of alcohol
above the prescribed limit shall be liable to a fine of not less than 10,000 rupees nor more than
25,000 rupees and to imprisonment for a term not exceeding 6 months. (Section 123 (F) (3) of the
Road Traffic Act) plus a minimum of 8 months disqualification period of his driving licence.
The issues to be canvassed are two fold, firstly (A) can a disqualification below the minimum
period be imposed by the Court and secondly (B) can the accused benefit from a partial
disqualification?
(A) Disqualification below the minimum period provided by law
It is not denied that although the minimum sentence prescribed by section 123F of the Act will normally be imposed by the
Court, yet section 52 of the Act gives a discretion to the Court not to impose the minimum sentence laid down in the Second
Schedule to the Act, including the disqualification/cancellation of the licence of the offender where there are special reasons
which dictate otherwise. (Ramtohul v State [1992] MR 240 and Douce [2005] SCJ 238.)

A special reason within the exception is one which is special to the facts of the particular case, that is special to the facts which
constitute the offence. It is, in other words, a mitigating or extenuating circumstance, not amounting in law to a defence to the
charge. Yet directly connected with the commission of the offence and one which the Court ought to take into consideration
when imposing punishment. A circumstance peculiar to the offender as distinguished from the offence is not a special reason
within the exception. (R v.Crossen [1939] 1 NI 106 as cited in Jeetun s. v State [2009] SCJ 364).
(B) The issue of Partial Disqualification
Moreover, in Attig v State [2012] SCJ 95 it was held that whether the disqualification of a licence should be extended to all types
of vehicles will depend, among other factors, on the nature of the offence and, more particularly, on the mischief that the
legislator was trying to deal with in providing for such a measure. Drinking alcohol affects the reflexes of a driver, his reaction
time, his ability to control his vehicle and his ability to assess and successfully deal with situations that he is likely to be
confronted with when driving. Once a driver has shown that he can disregard the safety measures embedded in the law with
respect to drinking and driving, it would serve no purpose to restrict him from driving one type of vehicle but to allow him to
continue driving other types of vehicles. For the measure to be effective, the disqualification should extend to all types of vehicles
unless there are good grounds for not doing so.
Further in the case of Seesurrun v State [2015] SCJ 272, it was held that the imposition of partial disqualifications based on the
personal conditions of the life of driver such as the need of the vehicle for his everyday job, a clean record (good driving record)
do not amount to special reasons which would have prompted the Court to impose disqualification on specific types of vehicle.
Therefore, the rule remains that the Courts will usually impose the minimum disqualification period unless there are special
reasons not to do so.
Mr Rishi Hardowar, State Counsel

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August 2015- Issue 50

Mission Statement: Cybercrime: Are we ready for it?
The Ecole Nationale de la Magistrature(ENM) in France provides courses throughout the year in various fields and provides the
continuous assessment programme reserved for French Magistrates and Judges. These courses are also open to other countries
including Mauritius.
In June 2015, a course on cybercrime was held at Sevres, Paris. Some eminent speakers, from Judges with a wealth of experience
in cybercrime, practitioners, to IT experts from the French Ministry of Defence took part in delivering lectures which were both

highly technical and adapted to the less tech savvy individuals. The innovation this year was the participation of Google France.
They gave an insight on the world of high technology, the role of the internet and the risks which inevitably follow through.
Google now covers 90% of the all search engine users in the world. The frightening pace at which Google and its competitors are
creating new devices that connect to each other through cyberspace provides a new platform for cybercriminals to work on.
Connected watches, glasses or implanted chips under the skin are now becoming the norm in France.
Criminals are moving away from drug trafficking and are slowly investing in cybercrime which can be more lucrative and
crucially more difficult to detect. There are two main branches of cybercrime. The common offences of swindling, embezzlement,
insult, defamation or child pornography are now being perpetrated through cyberspace, whether it is on social media or
otherwise. The other side is the hacking of systems which can put at risk major organisations or states. These hackers will either
use their expertise to steal information to sell it on to the highest bidder or cripple organisations themselves when hired.
France is investing massively in the fight against cybercrime and even then they are playing catch up all the time. It is unclear at
this stage how much we, in Mauritius, are serious about fighting this new scourge. Perhaps, we are only being saved by the fact
that we do not represent a worthwhile target for international cybercriminals for the time being.

Mr Kevin Rangasamy, State Counsel

Page 9

August 2015- Issue 50

Une description audacieuse dun t chez le
Directeur des Poursuites Publiques
Un stage est une priode, passe dans un milieu professionnel, permettant un individu de mieux
se prparer intgrer le monde du travail. Le cadre est pos. La dfinition dun stage na rien de
complexe, dans ce cas, quels sont les critres remplir pour sortir du milieu aprs trois mois et se
dire ah oui ! ctait effectivement une bonne exprience !, quels sont les critres dun bon stage?
Certains pourraient dire que le seul critre est la qualit de lapprentissage: le fait de dcouvrir de
nouvelles notions pour devenir meilleur dans sa profession. Pour dautres il sagit de nouer des
contact avec les individus et ainsi commencer se former un rseau. Il y a aussi lide quun bon
bon stage permet dintgrer une routine, de comprendre des procdures et des automatismes que personne ne peut transmettre
sur les bancs dune facult. Enfin, il y a ceux qui ne pensent rien des stages, ces derniers tant gnralement une perte de temps,
loccasion de signer un registre deux fois par jours et dajouter une ligne sur un CV.
Personnellement, je ne suis pas sorti du bureau du Directeur des Poursuites Publiques aprs trois mois en me disant ah oui !
effectivement ctait une bonne exprience !. En ralit je ne me suis rien dit du tout. Parfois les mots ne suffisent pas pour
exprimer les ides, mais pour les besoins de la cause, je vais tacher de faire un effort. Aucun stage ne ma apport autant que
celui que jai commenc il y a trois mois.
Apprendre. Ne connaissant rien du droit de notre pays, je connais aujourdhui par coeur des sections de notre Code Pnal, jai eu
lopportunit dtudier nos volutions jurisprudentielles et ce magnifique melting-pot juridique quest le droit mauricien.
Rencontrer. Mon stage naurait jamais t aussi agrable, sans les personnes que jai eu la chance de ctoyer. Des futurs avocats
aux avocats du bureau, en passant par les autres tudiants, je pense que les meilleurs moments de mon sjour sont ceux passs
vos cots.
Comprendre. Certaines choses ne sapprennent pas dans les livres, encore moins dans un article comme celui-ci. Travailler dans
lune des institutions essentielles pour le bon fonctionnement de notre systme juridique permet davoir un point de vue unique
sur les dynamiques et les enjeux de la scne mauricienne.
Les vnements ont fait que ma priode de stage a t agrmente de morceaux particulirement pics. Revenir sur lensemble
de ce qui sest pass pendant mon sjour demande une libert dont je ne dispose pas, alors je dirai simplement que si vous avez
pour ambition de travailler au bureau, entrainez-vous tre vifs et prts vous adapter toutes les situations, vous en aurez
besoin.
La premiere phrase que lon ma adresse mon arrive tait : Vous avez de laudace de demander travailler pour nous. Cet
article ne reprsente que limpression subjective de son auteur et reste donc, une opinion. Sil est conseill de ne pas tre subjectif
lorsque lon crit sur une institution comme celle du DPP, jai justement choisi de faire preuve daudace et dcrire un article
honnte et direct. Mon dernier mot sera dirig toutes les personnes que jai eu loccasion de rencontrer: merci pour vos conseils,
votre aide et votre soutien, et merci de mavoir donn la chance de travailler chez vous.

Mr Emmnanuel Luchmun, Pupil

France

Page 10

SUMMARY OF COURT JUDGMENTS: July2015

THE STATE v BANGAREE P [2015] SCJ 249
Hon.G.Jugessur-Manna, Judge

Murder Manslaughter - Sentence

The Accused was initially charged with the offence of murder. On the
day of the trial, the Prosecution reduced the charge to that of
manslaughter for having criminally and willfully kill, one Mr.
Teeluckdharry Patut Roy in breach of Sections 215 and 223(3) of the
Criminal Code, to which he pleaded guilty. He was thus found guilty
as charged.
The facts of the case were that on 12th April 2008 at about 6.30 pm
the accused met his friend Jessen at a tobacco shop at Rivire Des
Anguilles and they consumed three bottles of beer. Thereafter they
left for Senville Restaurant and ordered a bottle of rhum Seven Seas
among other drinks and some food. Thereat, they met with Gian, the
deceased, to whom they served a drink. It is noted that the accused
knew the victim for more than four years. Some four months prior to
the incident, accuseds father had remitted a sum of Rs150 to the
deceased to purchase a measuring tape but the latter had used the
money to buy alcoholic drinks. Each time, the accused would request
for the money, the deceased would swear at him till the latter
preferred to abandon his request. According to the accused, Gian
used to swear, make noise and nasty remarks when he was drunk.
After the restaurant was closed, the accused and Jessen continued to
drink under a tree, when the deceased approached them anew,
asking for a cigarette. Upon being refused, the deceased got angry
and started swearing at the accused. Jessen slapped the deceased and
the latter fell on the ground. The accused and Jessen dragged the
deceased in a sugar cane field and they violently dealt him numerous
fisticuff blows on the face and the stomach. They left the deceased in
the sugar cane field and after purchasing a bottle of beer, they came
back on the spot. Seeing the deceased moving and mourning, they
realized that the latter might report them to the police. The accused
violently hit the deceased at the neck with his foot while Jessen hit the
latter at his head with the empty bottle of beer. They removed the
clothes of the deceased and set fire with a view of dissipating the
evidence and left the deceased in the sugar cane field.
After having taken all the necessary factors into consideration; that is
the fact that the accused cooperated with the police and that he
pleaded guilty at the first opportunity and his young age, the Court
sentenced him to undergo 27 years penal servitude.

August 2015- Issue 50

CURUM D v THE STATE OF MAURITIUS & ANOR [2015] SCJ 235
Hon. A.F.Chui Yew Cheong, Judge and Hon. O.B.Madhub, Judge

Application deduction of pretrial detention.

On 22 September 2006, the applicant now a prisoner serving
sentence - was sentenced by the Intermediate Court to undergo
various terms of imprisonment and penal servitude for drugs related
offences. He now applies for a review of the sentences imposed on
him so that the time he spent as pretrial detention be counted as
served sentence and be deducted from his initial sentences. There is
no objection to the application subject to the discretion of the Court
to deduct the appropriate quantum of time spent on remand.
It is not disputed that the applicant has spent 579 days as pretrial
detention in the police cell and on remand. That such time spent in
custody prior to sentencing should have been taken into account by
the trial Court by means of an arithmetical deduction from the
proper and appropriate sentence is now settled case law.
As regards to the calculation of this arithmetical deduction the Court
referred to the case of Dookee Ajay v State of Mauritius [2012] UKPC
21 in which it was held that a credit of 80 to 100 % of the pre trial
detention can be given.
The Court thus decided to reduce the sentences passed upon the
Applicant by 464 days i.e. 80% of 579 days.
THE STATE v ERRAPAH S [2015] SCJ 248
Hon. G-Jugessur Manna, Judge

Sentence Murder - Deduction

The accused stands charged with the offence of murder for having,
on the 29 May 2011, criminally, wilfully and with premeditation,
killed one Louis Lakshmann Rao Yenkadu in breach of sections 215,
216, 217 and 222(1)(a) of the Criminal Code, to which he pleaded
guilty. He was found guilty as charged.
It arose out of the confession of the accused that on the 29 May 2011,
the latter and his friend Josian Laverdure decided to steal batteries
from a store at Marie Jeannie, Rose Belle to remove and sell the lead
found in them. The accused brought along with him a sabre to
facilitate the removal of lead from the batteries. After having
removed some batteries from the store, he was caught by the
watchman who started swearing at him. Realizing that he was

Page 11

recognized and that the matter would be reported to the police, the
accused there and then decided to kill the watchman in order not to
get into trouble with the police.
Accused in a statement from the dock expressed remorse and offered
apologies to the family of the deceased. The Court in sentencing the
Accused took into account his timely plea of guilty, the period spend
on remand, the fact that he cooperated with the police, his remorse
and the fact that he promised to mend his ways.

August 2015- Issue 50

3.The learned Judge failed to consider that since accused never
contacted Ms Scannell, never went to her room, never talked to her or
did any overt positive act to take possession of the drugs, all his other
acts are in law remote enough from the actual taking possession of
the drugs and therefore merely amount to actes prparatoires.

4.The learned Judge failed to consider that even if accused may have
He was thereafter sentenced to undergo 38 years of penal servitude. been prosecuted for other drug offences, or have the necessary mens
In view of the fact that there was no exceptional circumstances on rea he cannot be found guilty of attempting to possess, as he never
record which would justify a 100 % deduction, only 80 % was committed the penultimate act of taking possession of the drugs.
deducted from his time spent on remand.
The grounds of appeal in essence challenge the finding of the learned
trial Judge that the acts of the appellant, as borne out by the evidence
BOTHA J.J N v THE STATE [2015] SCJ 267
Hon. Matadeen, Chief Justice, Hon. S. Peeroo and Hon. D. Chan Kan on record, do constitute the offence of attempt to possess drugs for
the purpose of delivery. The Appellate Court went on to state that on
Cheong, Judge
a charge of attempt to possess drugs, the prosecution must establish
Attempt Proximite temporelle - Drugs
not only knowledge but also overt acts connecting the accused to the
This is an appeal from a judgment of the learned trial Judge who
drugs. After having relied on several cases the Court held that the
found the appellant guilty of the offence of attempting on or about 05
crucial issue therefore was as to whether the acts of the accused party
March 2009 to possess 471.7 grams of heroin for the purpose of
showed that he had gone beyond Actes preparatoires and had
delivery and who, after making a finding that the appellant was a
embarked into the executor process of the offence charged.
drug trafficker, sentenced him to undergo 33 years penal servitude
and to pay a fine of Rs 300,000. It was averred in the information The Appellate Court went on to hold that the evidence on record was
that the attempt was manifested by a commencement of execution not sufficient to establish the offence of attempt to possess the drugs
which failed in its effect through circumstances independent of the in as much as:
(i)There is nothing in the evidence on record which links the
will of the appellant.
appellant to the act of possession
The appellant appealed against the judgment of the learned trial
(ii)The facts which were adduced in the present case were totally
Judge on the following four grounds
1.The learned Judge erred in concluding that the element of different from those in the case of Narayanasawmy where the
commencement dexcution was proved, when in fact several acts Appellant had a close connection and interaction with the lady who
would have to be done by the accused before taking possession of the had swallowed the drug pellets and from which the Court concluded
drugs, and the penultimate act to take possession was never reached. that he had gone beyond mere actes preparatoires and embarked
on a commencement dexecution
2.The learned Judge erred in considering that the intended payment
of 2000 USD to Ms Scannell constituted a lien de causalit (iii)Even if one were to assume that the Appellant had the necessary
(suffisament troit et direct) entre le comportement et linfraction guilty knowledge, it can neither be said that he had done all that he
consomme when what is required is an act (actus reus) of the could possibly have done in his endeavor to take possession of the
accused that would lead straightforwardly to the commission of the drug pellets not that he was only prevented from completing the
complete offence of possession. The intention to remit the 2000 USD operation by the intervention of the police.
could be taken at its best as une intention (mens rea) to take (iv)The evidence also showed that the Appellant had never even
possession but not attempt at possession.
approached the lady. Accordingly it cannot be said that there was a
lien de causalite entre le comportement et linfraction consomm

Page 12

THE STATE v DOORGAPARSAD [2015] SCJ 273

Hon. P. Fekna, Judge and Hon. O.B.Madhub, Judge

Insult Test of Memory

The appellant stood charged before the District Court of
Pamplemousses with one count of insult in breach of section 296(a)
of the Criminal Code. In fact, it was averred that on 16 February 2012
at Triolet she wilfully and unlawfully, by means of words not carrying
with them an imputation of fact, use an injurious expression to the
address of one Saraswatee Parbotheeah, which words were not made
use of in public. The information was subsequently amended to give
the particulars of the impugned words.

August 2015- Issue 50

material in that it has a direct bearing to the elements of the offence
and to the credibility of the witnesses for the prosecution.
[7] The Learned Magistrate was wrong in law and on the facts to find
the accused guilty in view of the evidence on record.
The Appellant questioned the judgment of the learned Magistrate
who found that the version of witness No.2 has been corroborated
by that of Witness No.3, especially in view of the inconsistencies in the
testimonies of the two witnesses.

The Court referred to the test stated in the case of R v Beck [1982] 74
CAR 221 with regards to corroborative evidence. Based on the test the
Court held that corroborative evidence does not have to be exactly in
every respect as the primary evidence already adduced. The grounds
failed and the Court concluded that the Learned Magistrate had the
[2]. The Learned Magistrate erred in finding that the complainant
opportunity of observing the demeanour of the witnesses and the
had repeated the very insulting words which appear in the body of
Appellate Court did not find anything on record that would amount
the information.
to a wrong direction from the Learned Magistrate.
The learned Magistrate found her guilty as charged and sentenced
her to pay a fine of Rs 5000 plus Rs 100 as costs. The Appellant is now
appealing against the said judgment. Grounds 2 and 3 were dealt
together and read as follows:

[3]. The Learned Magistrate misdirected himself when he found that

those offensive words are to be found in the charge which the police The other grounds also failed and the appeal was dismissed with
put to the accused as evidenced by the defence statement on record. costs.
The Appellate Court held that the magistrate was right to find that
there was no inconsistency between the three instances where the
impugned words have been referred to. The Court further held that it
is an established principle that the process of giving evidence in court
should not be turned into a test of memory. The Court further added
that where words which have been uttered by an accused party in
creole are the basis of a charge, the evidence given in that connection
should not be made to sound like an exercise in the precise use of
specific words.

RUHOMAUN FAWAZOODDIN v THE STATE [2015] SCJ 246

Hon. N. Devat, Judge and Hon. P. Fekna, Judge

Interpretation of the law of larceny

The appellant stood charged before the District Court of Grand Port
with:
[1] under Count I, with the offence of larceny in breach of section
301(1) of the Criminal Code; and
[2] under count II, with the alternative offence of possession of stolen
property in breach of section 40 and 301(1) of the Criminal Code.

Grounds 4, 5, 6 and 7 were further dealt together as they concern the

He pleaded not guilty to both counts. The learned Magistrate found
issue of alleged inconsistencies in the prosecutions evidence and they
him guilty under count I and dismissed the alternative count. She
read as follows:
then sentenced the appellant to pay a fine of Rs 2000 plus Rs 100 as
[4] The learned Magistrate completely misdirected himself on the costs. The appellant purported to challenge his conviction pursuant
facts when he found that the version of the main witness had been to eight grounds of appeal. However, on the day of the hearing,
corroborated by witness No.3.
counsel appearing for him dropped grounds 1, 4, 5, 6 and 7 so that
[5] The learned Magistrate failed to direct his mind to all the we are left only with two grounds, namely grounds 2 and 3.

inconsistencies in the evidence of the prosecution.

The grounds read as follows:
[6] The learned Magistrate was wrong to fleetingly discard the
[2] That the learned Magistrate failed in his interpretation of the law
contradiction as regards the location of the houses as not being
concerning larceny

Page 13

[3] That the learned Magistrate failed in finding the Appellant guilty
of abstraction as there was no evidence to that effect.
The judgment of the learned Magistrate showed, according to the
appellate court, that she analysed all the relevant facts as well as the
applicable law in details before coming to the conclusion that the
actions of the appellant led to the irresistible conclusion that he had
been acting as the owner of the phone since he kept it in his
possession and appeared to exercise proprietary rights over it. Thus,
both the elements of appropriation and intention frauduleuse have
been established.

August 2015- Issue 50

THE STATE v GOWRYDOSS [2015] SCJ 250
Hon. G.Jugessur-Manna, Judge

Murder Guilty Plea - Sentence

Both accused stood charged with having criminally and wilfully
killed one Mr. Prithviraj Ajaye Kumar Nosib, on the 22nd of May
2009, in breach of sections 215 and 223(3) of the Criminal Code.
Both accused pleaded guilty to the charge. Based on their plea, they
were found guilty as charged.

The Appellate Court further held that it would only interfere with the
finding of facts of a trial court where those findings are perverse and Accused No.2 met with Accused No.1 and they became friends. One
it found nothing perverse with the reasoning of the Magistrate and year prior to the incident, he made the acquaintance of the deceased
whom he knew as Nikhil through chat plus and Nikhil used to give
therefore have found no grounds to interfere with same.
him some money. Since some time, as he was short of money, he
planned together with Accused No. 1 to rob Nikhil who he knew was a
GOPY A. v THE STATE OF MAURITIUS AND ANOR [2015] SCJ 274
rich guy.
Hon. A.F.Chui Yew Cheong, Judge and Hon. A.D.Narain, Judge

Time Spent on Remand - Deduction

This was an application by a prisoner undergoing sentence for the
offence of offering drugs for personal consumption, for a review of his
sentence and for the second respondent to amend his records so that
the period of 8 months spent by him on remand be counted as
served sentence and be deducted from his initial sentence.

On the 22 May 2009, both accused met Nikhil at La Brasserie and

they all proceeded to an abandoned house in a deserted area. The
accused brought along with them a bandage and a kitchen knife.
Accused No.1 removed a knife from the back pocket of his trousers
and placed it at the neck of Nikhil while accused No. 2 tried to tie up
his hands. Both accused struggled to immobilize Nikhil but the latter
was showing resistance and even proposed to give them some money.
Both accused refused the proposal and asked for his credit cards and
pin code. In the course of the struggle, accused No. 2 immobilized
Nikhil on the floor while accused No.1 placed his knee on the latters
abdomen and stabbed him at the chest.

On 6 June 2013, the applicant was sentenced by the Intermediate

Court to undergo 2 years imprisonment. The learned Magistrate
bore in mind the serious nature of the offence, the quantity of drugs
secured and the applicants previous convictions but did not take
into account the time spent by the applicant on remand awaiting
trial and pending appeal.
After having taken all the mitigating factors into consideration, the
It is not disputed that the applicant spent 4 days on remand in police Court went on to conclude that the manner in which the deceased
cell awaiting trial and 245 days on remand pending appeal. The was killed showed that both accused had utter disrespect for human
second respondent has stated that it has no objection to the sentence life and had for petty gains violently attacked a vulnerable and
of the applicant being reviewed subject to the Courts discretion to honest man who had blindly followed them. They were thus
sentenced to undergo 28 years penal servitude.
deduct the appropriate quantum of the time spent on remand.
The Court, after having taken into consideration the case of
Callachand Mohamed Iqbal & Anor v The State [2008] PRV 44, held
that there was no reason which had been put forward as to why credit
to the extent of 100 % should be given for the time spent in custody
on remand, hence the Court decided to deduct only 80%.

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JAWAHEER v THE STATE [2015] SCJ 236

Hon. Chief Justice Matadeen and Hon. D.Chan Kan Cheong, Judge

August 2015- Issue 50

Remission or Parole

2.Because the learned Magistrate did not address her mind to the fact
This appeal was originally heard before a differently constituted that the footprint evidence allegedly found in the complainants house
Bench. One of the Judges having passed away before judgment could was too tenuous to be accepted as proof of the Appellants guilt.
be delivered, this appeal had, with the agreement of legal advisers on
At the hearing of the Appeal observations were made with regards to
both sides, to be heard anew.
the aspect of evidence and the Respondent thereafter decided not to
The appellant was prosecuted with 3 co-accused for drug dealing, resist the appeal.
namely possession of cannabis for the purpose of selling in breach of
sections 30(1)(f)(i), 45(1), 47(5)(a) and 48 of the Dangerous Drugs Act It is not disputed that the only evidence connecting the accused to the
(Act 41 of 2000) under count 1 of an information before the room from which the larceny of money and some items of jewellery of
Intermediate Court. The appellant, who was represented by Counsel, a total value of about Rs 100,000 had been stolen were footprints
was convicted upon his own plea of guilty after initially pleading not found on the floor of such room and alleged to be the appellants.
guilty. He was sentenced to undergo 3 years penal servitude and to PS Luchmun had produced four transparent plastic slides bearing
pay a fine of Rs.25, 000.
footprints and deposed to the following effect, as appears also from
The only ground of appeal was against the sentence and read as the learned Senior District Magistrates judgment:

and added that as Examiner of long-standing at the Crime

Because the sentence passed on the appellant (then accused No.2) is Records Office, since 17th Century, (sic) two persons cannot have
wrong in principle, manifestly harsh and excessive and identical prints, and in his 21 years of career, he had not seen anyone
disproportionate with the other sentence passed on the co-accused with the same prints as another person.
parties.
Witness Luchmun did not say in chief in what exact capacity he was
follows:-

In light of the case of Mertz v The State [2012] SCJ 382 the Court held giving evidence, apart from saying that he was an examiner of
that the non-eligibility of the Appellant for remission or parole did longstanding at the Crime Records Office, nor what was his
not render the sentence unconstitutional.
competence and experience in the examination of such evidence as
footprints. It was only in cross-examination by the appellant, that he
BEGUE N v THE STATE [2015] SCJ 252
said that it was the second time in his career of twenty one years that
Hon. A. Hamuth, Judge and G.Jugessur-Manna, Judge
he had a case concerning footprints. He had also not personally gone
Larceny by Means of Scaling Expert evidence Footprints
on the locus nor taken the prints therefrom.
The appellant was convicted for the offence of larceny by means of
It was abundantly clear to the Court from the tenor of the evidence
scaling in breach of section 309 (1) of the Criminal Code and he was
and the findings of the learned Magistrate that it was not possible for
sentenced to undergo six months imprisonment and to pay Rs 100 as
the Magistrate, nor was it possible for this Court, on appeal, to
costs. He had pleaded not guilty and was not assisted by counsel.
objectively determine on what premises witness Luchmun based
The Accused appealed against both his conviction and sentence. The himself to conclude that the footprint collected from the spot in the
grounds were as follows:
room matched the specimen voluntarily provided by the appellant.
1.Because the learned Magistrate ought not to have relied on the There was no demonstration of the process which led to and justified
evidence of footprints adduced by the prosecution inasmuch as (i) the such conclusion.
Prosecution failed to establish that such evidence was being provided What was cause for concern in the present matter was that the court
by experts and (ii) this evidence lacked the certainty that is required at first instance accepted, without more, the evidence of the purported
for its admissibility.
expert who had said that he had found the specimen footprint from
the appellant identical to the footprint collected from the locus, and

Page 15

without a detailed explanation by the witness of what exactly he

based himself on to conclude as he did.
The Appellate Court thus held that it is the practice, and rightly so,
for experts giving evidence of handwriting or of fingerprints to show
in their report by reference to photographs of the specimen and the
collected evidence, the process which leads to and justifies their
conclusion.
It was also well settled that the purpose of expert evidence was to
assist the Court, which had to be personally satisfied that the
conclusion is well founded. In other words the Court was not to
accept the experts findings at face value without submitting it to an
appropriate test.
The Appellate Court went on to say that it must satisfy itself that the
reason(s) given by the expert for coming to the conclusion that he did
is demonstrably valid, reliable and borne out by an objective
evaluation and assessment. That is why, for example, fingerprint
experts call attention to the similarities in the formation of the ridges
of particular fingers or parts of the palm to justify their findings.
Consequently the court must not follow without questioning
everything that the expert says. Experts are there only to assist the
court to determine a fact in issue. It is for the court to satisfy itself
that the conclusion of the expert is or is not sound, based on the
information relied upon by the expert, the process of the comparison,
the inferences drawn by the expert to arrive at the relevant findings,
and the reason(s) for his conclusion(s).
Hence the Court held that the prosecution had failed to establish the
expertise of PS Luchmun in the field of footprint. The appeal was
thus allowed and the conviction and sentence quashed.
JOLI J. T v THE STATE [2015] SCJ 256
Hon. E. Balancy, Senior Puisne Judge and Hon. P. Fekna, Judge
The appellant was prosecuted before the Intermediate Court on two
charges of sodomy (Counts 1 and 2) in breach of section 250 (1) of the
Criminal Code and one charge of rape (Count 3) in breach of section
249 (1) and (1A) of the Criminal Code. He pleaded not guilty to all
three Counts. At the end of the trial, the learned Magistrate
dismissed count 2 for lack of evidence but found him guilty of
sodomy under Count 1 and rape under Count 3. The learned
Magistrate sentenced the accused to two years imprisonment under
Count 1 and to five years penal servitude under Count 3.

August 2015- Issue 50

(a)grounds 2 and 3 of the initial grounds and the two additional
grounds which all challenge the appreciation of the evidence by the
learned Magistrate; and
(b)ground 5 of the initial grounds which relates to sentence.
The grounds at (a) above were not being pressed. In relation the
ground against sentence at (b) above, the only contention of Counsel
for the Appellant was that the time spent on remand should be
ordered to count as served sentence.
Counsel on both sides agreed that the time spent on remand
amounted to 38 months and that in accordance with established
principles, 80 per cent of that period should count as served
sentence. In the circumstances, the Court held that a period of 30.4
months should be reckoned as served sentence and ordered
accordingly. The appeal was otherwise set aside with costs.

Many of lifes
failures are
experienced by
people who did not
realize how close
they were to
success when they
gave up.
Thomas Edison

The Grounds of appeal were as follows:

Page 16