Director of
Public
Prosecutions
E-Newsletter
Issue 50
August 2015
IN THIS ISSUE:
Editorial
10
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
EDITORIAL
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
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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.
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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.
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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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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
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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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Zaynah Essop,
State Counsel
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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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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.
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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.
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
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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:
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[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.
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
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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:
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
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Many of lifes
failures are
experienced by
people who did not
realize how close
they were to
success when they
gave up.
Thomas Edison
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