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Police v I. Hosany 2013 INT 112 IN THE INTERMEDIATE COURT OF MAURITIUS Cause No.

1600/12 In the matter of:Police v Imraan Hosany JUDGMENT The accused is charged with the offence of Outrage against public and religious morality in breach of sections 206(1)(a)(ii), (3) and 208 of the Criminal Code. It is averred that on the 15 th of July 2012 the accused wilfully and unlawfully, by newspaper put up for sale in public places, committed an outrage against good morals, to wit: he caused to be published, in the edition of the 15th of July 2012 of the Sunday Times Newspaper, which was put up for sale in public places, photographs of a deceased person, one Michaela Mary Harte, an Irish National also known as Michaela Mary McAreavy, and such publication was of a nature to cause outrage against good morals. The accused pleaded not guilty to the charge and was assisted by Mr A. Bissessur, counsel. Mr M. Manrakhan, Principal State Counsel, appeared for the prosecution assisted by Inspector Sowaruth. The evidence for the prosecution is as follows: Mrs F. B. Chamroo of the Accountant General Office (W.1) produced a letter certifying that the necessary notice in respect of the publication of Sunday Times has already been filed at the Treasury Department since September 2011 (Doc. A). The letter is in accordance with the Newspaper Act. DI Domun (W.5) searched the premises of the Sunday Times at 12, cnr Pagoda and Anglois Streets, in virtue of a Search Warrant, and secured six copies of the newspaper dated the 15 th of July 2012 containing the photographs of late M. M. Harte in a bikini (Exhibits I to VI). Insp. Fullee (W.14) and CPL Diljore secured copies of the Sunday Times from two shops Chueng Hung Yuen Ltd, Triolet and Tabagie Philippe, Ste Croix, Port Louis on the 16 th of July 2012 (Exhibits VI to XIV). The shops were open to the public and the newspapers displayed for sale on the counter.

DPC Marie (W.3) produced two statements recorded from the accused on the 16th and 18th of July 2012 at 2.14pm and 8.20am respectively, at the Central CID (Docs. B and B1). The statements were recorded after the accused had been duly cautioned and explained his Constitutional rights (Doc. B2). DPS Nubheebaccus (W.4) produced one statement recorded from the accused on the 16 th of July 2012 at 2.25pm, after the latter had been duly cautioned and explained his Constitutional rights. In cross-examination he said that he showed a copy of Le Mauricien dated the 16 th of July 2012 containing an article titled Photos of Michaela Harte dead body Where some media have no shame to the accused (Doc. C). The other articles he mentioned were on the internet. DPS Dawood (W.7) searched the accuseds residence and office on the 18 th of July 2012 at 7.15am in virtue of a Search Warrant: the accused voluntarily produced four CPUs and one pendrive for examination. The CPUs have already been returned to the accused after examination. The pen-drive was retained (Exhibit XV). After the search he recorded a statement from the accused on the 25th of July 2012 at 3.25pm concerning the search and the items secured (Doc. B3). A number of copies of the Sunday Times dated the 15 th of July 2012 were secured from various shops across the island (Exhibits XVI to XX): the shops were public places and the newspapers were on sale there. On the 18th of July 2012 at 8.25am, in the presence of W.7 and W.3 and with the accuseds consent, PC Pudnam (W.8) examined the four system units and pen-drive: he drew a detailed report of his examination, which report also contains all the documents retrieved from the systems and pen-drive (Doc. D). PC Jeewooth (W.11) was detailed to take photographs in a murder case at Legends Hotel (now Lux Grand Gaube) on the 10th of January 2011. Acting under the instructions of Insp. Nuckchady, from 6.00pm to 8.00pm he took 24 photographs in room 1025, of the deceased, the room, the clothes found therein and the state of the room. He put the photographs in a booklet which he produced when he deposed in the murder case before the Assizes (Docs. E, E1 to E24). The photographs on pages 1, 6 and 7 of the newspaper are identical to Docs. E10, E1, E2, E5, E6, E8, E12, E11, E20 and E16. The body of M. M. Harte was in same position as in the photographs published in the newspaper. He did not give the photographs to anyone apart from authorised persons and cannot say how they came to be in the possession of the accused and published in the Sunday Times. The procedure is that at the end of a reel, he makes an entry and within a week takes the reel to the laboratory to process the negatives. He then prints them and puts them in a booklet which he hands over to SI Anthony, who is in charge of the SOCO and who deals with any request for copies. When cross-examined, he said that the photographs are kept in a filing cabinet and that there was no report of any missing photographs at the SOCO in the case. In some of the photographs E9 to E12 there are scratch marks on M. M. Hartes neck and they appear in the newspaper photographs too. When he said in his statement to the CCID that these scratchduring the processing exercise he meant the scratch marks on the abdomen were accidental.

Insp. Nuckchady (W.12) said he instructed W.11 to take 24 photographs on the 10 th of January 2011: he confirmed that Docs. E1 to E24 are the photographs taken on the said date from 6.00pm to 8.00pm. The photographs in the newspaper are identical to those taken by W.11: he does not know how they came into the possession of the accused and were published in the newspaper. Mr G. Arnachellum (W.16) owns Tabagie Arnachellum found at La Louise. On the 17 th of July 2012 the police searched his shop and secured seven copies of the Sunday Times displayed for sale. His shop is on the main road next to Engen petrol station and is open to the public from 5.00am to 8.00pm. Mr P. Bissondoyal (W.19) sold newspapers near the market at Market Road, Centre de Flacq. On the 17th of July 2012 the police secured thirty copies of the Sunday Times which were for sale. Mr M. S. Bundhoo (W.15) owns a shop at Royal Road, Phoenix. On the 16 th of July 2012 he remitted two copies of the Sunday Times which were for sale. Witnesses nos.16, 19 and 15 identified Exhibit I as a copy of the newspapers delivered to them and which were for sale. The defence closed its case without adducing any evidence. In his defence statements the accused said that he is the director and editor-in-chief of the Sunday Times newspaper, which is a weekly and is registered with the Accountant-General, but not with the Registrar of Companies. He is aware of the murder of Mrs M. Harte Mc Areavy and that there was a police enquiry and two persons were prosecuted before the Assizes in June and July 2012 and were acquitted on the 12th July 2012. He admitted that he published photographs of M. M. Harte and an article titled Les photos exclusives de Michaela Harte dans la chambre 1025 and Qui avait dechir la jupe de Michaela Harte? in the Sunday Times of the 15 th of July 2012, edition no.36. He has nothing to say about the provenance of the photographs, the reason he published the said photographs and the fact that they are scene of crime photographs and were remitted to authorised persons only. He has nothing to say about the fact that he was not authorised to be in possession of the photographs and that the publication of the said photographs is an outrage against public morals and religion. He denies that he committed any offence and said that he only did his job as a journalist. On the 16 th of July 2012 the police searched his printing works in virtue of a Search Warrant and secured six copies of the Sunday Times of the 15th of July 2012 containing exclusive photographs M. M. Harte. On the 18 th of July 2012 the police searched his house and his printing works in virtue of a Search Warrant and in his presence, secured four system units and a pen-drive. He has no complaint to make about the searches. I have duly considered the evidence on record and the submissions of counsel. Section 206 of the Criminal Code provides that: (1) (a) Any person who (i) by words, exclamations or threats used in a public place or meeting;

(ii)

by any writing, newspaper, pamphlet or other printed matter, or by any drawing, engraving, picture, emblem or image, sold or distributed or put up for sale or exhibited in any public place or meeting; or (iii) by any placard or handbill exhibited for public inspection, commits any outrage against any religion legally established, or against good morals or against public and religious morality (la morale publique et religieuse), shall on conviction be liable to imprisonment for a term not exceeding 2 years and to a fine not exceeding 100,000 rupees. (b) Matters of opinion on religious questions, decently expressed or written, shall not be deemed to be an outrage. (2) Any person who hawks for sale, or circulates, or exhibits any such writing, newspaper, pamphlet, or other printed matter, drawing, engraving, picture, emblem or image, placard or handbill, shall, on conviction, be liable to the penalty specified in subsection (1). (3) The copies of any obscene writing, newspaper, pamphlet, or other printed matter, drawing, engraving, picture, emblem or image, placard or handbill, which are exposed to public view, or hawked for sale, may be seized and forfeited. (4) The Public Officers Protection Act shall apply to subsection (3). In Codes Annots de LIle Maurice, Code Pnal, Vol. I, there is a note after section 202 to the effect that Les sections 202 205 ont t empruntes des articles 283 a 287 du code Pnal Franais qui sont considres comme abrogs bien quaucun texte nen ait prononc labrogation expresse. Elles sont rconciliables avec les dispositions relatives aux dlits de presse rgis par les lois du 29 juillet 1881 et du 2 aot 1882. At the end of sections 206 and 207 there is a cross-reference to the note at the end of section 202. Counsel for the defence has referred to Article 227-24 of the French Code Pnal Nouveau which creates the offence de fabriquer, de transporter, de diffuser par quelque moyen que ce soit et quel quen soit le support un message caractre violent ou pornographique ou de nature porter gravement atteinte la dignit humaine, soit de faire commerce dun tel message, Dalloz, Code Pnal, Cent Unime Edition, Yves Mayaud, Art.227-24. Notwithstanding the caption at the end of the extract (Corresp. C. pn., anciens 283 s.) the wording of Article 227-24 is not the same as in our section 206 and a careful reading reveals that it provides for a different offence than the one with which the accused is charged. It is also to be noted that Article 227-24 is under the heading of Section 5 of Livre III, Titre II, Chapitre VII, namely De la mise en pril des mineurs. Therefore, contrary to what was submitted by counsel for the defence, the offence of Outrage against public and religious morality by means of publication provided at section 206 of our Criminal Code would not be restricted to pornographic photographs, images, etc. Since our law is derived from French law, it stands to reason that one would look at French authorities, which would be of highly persuasive authority. In the circumstances, the extract of

Blackstones Criminal Practice 2009, Sexual Offences, B.3.288, referred to by counsel for the defence in respect of the offence of Outraging public decency is not relevant for the purposes of the present offence. The elements of the offence of Outrage aux bonnes murs are as follows: 1 un mode de perptration prvu par la loi ; 2 un moyen ou support matriel galement dfini par la loi ; 3 une atteinte aux bonnes murs ; 4 lintention coupable. - Encyclopdie Dalloz, Rep. de Droit Pnal et de Procdure Pnale, Outrage aux bonne murs, note 7. There is undisputed evidence from the prosecution that the publication of the Sunday Times was in compliance with section 2 of the Newspapers and Periodicals Act and the accused has admitted that he was the director of the Sunday Times newspaper. It is said in Encyclopdie Dalloz, Pnal, Outrage aux bonnes murs, note 80, that lorsque le dlit est commis par la voie de la presse, les directeurs de publication ou diteurs sont, par le seul fait de la publication, passibles comme auteurs principaux des peines encourues . There is no dispute that the accused caused to be printed the edition of Sunday Times of the 15 th of July 2012 and therein, the photos of late M. M. Harte: he did not deny it in his out-of-Court statements. There is evidence from the witnesses for the prosecution that copies of the Sunday Times of the 15th of July 2012 were available for sale in public places throughout the island, namely, in shops and from street vendors. Therefore, the sole issue before the Court is whether the accused committed an outrage against good morals in causing to be published photographs of the deceased in the Sunday Times of the 15th of July 2012. The black and white photograph on the front page of the newspaper is a threequarter frontal image of the body of the deceased wearing a bikini, with the caption Les photos exclusives de Michaela Harte dans la chambre 1025 in bold black letters and a smaller caption Qui avait dchir la jupe de Michaela Harte? in red letters. One of the four black and white photographs at page 7 is a full length frontal image of the deceased wearing a bikini and lying on the floor, the second is a three-quarter length image of her wearing a bikini and lying on the floor and the next two are close-ups of her neck bearing dark marks. In Jurisclasseur, Fasc. 3715 : Protection Civile des Droits de la Personnalit conflit des Droits, Patrick Auvret, note 63 it is said that La dignit de la personne humaine est en cause lorsque la reprsentation dune personne ou dune scne possde un caractre accrocheur et quil apparait que les professionnels ont privilgi lintrt morbide du public plutt que le souci de linformation Counsel for the defence submitted that no witness gave evidence that he felt outraged by the photographs. At note 29, Encyclopdie Dalloz (supra) it is said that La loi ne dfinit pas ce quil faut entendre par les bonnes murs et elle est empche de le faire, des lors quont t successivement abandonns la rfrence la morale publique et religieuse , puis le critre simple de lobscnit Il ne peut donc sagir que dune certaine morale laque, volontairement laisse dans limprcision, fonction de ltat des murs et du but recherch par

le lgislateur, variable selon le lieu et lpoque qui ne peut tre dfinie que par la comparaison avec des textes applicables des dlits voisins ainsi que par ltude de la jurisprudence. The Court has to decide whether an offence had been committed under section 206 whilst bearing in mind the culture and morals obtaining locally at the time of the publication of the photographs. Furthermore, the assessment whether there has been an offence or not is an objective one and the standard would be whether a reasonable person would have found the photographs outraging against good morals. At note 32, Encyclopdie Dalloz (supra) it is said that il est traditionnellement admis que lexpression contraire aux bonnes murs doit tre interprte, de faon exclusive, comme sappliquant des faits de nature exciter les passions dordre sexuelles Cette opinion demeure contestable la lgislation actuelle entend rprimer au-del de latteinte la pudeur individuelle et de la seule excitation sexuelle, toute corruption de lesprit public, . I have also perused the copies of the judgments submitted by the prosecution and the defence. The facts in the first Arrt cited by the prosecution ( Paris (11e ch. corr. section A) 10 nov 1987) are different from the facts in the present case, since that case concerned the possession of videos showing pregnant women having sexual intercourse, etc. The Court found that the films were de nature veiller chez le spectateur les instincts les plus bas, dgradant la dignit humaine... ; que ces images constituent indiscutablement un outrage aux bonnes murs ; mme compte tenu de lvolution de la socit actuelle. In the second Arrt cited by the prosecution (Paris (11e ch. corr. section A) 2 juil 1997) the facts are that Paris-Match published photographs of the ex-President of the French Republic, Mr Franois Mitterrand, more specifically, photographs of the dead body of Mr Mitterand lying on his bed in his apartment. The appellants averred that the photographs had been secretly taken without any authorisation of the family. The Court said that Le dlit reproch Monsieur Therond est juridiquement constitu. Il concerne une situation de fait, grave plusieurs titres. Dabord parce quil sagit dune dpouille mortelle dont le respect signe celui de la dignit humaine. Ensuite parce que les faits ont concern an ancien chef dEtat et quen violant la loi son gard, cest symboliquement lgard de tous quon la viole. Enfin parce que ce dlit a t commis par un directeur de publication, particulirement averti, dont le souci du lucre parait patent. and condemned the defendants to a fine. In the third Arrt cited by the prosecution (Cass. (1e ch. civ.) 1 juil 2010) concerning the publication in a magazine of the photo of I. H gagged and shackled, the Court said that the publication of the photo dnotait une recherche de sensationnel, ntait nullement justifie par les ncessites de linformationconstituait une atteinte la mmoire ou au respect d au mort et ds lors la vie prive des proches, justifiant ainsi que soit apporte une telle restriction la libert dexpression et dinformation ; In the fourth Arrt cited by the prosecution (Cass. (ch. civ. 1) 20 dc 2000) the facts are that a photograph of the body of a prfet of the French Republic, murdered at Ajaccio on the 6 th of February 1998 was published in Paris-Match and VSD. One of the grounds of appeal was that the publication litigieuse rpondait aux exigences de linformation et tait donc lgitime au

regard de la libert fondamentale consacre par larticle 10 de la Convention europenne. The Court said that Et attendu quayant retenu que la photographie publie reprsentait distinctement le corps et le visage du prfet assassin, gisant sur la chausse dune rue dAjaccio, la cour dappel a pu juger, des lors que cette image tait attentatoire la dignit de la personne humaine, quune telle publication tait illicite In Showler and Davidson v Harpers Magazine Foundation, Peter Turnley, United States Court of Appeals, (10th Cir. 2007) (cited by the defence) the appellants had lodged, before the District Court, claims in tort (Intentional Infliction of Emotional Distress..; Invasion of privacy; Violation of Okla. Stat. tit. 21, 839.1; Fraudulent/False Misrepresentation; Constructive Fraud, Fraud and Deceit; Unjust Enrichment; and Negligent Hiring, Retention, and Supervision) against the defendants for having taken photographs of Sgt. Brinlee in his open casket and published one photograph in the August 2004 edition of Harpers in a photoessay titled The Bereaved, Mourning the Dead, in America and Iraq. The District Court set aside the claim. The Court of Appeal held that the publication of the photographs did not constitute an actionable claim under any of the theories advanced by Plaintiffs. However, I find pertinent what the Court said at page 9, namely that Courts that have found an invasion of privacy have done so when the case involves death-scene images such as crime scene or autopsy photographs. On an objective assessment and in the light of the above decisions, and without in any way acting as a censor, I find that the scene of crime photographs of the deceased caused to be published by the accused at pages 1 and 7 of the edition of the Sunday Times of the 15 th of July 2012 constitute an outrage against human dignity, and as such against good morals. At note 50, Encyclopdie Dalloz (supra) it is said that Lintention coupable existe ds lors que le prvenu a eu la volont daccomplir un des actes dfinis par la loi, sachant que lcrit, limage ou objet incrimin tait contraire aux bonnes murs, et ce indpendamment du mobile qui le faisait agir. The intention would be suffisamment constate lorsque le juge dclare que lauteur de la publication obscne a agi en pleine connaissance de cause ou a eu connaissance du caractre offensant de lobjet prsent au public - note 52, Encyclopdie Dalloz (supra). There is confirmation by W.11 and W.12 that the photographs published in the Sunday Times of the 15th of July 2012 are the same as the ones taken by W.11 at the scene of crime on the 10 th of January 2011, therefore crime scene photographs, and copies of which were produced before the Assizes Court. W.8 who examined the system units and pen drive secured at the accuseds premises, with the accuseds consent see Doc. D found them to contain files showing images and documents, the latter being the article accompanying the photographs. The accused admitted that he was aware of the murder, the police enquiry and the case before the Assizes and the acquittal of the two accused. He would have been aware of the origin of the photographs and of the offensive character thereof. The photographs were published in the newspaper three days after the Assizes case concerning the murder of M. M. Harte was over: the

accused, director of the newspaper, would have been aware of the hype that those photographs were going to cause. I find that all this shows the intention of the accused and that his decision to publish the photographs was deliberate and not for the purpose of information, but with a view to cater to morbid curiosity. Therefore, I cannot but find that he was clearly motivated by sensationalism and profit. It was submitted on behalf of the defence that the fact that the murder of M. M. Harte was in the headlines locally and internationally made her a public figure and that it was in the public interest to see pictures of the dead body (sic). The defence has not adduced any evidence of how exactly late M. M. Harte was a public figure. A public figure would be someone of great public interest, such as a high Government official, movie star, etc. I find that the fact that M. M. Harte, an Irish National, died in the circumstances that she did, and that this was taken up in the media locally and internationally, certainly does not make her a public figure and does not justify the publication in the newspaper, of scene of crime photographs of her after her death. The right to freedom of expression is guaranteed by section 12(1) of the Constitution, which is inspired by Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Section 12(1) reads as follows: Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence. Still, as rightly submitted by counsel for the prosecution, this is not without limit since section 2(a) provides that Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision - in the interests of defence, public safety, public order, public morality or public health;. In the case of Hachette Filipacchi Associs (Paris-Match) v France, 14 June 2007 (see Cass. (ch. civ. 1) 20 dc 2000 as cited at page 6 of this judgment) the publishing house complained before the ECtHR about the injunction requiring it to publish, on pain of a fine, a statement informing readers that the photograph of the Prfet of Corsica, Claude Erignac, had been published without the consent of the family. The photograph had been published a few days after the murder and after the funeral. The Court had to determine whether the order to publish the statement had been necessary in a democratic society within the framework of duties and responsibilities inherent in exercise of the freedom of expression. The Court considered that the distress of the family should have led journalists to be prudent and cautious since the Prefet had died in violent circumstances which were traumatic to his family, which trauma was increased by the publication of the photograph. The Court found that the order to publish the statement had been necessary in a democratic society and that there had been no violation of Article 10 of the European Convention on Human Rights.

Counsel for the defence has cited the cases of Police v D. Dhooharika [2011 PL 63], N. Soornack v Le Mauricien Ltd & Ors [2013 SCJ 58] and V. K. Bunwaree v La Sentinelle & Ors [2012 SCJ 84] during his submissions. In Police v D. Dhooharika (supra) the accused was charged under sections 206 and 288(3) of the Criminal Code. The Ruling cited by counsel for the defence is one of the District Court and not binding on this Court. Furthermore, the Ruling is completely irrelevant inasmuch it mainly concerns the issue whether costs should be awarded. The issue whether the accused was properly prosecuted under section 206 of the Criminal Code could not be determined inasmuch as no evidence was adduced before the Court since the provisional information was struck out. In N. Soornack v Le Mauricien Ltd & Ors (supra) the issue was whether the interim order concerning the publications in newspapers and the applicants right to privacy given by the Judge sitting in Chambers should be made interlocutory pending the determination of the main case of the applicant. Balancy J. reviewed the law on the freedom of expression and of the press, as opposed to the protection of a persons privacy. In V. K. Bunwaree v La Sentinelle & Ors (supra) the plaintiff, a well-known cardiologist, member of the Legislative Assembly and a Minister, claimed damages from the defendants following an article in the edition of LExpress of 19 February 2003 which he considered defamatory against him. At pages 22 to 28 Lam Shang Leen J. reviews the law applicable, the role of the media and reporting on matter of public interest and said amongst others that section 12 of the Constitution provides for a limitation to freedom of expression which in a democratic society is reasonably justifiable especially for the protection of reputations, rights and freedom of others. The facts and issues in the last two cited cases have no similarity to the facts and issues before this Court. Furthermore, Fair comment made in good faith on a matter of public interest is a defence to an action in libel or defamation see Lesage v Mason [1976 MR 172]: the present case is neither. I am of the view that the said defence cannot be raised by the defence in cases under section 206 of the Criminal Code. However I find the extract of Jurisclasseur, Notarial Rpertoire, 2011 Fasc. 15 cited by the Supreme Court in N. Soornack v Le Mauricien Ltd & Ors (supra) pertinent to the present case: Latteinte la vie prive est justifie lorsquelle ncessaire a la comprhension dun vnement public, dun fait actualit ou dun dbat dintrt gnral avec lequel la personne concerne est en lien direct... Bien que ncessaire, la violation de la personnalit peut tre injustifie lorsquelle est disproportionne en ce quelle se double dune atteinte au principe de dignit. I find that in the present case, the publication of the scene of crime photographs of the deceased taken on the day of the murder, was not necessary to the comprhension dun vnement public, dun fait actualit ou dun dbat dintrt gnral and in spite of the outcome of the trial at the Assizes, cannot be construed as such. The publication of the photographs cannot be

and is not justified by any public interest. They were, and are, in violation of human dignity, and therefore an outrage against good morals. For all the reasons given above, I find that the prosecution has proved the case against the accused beyond reasonable doubt. I accordingly find the accused guilty as charged.

W. V. Rangan Magistrate Intermediate Court (Criminal Division) This 29 May 2013