Office of the Director

of Public Prosecutions
‘To No One Will We Sell, To No One Deny or Delay Right or Justice’
Chapter 40,Magna Carta 1215

E-newsletter - Issue 115 July 2021

 In this Issue
Editorial 3

ODPP Podcast by Mr Satyajit Boolell, SC 5

ARTICLES

• Activities of Gender Caucus 7

• Victims’ Voices Lead the Way 8

• The non-consensual distribution of intimate photographs and media on digital platforms by former
partners 11

• Advocacy Training -The Beginning 14

Quick Facts 18

Case Summary 21

Editorial Team
Ms. Anusha Rawoah, Principal State Counsel
Ms. Veda Dawoonauth, State Counsel
Ms. Neelam Nemchand, Legal Research Officer
Ms. Pooja Domun, Legal Research Officer
Ms. Genisha Raudhay, Communication/Liaison Officer

The views expressed in the articles are those of the particular authors and should under no
account be considered as binding on the Office.

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July 2021 Page 2
 Editorial
Dear Readers,

Welcome to the 115th issue of our monthly e-

newsletter. The ODPP podcast for the month focuses
on a very important aspect of a citizen’s right and
freedom in a democracy – the right to personal liberty.
This Constitutional right assumes all its importance
especially, because as rightly put by the Director of
Public Prosecutions, Mr Satyajit Boolell, SC in this
podcast, the right to personal liberty remains “le
combat quotidien des citoyens dans plusieurs pays”.
Section 5 of the Constitution is hence, discussed
lengthily in this month’s Podcast.

We also bring to you a review of the activities carried

out by the Gender Caucus of the ODPP, namely a
Anusha Rawoah webinar on ‘Domestic Violence for Senior Citizens’.
Principal State Counsel
The webinar was organized by the ‘University of Third
Age Mauritius’ and the ‘Senior Citizens Solidarity
Mauritius Foundation’. Moreover, in line with the
‘World Day Against Trafficking in Persons’, we provide
you with an insight of the offence of ‘Trafficking in
Persons’ and its legislative framework. This year’s
theme hammers on victims’ voices. You will also read a
legal article on a very contextual topic, ‘the non-
consensual distribution of intimate photographs and
media on digital platforms by former partners.’ On
another note, the senior law officers at the ODPP
conducted advocacy training sessions, including mock
trials, to empower the newly recruited Temporary State
Counsel. A review of it is included in this issue.

In our ‘Quick Facts’ section, we address the offences

under the ‘Forests and Reserves Act 1983’. Finally, you
will read the summary of the Supreme Court
judgments for the month. We wish you a pleasant read.

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July 2021
Page 3
 Click on the link below to listen to the
Podcast:

https://youtu.be/r-J9UVkIVXk

ODPP PODCAST

E-newsletter - Issue 115 July 2021

 Click on the link below to listen to the Podcast:
https://youtu.be/r-J9UVkIVXk

E-newsletter - Issue 115

July 2021 Page 5
 ARTICLES

E-newsletter - Issue 115 July 2021

 Activities of Gender Caucus

Webinar on Domestic Violence for Senior Citizens

I conducted a legal webinar session for the benefit of Senior Citizens

organized by The University of Third Age Mauritius and the Senior
Citizens Solidarity Mauritius Foundation on June 7, 2021. Some 50
persons participated online.

The purpose of the webinar was to educate our Senior Citizens on the
specifics of the Protection from Domestic Violence Act, give them
hands-on knowledge of how to make use of the law when they are
facing domestic violence issues. It was also a sensitization session to
increase awareness on domestic violence and gender sensitive issues.
I explained the definition of domestic violence, child, spouse, gender
based violence, how to report a case of domestic violence and what
happens after a case of domestic violence is reported, the specific
conditions which a Magistrate can give along with a protection order,
an occupation and a tenancy order, the ancillary orders which can also
be given along with the different orders, the role of the different
stakeholders in the fight against domestic violence, the sentencing
powers of the Magistrate in case of domestic violence and breach of
protection order and the power to give counselling sessions. I laid
emphasis on the different amendments which have been brought to the
law in 2007 and 2016 in order to better protect the women, children and
other members of the family who live under the same conjugal roof.

I also briefed the participants on the gender based violence reform

leading to a National Strategy and Action Plan in November 2020 laying
emphasis on the rehabilitation programme of the Ministry of Gender
and the role of Office of the DPP in this reform, the proposals made
and the activities of the Gender Caucus in that respect.

It was a very rich interactive session. The participants showed great

interest and also raised many interesting questions about the incidence
of the Covid pandemic on domestic violence, the causes of domestic
violence, whether the rise in feminism had an incidence on the rise in
domestic violence cases.

Pareemala Devi Mauree

Principal State Counsel

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 Victims’ Voices Lead the Way

July 30th marks the commemoration of the ‘World Day Against

Trafficking in Persons’

This year’s theme puts victims of human trafficking at the center of the
campaign. One aspect of combating human trafficking is in fact
listening to and learning from survivors of human trafficking. Survivors
can be regarded as the key actors in the fight against human trafficking
due to the crucial role they play in establishing effective measures to
prevent this crime. Rescuing victims of human trafficking and
supporting them on their road to rehabilitation are therefore the focus of
this year’s campaign, as highlighted by the UNODC.

What is Trafficking in Persons (‘TIP’)?

Trafficking in persons involves the recruitment, transportation,

harbouring and/or control of the movement of persons for the purpose
of exploitation, typically for sexual exploitation or forced labour. Victims
are required to provide their services or labour as a result of conduct
that, in all the circumstances, could reasonably be expected to cause
the victim to fear for their own safety - or for the safety of someone
known to them - if they refuse to provide that service or labour. Victims
suffer physical, sexual and/or emotional abuse and often live and work
in horrific conditions.

The United Nations Protocol to Prevent, Suppress and Punish

Trafficking in Persons (the ‘Palermo Protocol’) articulates the most
widely accepted international framework for addressing TIP and calls
upon States Parties to take steps to prevent trafficking, protect victims
and prosecute offenders. Mauritius ratified the Palermo Protocol in
2003 and in 2009, the Combatting of Trafficking in Persons Act (the
‘Act’) was passed in Mauritius to give effect to the Protocol.

Article 3 of the Palermo Protocol defines Trafficking in Persons as

“the recruitment, transportation, transfer, harbouring or receipt of
persons, by means of the threat or use of force or other forms of
coercion, of abduction, of fraud, of deception, of the abuse of power or
of a position of vulnerability or of the giving or receiving of payments or
benefits to achieve the consent of a person having control over another
person, for the purpose of exploitation.” Exploitation shall include, at a
minimum, the exploitation of the prostitution of others or other forms of
sexual exploitation, forced labour or services, slavery or practices
similar to slavery, servitude or the removal of organs.
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Victims’ Voices Lead the The recruitment, transportation, transfer, harbouring or receipt of a
Way child for the purpose of exploitation shall be considered “trafficking in
persons” even if this does not involve any of the means set forth above.

Accordingly, in the Act, under section 2, trafficking is defined as

meaning the following –

“(a) the recruitment, sale, supply, procurement, capture, removal,

transportation, transfer, harbouring or receipt of a person –

(i) by the use of threat, force, intimidation, coercion, abduction, fraud,

deception, abuse of power or abuse of a position of vulnerability; or

(ii) by the giving or receiving of payments or benefits to obtain the

consent of a person having control or authority over another person; or

(b) the adoption of a person facilitated or secured through illegal

means, for the purpose of exploitation.”

It is to be noted that the Act applies in addition to, and not in derogation
from, the Child Protection Act.

The Protocol also requires that victims of such trafficking should be

protected and assisted with respect to their full human rights.

Difference between Trafficking in Persons and Migrant Smuggling

Very often, human trafficking and migrant smuggling cases are

confused. They are, however, different crimes and involve different
conduct. The main differences between trafficking in persons and
migrant smuggling are as follows:

- Human smuggling involves the consent of the person smuggled.

Trafficked victims have either never consented or their consent has
been rendered meaningless by the improper means used by the
trafficker;

- Smuggled persons are generally free to do what they want once they
arrive at their country of destination. In contrast, trafficked persons
have their liberty curtailed and are compelled to provide their labour
and/or services; and

- The source of profit for human smuggling is the fee associated with
the smuggling act. In trafficking cases, profits are made through the
ongoing exploitation of the victims.

Despite these differences, smuggled persons may become trafficking

victims; therefore it is crucial to properly identify these crimes in
practice.
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Victims’ Voices Lead the Almost every country in the world is affected by trafficking, whether as
Way a country of origin, transit or destination for victims. UNODC, as
guardian of the United Nations Convention against Transnational
Organized Crime (UNTOC) and the Protocols thereto, assists States
in their efforts to implement the Protocol to Prevent, Suppress and
Punish Trafficking in Persons (Trafficking in Persons Protocol).

As the US Secretary of State, Antony Blinken, has rightly put it, the US
Trafficking in Persons Report 2021 sends a strong message to the
world that global crises, such as the COVID-19 pandemic, climate
change, and enduring discriminatory policies and practices, have a
disproportionate effect on individuals already oppressed by other
injustices. As per the Report, Mauritius does not fully meet the
minimum standards for the elimination of trafficking but is making
significant efforts to do so. The government, it mentions, demonstrated
overall increasing efforts compared to the previous reporting period,
considering the impact of the COVID-19 pandemic on its anti-trafficking
capacity; therefore Mauritius remained on Tier 2.

Anusha Rawoah
Principal State Counsel

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 The non-consensual distribution of intimate
photographs and media on digital platforms by
former partners
Sexual harassment takes many shapes: cat-calling in the streets,
unwanted physical contact and casual remarks of a sexual nature. It
can occur at home, at work, in public places and on the road. The
perpetrator is not necessarily a stranger and is more often than not, a
person known to the victim such as a relative, a colleague and an ex-
partner. Similarly, sexual harassment is not confined to interactions
with people that we meet. In this digital era, an online life is common
and it is equally susceptible to sexual harassment. With digital
platforms like WhatsApp and Facebook, one photograph can be shared
Bhavna Bhagwan with a wide audience within seconds. But what if the photograph was
State Counsel an intimate one and shared without the consent of the person in it?

What is ‘revenge porn’?

Revenge porn is a form of sexual harassment which is designed to

humiliate the targeted person. The classic example is the distribution of
intimate, including nude, photographs of a person by his/her former
partner who is angry and bitter that the relationship has broken down.
The victim may have willingly sent the photographs to the former
partner or could even have allowed photographs of her/him to be taken.
In both scenarios, the personal material was willingly shared between
the then partners. However, the victim never intended for the material
to be shared with other people. Nevertheless, the offender posts or
shares the material on a digital platform such as WhatsApp and
Facebook. The intention is to take revenge from the victim for the
broken relationship and to punish him/her.

What are the legal consequences of ‘revenge porn’?

In Mauritius, there is no law that acknowledges ‘revenge porn’ as a

distinct offence. This means that the offender is not directly prosecuted
for an offence of ‘revenge porn’. Instead, ‘revenge porn’ can be
prosecuted under different forms.

An act of domestic violence

According to the Protection from Domestic Violence Act, it is an

offence to commit an act of ‘domestic violence’. This includes acts
committed by a person against his spouse, a child of his spouse or
another person living under the same roof.

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 The non-consensual The definition of ‘domestic violence’ itself is wide because, in addition
distribution of intimate to acts of physical violence, it includes intimidation, harassment and
photographs and media even stalking. Should a person post nude photographs of his partner or
spouse on social media platforms to intimidate the latter, it could be
on digital platforms by
considered as domestic violence.
former partners
An act of child abuse

It is important to acknowledge that young persons are also at risk of

finding their personal photographs and media on social media
platforms without consent. This unauthorised distribution may be
considered as child abuse.

For instance, as per section 15(1)(b) of the Child Protection Act

(CPA), it is an offence to distribute or show an indecent photograph of
a child. As per the CPA, a child is a person under the age of 18.
Therefore, a 16-year-old who agrees to send intimate photographs to
her boyfriend would still be considered a child. If after their breakup, the
ex-boyfriend shares the photograph on Facebook or on Whatsapp with
other persons, that would be an offence under section 15(1)(b). The
child’s consent is immaterial to prove the offence. Additionally, it would
be no defence to the offender that the child was in a relationship with
him/her.

In the Children’s Act (yet to be proclaimed as at 20 July 2021), there

is a specific provision regarding child pornography which is defined as
‘representation by whatever means where a child is or appears to be
engaged in real or simulated explicit sexual activities or a
representation of the sexual parts of a child for sexual purposes.’

Hence, section 21 (1) will make it an offence:

a) To distribute child pornography through ‘information and

communication technologies’ for himself or for another person;

b) To disseminate child pornography.

This provision will target the distribution of media consisting of intimate

photographs and/or videos of a child. It will be no defence to the
offender that the child willingly participated in the production of the
media or that the child sent the media to the perpetrator willingly.

An act of bullying

In the Children’s Act, it shall also be an offence to bully a child

(section 26(1)). Bullying shall mean any behavior which is:

a) “Repetitive, persistent and intentionally harmful or

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 The non-consensual b) Involves and imbalance of power between the victimizer and the
distribution of intimate child and causes feelings of distress, fear, loneliness or lack of
photographs and media confidence in the child”.

on digital platforms by Bullying would not be limited to acts carried out in person but also
former partners would include the use of “information and communication
technologies”. It could be argued that the systematic posting of
indecent photographs of a child on a social media platform which is
intended to harm that child could amount to bullying.

Offences under the ICTA

Under section 46(ga) of the Information and Communications

Technologies Act, it is an offence to for a person to use a
“telecommunication equipment to send, deliver or show a message
which is obscene, indecent, abusive, threatening, false or misleading,
which is likely to cause or causes annoyance, humiliation,
inconvenience, distress or anxiety to any person”.

A person who uses his mobile phone to post intimate photographs of

another person without consent on his Facebook page could be
committing an offence under section 46(ga) ICTA. For instance, it
could amount to using a telecommunication equipment to show a
message which is obscene which causes humiliation.

What about morphed photographs?

There are also situations where a victim finds fake photographs of

her/him being circulated. For instance, the face of the victim is
transposed on another person’s body. The result is that the victim is
falsely shown as the person photographed in a pornographic setting.
Although the photograph is a fake one, it is still intended to humiliate
the victim and is still considered as ‘revenge porn’. What remedy does
a victim have then? Under section 46(g) of the ICTA, it is an offence to
knowingly send or transmit a false or fraudulent message. Depending
on the context, it could also amount to harassment under the
Protection from Domestic Violence Act if the offender is a spouse or
person living under the same roof as the victim.

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 Advocacy Training -The Beginning

On the 01st June 2021, the ODPP welcomed 15 new barristers in the
capacity of Temporary State Counsel (TSC). This year, the ODPP took
the unprecedented and commendable initiative of holding the first ever
Induction Course which took place over the course of three weeks from
the 02nd June 2021 to the 18th June 2021. The induction was tailored
so that we understand what is expected from us as Prosecution
Counsels.

The objectives of the Induction Course were as follows:

• To familiarise the rules and regulations of the Office;

• To introduce the duties of a Prosecution in written and oral

advocacy; and

• To provide a realistic picture of what standard is required of a

Prosecution.

In his address to the TSCs, the DPP conveyed three important

messages:

Firstly, that the ODPP is one big family which ought to operate as a
collective and cohesive unit. This implies that at all times, all officers
are here to mutually guide and support each other thereby fostering an
environment where fundamental values such as respect and trust are
omnipresent.

The DPP thereafter laid stress on the need to maintain standards and
to ensure that in all aspects of our work. TSCs ought to aim for
excellence, the more so since one important feature of our duties and
responsibilities as TSCs entail the far-reaching consequences which
they might have, not only on the life of the victim or the family of the
deceased victim but also on that of the accused as well.

Finally, the DPP expressed the need for transparency in every aspects
of our work to ensure that come the end of the day, public confidence in
our Office is always maintained.

The DDPP on his part, while echoing the words of the DPP, conveyed
the need for all TSCs to be efficient in the discharge of our functions as
efficiency is the winning formula for any institution. The DDPP also said
that henceforth our acts and doings, both within the office as well as
outside the office, will be under the watchful eyes of the public as well
as other members of the profession and the Courts. He went on to say
that we will all be under constant scrutiny and this is why the ODPP
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Advocacy Training -The came up with the initiative to organise the Induction Course in order to
Beginning ensure that we are better armed to shoulder our responsibilities as
TSCs. Over the span of the three weeks, we had the benefit of
attending presentations by senior and experienced officials at the
ODPP. Their input was highly insightful and extremely beneficial as
they made it clear what was expected from us and how to meet such
expectations. Moreover, they helped us to bridge the gap between our
experience as legal practitioners in the private sector and the new
demands and exigencies of being a TSC and that too at a time when
the whole legal system is having to face the countless challenges
posed by the Covid-19 pandemic. We also had the benefit of
exchanging with other officers including those officers who were
previously on the bench. This was an added benefit as it enabled us to
better understand the expectations of magistrates when we appear
before them to conduct cases for the prosecution. At the end of all
sessions, we had the possibility to ask any questions and to clarify any
doubts and confusions which had. The patient, kind, supportive and
pedagogical approach adopted by the officers who made such
presentations were nothing short of fabulous and of an aid which is
second to none.

The daily courses culminated on a three-day advocacy session where

we had a golden opportunity to practice and improve our advocacy
skills, including but not limited to, the art of examination in chief and
cross examination. We are now alive to the need to systematically
master our brief and how we should approach witnesses in Court. The
advocacy sessions will no doubt play an instrumental role in the way
we shall henceforth conduct our cases in Court. The induction course
enabled us to better grasp the duties, role and responsibilities of a TSC.
There is at all times a need for a solid professional judgment and legal
competence, a large dose of practical life experience and the capacity
to pre-empt and instantly remedy issues that might crop us. We are
more than ever alive to the pivotal role which we, as prosecutors, will
play in the administration of justice. We carry inherently the noble title
of Ministers of Justice and ought to therefore discharge our duties with
an ingrained sense of dignity and integrity. We are constantly guided by
the need to ensure that a right balance is sought between the interests
of the society as a whole and the fundamental rights of the accused.

The classes dealt with a number of topics such as the basics of opinion
writing and the Bail Act but for the purpose of the article, a brief
overview of the two practical exercises that we had during the
induction, that is, the bail exercise and the mock trials were chosen.
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Advocacy Training -The The Bail Exercise
Beginning We were given 3 case scenarios and each TSC was told which case to
prepare and the purpose of the exercise was to object to bail on certain
grounds. The case scenario No 1 dealt with a charge of larceny, No 2
with possession of drugs and money laundering and the third one was
a case of murder.

Mr Muneesamy and Mr Santokhee were overseeing the class, taking

turns to play the roles of Magistrate and Enquiring Officer (EO). The
class was a very interactive one, with many questions from the
“Magistrate” and we had an EO who would at times be remembering all
the essential details and at other times, be “forgetting” same in order to
see how we will react to this. This gave us the opportunity to think on
our feet when faced with situations whereby everything does not go
according to plan.

Thinking back, what we will retain from that exercise is the following :

• The essential requirement of making sure the Enquiring Officer can

substantiate each ground of objection with evidence;

• The need to be attentive as to what your witness is saying to be in a

position to ask relevant questions and need to be able to adapt to
unexpected answers or incomplete ones;

• To ensure a Prosecution Counsel is always in a position to be able

to enlighten the Court about the relevant law which was the Bail Act
for this exercise.

The Mock Trials

The Mock Trials were akin to the main event of our induction. They
were held over 2 days and TSCs were to have a go at an examination
in chief and a cross-examination. Here again, we were given 3 case
scenarios. The first one dealt with the offence of attempt upon chastity
on a 9 year-old girl by a teacher, the second one with attempt upon
chastity again by a man in his sixties upon a 15 year old girl and the
third one was a case of larceny allegedly committed by two friends.

This exercise allowed us to prepare a case in light of all statements

given in each case scenario. It was akin to the exercises we used to do
during the Bar course and it was a welcome refresher. The procedure
for refreshing a witness’ memory, putting an inconsistent statement to
your witness and treating the latter as hostile all became relevant in the
preparation of this exercise.

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Advocacy Training -The The Mock Trials were overseen by Mr Neerooa, Mrs Jaulimsing, Mr
Beginning Muneesamy and Mr Santokhee who all helped us with valuable tips,
encouragements and constructive criticism. We personally felt very
grateful to be able to benefit from advice from Seniors who have been
at the Office for quite some time. The Mock Trials were lively sessions,
with Mrs Jaulimsing and Mr Muneesamy coming across as
unpredictable witnesses at times, which made the exercise even more
interesting.

In the preparation of this exercise, we were reminded of the fact that

the job of the Prosecution is not an easy one since the burden of
proving beyond reasonable doubt all the elements of an offence is a
very high threshold, and rightly so. We do not think there is any
substitute to thorough case preparation and experience gained in
Court, on our feet, to ensure that we manage to assist the Court as
Prosecution Counsels, in the administration of justice.

We seize this opportunity to express our most heartfelt gratitude to all

officers, members and staff of the ODPP who have been instrumental
in helping us make the transition to the ODPP and will forever cherish
and implement the sacrosanct words of advice, guidance,
encouragement and support which were bestowed upon us. We are
determined and committed to ensuring that every single day, we shall
honour the motto of the ODPP which is ‘To No One Will We Sell, To No
One Deny or Delay Right or Justice.” The Induction Course might have
come to an end but for us TSCs, it is only the beginning of several
chapters.
Mohammad Irfaan Mittoo and Sarah Hanna Sayed-Hossen
Temporary State Counsel

Advocacy Training at ODPP

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July 2021 Page 17
 QUICK FACTS

E-newsletter - Issue 115 July 2021

 Quick Facts

Under Section 14(2) of the Act, it is an offence for any person to

The Forests do the following without written authority of the authorized
officer or in the case of forestland, the owner:
and Reserves
Act 1983
(a)(i) Introduce any article or thing injurious to plant life onto
State land, forestland or a mountain, river or nature reserve

Penalty under
Section 15(1)
(ii) Be in possession of a firearm
or an implement on State land,
forest land or a mountain, river or
nature reserve

Fine not
exceeding Rs
5,000 and to Source: amazon.com

imprisonment for
a term not (iii) Departure
exceeding 24 any animal or
months allow any
animal to graze
on State land,
forestland or a
mountain, river
“State land” includes land or nature
vested in the Curator reserve
Source: tripadvisor.com

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July 2021
Page 19
(v) Act negligently or maliciously (iv) damage, destroy, dig or remove any forest produce on or
in a manner which causes or is from State land, forest land or any reserve or be in possession of
likely to cause soil erosion any forest produce so damaged, destroyed, dug or removed

Source: timesofindia.indiatimes.com

Source: downtoearth.org.in

Source: premiumtimesng.com
(c) Introduce any plant or animal
into a nature reserve

(b) Deposit or throw any rubbish, article or thing of a

dangerous or offensive nature on any State land or reserve
Source: abc.net.au

(e) In any way interfere with a nature reserve or damage any

feature on a nature reserve

(g) plant, cultivate or intentionally spread or propagate cuscuta

creeper

Source: en.wikipedia.org

(d) Light a fire in a nature reserve

(f) Be in a national forest, between

6 pm and 6 am

(h) Damage on interfere in any

Source: freepik.com way with a protected plant on
any State land or reserve Neelam Nemchand
E-newsletter - Issue 115 Legal Research Officer
July 2021 Page 20
 SUPREME COURT
JUDGMENTS
SUMMARY

E-newsletter - Issue 115 July 2021

SUMMARY OF SUPREME
COURT
JUDGMENTS:
July 2021
OODOYE R. K. v THE STATE 2021 SCJ 204
By Hon. Judge Mrs R D Dabee and Hon. Judge Ms
M. Naidoo
Duty to inform accused - Constitutional rights -
Right to adduce evidence in mitigation –Section
132A Criminal Procedure Act – Court record
Appellant and one Mamad Zaheed Moolkeea were
prosecuted for the offence of larceny made by two
individuals in breach of sections 301(1) and
305(1)(b) of the Criminal Code under count 1.
Having entered a guilty plea under count 1, count 2
was dismissed. He was sentenced to 4 weeks
imprisonment and pay Rs 100 costs.
Along with appealing against the sentence on the
ground that it is manifestly harsh and excessive,
learned counsel for appellant submitted that as borne
out from the court record the appellant who was inops
consilii was not informed by the learned Magistrate of
his constitutional rights and his right to adduce
evidence in mitigation prior to sentencing which
amounted to a serious irregularity so that the
sentence could not be maintained and the matter
should be remitted to the trial court for a fresh hearing
for the purposes of sentence. Learned Counsel for
respondent did not resist the appeal.
Court record at the close of the prosecution’s case
confirmed the above. With reference to Section 132A
of the Criminal procedure Act and in the spirit of
Bardottier v The State [2014 SCJ 10] and [Moholy
v The State 2010 SCJ 289], the Learned Judges
E-newsletter - Issue 115
July 2021
were of the view that it was incumbent upon the
learned Magistrate to inform the appellant of his
rights to adduce evidence in mitigation prior to
sentencing. The Learned Judges reiterated that the
Learned Magistrate was duty bound to inform the
appellant that he was entitled, if he so wished, to
give evidence or make an unsworn statement from
the dock or to call witnesses and that the court
record should also reflect that such an exercise has
been duly carried out. In the absence of any such
entry in the court record, the Appellate Court cannot
surmise that the procedure required by law had
been followed the more so as the appellant was
inops consilii before the lower Court when the case
came for hearing. The sentence inflicted under
count 1 was thus quashed and the case remitted to
the learned Magistrate for a fresh hearing in relation
to sentence.
ZHENDUO LIU v THE STATE 2021 SCJ 230
By Hon. Judge Mr N.F. Oh San-Bellepeau and
Hon. Judge Mrs P.D.R. Goordyal-Chittoo
Particulars – Information – Discrepancies in
evidence ushered – Credibility
Appellant was found guilty by the learned Magistrate
for the offence of “Failing to comply with protection
order” in breach of sections 2, 3(1) and 13 of the
Protection from Domestic Violence Act.
Appellant was sentenced to pay a fine of Rs 4 000
and Rs 100 as costs. It has been averred in the
information that the appellant has failed to comply
with a protection order issued against him inasmuch
as he has harassed the complainant. Particulars
have been provided in the information to the effect
that the appellant stated to the complainant that she
was a “bitch” as well as “other filthy languages”.
Page 22
The appellant moved that his conviction be quashed,
set aside, amended or otherwise dealt with as the
Appellate Court may deem fit on 4 grounds.
Learned Counsel for appellant pressed that: (a) the
prosecution has failed to prove its case to the relevant
standard of proof; and (b) the evidence ushered
during the trial does not tally with the particulars set
out in the information.
Learned Counsel for respondent has argued that the
crux of the matter is whether there has been
harassment in breach of the protection order and that
the particulars of the offence do not form the basis of
the offence per se. According to her, the word
‘swearing’ was sufficient to encompass
harassment and the Learned Magistrate was perfectly
entitled to accept the version of the complainant
despite discrepancies in the version she had given to
the police and thus does not affect the credibility of
the complainant.
The learned Judges referred to Section 125(1) of the
District and Intermediate Courts
Jurisdiction) Act which provides that the description
in the information of any offence in the words of the
law creating such offence, with the
circumstances of the offence charged, shall be
sufficient. They were of the view that it is the
prosecution itself that chose to provide particulars in
the information which it was then incumbent on the
prosecution to establish during the trial. However, the
complainant stated that the appellant swore at her
and her father and said “all kinds of words” which is
clearly a different version from what has been averred
in the information. The Learned
nevertheless concluded that the credibility of the
complainant had not been impeached.
In Joomeer N. v The State [2013 SCJ 413],
credibility is certainly a matter of
appreciation of the trial court. However, it needs to
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July 2021
be assessed in light of evidence and must be free
from doubt so that the court has no hesitation in
reaching a conclusion of guilt against an accused
party based solely on his uncorroborated evidence.
The standard of proof has thus not been duly met
and the evidence adduced at the trial did not warrant
a finding of guilt against the appellant once the
complainant could not recall the words that were
actually uttered by the appellant to her. The learned
Judges reiterated the need for our Courts to protect
the good administration of justice and to ensure a
fair hearing to an accused party as provided under
section 10 of the Constitution.
the
Soonarane S. M. K v The State 2021 SCJ 222
By Hon. Judge Mr N.F. Oh San-Bellepeau and
Hon. Judge Mrs J. Moutou – Leckning
Identification evidence – Turnbull directions –
Intervention of appellate court – Adducing fresh
(Criminal evidence
Appellant was found guilty of the offence of failing
to provide a breath specimen for test under count II,
material in breach of sections 123G(1)(a)(2)(a) of the Road
Traffic Act, and for driving a motor vehicle with
alcohol concentration above the prescribed limit
under count III, in breach of sections
123F(1)(a)(3)(5), 123H(1)(b)(5)(6)(a), 52 and the
Second Schedule of the Road Traffic Act. Count I
was dismissed for want of prosecution. He was
sentenced to fines of Rs 7, 000 and Rs 10, 000
under counts II and III. He was further disqualified
Magistrate from holding, obtaining or applying for a driving
licence for all types of vehicles for a period of 8
months and his driving licence was endorsed.
The Magistrate’s decision was essentially based on
sovereign the coherent evidence adduced from PC Mandary,
who stated in Court that he saw the appellant driving
Page 23
vehicle no. W 619 to Quartier Militaire Police Station,
alighting from the driver’s seat to enter the station,
and smelling of alcohol. The Learned Magistrate
wrote in his judgment that he was alive to the
circumstances under which the appellant’s
identification was made. He gave himself a Turnbull
warning and noted that the road was well lit, that the
distance between PC Mandary and the appellant was
about 50 metres and that PC Mandary knew the
appellant very well. He was also satisfied that the
quality of identification evidence was good and could
be relied upon.
The appellant is mainly challenging the Magistrate’s
appreciation of facts and identification evidence on
four grounds. At the hearing of the appeal, the
Learned Judges reminded counsel for appellant that it
was not for the learned Magistrate to put questions to
witnesses on issues which were never raised by
counsel during the trial and that the substance of the
learned Magistrate’s analysis was that witnesses for
the prosecution had deponed coherently so that he
could rely on their evidence, whereas he could not
believe the appellant’s version or that of his witness
for the reasons he gave in his judgment. Counsel for
appellant also contended that with regards to
“Turnbull directions,” the learned magistrate failed
to give himself a warning that there was a special
need for caution. This contention was refused by the
learned Judges since it was unequivocally stated in
the judgment that the Magistrate did give himself the
required warning and caution in accordance with
Turnbull.
The guidelines derived from R v Turnbull [1977] QB
224, [1976] 3 All ER 549 with respect to disputed
identity cases were elaborated. Where the case
against an accused party depends wholly or
substantially on the correctness of one or more
identifications (here, the identification of the appellant
while he was driving by PC Mandary), the Judge or
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July 2021
Magistrate should (1) warn himself of the special
need for caution in relying on the correctness of the
Identification; (2) make some reference to the
possibility that a mistaken witness could be
convincing; (3) examine closely the circumstances
of the identification, e.g. for how long the witness
saw the accused, from what distance, in what light,
whether his/her observation was impeded, whether
the witness had seen the accused before and, if so,
how often, did the witness have any special reason
for remembering the accused, and how long was
there between the original observation and the
subsequent identification1 (this list being by no
means exhaustive).
Reference was made to the case of Latona N v The
State [2016 SCJ 93], where it was stated that
“where a magistrate is acting both as judge and jury,
he need not say specifically in his judgment that he
has given himself the caution, directed his mind to
the reasons for the caution and gone exhaustively
through the rest of the guidelines. It is enough if it is
apparent from his analysis of the facts, of any
contradictions and of the submissions of counsel on
identification issues that the learned Magistrate
directed himself fully on the substance of the
Turnbull guidelines (see Parboonath v R [1982 MR
54]).”
In light of the above, the learned Judges found that
the possibility that the appellant could have been
mistakenly identified have no merits and that the
Learned Magistrate adopted the correct approach
regarding identification evidence. There was nothing
in the questions that defence counsel put to PC
Mandary during his cross-examination which
showed that the issue of possible mistaken identity
was raised at the trial.
With regards to the intervention of the appellate
court, reference was made to the case of Edoo M B
T v The State [2015 SCJ 9], “It is not because
Page 24
counsel does not agree with the analysis of the trial if adduced at the trial. The appeal was found to have
Magistrate or because counsel is of the opinion that no merits and was dismissed, with costs.
the Magistrate should have taken another approach
that he can rush to the appellate court and ask for
the findings of facts to be upset.… It therefore MUSLAYAH O. v THE STATE 2021 SCJ 203
follows that the grounds of appeal and the skeleton By Hon. Judge Mrs B. R. Mungly-Gulbul and Hon.
arguments must set out quite clearly and in concrete Judge Mrs R. Seetohul-Toolsee
terms what amounts to the gross misapprehension
Defect in the particulars of information –
of the facts or, in other words, what are the elements
Elements of swindling – Fairness of enquiry –
which are said to be perverse.”
Section 10(2) (e) of the Constitution
During the appeal, counsel for appellant also sought
The appellant was found guilty for the offence of
to adduce additional evidence in the form of
swindling in breach of section 330(1) of the Criminal
“…exhibits of photographic evidence to substantiate
Code and was sentenced to six months’
the blurred vision effect of oncoming motor vehicles;
imprisonment and Rs 500 costs. He has appealed
more specifically oncoming cars with headlights on,
against the conviction and sentence. The information
from 50 metres moving towards the QM Police
against him averred that in the year 2005, at Flic en
Station… ” This was opposed by the Learned
Flac, in the district of Black River, the said
Judges in light of the basic rules of procedure and
Ouvendranath Muslayah, Civil Engineer “… did,
reference was made to Jhoolun S v The State
willfully and fraudulently by employing fraudulent
[2005 SCJ 200], in that the proper procedure to
pretences, to create the expectation of a success,
allow a party to adduce fresh evidence at appeal
obtain the remittance of funds and by such means as
stage is by way of an ancillary action by way of
aforesaid, swindle another person out of a part of his
motion and affidavit, as opposed to a mere ‘request’
property”.
inserted in the concluding paragraphs of skeleton
arguments filed less than a week before the appeal The particulars of the offence were as follows:
hearing. “Knowing that there was an omission in the official
book kept at the Registration and Mortgage Office
The above additional evidence sought to be
respecting the sale of Flat No. 4 of “Muslayah Villa”
adduced was available at the time of the trial and
situated at Flic en Flac to Mrs. Bibi Zaina Mousudee,
failed to pass the test enunciated in Jhoolun. The
the said Ouvendranath Muslayah made Mr.
principles on which courts will allow further evidence
Mohammad Abdel Ammar Mangou believe that he
to be adduced are found in Jhoolun and are: (1) the
was owner of the said flat and intended to sell same.
evidence sought should not have been available at
The said lie was backed up whereby accused showed
trial (2) the evidence should be relevant to the
him the said flat. Being convinced, Mr. Mohammad
issues (3) the evidence sought must be credible in
Abdel Ammar Mangou remitted sum of Rs 700,000/-
the sense that it is capable of belief and (4) the
to Ouvendranath Muslayah and acquired the said
evidence must be such that it could have at least
flat.”
raised a reasonable doubt as to the appellant’s guilt

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July 2021 Page 25
The undisputed evidence revealed that on 10
November 1993 in virtue of a deed drawn up by
Notary George Sinatambou, the appellant sold two
flats, situated at Morcellement de Chazal, Flic en Flac
to one Mrs Zaina Mousudee for a total sum of Rs
1.2M. On 19 July 2006 and 30 October 2006 he again
sold one of these flats, flat No. 4, which he had
already sold to Mrs. Z. Mousudee, to one Mr. Abdel
M. A. Mangou for a sum of Rs 700,000. The second
sale was effected before Notary Crouche and it was
duly transcribed and registered on 7 November 2006.
Mr. A. Mangou has since sold the flat.
Grounds 1, 4 and 7 of the appeal were argued
together. Under ground 1, it was submitted that
“because the learned Magistrate erred in convicting
the appellant (then accused) since the evidence
adduced by the prosecution does not tally with the
averments of the information and/or the elements of
the charge”. Ground 4 read “because the learned
Magistrate erred in finding the appellant (then
accused) guilty as charged as the evidence on record
do not reveal that the prosecution have proved
beyond reasonable doubt the constitutive elements of
the charge of swindling, the more so that the learned
Magistrate failed to and/or properly differentiate
between ‘fraudulent pretence’ and a ‘mere lie’ ”.
Under ground 7, it was submitted that “because the
learned Magistrate went ultra petita by making undue
inference that “if accused had chosen the same
notary to sell the property twice, his ‘manoeuvres’
would have been discovered …” ”
The particulars averred in the information were to the
effect that the appellant knowing that the first sale in
1993 had not been registered in the official book at
the Registration and Mortgage Office, made Mr.
Mangou believe that he was the owner of the flat and
that he had backed his lie by showing the said flat to
Mr. Mangou and thus induced the latter to remit to
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July 2021
him a sum of Rs 700,000 to acquire the flat.
Counsel for appellant argued that the information is
defective and should be dismissed. The Court’s
position as regards ground 1 was that no
evidence was adduced to the effect that the
appellant had shown the flat to Mr. Mangou in
order to back his lie as this ownership of the flat. In
the first place, it was observed that no such point
was raised in the course of the trial before the
Magistrate. Furthermore although there was no
evidence that the appellant had shown the flat to
Mr. Mangou, this cannot be fatal in the present
matter. This was so essentially in view of the
evidence as found proved by the learned
Magistrate which supports his ultimate finding that
there had indeed been such “manoeuvres
frauduleuses” on the part of the appellant which
would establish the offence of swindling.
In considering grounds 1, 4 and 7, the Court
referred to the case Moussa v The Queen [1972
MR 100] where the appellate court examined the
constitutive elements of swindling and in particular
the circumstances in which a defect in the
particulars of the information would not affect the
validity of the appellant’s conviction for an offence
of swindling. The court in Moussa made the
distinction between an information which is
defective in that it charges the accused with an
offence not known to the law and one, which
discloses an offence known to the law, but where
there exists a defect in the particulars, either
because they are incomplete or, as in the present
case, they do not tally with the evidence. Whereas
in the first situation, the information would not be
valid and cannot be allowed to stand, the
information may remain a valid one, where there
exists only a defect in particulars, which may be
amended so as to cure the defect by the relevant
particulars.
Page 26
In Moussa, the mode of swindling with which the conduct which was “visible et palpable” was “une
appellant stood charged was by “the employment manoeuvre au sens de la loi” and was sufficient to
of fraudulent pretences” except that in the present constitute the “manoeuvre frauduleuse” necessary
case such employment of fraudulent pretences was to establish the offence of swindling in the present
meant “to create the expectation of a success”. The case.
Learned Judges found that the only defect was with
In so far as the particulars are concerned the
regard to the particulars of the fraudulent pretences
appellant is alleged to have lied that he was the
resorted to, which did not tally with the evidence
owner of the flat and backed such lie by showing
which had been established against the appellant. It
the flat No. 4 to Mr. Mangou. There was however
was found correct for the Learned Magistrate to state
no evidence on record that the appellant had
that the information contained sufficient particulars,
shown the flat to Mr. Mangou. The information was
which on their own and independently, averred all the
however defective only in that particular respect, in
constitutive elements necessary to establish an
that it had not averred the correct particulars of the
offence of swindling in law.
“manoeuvres frauduleuses” which had been
The various evidence emanating from the appellant indisputably established by way of evidence.
himself and which was found in the deed of sale
The defect in the information was according to the
drawn up by notary Crouche clearly constituted the
Learned Judges in the category as described in
“manoeuvres frauduleuses” necessary to create the
Venkiah v R [1984 MR 62]: “… if there is or can
expectation of success in order to obtain the
be no likelihood of prejudice, more particularly if it
remittance of money. Moussa sheds light on what
is patent that the accused was all along fully aware
may amount to “manoeuvres frauduleuses” : «…
of the real charge against him and has had every
Garraud 3rd edn. Vol. 6 p. 338 « … tout acte de
opportunity of saying what he had to say, there is
nature à fortifier le mensonge, à le faire apparaître
no need or duty to amend the information for the
comme une vérité, pour ainsi dire, visible et palpable,
purpose of enabling the accused to put forward a
est une manoeuvre au sens de la loi”; or again as
new defence, but there is simply a need and a duty
explained in Garçon, Code Pénal Annoté, 2nd edn.
to cure the defect in the information so that it
art. 405 n. 38. “… Les manoeuvres frauduleuses
discloses the proper offence and it can tally with
peuvent résulter de tous faits extérieurs, de tous
the conviction.” There was therefore “no need or
actes matériels du fraudeur lui-même qui ont pour
duty to amend the information for the purpose of
effet d'induire la dupe en erreur et de rendre
enabling the [appellant] to put forward a new
vraisemblables les allégations mensongères par
defence.” In line with the reasoning in Moussa
lesquelles il cherche à le tromper …” In light of the
(supra), the appellant was all along fully aware of
above, the Learned Judges considered the conduct of
the precise nature of the charge as well as the
the appellant and the set up of the transaction was
evidence against him and it cannot be said that he
unequivocally of a nature which would render
could in any way be misled or prejudiced in the
“vraisemblable” his “allégations mensongères” that he
conduct of his defence. As such the defect in the
was the owner of flat No. 4 and by virtue of which, he
information had not in the circumstances resulted
would deceive Mr. Mangou into believing that he
in any miscarriage of justice and conviction should
could lawfully sell the flat to him. The appellant’s
not for that reason be quashed. The particulars of

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the information was amended by deleting the
following, “The said lie was backed up whereby
accused showed him the said flat” and substituting by
the following, “the said lie was backed up by the
conduct and representations of the accused which led
to the drawing up of a notarial deed of sale at the
office of Notary Crouche”. Grounds 1, 4 and 7 thus
failed.
Grounds 2, 3 and 5 were thereafter addressed
together. It was averred under these grounds that the
enquiry was not conducted in a fair and impartial
manner given that the charge of “swindling” was
never put to the appellant at the enquiry stage, this, in
view of the fact that the term “swindling” does not
appear at all in his statement. Counsel submitted that
the appellant was “only informed simply and plainly of
the complaint against him”. As a result “the appellant
did not know effectively what was being reproached
of him and the case he will have to meet at trial and in
those circumstances, the appellant did not benefit
from a fair hearing”. The Learned Judges agreed with
the analysis of the Learned Magistrate in light of the
case of Murday v State [2000 SCJ 225] as referred
to by the Magistrate.
In Murday, “It was certainly then not incumbent on
the prosecution to put the word ‘swindling’ to the
accused as the whole victim’s version was put to him.
Moreover, it is the prerogative of the Director of
Prosecution to elect which charge, if any, to be
preferred against accused.” According to the Learned
Judges, despite the failure by the Police to use the
technical term “swindling” when putting the charge to
the accused, evidence revealed that the appellant
was informed of the facts and circumstances
reproached against him. He was confronted with the
different versions and was given a fair opportunity to
correct, contradict and respond to the evidence at
both the enquiry and trial stage.
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July 2021
Under these grounds, it was also submitted that
material witness Mangou who had given the
declaration against the appellant was neither called
by the prosecution nor tendered for cross-
examination, thus not meeting “the standard
required in a criminal trial as the appellant (then
accused) was deprived of the right of confronting
the declarant (witness No. 2) and examining him
publicly at trial stage.” Counsel referred to section
10(2)(e) of the Constitution, which he submitted
guarantees the constitutional right of an accused
party to “cross-examine a witness whose evidence
is being relied upon to prove the charge against
the accused.” This was refused by the Learned
Judges who found Counsel’s reading of the section
incorrect.
The constitutional provision in fact guarantees the
right of an accused party to cross-examine those
witnesses called by the prosecution and in the
present case the appellant was, through his
counsel, afforded the opportunity to cross-examine
the witnesses who had been called by the
prosecution. Mrs. Mousudee and Mr. Mangou were
not called to depone in support of the prosecution
case. The prosecution had the discretion to call the
witnesses which it considered necessary to
support its case.
In the present case given the tenor of the evidence
on record, there was in the circumstances no need
for the prosecution to call any other witnesses. In
any event, the Learned Magistrate did not rely on
the testimony of any of these two witnesses in
order to find the charge proved against the
appellant. Grounds 2, 3 and 5 thus also failed.
Ground 8 challenged the sentence inflicted upon
the appellant as being manifestly harsh and
excessive.
Page 28
When passing the sentence, the Magistrate took into
account the appellant’s personal circumstances, his
family and professional commitments as well as his
financial issues. His four recent previous convictions
were also considered. The possibility for a
Community Service Order was refused in view of the
circumstances and a custodial sentence was
warranted so as to serve as a “… short sharp shock..”
that will deter accused from reoffending. Appellant
has since the commission of the offence, been
convicted for offences of dishonesty namely for
embezzlement in June 2009 and for issuing cheque
without provision in November 2009, June 2010 and
April 2011. Ground 8 failed in that the Learned
Judges considered that the offence committed by the
appellant was of a serious nature, it caused prejudice
and involved substantial amount of money. A
custodial sentence was richly deserved and is
according to the Judges very much on the low end of
the scale. The appeal was totally devoid of merit and
was accordingly set aside with costs.

“You don’t have to be great to start, but you have to

start to be great.”

–Zig Ziglar

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