You are on page 1of 16

Office of the Director

of Public Prosecutions

E-newsletter
E-Newsletter-Issue
Issue78
78 January2018
January 2018
In this Issue
Editorial 3

Strip Search: Between Legality and Visual Rape 4

Child Sexual Abuse seen from a psycho-socio-legal Perspective 6

Conference-Debate on the theme “Stop Violence against Women and Girls” 10

List of new callees to the Mauritian Bar: January 2018 13

Case Summary 14

Editorial Team
Miss Anusha Rawoah, Ag. Senior State Counsel
Mrs Pooja Autar-Callichurn , State Counsel
Mrs Shaaheen Inshiraah Dawreeawoo, State Counsel
Miss Neelam Nemchand, Legal Research Officer
Miss Pooja Domun, Legal Research 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.

E-newsletter - Issue 77
December 2017 Page 2
Editorial
Dear Readers,

We have the immense pleasure to bring to you the first issue of our
newsletter for the year 2018. In this issue, the Director of Public
Prosecutions, Mr Satyajit Boolell, SC addresses the topic of ‘strip
search’.

We also bring to you an overview of debates in which the Office of the


DPP participated recently. The first one was the debate on “Child
Sexual Abuse seen from a psycho-socio-legal perspective” held at the
Institute for Judicial and Legal Studies by experts in the field.

The second one was a conference-debate on the theme “Stop


Anusha Rawoah
Violence against women and girls”, organised by the European Union
Ag. Senior State Counsel
(EU) Delegation in the wake of the celebration of the Elimination of
Violence against Women in order to mark the “16 Days of Activism”
campaign.

We also seize the opportunity to congratulate the new callees to the


Mauritian bar and wish them a great career ahead.

Finally, as usual we provide readers with summaries of recent


Supreme Court judgments.

We wish you a pleasant read.

E-newsletter - Issue 77
December 2017
Page 3
Strip Search: Between
Legality and Visual Rape
The legal requirement to stop, search, arrest, detain and provisionally charge a
citizen is one of reasonable suspicion. It is a dangerously low threshold and
open to abuses. Once this requirement is satisfied, the law is remarkably silent
leaving our courts with little room to monitor any potential abuses as an enquiry
unfolds.

It would be absurd, bearing in mind the realities and difficulties of law


enforcement, to argue that searches on suspects of crime cannot take place on
the grounds that such exercise constitute an intrusion of their privacy. The
Satyajit Boolell, SC constitution in fact authorizes such an exercise as long as they are reasonable,
Director of Public Prosecutions proportionate and necessary in a democracy. A suspect arrested in the
commission of a theft (larceny) may be searched to see whether he has any
instrument of violence about him, and in the same manner if he be taken on a
charge of arson he may be searched to see whether he has any fire-boxes or
matches about his person.

This is why it is necessary to provide for statutory rules as to how, why and when
searches should be effected. Whilst the Mauritian law to date does not define
strip search, most jurisdictions recognise it as a search involving the removal of
some or all the clothing of a person so as to permit a visual inspection of a
person’s private areas, namely genitals buttocks, breasts (female), or
undergarments. This definition distinguishes strip search from the less intrusive
searches, pat down searches, which do not involve removal of clothing. As
such, strip searches become inherently humiliating, demeaning and even
upsetting to the person searched. P.R Schuldiner even coined the term ‘visual
rape’ to allude to the dubious instances when law enforcement agents carry out
strip searches.

The case of R v Golden [2001] SCC 83 from the Supreme Court of Canada
provides useful guidance on the concept. Golden was a suspected drug dealer
who was subjected to multiple searches in front of several persons in a
restaurant. The Supreme Court stated that as a general rule, where a search or
seizure is undertaken without judicial authorization, the search or seizure is
presumed to be unreasonable. As such, the police has to justify the search
(Hunter v Southam Inc [1984 SCC 33], [1984] 2 SCR 145, 55 AR 291). An
established exception to this general rule is that the search of a person incident
to arrest is not considered to be prima facie unreasonable. However, because of
the significant intrusion into the privacy of the detainee, this exception to the
general rule does not apply to strip searches and they must be considered to be
prima facie unreasonable. As a result, the onus is on the police to justify all strip
searches.

The criteria for justification were identified by the Canadian Supreme Court as
follows:

• The arrest itself must be lawful;

• The strip search must have been truly incidental to the arrest;

• The strip search itself must have been reasonable in all of the circumstances,
and

• The strip search must have been conducted in a manner that does not infringe
section 8 of the Charter [providing for protection against unreasonable search or
E-newsletter - Issue 77 seizure].
December 2017
Page 4
• It is only once these criteria are fulfilled that the Court can look into the procedure
adopted to strip search a suspect to ascertain compliance with any guidelines in
Strip Search: Between place. Absent the fulfilment of these conditions, adherence to any guidelines
becomes otiose.
Legality and Visual Rape
Whilst these criteria appear sufficient, a word of caution where children are involved
is justified. Even if the Court of Appeal in the case of Davies did not find a breach
of Article 8 of the ECHR, it did express its concern on the failure by the police to
consider alternative, less invasive measures to protect the girl who was suicidal
instead of removing her clothes. Thus bearing in mind the vulnerability of children
would be the additional task of the all the agents of the criminal justice agents in
cases where suspects are children.

Looking Ahead

Over the last decade, we have been debating on the need to introduce a Mauritian
Police And Criminal Evidence (‘PACE’) Bill. It is not an easy task to find the
appropriate Mauritian recipe. PACE will require a fundamental change of culture at
the level of the police enquiries, not an insurmountable one though. It will do away
with provisional charges although the possibility of a “holding charge” may exist in
complex cases. There is no magic to PACE . It will codify the measures and steps
to be taken by the police within the boundaries of the law when interfering with the
crucial freedoms of the citizen. Take for example the requirements laid down under
the UK PACE before a strip search can be conducted in specific cases :

1. Can the strip search be conducted at the police station and, if not, why not?

2. Will the strip search be conducted in a manner that ensures the health and safety
of all involved?

3. Will the strip search be authorized by a police officer acting in a supervisory


capacity?

4. Has it been ensured that the police officer(s) carrying out the strip search are of
the same gender as the individual being searched?

5. Will the number of police officers involved in the search be no more than is
reasonably necessary in the circumstances?

6. What is the minimum of force necessary to conduct the strip search?

7. Will the strip search be carried out in a private area such that no one other than
the individuals engaged in the search can observe the search?

8. Will the strip search be conducted as quickly as possible and in a way that
ensures that the person is not completely undressed at any one time?

9. Will the strip search involve only a visual inspection of the arrestee's genital and
anal areas without any physical contact?

10. If the visual inspection reveals the presence of a weapon or evidence in a body
cavity (not including the mouth), will the detainee be given the option of removing
the object himself or of having the object removed by a trained medical
professional?

11. Will a proper record be kept of the reasons for and the manner in which the strip
search was conducted?

Such elaborate codified procedures will remove the dangers of abuse and enable
our courts to better monitor the rights of the citizen.

E-newsletter - Issue 77
December 2017
Page 5
Child Sexual Abuse seen
from a psycho-socio-legal
Perspective
A workshop was held on the 28th November 2017 at the Institute for Judicial
and Legal Studies in Mauritius on “Child Sexual Abuse seen from a psycho-
socio-legal perspective”. Among the panellists were present: Professor
Jogin Thakore, Senior Psychiatrist and Professor from Ireland; Dr Poonam
Bissessur, Director of PEDOSTOP; Mrs Ranee Nundah, Coordinator at
Ministry of Gender Equality, Child Development and Family Welfare; Mr
Ismael Bawamia, Ombudsperson for Children’s Office; Mrs Johan Moutou-
Leckning, Senior Assistant DPP; Mrs Angélique Desvaux de Marigny; and
Hon. Mrs Razia Janoo-Jaunbocus, Intermediate Court Magistrate.

The workshop started with a presentation by Professor Thakore on child


sexual abuse (‘CSA’). He explained how the definition of CSA was so wide-
ranging that it comprises either physical and non-physical contact, for
example filming or photography. Professor Thakore emphasised on the
problem of CSA by looking at the Global Status Report on Violence
Prevention 2014 from the World Health Organisation. He also explained the
risk factors for CSA, which comprised poverty, domestic violence, etc. He
analysed the consequences that CSA has on the victim, namely behavioural
& physical and added that CSA can also negatively impact the education of
the victim.

Professor Thakore explained that most cases of CSA are unreported due to
barriers that the victim faces, such as limited support, guilt or shame. The
child often thinks that it is his/her fault that it happened and thus fears to
disclose it. He stressed on the importance of having facilitators to disclosing
cases of sexual abuse, such as prevention programmes which would
involve the family and the teacher so they are better prepared to identify
cases of CSA and be able to handle the child victim.

He talked about psychotherapeutic interventions for CSA which has been


proven effective with victims of CSA. He also talked about prevention
methods that could be applied to ensure that children do not find
themselves victim of CSA. Some of the preventive methods mentioned by
Professor Thakore was developing a safe, stable and nurturing relationship
with the child; developing life skills in children and adolescents; and victim
identification, care and support programmes. He added that a nurturing
relationship enables children to develop a higher IQ, which leads to higher
earnings and reductions in violence as they are less likely to manifest
depressive symptoms.

As a concluding remark, in order to reduce the number of CSA cases, he


proposed that children should be taught about CSA through school-based
educational programmes as in 2002, 150 millions of girls and 73 millions of
boys were subject to CSA.

Dr Poonam Kangloo Bissessur was the second speaker. Her intervention


was mainly focused on the prevalence of CSA in Mauritius. She stated that
only 10% to 30% of CSA are reported. Many of the victims of CSA do not
disclose their problem for fear of not being believe, or because they feel like
E-newsletter - Issue 77
December 2017
Page 6
it was their fault, or fear of incomprehension or retaliation. The victims are
embarrassed, guilty, ashamed, and sometimes unaware that they disclose
their problem for fear of not being believe, or because they feel like it was
their fault, or fear of incomprehension or retaliation. The victims are
embarrassed, guilty, ashamed, and sometimes unaware that they are being
abused. In cases where the child is abused by a member of his/her own
family, they are afraid of losing that parent, they have a fear of separation
which prevents them from reporting the CSA case.

She analysed the question of whether children are liars. According to her, it
is rare for children to lie. They are most likely to lie as a result of
manipulation by an adult. The consequence of CSA on a child is vast and
includes substance abuse, risk of suicide and delinquency. She also
emphasised on the fact that even women can commit acts of sexual abuse.
She talked about the methods and process of offenders to lure the child so
they can be abused, such as offering them gifts or privileges.

The third speaker was Mrs Ranee Nundah, who talked about the “Roles and
limits of the CDU and the challenges faced with victims”. She gave an
overview of the Child Protection Act 1994 which makes it mandatory for
teachers, doctors, dental surgeons or other adults directly in contact with the
child to report cases of abuse. She mentioned the Oasis Residential Day
Care Centre which was inaugurated in 2014 and is a refuge for children who
has been victims of sexual abuse.

Amongst other things, Mrs Nundah also mentioned the constraints that the
CDU (‘Child Development Unit’) officers face in their work as well as
proposals to make the CDU headquarters less intimidating for the children.
Proposals for reform included:.

• A child friendly corner for the recording of statement as often children have
to wait for hours to be taken to the hospital for their medical examination
and treatment;

• The decentralisation of police medical examination as right now it is only


provided for in Victoria Hospital and at Line Barracks;

• Fast-track system at Court level as children tend to forget when they grow
up;

• A child friendly room at Court so they do not have to be faced with the
austere environment of the court or faced their abuser.

After Mrs Nundah’s intervention, Mr Ismael Bawamia played a documentary


on CSA which consisted on parents and children relating their story from the
day of the abuse till the day of the trial. They talked about the problems they
faced when reporting their case, and how they sometimes felt like they had
no recourse to any help.

After that documentary, Mrs Johan Moutou-Leckning intervened on the legal


aspects of CSA from the prosecution side. She started her presentation with
figures on the number of cases of sexual abuse registered and the definition

E-newsletter - Issue 77
December 2017
Page 7
of ‘child’ in various legislations. She gave examples of what constitutes
CSA, such as child trafficking, child abandonment, child prostitution and
child pornography amongst others. She analysed the United Nations
Convention on the Rights of the Child 1990 and the protective and
preventive measures mentioned in the Convention. She then contrasted
those articles with our local legislations. Mrs Moutou-Leckning also gave an
overview of the Child Victim and Witness Support Unit at the Office of the
DPP including why the unit was created and the objectives of the unit. She
talked about the achievements of the unit such as the publication of ‘Tanya
so zistwar’ which explains in caricature the different stages involved in
relation to assistance given by police and the court to victims of sexual
assault.

Mrs Moutou-Leckning then addressed the possible barriers which hinder


justice to victims and witnesses of CSA. She gave a definition of victim and
how judges and juries unfamiliar with the dynamics of sexual assault may
overlook offender’s grooming tactics or misperceive common victim
reactions to abuse as evidence of the victim’s lack of credibility. She
stressed on the importance of understanding the offender’s grooming
technique. She also briefly mentioned why most cases of CSA remains
unreported, which are trouble, shame, love for the abuser.

She then gave tips to prosecutors and how they should approach inter
familial sexual assaults in a coordinated multidisciplinary manner to
minimize the consequences of delay in reporting. Mrs Moutou-Leckning also
gave a brief overview of the investigation and the trial stage. The
investigation stage included guidelines to be followed where the abuser is a
parent or a relative and how forensic interviews should be conducted. She
talked about legal assistance which our law provides. She concluded her
presentation with proposals and recommendations as to the areas of the
law which needs to be amended as so to better provide protection to victims
of CSA.

E-newsletter - Issue 77
December 2017
Page 8
It was then for Mrs Angélique Desvaux de Marigny to talk on the legal
aspects of CSA from the defence side. She talked about the difficulties
faced by the victims of CSA and their family when having to report a case of
sexual abuse. And how the CDU does not take any statement from the
parents and they are redirected to their local police stations or the CCID.
She emphasised on the fact that police officers have no training on how to
deal with children, and sometimes they ask inappropriate questions which
forces the child to shut off. She proposed that a special training should be
given to enquiring officers on how to deal with children and what kind of
questions they should be asking as well as non-verbal techniques to be able
to record the statement of the child such as drawings or anatomical models.

Mrs Angélique Desvaux de Marigny also talked about the different options
available to children victim of CSA, for instance section 161B of the Courts
Act gives the court the discretion to allow a child victim to depose by video
conference. She stated that medical examinations at the hospital can be
quite a traumatising event for the child and the Police Medical Officer needs
to be debriefed as to the enquiring process so he does not repeatedly asks
the same questions.

Honourable Mrs Razia Janoo-Jaunbocus, in her intervention, talked about


the court process of CSA. She explained the competency of a child witness
and how a CSA case is approached in Court. She emphasised on the fact
that all child victims are heard in camera and video link is available if and
when counsel makes a motion. She also stressed that there is no legal aid
in Mauritius for child victims and that all the information received is from the
CDU. Hon. Mrs Razia Janoo-Jaunbocus also gave an overview of the
sentencing pattern for cases of CSA and talked about some of the cases
that she encountered.

This concluded the workshop on child sexual abuse with the realisation that
there is still much which needs to be done in order to provide a better
protection regime for victims of sexual abuse. The workshop proved to be
very fruitful with a lot of interesting proposals put forward from the
interveners.

Mrs Johan Moutou-Leckning


Senior Assistant DPP
Pooja Domun & Neelam Nemchand
E-newsletter - Issue 77 Legal Research Officers
December 2017
Page 9
Forum-Debate on the
theme “Stop Violence
against Women and Girls”
In the wake of the celebration of the Elimination of Violence against
Women held on the 29th November 2017, and in view of marking the “16
Days of Activism” campaign, the European Union (EU) Delegation
organised a forum-debate on the theme “Stop Violence against women
and girls.” This event was held at the Gold Crest Hotel and it was
organised in collaboration with the Ministry of Gender and Equality, Child
Development and Family Welfare. The forum-debate brought together
five speakers namely:

• The Honorable Mrs. Roubina Jadoo-Jaunbocus, Minister for Gender


Equality, Child Development and Family Welfare;

• Mrs Marjaana Sall, Ambassador of the EU to the Republic of Mauritius


and the Republic of Seychelles;

• Mrs Johan Moutou-Leckning, Senior Assistant, Director of Public


Prosecutions;

• Mrs Sylvia Rajiah, Police Chief Inspector and

• Mrs Sheetul Gigabhoy-Sauhoboa, Vice President of SOS Women and


State Counsel at the Attorney General Office.

The conference was moderated by Ms. Shirin Aumeeruddy-Cziffra,


President of the Public Bodies Appeal Tribunal, former Attorney General
and Minister for Women’s Rights and Family Affairs.

During the conference-debate, it was recognised that violence against


women and girls is a widespread human rights violation worldwide.
Despite the campaigns and actions of the public authorities, non-
governmental organisations, violence is a real scourge that continues to
affect the lives of many women and girls. On this occasion, Mrs
Marjaana Sall, reiterated the EU’s commitment to defend women’s rights
both inside and outside the EU. She advanced that “it is essential to
continue to educate all citizens about the fact that the violence against
women and girls is unacceptable and must be combatted on a daily
basis through a real change in attitude and by taking concrete actions.”

During her intervention, Mrs Sall announced that the EU Commission will
provide technical assistance for the drafting of the draft law on Gender
Equality and it shall also extend a grant of Rs 8 Million to the National
Human Rights Commission for awareness-raising actions both in
Mauritius and Rodrigues.

The floor was then for the Minister, Honorable Mrs Roubina Jadoo-
Jaunbocus to intervene. The Minister reiterated that the tackling of
violence remains among the Government’s priorities. She advanced that
E-newsletter - Issue 77
December 2017
Page 10
addressing violence against women and girls implies working with both the
victim and the perpetrators including children who are witnessing domestic
violence. She also accentuated on the various services offered by the six
Regional Family Support namely: first hand counselling; psychological
counselling; legal advice/assistance at Court; assistance to victims of
domestic violence; referring victims for temporary accommodation in shelter
and providing counselling services to perpetrators. The Minister also
accentuated on the need for a National Domestic Violence Protocol to
ensure inter-agency collaboration in the treatment of domestic violence
cases and also, on the urgent need for setting up an integrated support
service so as to provide a comprehensive system that will provide
immediate, consistent and timely support and counselling to victims on a 24-
hour basis.

The debate was further pursued with Mrs Moutou-Leckning’s intervention.


She addressed the audience on the legislations under which an offender
may be prosecuted for exercising violence against women. We noted that
violence may take various form namely: physical, sexual, ill treatment,
verbal or moral, harassment, sequestration, among others. One of the most
common form of violence includes moral violence which is often exercised
through the use of telecommunication services such as telephone, SMS and
email to convey abusive messages. This is catered for at Section 46 of the
Information and Communication Technologies Act 2001. Mrs Moutou-
Leckning also reminded the audience that it is an offence to harass
sexually; assault; verbally abuse; swear or insult; bully or use threatening
behaviour in the course of or as a result of one’s work (Section 54 of the
Employment Rights Act). She also tackled the various Recommendations
of the Report of the Advisory Committee on Reinforcement Framework for
the Protection from Domestic Violence.

The next panellist was Mrs Sylvia Rajiah. Her discussion in essence
covered the main difficulties encountered by police officers when dealing
with domestic violence cases and these include: allotting the required time
to victims who are very often in a confused state of mind. This is very
important so as to be able to extract relevant facts from the victims. The
second difficulty relates to finding a solution or immediate solution for
related problems like custody of children in case of denial from the other
party, among others. Mrs Rajiah also dealt with the positive effects
following the Report of the National Coalition against Domestic Violence
Committee in December 2015 and following the amendments brought to the
Protection against Domestic Violence Act in 2016 and these include:

(a) The victim of domestic violence is now interviewed in another room, off
the charge room to ensure confidentiality;

(b) In case where the victim is injured, he/she is provided with transport and
is accompanied by a police officer of the same sex to the hospital;

(c) Police makes a follow up after the issue of a protection order;

(d) Victim is accompanied to a place of safety or shelter by a police officer.

She ended her discussion by covering the most common prevention


strategies used by the police for cases of domestic violence.

At last, Mrs Sheetul Gigabhoy-Sauhoboa talked on the role played by the


E-newsletter - Issue 77 SOS Women in the fight against violence on women and girls.
December 2017
Page 11
During the conference-debate, the panel members agreed that the
elimination of violence against women and girls is a prerequisite for the
promotion, protection and respect of human rights, gender equality,
democracy and economic growth. Violence against women has significant
economic costs especially in terms of lost income for women and their
families and lower productivity. It is estimated that the cost of violence
against women could represent around 2% of the world’s Gross Domestic
Product.

At the end of the various interventions, the panellists took questions from
the audience and the debate proved to be very fruitful and enriching for all
participants.

Mrs Johan Moutou-Leckning


Senior Assistant DPP
Pooja Domun
Legal Research Officer

E-newsletter - Issue 77
December 2017
Page 12
List of new callees to the Mauritian Bar: January 2018

The Mauritius Bar Association has, since the 19th January 2018, 25 new members. They are:

1. SOYJAUDAH Krishnaraj Madhavjee Sunjiv 14. GHUNSAM Varuna Vaneesha


2. MALLET David Yvan 15. RAGAVODOO Kurshvin
3. SOREEFAN Bibi Kawthur 16. CAUSSY Akeelesh Sharma
4. THAKOOR Bhasant Nikheel 17. LE BLANC Alexandre Henry
5. DABEESINGH Kailash Dahramsing 18. ADAMJEE Ali Mustafa Adamali
6. FAUGOO Celina Devi 19. ROOCHAN Anishta
7. SAKAULOO Naazish 20. MATIKOLA Anu Prithvi
8. SOMAR Jayaluxmi 21. RAMNAH Kunal Deep
9. PEEROO Amira Bibi Zainab 22. BRIGEMOHANE Vijay Kevin
10. APPANAH Anouchka 23. ESPITALIER NOEL Marie Sabine Mathilde
11. DHUNNOO Ameerah 24. SAYED-HOSSEN Sayyad Abd-Ur-Rahman
12. BELLOUARD Marie Elizabeth Celine 25. DEELJOOR Ibrahim Ikhlaas
13. NOWBUTH Nehaa

The Office of the Director of Public Prosecutions congratulates the new barristers especially Mr Caussy Akeelesh Sharma, Mr
Ragavodoo Kurshvin, Ms Espitalier Noel Marie Sabine Mathilde, Ms Peeroo Amira Bibi Zainab, Ms Appanah Anouchka, Ms Somar
Jayaluxmi, Mr Thakoor Bhasant Nikheel, Ms Nowbuth Nehaa, Ms Bellouard Marie Elizabeth Celine, Ms Faugoo Celina Devi, Ms
Ghunsam Varuna Vaneesha, who have been pupils at the Office.

E-newsletter - Issue 77
December 2017 Page 13
SUMMARY OF SUPREME Teeluck D. v The State [2018 SCJ 6]
By Hon. Judge Mr. D. Chan Kan Cheong, Judge and
COURT Hon. Judge Mr. A.D. Narain, Judge
JUDGMENTS: Section 123F – Second or subsequent offence –
Mandatory minimum sentence - Evidence
January 2018
This is an appeal against the sentence passed for an
offence of driving a motor vehicle with alcohol
concentration above the prescribed limit in breach of
Oolun M. v The State [2018 SCJ 2]
Sections 123 F(1)(a)(3) and 52 of the Road Traffic Act.
By Hon. Judge Mr. O. B. Madhub, Judge and Hon. The Appellant pleaded guilty to the offence.
Judge Mr. Oh San-Bellepeau, Judge
Upon having noted that the Appellant had a previous
Plea in mitigation – rights of Accused – Court record
conviction, the Learned Magistrate sentence him to
needs to reflect the judicial exercise
undergo 6 months’ imprisonment and to pay a fine of Rs
This is an appeal against the conviction of Appellant on a 25,000. The Appellant was further disqualified from
charge of failing to pay alimony in breach of Section holding or obtaining a driving licence for all types of
261(1) of the Criminal Code. The Appellant pleaded vehicles for a period of 12 months and his driving licence
guilty and was unrepresented at the hearing. He was then was cancelled and endorsed.
sentenced to pay a fine of Rs 3,000.
The Appellate Court held that the sentence passed on the
Counsel for the Appellant did not insist on the grounds of appellant was in line with the law but it was the common
appeal except for ground 3 which found fault with the fact stand of both learned Counsel that the present case be
that the learned Magistrate failed to inform the Appellant remitted before the District Court for a fresh hearing in
of his right to adduce evidence in mitigation. The point relation to sentence as there was no evidence of the facts
was conceded by Counsel for the Respondent. and circumstances of the offence which would have
allowed the learned Magistrate to pass the appropriate
In fact, the Court record reflected that once the Appellant
sentence.
was convicted by the Learned Magistrate, the latter
proceeded directly to sentence him without informing him The only evidence which was adduced was the alcohol
of his right to adduce any evidence which he might have test report. PC Gungadu was called to simply give
wished to produce in mitigation. evidence to the effect that the appellant had declined to
give a written statement. The Appellate Court went to
The Appellate Court also remarked that notes of court
state that it was important to adduce and hear sufficient
proceedings taken down in writing on a court record
evidence in the present case especially that a severe
should be legible to anyone having an interest in such
penalty was imposed, that is, a mandatory custodial
record and particularly to a litigant wishing to exercise his
sentence. In the present case, the Magistrate was not put
constitutional right to appeal.
in presence of the facts and circumstances and of any
It was also held that the court record was not so special reasons, if any. The Court therefore went on to
unintelligible so as to affect the fairness of the hearing but conclude that there was insufficient evidence to enable
the abbreviations used may sometimes lead to the Learned Magistrate to use his discretion judiciously
misinterpretation of the evidence and should therefore be and to pass the appropriate sentence.
avoided by Learned Magistrates whilst taking notes of the
The sentence was quashed and the case was remitted for
court record.
a fresh hearing in relation to sentence before a different
The sentence was quashed and the case was remitted Magistrate.
back for the Appellant to be sentenced anew after
conducting a fresh hearing on sentence.

E-newsletter - Issue 77
December 2017 Page 14
Mudun S. v The State [2018 SCJ 24] STRIMBU G I v THE STATE OF MAURITIUS 2017 SCJ
By Hon. Judge Mrs. R. Teelock, Judge and Hon. 448
Judge Mrs. A. D. Narain, Judge By Hon. Mrs. R. Teelock, Judge and Hon. Mrs.
Plea in mitigation – rights of Accused – Court record A.D.Narain, Judge
needs to reflect the judicial exercise Review of Sentence – Importation of Heroin

The Appellant pleaded not guilty to the offence of Driving This is an application for review of the sentence of 12
without due Care and Attention in breach of Sections years’ penal servitude imposed on the applicant who was
123C (1)(a) and 52 of the Road Traffic Act. He was a Romanian national. He pleaded guilty to a charge of
found guilty and was sentenced to pay a fine of Rs 3,000 importation of 1170 grammes of heroin in Mauritius in
and Rs 100 as costs. He was further disqualified from breach of Sections 301(1)(b)(ii), 45(1) and 47(5)(a) of the
holding or obtaining a licence for all types of vehicles for a Dangerous Drugs Act.
period of 6 months and his licence was endorsed.
In sentencing the Appellant, the learned Judge took into
At the hearing, the Appellant pressed and challenged only account the plea in mitigation and the fact that he
the sentence on the ground that it was manifestly harsh corporated with the police. She also gave him a discount
and excessive in the circumstances to impose a for the timely plea of guilty. Time spent on remand was
disqualification order. also taken into account.

The Appellate Court explained that a disqualification was The issue of the Appellant was that the learned Judge
permissible and not obligatory in the Appellant’s case and had not “mathematically deducted” from his sentence the
the learned Magistrate had a discretion to impose a 33 days he had spent in police cell and the 1004 days he
disqualification order, which was to be exercised had spent on remand prior to conviction.
judiciously after taking into consideration all the
The Appellate Court was not ready to accept that foreign
circumstances of the offence, including its degree of
nationals were granted a deduction of 100% of the
seriousness and any aggravating circumstances.
remand period from their sentence while Mauritian
After having perused the evidence on record, the detainees were entitled to a deduction of 80% of their
Appellate Court came to the conclusion that the Learned remand period. The Court held that it was so wrong to
Magistrate had failed to expressly or otherwise applied his consider that the deduction can only be of either 80 or
mind to the circumstances of the offence before deciding 100 % since the precise deduction would vary according
to impose a disqualification order. There were no to the circumstances of the case.
aggravating circumstance present that justified the
It was borne out from the case that the Appellant could
imposition of a disqualification order. The Court went on
only keep in touch with his family abroad by making use
to state that there were no injuries sustained as a result of
of the telephone facilities available at the prison and he
the multiple car crash and the lack of due care and
had a 7-year-old child whom he never saw, except in
attention on the part of the Appellant would appear to
photographs. In absence of any other consideration, the
consist of failing to keep a sufficiently safe distance when
Appellate Court ordered that 95% of the total remand
following the vehicle before him, which would then not
period be deducted from the sentence of 12 years’ penal
justify the imposition of a disqualification order.
servitude.
The appeal was allowed against sentence and the order
made by the Magistrate in respect of the disqualification
and the endorsement of his driving licence was quashed.
“Kites rise highest against the wind - not
with it.”
- Winston Churchill

E-newsletter - Issue 77
December 2017 Page 15
E-newsletter - Issue 77
December 2017
Page 16