Office of the Director of Public Prosecutions · Ms Anusha Rawoah, Ag. Senior State Counsel Mrs...

E-newsletter - Issue 77

December 2017

Office of the Director

of Public Prosecutions

E-newsletter - Issue 77 December 2017

Editorial Team

In this Issue

Editorial 3

How safe are journalistic sources? 4

Hon. Justice Aruna Narain appointed as member of the

Committee on the Elimination of Discrimination Against Women 5

Prosecution Strategies: How to improve your understanding of

and skills to, prosecute, TIP cases 7

Training in Rodrigues 9

Brothers in arms 11

Highlights of year 2017 12

Case Summary 14

Ms 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.


Editorial Dear Readers,

As we flip the calendar to a new year, we are pleased to bring to you

the last issue of our newsletter for the year 2017. The Editorial team

takes this opportunity to wish its readership a very Happy New Year

2018. This has been another great year for our office and our

newsletter. In the same vein, we are much delighted to introduce to

our readers the new logo of the office of the DPP.

As his last article for the year, Mr Satyajit Boolell, SC, the Director of

Public Prosecutions addresses the issue of protection of journalistic

sources. In this issue, we also acclaim the recent appointment of

Honourable Justice Aruna Narain, Puisne Judge of the Supreme Court

as member of the Committee on the Elimination of Discrimination

against Women. Furthermore, as usual we provide a glimpse of the

workshops and trainings organised by the office recently. As such, a

review is given on the training conducted by Ms Deslie Billich with our

law officers and some law enforcement officers, on prosecution of

trafficking in persons offences. Also, we provide an overview of a

training provided by our office to law enforcement officers of various

Commissions in Rodrigues.

On a different note, we cannot but appreciate the courage of two trail

addicts, Hon. Justices A. Caunhye and G. Angoh, who participated in

a trail recently in Rodrigues. Moreover, some highlights are provided

on the activities which took place in the office during the year 2017.

Finally, summaries of recently delivered Supreme Court judgments are

also included.

We wish you all a healthy and

blessed new year 2018!

Anusha Rawoah Ag. Senior State Counsel


How safe are journalistic

sources?

Our Supreme Court has never missed an opportunity to

emphasize the pre-eminent role of the press in a democracy in

line with our constitutional safeguards guaranteeing the freedom

of expression. Similarly, the European Court of Human Rights

(ECtHR) has explained that “freedom of the press affords the

public one of the best means of discovering and forming an

opinion of the ideas and attitudes of their political leaders”

(Castells v. Spain, 24th April 1992, Ap No. 11798/85).

A legitimate question arises here: Is this right an absolute one

and if not, in what circumstances would an interference be

justified?

Last October, this issue was considered in a judgment in the

case of Becker v Norway, 5th October 2017, Ap. no. 21272/12,

involving a journalist who was ordered to give evidence in a

criminal case brought against one of her sources accused of

market manipulation. In that case, the ECtHR went a step further

when it held that protection of journalistic sources remains a

basic condition for press freedom. The case itself addresses the

competing interests between on the one hand the duty of police

to investigate crimes in the public interest and on the other hand,

the right of a journalist to protect its source in the interest of

freedom of expression. The court went on to consider the

principle laid down in Goodwin v United Kingdom, 27 March

1996, Ap. no. 17488/90 to the effect that “protection of

journalistic sources is one of the basic conditions for press

freedom ….. without such protection, sources may be deterred

from assisting the press in informing the public on matters of

public interest. As a result, the vital public-watchdog role of the

press may be undermined and the ability of the press to provide

accurate and reliable information may be adversely affected.”

The ECtHR however qualified such approach by stating that the

right cannot be absolute. Any restriction must be genuinely

exceptional and subject to the highest standards, implemented

by judicial authorities only. It should be limited to investigations of

the most serious crimes or the protection of the life of other

individuals. In some jurisdictions, journalists and editorial staff

may be compelled by a judge to disclose information sources

only if they are of a nature to prevent crimes that pose a serious

threat to the physical integrity of a person, in situations where the

information is of crucial importance to prevent such crimes and

the information cannot be obtained by any other means.

In Mauritius, we are yet to define the scope of such limitations.

Satyajit Boolell, SC Director of Public Prosecutions


Honourable Justice

Aruna Narain appointed as member

of the Committee

on the Elimination of

Discrimination against Women

This year, Honourable Justice Narain has been appointed to

serve as a member of the Committee on the Elimination of

Discrimination against Women until 31 December 2018.

Honourable Narain has in fact, succeeded Mrs Pramila

Patten, who has now been appointed as Special

Representative on Sexual Violence in Conflict at the level of

United Nations. The Committee on the Elimination of

Discrimination against Women is the body of independent

experts that monitors implementation of the Convention on

the Elimination of All Forms of Discrimination against Women

(the ‘CEDAW’). It consists of 23 experts on women’s rights

from around the world, who are elected by secret ballot by

States parties.

Honourable Narain was called to the Bar at the Middle

Temple, London and to the Mauritian Bar in 1992. Before

being appointed Puisne Judge of the Supreme Court in 2015,

she served as Assistant Solicitor-General and Parliamentary

Counsel at the Attorney General’s Office. Honourable Narain

has appeared as Counsel for the State before all Courts and

many statutory tribunals of Mauritius until 2015. She

appeared for the State in reported constitutional cases,

including cases on discrimination, before the Supreme Court

and the Judicial Committee of the Privy Council. One of the

main officers in charge of the human rights desk at the

Attorney-General’s Office, she has been involved in the

preparation of all Government reports submitted to human

rights treaty bodies between 1995 and 2015, including reports

submitted to the CEDAW Committee. She has also served as

part-time Lecturer in “Law of Evidence” (1995-1999) and

“Constitutional Law” (2004- 2011) at the Council of Legal

Education.

Hon. Justice A.Narain


Honourable Justice

Aruna Narain appointed

as member of the

Committee

on the Elimination of

Discrimination against

Women

Honorable Narain has always had great interest in criminal

work and has been an accomplished prosecutor before the

District and Intermediate Courts during the early stages of her

career. She later handled some very important criminal

appeals on novel points of law. We recall her dedicated work

in the team led by Mr Satyajit Boolell, SC, now the Director of

Public Prosecutions, for the L’Amicale case before the

Supreme Court. She also appeared in the Court of Criminal

Appeal case of Islam vs The State (2008) SCJ 331 as well

as the drug trafficking case of State vs Al-Busaidi (2000)

SCJ 251. It is worth noting that Honourable Narain is a

member of the Editorial Board of the Mauritius Criminal Law

Review (the ‘MCLR’) published by the Office of the DPP, in

which she has provided her tremendous assistance. She

launched the second edition of the MCLR in April 2016.

With her rich legal experience, Honourable Narain will no

doubt efficiently assist the Committee, which is tasked with

the review of the reports of States parties submitted in

accordance with article 18 of the CEDAW. This office

congratulates Honourable Aruna Narain on her new

appointment and wishes her all the very best.

Anusha Rawoah

Ag. Senior State Counsel


Prosecution Strategies: How

to improve your

understanding of and skills

to, prosecute, TIP cases

On the 13th December 2017, a training was organised on Prosecution

Strategies: How to improve your understanding of and skills to, prosecute,

TIP cases. The training was conducted by Ms Deslie Billich and was held at

the Rajsoomer Lallah Lecture Hall.

The training was tailored to prosecuting counsels so as to better enable

them to prosecute trafficking in persons (‘TIP’) cases. She started the

training by briefly mentioning the most effective databases for decisions on

TIP. She then mentioned how TIP cases are under reported and under

prosecuted. This is due to the fact that trafficking brings money into the

economy which discourages some country in enforcing their laws.

Ms Billich talked about the Palermo Protocol against the prevention,

suppression and punishment of TIP. She stated that smuggled people are

vulnerable to being trafficked as they are illegally in the country and the

trafficker has power over these persons. With regards to prosecuting TIP

cases, she stated that there are three elements which needs to be present

and proven by the prosecutors. They have to prove the recruiting, the

transferring and the transporting. She also elaborated on the mens rea of

TIP cases which is the intention to exploit the victim. She emphasised on

the fact that the aim must be to exploit although there is no need to achieve

that aim.

She also said that there are no alternative charges for TIP but prosecutors

can charge other related offences. She stressed on the fact that the most

efficient way of dealing with TIP is a proactive investigation from the police

rather than a reactive investigation. More often than not, it is only after the

offence that the police look into the matter and by then it becomes very

difficult to trace the offence to trafficking. She explained the abuse of

position of vulnerability. How often the person involved has no real or

acceptable alternative but to submit to the abuse. In those cases, what

needs to be established are that there was a position of vulnerability and, if

so, whether the suspect (knowingly/intentionally) abused that position to

secure the ‘act’ element of the offence. Some example of most common

vulnerabilities are minors, advanced age, low self-esteem, unfavourable

social circumstances, amongst others.

Ms Deslie Billich


Prosecution Strategies:

How to improve your

understanding of and skills

to, prosecute, TIP cases

Ms Billich then provided the participants with some examples of TIP in the

form a case study where two Chinese victims were recruited by a Chinese

mafia gang and forced to work in conditions contrary to dignity.

She addressed the challenges and barriers that the prosecution faces with

TIP cases. TIP being a hidden crime, it is often difficult to actually obtain

‘real’ evidence. The testimony of a victim is often coloured by shame,

trauma, loyalty or fear. There is some dependency between the victim and

the trafficker and a lack of witness protection. Some other barriers

discussed by Ms Billich is victim identification, language and cultural

barriers, the trauma and vulnerability of victim, the ability to obtain credible,

probative and reliable testimony from the victims and witnesses.

As a way of overcoming those challenges, Ms Billich proposes establishing

and maintaining the victim’s trust; a clear understanding from law

enforcement to prosecution that corroborative evidence must be obtained;

the partnership of law enforcement and prosecutors to work together; and a

clear understanding of the defences raised and anticipate them with counter

arguments and evidence. She explained how it was not uncommon for

victims to change their minds. As a result, many jurisdictions have set up

pre-trial procedures that enables the victim’s testimony from the pre-trial to

be used at the trial. In some countries, even when victim did not testify,

convictions have been recorded against the offenders for trafficking due to

the other evidence obtained by the police.

On the issue of corroboration, Ms Billich suggests obtaining official travel

documents, such as visa, flight details and ID documents; the testimony of

witnesses who may have heard recent evidence of the trafficking; phone

records, bank accounts, money transfers, receipts, etc.; photographs and

surveillance; medical and police records as well as child records.

Ms Billich reminded the participants that as prosecutors, they have an

obligation and a responsibility towards the bench and to the rule of law.

Prosecutors have to perform their role ensuring there is fairness to both the

accused and the victim. She then went on to talk about the rights of victims.

A number of international treaties recognise the rights of victims to criminal

justice processes. The UN Basic Principles and Guidelines on the Right to a

Remedy and Reparation for Victims of Gross violations of International

Human Rights Law and Serious Violations of International Humanitarian

Law, and the UN Declaration of Basic Principles of Justice for Victims of

Crime and Abuse of Power both demonstrate a consensus of international

thought as to the rights of the victims. This is reflected in the Palermo

Protocol and our legislation.

Finally, she talked about protecting the victim and how victims are entitled to

compensation, to privacy and confidentiality, to be well informed and make

informed decisions, to the right to shelter, the right to be protected, that

foreign nationals have the right to receive a status that support them in the

country, the right to counselling and health, and victims must not be

prosecuted for committing crimes during the process of being trafficked. The

training proved to be very interesting for the participants who had the

opportunity to discuss the lacunas and the challenges they face when

lodging cases and during the trial.

Neelam Nemchand & Pooja Domun Legal Research Officers


Training in Rodrigues The office of the DPP, in collaboration with the Rodrigues Regional

Assembly, carried out a three days’ training in Port Mathurin, Rodrigues

from 21st to 23rd November 2017. The training team consisted of the

following law officers: Mr Jean Michel Ah-Sen, Principal State Counsel, Mr

Roshan Santokhee, Ag. Principal State Counsel and Miss Anusha Rawoah,

Ag. Senior State Counsel. The training was given to law enforcement

officers of the following departments :

• Commission for Agriculture (Quarantine, Food Laboratory,

Veterinary Services)

• Commission for Health (Public Health Office)

• Commission for Environment, Forestry, Tourism, Marine parks

and Fisheries

• Police de l’Environnement

The aim of the training was to provide an overview of the various

legislations governing enforcement of laws relating to consumer protection,

food labels, environment and forestry as well as to discuss the legal

predicaments faced during enforcement of these legislations in Rodrigues.

Day One Training was given to officers on laws dealing with consumer protection as

well as food related legislations. The following legislations governing

consumer protection in Rodrigues were discussed:

• The Consumer Protection Act 1991

• The Consumer Protection (Price and Supplies Control) Act

1998

• The Rodrigues Consumer Protection (Control of Price of

Taxable and Non-taxable Goods) Regulations 2017

• The Rodrigues Regional Assembly (Consumer Protection)

(Maximum Price) Regulations 2016

Offences provided under the legislations were highlighted as well as the

powers provided to authorised officers such as powers of search and

seizure.

Training was also provided in relation to food laws namely:

• The Food Act 1998

• The Food Regulations of 1999

• The Pre-packaged Food Regulations of 1989


Training in Rodrigues An overview was given on the offences provided under the laws as well as

the powers of authorised officers to enforce the laws. Issues such as

determining fitness of food for consumption, food labelling requirements as

well as the actions to be taken by authorised officers in case of non-

compliance were intensively discussed.

Day Two On day two, training was provided to forestry officers on enforcement of

laws relating to forests and reserves in Rodrigues, namely the Forests and

Reserves Act. Issues such as removal of trees and powers of authorised

officers were analysed. Discussions took place on power of arrest and

seizure provided to authorised officers to ensure compliance with the law.

The officers were provided with examples of cases where the offences

under the Act were prosecuted and they were explained on the manner to

conduct investigation to ensure proper prosecution in court. The power of

seizure of animals under section 12 of the Act was discussed as well as the

difficulties encountered by authorised officers.

Day Three Training was provided on environmental laws applicable to Rodrigues,

namely:

• The Environment Protection Act (‘EPA’)

• Regulations made under the EPA

• Regulations made by the RRA under s.31 of RRA Act and s.92 of

the EPA.

The offences provided under each of these legislations were analysed. An

overview was also provided on the various types of evidence required for

prosecution to prove commission of these offences. Investigation

techniques were addressed.

Anusha Rawoah Ag. Senior State Counsel


BROTHERS IN ARMS

Honourable Justices A. Caunhye and G. Angoh after their successful trail in Rodrigues


Highlights of 2017

Visit at the ODPP by the board of the Anti-

Corruption Commission, Zambia

University of 3rd Age Mauritius: Legal Issues faced by

the elderly

Combating Trafficking in Persons –

Why is it important?

Training To Malagasy Delegation On The Functioning And

The Role Of The Director of Public Prosecutions As A Major

Player In The Good Governance

Training Course for Officers of Cadastral Office

and Public Infrastructure, Rodrigues


Highlights of 2017

Down Memory Lane with Sir Gaetan Duval

QC

Team Building Activity of the ODPP

The East Africa Regional Conference on Cybercrime and

Electronic Evidence

Workshop on Social Justice: Empowering the citizens

to seek justice

Panel Discussion on “Juvenile Justice”

Training to Officers of the

Tourism Authority


DEELCHAND V. & ORS v THE STATE 2017 SCJ 435

Hon. A. Caunhye, Ag. Senior Puisne Judge & Hon. G. Jugessur-Manna, Judge

Serious irregularities during trial proceedings – no record of amendment to information - nullity of trial

Three appeals have been consolidated and heard together. The 4 appellants were convicted by the Intermediate Court for an offence of conspiracy in breach of section 109(1) of the Criminal Code (Supplementary) Act. The charge in the information was that the 4 appellants “did unlawfully agree with each other to do an unlawful act, to wit: to set fire to a building use as residence by one Anwar Toorabally.” The trial Magistrate acted mainly upon the testimony of witness Antoine Chetty in order to convict the 4 appellants.

The appellants raised several grounds of appeal which deal essentially with the appreciation of the evidence by the learned Magistrate. But the crux of the appellants’ submissions was that the information did not reveal any offence known to law. The court noted several serious irregularities which occurred during the proceedings before the lower court:

1. The appellants had been charged for having conspired

to do ‘an unlawful act’. It was argued that the learned

Magistrate was wrong in law to have concluded that the

act of ‘throwing a cocktail Molotov’ as particularised in the

information, constituted an unlawful act because there is

no such criminal offence in our statute books. An

examination of the record of the proceedings showed that

when the prosecution tried to amend the information on 2

occasions but this gave rise to much confusion as the

learned Magistrate did not, on any of the 2 occasions,

gave her ruling on the motions to amend the information

and the information was never amended by the Magistrate

to substitute the words “to throw cocktail Molotov” in lieu

of “to set fire”. It was held by virtue of section 80(1) of the

Courts Act, “there shall be an Intermediate Court which

shall be a court of record” and the information cannot be

considered as having been amended as per the motion

foramendment. During trial proceedings, Counsel for the

prosecution proceeded on more than one occasion on the

basis that the conspiracy was ‘to set fire’ to the house of

Toorabally i.e on the basis of the charge as it stood in the

information without any amendment as claimed by the

prosecution itself. It was never put to him by the

prosecution that he had conspired with the other

appellants “to throw cocktail Molotov”.

2.. On the issue of the written submissions of defence

counsel having been filed before a differently-constituted

Court scheduled to hear the case it was held that it is trite

law that any evidence or submissions may only be heard

by the trial Magistrate before whom the hearing of the

charge is taking place and who has to decide the case

after hearing personally the evidence and submissions

3. On the issue that counsel for the prosecution sent his

written submissions to be filed in Court by a police officer,

it was held since the submissions were not made viva

voce nor read out in Court, the defence was indeed

precluded from taking cognizance of the submissions of

Counsel for the prosecution when they were filed in Court

and hence the defence was, in these circumstances,

debarred from the effective exercise of its final right of

reply to the prosecution’s submissions.

In view of all the above serious irregularities which have

occurred in the course of the trial before the Intermediate

Court, the appellate court declared the trial a nullity and

ordered a fresh hearing before a differently constituted

Court.

BON M.M.C. v THE STATE 2017 SCJ 454

Hon. J. Benjamin G. Marie Joseph, Judge & Hon. A.D.

Narain, Judge

Verbal threat – Elements of the offence - Distinction

between an intimidating and a constraining order

This is an appeal from the judgment of a learned Ag

District Magistrate of the District Court of Port Louis

convicting the appellant of the offence of “threatening

verbally” in breach of sections 224 and 226 of the

Criminal Code.

The accused had pleaded not guilty to the charge and

was represented at the trial by Counsel. In her unsworn

statement given to the police and produced in Court, she

had denied having uttered the words specified in the

information.

SUMMARY OF SUPREME COURT JUDGMENTS: December 2017


In her judgment, the learned Ag District Magistrate reviewed the evidence on record as well as the authorities cited by Counsel, including the judgments of Mudhoo v The State [2012 SCJ 411] and Ghoorpantur v The State [2013 SCJ 352] from which she quoted extensively. She found that witness Pierre Louis was a witness of truth and was also satisfied that there had been a verbal threat to kill (namely, “mo pou touye toi ici même”), which was accompanied by an order to comply with an unequivocal condition (namely, “couma to met lipied dans Ste Croix mo pour faire toi décampé et si mo retrouve toi…”) and was not only “de nature intimidante” but “contraignante” since witness Pierre Louis had run away after the incident and refrained from going to Ste Croix from the incident in November 2014 until March 2016. She therefore found the then accused guilty as charged.

The appellant is now appealing on the following three grounds –

“1. The conviction of the Appellant is wrong and should be quashed because there is no evidence on record to prove that the alleged threatening words are ‘intimidante and contraignante’.

2. The learned Magistrate erred in finding that the alleged verbal threat to kill was accompanied by an order to comply with a unequivocal condition because the evidence did not disclose an order or a condition.

3. The conviction is wrong because the case for the prosecution was based on a hypothetical threat.”

Learned Counsel for the appellant addressed all three grounds of appeal together and, after referring to Mudhoo and Ghoorpantur, submitted that the words “si mo trouve toi ici mo pour touye toi ici meme” – (a) taken at their highest, did not constitute an order or a condition and could only be said to be “intimidants” and not “contraignants”; (b) amounted to a hypothetical, and not a real, threat. She invited us to look at the true meaning of the words uttered and submitted that all the elements of the offence with which the appellant had been charged had been established by the prosecution.

The Court carefully considered the submissions of learned

Counsel and the authorities cited by them. From a

reading of sections 224, 225 and 226 of the Criminal

Code, the learned Judges were of the view that it is clear

that a verbal threat, unlike a threat in writing, only

amounts to an offence where it is accompanied by an

order or a condition.

After having carefully considered the facts of the present case and the impugned words, bearing in mind the local context, the learned Judges without hesitation found that the verbal threat made to witness Pierre Louis by the appellant in this case was accompanied by an order to abstain from coming again to Ste Croix, failing which she

would be killed, as expressed in the following terms: « couma to pou met lipied dans Ste Croix mo pour faire toi decampé » and « si mo trouve toi ici mo pour touye toi ici meme ». The appellant’s intention was clearly to put pressure on witness Pierre Louis to prevent her from coming to Ste Croix and the latter in fact refrained from doing so for a long. The learned Judges thus concurred with the Magistrate’s findings that the order was “contraignant” and not merely “intimidant”, that the condition was real and not hypothetical, that the verbal threat was duly accompanied by an order or condition and that the offence of “threatening verbally” had been established beyond reasonable doubt. The conviction was thus upheld and the appeal dismissed.

ZAINOOL ABEEDEEN SEENATH V THE STATE OF

MAURITIUS 2017 SCJ 450

Hon. A. Hamuth, Judge & Hon. O.B. Madhub, Judge

Corroboration – Sole evidence of an accomplice –

Consideration for a non-custodial sentence

Appellant, was charged with the offence of larceny,

namely “willfully and fraudulently abstract certain articles

not belonging to him” that is four metal gratings, together

with one Mohamed Acktar Ally Surfoodin and Feroz

Bissessur. The learned Magistrate found the appellant

guilty as charged, under Count I, (the charge of larceny)

and sentenced him to 3 months’ imprisonment.

The accused has now appealed against the judgment of

the learned Magistrate on the following grounds –

1. The learned Magistrate was wrong to act solely on the

uncorroborated evidence of an accomplice.

2. The learned Magistrate failed to warn himself of the

dangers of acting solely on the uncorroborated

evidence of an accomplice before accepting the latter’s

evidence.

3. The learned Magistrate was wrong to infer the

involvement of the Appellant (then Accused) on the sole

basis that he was paid once the allegedly stolen objects

were sold.The learned Magistrate was wrong to make

negative inference of the constitutional right of the

Appellant (then Accused) to remain silent.

4. In all the circumstances of the case and in view of the

evidence borne out on record, the Prosecution has

failed to prove beyond reasonable doubt that the metal

gratings were stolen from the Road Development

Authority


1. In view of the circumstances, the sentence imposed by the learned Magistrate on the Appellant (then Accused) is manifestly harsh and excessive.”

The prosecution had to show that the property did not

belong to the accused. In view of accused’s own

admissions as per his out of court statement (Doc A), it

was found that he had strong reservations as to what his

two “friends” were up to and that the metal gratings were

the property of a third party The learned Judges were

thus satisfied that this element of offence has been

proved beyond reasonable doubt by the prosecution.

Ground 5 therefore fails.

As regards ground 4, the Judges averred that the learned Magistrate was as to the weight to be attached to the unsworn statement of the accused in the light of him having opted not to give evidence in court. The learned Magistrate did not make any negative inference from the exercise of the constitutional right of the accused. Ground 4 thus fails.

Grounds 1 and 2 are linked. It is well settled law that in

cases like the present one, where corroboration is not

required as a matter of law or not desirable as a matter of

practice, the learned Magistrate of the trial Court can rely

on the sole evidence of an accomplice, provided the

learned Magistrate was fully aware of the danger of

relying on such evidence (see Davies v Director of

Public Prosecution [1954] AC 378, Sheriff v The State

[1994 MR 168], Dahoo v The State [2012 SCJ 450]).

The learned Judges were of the view that the learned

Magistrate was aware that the witness did commit the

crime together with the accused, the more so that it is

apparent from the testimony of Ally Surfoodin that he had

been prosecuted and convicted in relation to the same

incident, and in his judgment the learned Magistrate did

mention that the larceny was committed “with the

assistance” of the two accomplices i.e. Ally Surfoodin and

his father. Secondly, the words “coherently explaining”

and following cross-examination “unshaken” as qualifying

the testimony of Ally Surfoodin, it is clear that the learned

Magistrate did analyse with great care the testimony of

that particular witness. In the circumstances, although it

would have been preferable for the learned Magistrate to

have clearly and unequivocally stated that he was fully

aware of the danger of relying on the evidence of such a

witness, the learned Judges were unable to find that such

an omission has led to a miscarriage of justice in the

present matter. Grounds 1 and 2, therefore fail.

On the last ground, to the effect that the sentence is

manifestly harsh and excessive, Counsel submitted that a

non-custodial sentence or a community service order

should have been considered. As submitted by Counsel

for the respondent, and as was stated in the case of

Thomas v The State [2006 SCJ 52], although it is open for

the court in many cases to consider a community service

order where a person is sentenced to a term of

imprisonment of 2 years or less, this is not automatic.

However, the learned Judges took note of the personal

circumstances of the appellant, as disclosed in the

records, namely that he has a family and a fixed place of

abode. It is also noted that he provided a taxi service and

the previous is dated 2007, which relates to the

possession of 3 kitchen knives to the prejudice of a ready-

made food outlet. Exceptionally in the circumstances, the

learned Judges considered that the learned Magistrate

ought to have given some consideration as to whether a

non-custodial sentence would have met the ends of

justice. For the reasons given above the appeal against

conviction (i.e. grounds 1, 2, 3, 4 and 5) is dismissed. The

sentence is thus quashed and the matter referred back to

the learned Magistrate for him to consider whether a

social enquiry report should be called for with a view to

assessing whether a non-custodial sentence or a

community service order is warranted.

In the present application, the applicant finds issue with

the fact that the learned Judge had not “mathematically

deducted” from his sentence the 33 days he had spent in

police cell and the 1004 days he had spent on remand

prior to conviction. He has also averred in his affidavit that

he has throughout been very cooperative with the prison

authorities and is full of repentance for his wrongdoing.

Learned Counsel appearing for him at the hearing of this

application has, after referring to the judgments of

Kamasho v The State of Mauritius & Anor [2016 SCJ

21], Dookee v State of Mauritius [2012] UKPC 21 and

Callachand & Anor v The State [2008 MR 284],

submitted that the applicant is entitled to a deduction from

his sentence of 100% of the period that he spent in

custody prior to conviction.


Learned Counsel for the second respondent did not agree

that a deduction of 100% of the period spent in custody

prior to conviction should be effected from the applicant’s

sentence. He laid emphasis on the fact that the learned

Judge had specifically applied the principles laid down in

Mbokotwana in sentencing the applicant and therefore

already made a deduction of ½ to 2/3 of the period spent

on remand. He stated that he failed to see why a further

deduction of 80 - 100% of the period spent in custody

prior to conviction should now be made. He was also of

the view that no special condition, as referred to in

Kamasho, had been established by the applicant.

After having carefully considered the submissions of

learned Counsel as well as the authorities cited by them,

the learned Judges in the present case considered the

period spent by the applicant on remand prior to

conviction to be of 1036 days (32 days in police cell,

followed by 1004 days on remand in prison). They also

agreed with all Counsel that the extrajudicial remission of

2 months granted pursuant to section 75 of the

Constitution by the President of the Republic, on the

advice of the Commission on the Prerogative of Mercy, on

12 March 2017 has no bearing on this application which is

for deduction of the remand time from the sentence

imposed by the Supreme Court.

In the present case however, the sentencing Judge

expressly mentioned, when passing sentence, that she

had taken into account the period spent on remand by the

then accused since his arrest and had borne in mind the

principles enunciated “in that respect” in Mbokotwana,

although she did not go on to specify the extent of the

exact discount given, in the scale between ½ to 2/3 laid

down in Mbokotwana, before imposing the sentence of

12 years’ penal servitude.

The learned Judges were thus of the view that it would be

now premature to say that a cursus has developed over

the past two years to the effect that foreign nationals are

invariably granted a deduction of 100% of the remand

period from their sentence while Mauritian detainees are

entitled to a deduction of 80% of their remand period. It

would also be wrong in the learned Judges’ view, for a

sentencing or reviewing Court to consider that the

deduction can only be of either 80 or 100%, since the

precise deduction, ranging between 80 and 100% of the

length of the remand period, will necessarily vary

according to the circumstances of the case. It is worth

again highlighting in that regard that the “default position”

was stated in Dookee to be 80% “unless, for example, the

detainee is a foreign national whose family lives abroad

and cannot visit”; indeed, in Kamasho, the detainee who

was a South African national was held in the particular

circumstances of his case to be entitled to a deduction of

90% of the remand period from the sentence imposed

upon him.

In accordance with Mbokotwana when passing sentence,

the Learned Judges ordered that 95% of the total remand

period of 1036 days be deducted from the sentence of 12

years’ penal servitude imposed on the applicant by the

learned Judge.

“Every time you tear a leaf off a calendar,

you present a new place for new ideas and

progress”

- Charles Kettering

We inform our readers that the office of the

DPP will accept applications for pupillage

only as from April 2018.

The Office of the Director

of Public Prosecutions

wishes you a Merry

Christmas and a Happy

New Year 2018

Office of the Director of Public Prosecutions · Ms Anusha Rawoah, Ag. Senior State Counsel Mrs...

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