Steps Leading to the 23rd Feb 11 Ruling

8/7/2019 Steps Leading to the 23rd Feb 11 Ruling

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Record No: 7894

IN THE SUPREME COURT OF MAURITIUSIn the matter of;

Harisun BoodhooAppel lanv .

The StateResponde

RULING

The appel lant was prosecuted before th e Distr ict Court of Port Louis for the offencefai l ing, whils t being th e organ i ser of a public gathering, to put an end to i t despi te a direct iogiven to h im by Ihe pol ice, who had reasonable g round to bel ieve that th e gather ing waprejudicial to public order , in breach of sect ion 5 of the Public Gather ings Act (PGA). Hpleaded not guilty and was inops consilii. After hear ing ev idence, th e learned magis t ra tconvicted and sen tenced him to pay a fine of Rs 10,000.

iHe has now appea led aga ins t his convict ion on 14 grounds and was granted leave t

appear in person to argue his appeal.

In his skeleton argument , th e appel lant has rais ed three add it iona l grounds , notably(i ) that no plea was taken before th e trial court;(ii) that s ec tion 5 of the PG A is unconstitutional; and(iii) on the att i tude of th e learned m agis t rate toward s him.


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-3L-(Criminal Jurisdiction) Act which requires that the not ice of appeal conta in ing the groundslodged within 21 d a y s of the adjudicat ion.

Learned counsel for the respondent argued (i) that no p roper m o t i on%been madeno reason g iven by the appel lant to show w hy the Cour t shou ld entertain the additional givxof appeal outside the s ta tu to ry delay, and (ii) that there is no merit in either of the additiogrounds which would warrant th e App el la te Court to exerc i se its d i s c re t i on to hear argumentsth e issues ra ised therein,

On the other hand, the appel lant has invi ted th e Cour t to cons ider th e additional grouproprio tnotu, and cited in suppor t the c a s e of Gunesh v The State [2010 SCJ 357].has ten to s tate that w e ful ly e n d o r s e th e reason ing of the learned Judge in Malloo v The St[2010 SCJ 13] to the ef fect that it is solely within th e Court's discretion to decide whetheshou ld proprio motu cons ider any part icular point which has no t been ra ised at the t r ia l orappeal if its failure to do so would resul t in a m iscarr iage of jus t ice. I t is certainly not a de victh e d i sposa l or legal adv i se r? to enable them to ra i se new points without complying withprescribed time limits laid down in the law.

Be that as i t may , we shal l al l the same consider whether the addi t ional grounds ser ious and worthy of being cons idered in the interest of us t i ce ,

In this respect, we have no qualms that the f i rs t and third grounds have no merits.

With regard to the f i rs t ground tha t no plea w as taken, th e appel lant p leaded befDistr ict Magistrate Hureesing when the c a s e was called for the first t ime in July 2009 atherefore, there w as no legal or proce dura l requirement for the di f ferent ly con s t i tuted tr ial coto renew the appellant's plea. (Vide Etwaroo v Q MR 1988).


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On th e third ground regarding th e learned magistrate's at t i tude towards th e appellantduring the trial, we note that Ground 7 of the grounds of appeal deals with this matter to a largeextent . We must also point out thai the Supreme Court in its supervisory capacity, is dutyhound to comment and consider any wrong approach or misconduct by the trial Court even if itis not th e subject matter of a complaint where it is of the opinion that such an occurrence mightresult in a hearing prejudicial to an accused party, or in a miscarriage of justice, or constitute aviolation of thy constitutional rights of an accusedparty.

With regard to the second additional ground challenging the constitutionality of section 5

of the PGA, the appellant intends to elaborate on the following points:tlr.il uuotian C (1 ) ulk.-/ iJH Ifie basic principles of democracy;

(2 ) is not clear and certain;(3 ) leaves to o much power in the hands of the executive;(4 ) fails th e t e s t of reasonableness in a democraticsoc ie ty ; and(5) is a quasi strict liability c a s e and metis rea i s not an element of theof fence.

We hold th e view that he should be allowed to a d d re s s u s o n this ground which involvesi s sues of constitutionali mp o r t a n c e under th e rule of law,

We shall accord ing ly entertain only ground 2 of the Additional Grounds as set out in theappellant's skeleton argument.

P. BalgofiTnJudge

S. BhaukauraHyJudgeFebruary, 2011

Steps Leading to the 23rd Feb 11 Ruling

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