Office of the

Director of
Public
Prosecutions
E-Newsletter
Issue 52
October 2015

To No One Will We Sell, To No One

Deny or Delay Right or Justice

Chapter 40, Magna Carta 1215

October 2015- Issue 52

IN THIS ISSUE:

PAGE

Editorial

Fast and Furious

Tricentenaire de la prsence franaise lIle Maurice et son impact sur le droit mauricien

Prevention of Commercial and Sexual Exploitation of Children

Lectures to police officers

5-day training programme for Prosecutors and Enquiry officers

Compte rendu des Nations Unies sur la transposition de la Convention relative aux droits des
personnes handicaps en droit positif mauricien

Obituary: Mr Shamus Mangan

11

Court Cases Summary

12

List of new callees to the Mauritian Bar

15

EDITORIAL TEAM
Miss Anusha Rawoah, State Counsel
Ms Zaynah Essop, State Counsel
Miss Shaaheen Inshiraah Dawreeawoo, Temporary State Counsel
Ms Pooja Autar-Callichurn , Temporary State Counsel
Mr Ashley Victor, Public Relations Officer
Mr Yashvind Kumar Rawoah, STM Intern (Legal Research)
Mr Ajmal Toofany, STM Intern (Legal)
Miss Toshika Bobeechurn, STM Intern (Legal)
Miss Jouana Genave, STM Intern (Sociology)

We look forward to receiving

your comments/suggestions on:
odppnewsletter@gmail.com
The views expressed in the articles are those
of the particular authors and should under
no account be considered as binding on the
Office.

October 2015- Issue 52

EDITORIAL
Dear readers,
Know safety, no injury. No safety, know injury. It is with this adage that we bring to
you the October edition of our monthly newsletter. Indeed, with the unstinting number
of fatal road accidents which Mauritius has witnessed lately, the overwhelming concern
of road safety has, more than ever, become significantly prominent. Road safety no
doubt, calls for a dire need of consciousness by drivers on our streets, most importantly,
by those overzealous drivers who are thrilled by speed. In that respect, this issue
provides you with a thought provoking article by the Director of Public Prosecutions on

street racing.
On the other hand, in light of the tri-centenary of Frenchs presence in Mauritius, this issue also covers the extent of Frenchs
influence on the Mauritian legal system, which has consequently bestowed us with a unique hybrid legal system, comprising of
both the British and the French laws. The French Penal Code, the Civil Code, as well as the Code of Civil Procedure remain the

basis of the substantive law in Mauritius today.

Moreover, in relation to trainings attended by our law officers, you will read the synopsis of a workshop organised by the
Ministry of Gender Equality, Child Development and Family Welfare on the Prevention of commercial and sexual exploitation
of children. On the other hand, some of our law officers carried out trainings on a panoply of legal issues. For instance, in view
of the forthcoming police examinations, the Commissioner of Police organised a workshop whereby some of our law officers
provided lectures to numerous police officers. In the same vein, the Ministry of Civil Service organised a five-day training
programme at the Rajsoomer Lallah Lecture Hall whereby our law officers conducted training courses with prosecutors and
enquiry officers.
Furthermore, you will also have the benefit of reading an article on the gist of the United Nations Convention on the Rights of
Persons with Disabilities as well as the extent to which its provisions have been incorporated into our law. We also present our
heartfelt condolences to the relatives of Mr Shamus Mangan, the UNODC Co-ordinator of the Maritime Crime Programme for
the Indian Ocean, who passed away on 7th September 2015.
Finally, we bring to you, a precis of the recent court decisions of the Supreme Court of Mauritius. We also extend our
congratulations to the newly sworn-in barristers of the Mauritian bar.
We wish you a pleasant and fruitful reading!
Anusha Rawoah,
State Counsel

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October 2015- Issue 52

Fast and Furious
Street racing is certainly not for the timorous soul but rather for the intrepid
who seeks the exhilaration of speed.
It is unlawful in Mauritius, unless authorised by the Commissioner of Police.
Street racing involves racers and spectators meeting at a convenient roadway
location and design. A wide and straight road where cars or motorcycles can
line up to race against one another is usually a favoured spot for the organisers.
But street racing can also be unorganised and sporadic in nature, involving impromptu drivers who want to show off
their driving speed and skills.

It is undoubtedly a dangerous activity inherent with enormous risks not only to the racers but also to other road users
and pedestrians. Unfortunately, it is becoming a popular past time in Mauritius and often takes place at well-known
locations in the early hours of the morning.
Section 125 of our Road Traffic Act prohibits street racing and makes it an offence for anyone who takes part in or
promotes any race or trial of speed between motor vehicles on a road. It provides for a derisory fine of one thousand

rupees upon conviction. One can hardly imagine section 125 as a deterrent to a racer in need of a double serum of
adrenalin. Nor will section 125 be an incentive to any person to seek the authorisation of the Commissioner of Police
whose responsibility will be to impose appropriate safety conditions before authorising a race on our roads.
There is urgency as we revisit the Road Traffic Act, to provide for a new section 125. First, by widening its scope to a
race between two or more vehicles whether the race is over a predetermined or indeterminate course and also to cover a

situation where the competition between two or more vehicles involves the production of sustained wheel spin.
Similarly, provisions should be made for those who mistakenly believe that slaloms on our road is a form of driving.
There is also a need to include in the meaning of promoting a street race, those persons who offer an inducement to
another person to take part in a street race.

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October 2015- Issue 52

Finally, the fine of one thousand rupees, which does not have its raison dtre today, should be replaced by a
graduated sentence providing for a basic and aggravated offence. An aggravated offence of street racing would exist
where the offender knew he was driving the motor vehicle in circumstances of heightened risks (his visibility was
impaired), or the use of the vehicle constituted a serious risk to the safety of other persons.
In an aggravated situation, the Road Traffic Act should provide for imprisonment and disqualification of the
offender from holding or obtaining a drivers license. In respect of any subsequent similar offence, the forfeiture of the
vehicle should follow. Obviously, the mere muscling of our laws may be insufficient as a deterrent, street racing has its
attractions as a great social occasion to make friends and to show ones driving skills. There should be emphasis on the
prevention side by educating the youth on the dangers of such a dangerous activity. In many countries where street

racing has gone viral the latest racing craze is a kamikaze in which drivers put money in a hat, the money is then
taken to an undisclosed location from which a call is made informing drivers where the cash awaits. The first driver to
get there wins all the money.
In Mauritius, we have only one choice, legislate even faster.

Satyajit Boolell, SC
Director of Public Prosecutions

Page 3

Tricentenaire de la prsence franaise lIle Maurice

et son impact sur le droit mauricien

October 2015- Issue 52

Si lhistoire na rien retenu de linfluence des Hollandais sur la question du

droit Maurice, la contribution des colons franais ne peut tre conteste. C'est
ainsi que Sir Charles Lucas, commandant dans l'arme britannique, expliqua
que l'Ile Maurice tait bien plus qu'un avant-poste pour les Franais
(Historical Geography of the British Colonies). L'histoire du droit mauricien
dbute en 1715, la prise de Mauritius, qui devait tre rebaptise Ile de France.
C'est en 1721 que l'Ile de France instaura un conseil provisoire pour trancher les
diffrends en matire criminelle et civile. Deux ans plus tard, un dit du roi Louis XV donne l'Ile son conseil provincial qui
dlivrait la justice en son nom. En six ans de colonisation, les Franais en avaient fait plus que les Hollandais en matire de droit
durant leurs 72 annes d'occupation.
Le code pnal mauricien, promulgu en 1838, est le digne hritier du code pnal franais de 1810 qui a vu le jour sous le rgne de
Napolon Bonaparte. En amont du code de 1810, la colonie de lIle de France fut gouverne par le Code des Iles de France et de
Bourbon qui soumettait ces colonies aux ordonnances faites pour le Royaume de France en gnral. Le Code noir fut une
parmi les nombreuses lois non-enregistres qui servaient de rgles aux juges de la colonie. Le code pnal de 1791, produit de la
rvolution de 1789, inspir par les philosophies humanistes, mit fin larbitraire de la monarchie et des juges en matire de lois
criminelles. Ce Code ne fut non point tendue lIle de France mais bien adopt en 1793 par lassemble coloniale, qui
subsquemment approuva la Dclaration des Droits de lHomme et du Citoyen dans son sillage lgislatif.
la prise de lIle en 1810 par les Anglais, ceux-ci sengagrent aux termes du Trait de Capitulation de 1810, de respecter les lois
et coutumes existantes. cet effet une proclamation fut publie, selon laquelle les lois et rglements existants seraient conservs,
laissant ainsi survivre le code pnal de 1791. Paralllement en fvrier 1810, lassemble nationale franaise rvoqua le Code de
1791 et le remplaa par le nouveau code pnal de 1810. La codification impriale de 1810 se distingue de son prdcesseur, le code
pnal de 1791, par sa volont de permettre aux citoyens davoir une comprhension claire et prcise des prohibitions existantes.
Ce changement concrtise la maxime du juriste Jean Etienne Portalis selon laquelle, dune part il ne peut y avoir de crime ou de

dlit sans quils soient clairement dfinis dans un texte et dautre part, sans que les sanctions applicables y soient galement
inscrites. Ladage nullum crimen sine lege, nulla poena sine lege (pas de crime sans loi, pas de peine sans loi prcdente),
pose ainsi le fondement du principe de lgalit criminelle, figure incontournable du droit pnal mauricien. Le code pnal de
1810 vient donc marquer son poque en rpondant un souci de scurit juridique par une approche unificatrice et
simplificatrice du droit.
Le 15 fvrier 1832, le code pnal de 1791 fut remplac sur lIle de France par un code de 1810 revisit. Ds le 14 aout 1838,
ladministration de lIle promulgua un nouveau code pnal, cette fois-ci rdig en anglais et en franais, remaniant les

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October 2015- Issue 52

dispositions de la loi de 1832. Ainsi le code de 1838 srige sur les fondements du code de 1810, quelques nuances prs. En
1866,les Anglais dcidrent que les modifications des textes soient dsormais faites en anglais. Ce nest quen 1962 quun nouvel
ordre du conseil autorisa le lgislateur mauricien lgifrer de nouveau en franais pour toute modification aux codes.
Au niveau du judiciaire, la transition coloniale opra un changement sur lusage du langage autoris au sein des juridictions. En
1839, les juges avancrent quaucun avocat ou avou ne serait admis plaider sauf disposer dune connaissance suffisante
de la langue anglaise. La Reine Victoria en conseil, dcida en 1841 que toutes les ordonnances [] et toutes les proclamations

[] ainsi que tous les actes ou avis publics du gouvernement [] seront lavenir faits et promulgus en langue anglaise
seulement [] (Clicourt Antelme et le franais en Cour Suprme, Raymond d'Unienville QC). Ds 1847, les plaidoiries et les
actes de procdures devaient se faire en anglais. Certains avocats et avous furent cependant exempts, tant admis avocats ou
avous au moment de la prise de l'Ile par les Anglais ou dans les quinze ans qui auront suivi la reddition de ladite le sa feue

Majest le roi George III (Avou since 1853, Edmond Victor Duvivier) . Cest le 15 juillet 1847 que lhonorable Clicourt Antelme
parla en langue franaise pour une dernire fois devant nos tribunaux.
En 1808, le Gnral Decaen, par un dcret, tendit le code civil franais jusquaux frontires de lIle de France sous lintitul
Code Napolon. Mah de Labourdonnais, gouverneur-gnral de l'Ile, favorisait toutefois l'arbitrage pour rgler les diffrends
des habitants de l'Ile de France. Pierre Poivre, intendant des Iles de France et de Bourbon, disait que pendant les onze annes

de son gouvernement (Labourdonnais), il n'y eut qu'un seul procs l'Ile de France (Ile de France, Documents pour son histoire
civile et militaire).

Ma vraie gloire nest pas davoir gagn quarante batailles [] ce que rien neffacera, ce qui vivra ternellement, cest mon code
civil. Napolon Bonaparte ne croyait pas si bien dire alors que nous ftons les 300 ans de la prsence franaise Maurice et
que son code est toujours utilis en droit mauricien.

Ajmal Toofany, STM Intern (Legal) &

Ashley Victor, Public Relations Officer

Page 5

Prevention of Commercial and Sexual Exploitation of

Children

October 2015- Issue 52

Commercial and Sexual Exploitation of Children (CSEC) is a commercial as well as a criminal process where children are used
for sexual activities in exchange of financial gains. There are mainly 3 forms of CSEC, namely prostitution, pornography and
trafficking for sexual purposes.
A training was organized by the Ministry of Gender Equality, Child Development and Family Welfare. It was a 3 phase training
course which ended on the 11th September 2015. Several stakeholders attended the training, namely the Office of the
Ombudsperson for Children, the Child Development Unit (CDU), the Office of the Director of Public Prosecutions (ODPP), the
Probation Office, the Ministry of Education, the National Childrens Council, Brigade des Mineurs, representatives of various
shelters, amongst others.
The resource person was Mrs. Rita VENKATASAWMY, OSK, Consultant and Director of the 'Centre d'ducation et de
Dvloppement pour les Enfants Mauriciens' (CEDEM). Various issues were canvassed, a few of them being how to better

understand and assess the sexually abused children, what are the special needs of those children, how to provide adequate
support to victims of sexual exploitation, rehabilitation of those children, effective sensitization campaigns. There were also
debates and case studies which were conducted during the training. It was an interactive training course all along and it was a
privilege for me to be part of this enriching training.
The training ended with a speech of the Honourable Minister of Gender Equality, Child Development and Family Welfare, Mrs
Perraud and all participants were awarded a certificate.

Pamela Veerabadran-Mudaliar,
Temporary State Counsel

Page 6

Lectures to police officers

October 2015- Issue 52

During the last month the Commissioner of Police had organised several
workshops, for which the assistance of law officers of the Office of the Director

of Public Prosecutions was sought to provide lectures on various legal topics to

around 700 police officers.
The lectures were delivered by some of our law officers at the Indira Gandhi
Cultural Centre, Phoenix and they dealt with a panoply of legal topics such as
Hearsay, Corroboration and Defences and Excuses.
The aim of the workshops was to address legal issues which crop up during the course of duties of the law enforcement
officers. The lectures were also aimed at providing support to the officers in preparation of their forthcoming
promotional examinations.

Page 7

5-day training programme for Prosecutors and

Enquiry officers

October 2015- Issue 52

The Ministry of Civil Service organised a 5-day training programme on Prosecutions matters for Prosecutors and Enquiring
officers from the 21st to 25th September 2015 at the Rajsoomer Lallah Lecture Hall, Office of the Director of Public Prosecutions.
The training sessions were attended by around 50 prosecutors and enquiry officers and included participants from the different
ministries and departments. This course was conducted by the law officers of the Office of the DPP on the Mauritian Legal
System, Information, Evidence, Burden and Standard of Proof, Cross Examination, Case preparation, hearsay among others.
The training focused on key factors that should be considered in the process of carrying out investigations, which could
ultimately lead to a prosecution.

The course was carried out with the objectives of providing to participants to deal effectively with cases from the date the offence
is reported up to its determination in Court, including how to produce evidence in court and proceeding with the enquiry stage,
follow up and drafting of information, recording statements from witnesses and fulfilling the role of a prosecutor efficiently.
Further, the closing of the training programme involved a particular interactive session which enabled the participants to
discuss the difficulties they usually encountered in the fulfilment of their duties. Finally, the training came to an end with a
certificate award ceremony.

Toshika Bobeechurn,
STM Intern (Legal)

Page 8

Compte rendu des Nations Unies sur la transposition

de la Convention relative aux droits des personnes
handicaps en droit positif mauricien

October 2015- Issue 52

Linclusion sociale des personnes handicapes dpend largement du respect des lois en
vigueur, qui assurent linterdiction relative de toute discrimination leur gard. LEtat

mauricien a sign et ratifi, en 2008 et 2010 respectivement, la Convention relative aux

Droits des Personnes Handicapes qui place le gouvernement, en vertu de larticle 4
alina 1, sous lobligation de promouvoir et garantir le plein exercice de tous les droits de
lhomme et de toutes les liberts fondamentales de toutes les personnes handicapes sans
discrimination daucune sorte travers des toutes mesures appropries dordre
lgislatif, administratif, ou autre, pour mettre en uvre les droits reconnus dans la prsente Convention.
Afin de garantir la pleine efficacit de la Convention, il est prvu larticle 35 que les Etats partis sengagent remettre
rgulirement au Comit des droits des personnes handicapes un rapport concernant les mesures quils ont adoptes pour
donner effet aux dispositions ladite Convention, sur les progrs raliss, et sur les difficults rencontres. Selon les dispositions
conventionnelles le premier rapport doit tre prsent dans un dlai de deux ans par lEtat parti, et ensuite au minimum tous les
quatre ans. La Convention prvoit larticle 34 quun Comit dexperts (le Comit ) soit institu pour examiner les rapports
des Etats partis. Le Comit a pass en revue, le 24 et 25 aot 2015, le premier rapport prsent par le gouvernement mauricien. Le
Comit a adopt son compte rendu le premier septembre 2015.
Le comit dexperts note que la dfinition du terme handicap (impairment) sous la section 2 Equal Opportunities Act 2008 et
la dfinition de personne handicape (disabled person) numre sous la section 2 du Training and Employment of Disabled
Persons Act 1996 (TEDPB Act) ne sont pas conforme la dfinition larticle 1 alina 2 de la Convention qui dispose : Par

personnes handicapes on entend des personnes qui prsentent des incapacits physiques, mentales, intellectuelles ou
sensorielles durables dont linteraction avec diverses barrires peut faire obstacle leur pleine et effective participation la
socit sur la base de lgalit avec les autres .
La dfinition du terme handicap sous le Equal Opportunities Act 2008 est trs certainement inspire du contexte mdicale
car elle considre uniquement le critre de lincapacit physique, mentales, intellectuelles ou sensorielles dont ltendue est
gnralement value par un professionnel de la mdecine. Linsuffisance de la dfinition du handicap dans ce texte de loi nest
pas sans consquence. Ainsi, le critre de diverses barrires qui font obstacle la pleine participation des personnes handicapes
dans la socit a t cart par cette lgislation qui dtermine qui est handicap ou pas. Lapproche mdicale encourage les
personnes handicapes tre perues comme des tres-humains en besoin de soins mdicaux et dassistance permanente pour
leurs besoins quotidien, alors que dans le contexte des droits humains il est compris que toute personne handicape possde la
capacit dexercer leurs activits quotidiennes de faon autonome et de sintgrer dans une socit inclusive.

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October 2015- Issue 52

Cependant, on constate que la dfinition du terme personne handicape sous le TEDPB Act 1996 comporte llment de
barrire auquel les personnes handicapes doivent faire face en fonction de leur handicap qui signifie que ladite loi adopte une
dfinition bien inspire de celle de la Convention comme prvu larticle 1. La recommandation du Comit en ce quil sagit
damender la dfinition du terme handicap dans nos textes de loi nationaux doit donc tre apport l Equal Opportunities
Act 2008. Selon le Comit, le gouvernement mauricien doit veiller enlever le langage exhaustif dans tout texte de loi et
discours.
Le Comit est davis quil y a un manque de mesure effective prises par le gouvernement pour rendre linfrastructure publique et
autres services destins au public accessible aux personnes handicapes. Il est possible de rendre linfrastructure publique (c..d.
les passages clouts, le transport public, les btiments publics et tout environnement physique) accessible aux personnes
handicapes en y apportant des amnagements raisonnables. Mais le concept damnagement raisonnable napparait dans
aucune loi et nest donc pas dfinit dans la lgislation mauricienne. Il est recommand lEtat mauricien denlever la rserve sur
larticle 9(2) de la Convention, qui dispose que toute mesure doit tre prise pour rendre tout btiment et endroit public ainsi

que tout service destin au public accessible aux personnes handicapes , et de procder lamendement annonc des textes de
lois concerns ; notamment le Building Act, le Roads Act, le Morcellement Act et le Town and Country Planning Act. La mise
sur pied dun plan daction, limit dans le temps pour couvrir tous les aspects daccessibilit tel que la langue des signes et un
systme dcoute dans le moyen de transport public, est galement prconise. Dans ce mme contexte daccessibilit, tout
document relatif aux procdures lgales doivent tre en format accessible pour que les personnes handicapes puissent exercer
leur droit daccder la justice.
Autre observation du Comit se porte sur le manque de participation des personnes handicapes dans la rforme lgislative se
portant sur leur droit. Le Comit est concern par le fait que jusqu prsent il semblerait que les personnes handicapes nont
pas t consultes pour le Disability Bill. La Convention est promue avec le motto suivant : NOTHING ABOUT US WITHOUT
US , avec le but dencourager tout Etat parti considrer la voix des personnes handicapes dans le dveloppement des textes
de loi et des plans daction qui impactent sur leur vie. Le Comit incite le gouvernement consulter les personnes handicapes
travers les organisations qui les reprsentent pour le Disability Bill, le National Risk Reduction Disaster Management Bill et le
Strategic Paper and Action Plan 2015-2020. Enfin, le Comit recommande que le contenu de son rapport soit divulgu aux
personnes handicapes qui permettra ces derniers de prendre connaissance du niveau de lavance de leur droit au sein de
notre rpublique.

Aarthi Burthony,
STM Intern (Legal)

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October 2015- Issue 52

Obituary: Mr Shamus Mangan
It is with great sadness that the Office has learnt of the demise of Mr Shamus Mangan, the UNODC Coordinator of the
Maritime Crime Programme for the Indian Ocean, on 7 September last. He was aged 41.
Mr Mangan has been collaborating closely with the authorities in Mauritius since 2010 when he was given charge of the Counter
Piracy Programme. From enabling negotiations with the European Union on the transfer of suspected pirates to Mauritius, to
empowering judges, prosecutors and the police through regular training sessions, Shamus Mangan became a regular
collaborator and mentor from UNODC.
He was one of the key speakers on the Piracy Panel at the Regional Conference of the International Association of Prosecutors
organised by the ODPP in August 2012.
At the time of his death Shamus Mangan was on mission to Mombasa to work on the implementation of a court administration
system for the Kenyan judiciary, a project to which he was particularly committed.
The ODPP presents its heartfelt condolences to his family and friends.

Mr Shamus Mangan [here on the left] with Mr Filberto Ceriani Sebregond, EU Ambassador
and Head of Delegation during the UNODC EU programme to promote regional maritime
security [2013]

Sulakshna Beekarry,
Principal State Counsel

Page 11

SUMMARY OF SUPREME COURT JUDGMENTS:

September 2015
INDEPENDENT COMMISSION AGAINST CORRUPTION (ICAC) v DABEEBUNJUN [2015] SCJ 345
Hon. S. Peeroo, Senior Puisne Judge and Hon. R. Teelock, Judge

ICAC , Attorneys Fees

The appeals deal with the same issues and involve the same parties were
consolidated and a single judgment was delivered. The Appellant
challenged the ruling of the Deputy Master and Registrar not to allow the
bill of costs in respect of Attorneys fees.
In the first case, ICAC resisted an application for Judicial Review entered
by respondent. In the second case ICAC resisted the motion of respondent
for leave to appeal to the Judicial Committee of the Privy Council against
the judgment of the Supreme Court in the first case. Each case was set
aside by the Supreme Court with costs against respondent. A bill of costs
and fees incurred in the respective cases was signed by Mr S Sohawon, as
Senior Legal Adviser and Attorney for ICAC where the following claims
were made:

Attorneys fees Rs 10,000

Counsels fees Rs 10,000
The respondent objected to the taxation of the bill in each case on the
ground that Mr Sohawon was not entitled to Attorneys fees as claimed by
him in the bill of costs as he was an attorney who was in the employment
of ICAC and as such he could not make a claim for Attorneys fees as he
had done.
The Deputy Master and Registrar retained the submissions of the
respondent who had rested her case on the authority of Gungabissoon
[1956 MR 557] to submit that ICAC was not entitled to Attorneys fees as it
had not incurred additional fees to defend the cases since the attorney who
appeared for it was employed by it. The Deputy Master and Registrar
decided that since Mr Sohawon, as attorney, was employed by ICAC, and
no justification having been given for the Attorneys fees claimed by Mr
Sohawon in the bill of costs, it would not be fair or reasonable in such
circumstances to allow them. He accordingly did not allow the bill of costs
in respect of Attorneys fees.
The Appellate Court after having referred to Article 130 of the Code de
Procedure Civile, the cases of Poorun v Civil Partnership Nouvelle Societe
Ramdenee Freres & Cie & Ors [1960 MR 286] and Mrs V. Besooa v Ruth
Residence [2013 SCJ 389] held that the general principle is that costs
should go against the losing party.
The Court went on to conclude that whether the party has retained the
services of a private Attorney or Counsel or has been represented by an in
house Attorney or Counsel should not make any difference. Costs are
recoverable by a successful litigant even though the attorney is employed
on a salary basis. The case was referred back to the Master and

October 2015- Issue 52

Registrar for the bill of costs in respect of the amount claimed as Attorneys
fees to be decided.
MOULAN M.S v THE STATE [2015] SCJ 344
Hon. A. A. Caunhye, Judge and Hon A. D. Narain, Judge

Sentence , First opportunity , guilty plea

The appellant was prosecuted before the Intermediate Court for the offence
of drug dealing, for the possession of 38.65 grams of cannabis, contained in
10 rolls of printed paper parcels, for the purpose of distribution. He
pleaded guilty to the charge, was found guilty as charged and was
sentenced to undergo 12 months imprisonment and to pay Rs 500 as costs.
He is now appealing against the sentence on the ground that it is
manifestly harsh and excessive. Counsel for the Appellant argued that a
non-custodial sentence should have been imposed thus allowing the
appellant to serve his sentence among his peers rather than among
seasoned criminals in prison. H also laid emphasis on the fact that
although the appellant only pleaded guilty on the day of the trial itself, it
was the first occasion on which he could do so since the plea was not taken
before.
On the other hand, Counsel for the Respondent, conceded in Court that a
sentence of 12 months imprisonment may be harsh and excessive but
maintained that a custodial sentence was warranted in the circumstances,
the more so since the appellant had been given a community service order
in the past, albeit not in relation to a drug related offence.
The Appellate Court thus concluded that the Learned Magistrate was
wrong to find that it was hardly the case that the appellant had put in a
timely plea of guilty as he had only pleaded guilty on the day of the trial,
that is, 9 months after the case was lodged before the Intermediate Court.
In effect the record showed that no plea was taken before the day of the
trial and the appellant had therefore pleaded guilty at the first
opportunity.
In the light of the above and of all the circumstances of the case, including
the relatively small amount of drugs involved, the Appellate Court found
that the term of 12 months imprisonment was excessive. The appeal was
therefore allowed and the Court substituted the sentence of 12 months
imprisonment to one of 8 months imprisonment.
HURLOL D v THE STATE [2015] SCJ 341
Hon. N. Devat, Judge and Hon O. B. Madhub, Judge

Appeal , Sentence, Guilty Plea

This is an appeal against the decision of the Intermediate Court, whereby
following plea of guilty, the appellant (then accused no.1) has been found
guilty under four counts of the information in breach of Sections 301(1),

Page 12

305(1)(b), 301 (1)(c) and 305 (1)(a) of the Criminal Code. He was sentenced
to undergo 3 years penal servitude under Count 1, 3 years penal servitude
under Count 3, one year imprisonment under Count 4 and six months
imprisonment under count 8.
There were 8 grounds of appeal challenging the sentence imposed by the
Learned Magistrate. At the hearing of the present appeal grounds 7 and 8
were dropped and grounds 1,2,4,5 and 6 which basically question the
harshness of the sentence were argued together. Ground 3 which was
argued separately, questions the propriety of the Intermediate Court not
making a community service order in lieu of a custodial sentence, from a
proportionality perspective.
The Appellate Court considered the judgment of the Learned Magistrate
and found it to be concise given the fact that the Appellant pleaded guilty.
The statements of the appellant were full confessions. It was hence
apparent from these statements, that the Appellant was the ring leader of
his group of friends involved in the offences. He was the one who instituted
the preliminary actions that eventually led to the commission of the crimes
and had full control of the vehicle in which the band was travelling.
Further, it is clear that was it not for the arrest of his accomplices, the
appellant would not have surrendered himself to the police, and part of
the stolen goods which were kept by the appellant, for re-sale purposes in
the car, would not have been recovered.
The Appellate Court thus concluded that the Learned Magistrate took into
account the sentencing principles applicable to the present case before
imposing the sentence. The Appellate Court thus held that the appellant
fully deserved the sentence. The Appeal was dismissed.

October 2015- Issue 52

On 07/12/08, on their way to the shop, the accused was discussing their
problems with the deceased who would then refused to answer especially
when the accused asked the deceased about her lover. The Accused thus got
so angry that he used violence on the deceased to such an extent that the
deceased fell on the ground inert. He left the spot and called his sister
whom he informed that he was about to commit suicide as he had killed
the deceased. As he made his way through a nearby tea plantation, he
slashed both his forearms with the cutter. He spent the night in a wood and
in the morning he bought caustic soda which he ingested before going to
the house he was occupying to change his clothes. He then returned to hide
in the wood until dark when he returned to his house. Whilst he was inside
his house the police came. Before they entered the house he stabbed himself
at the abdomen with a knife. Insp Seebaruth, the main enquiring officer,
confirmed that the police raided the house of the accused and found him
with a knife planted in his abdomen. He was immediately taken to hospital
for treatment where he was admitted for some time. The officer confirmed
that the accused fully cooperated in the enquiry and right from the start he
made a clean breast and expressed remorse for what he had done.
After having taken into consideration the mitigating factors, the Court
sentenced the accused to undergo 23 years penal servitude from which was
deducted the 89 days which he spent on remand.
ELLAPEN v THE STATE [2015] SCJ 335
Hon. A. Hamuth, Judge and Hon. O. B. Madhub, Judge

Definition of Soliciting , Section 72 of the Tourism Act

THE STATE v ALEXANDRE ZICO KOOMANIKOOA [2015] SCJ 340
Hon. J. Benjamin G. Marie Joseph, Judge

Murder, Guilty plea , Sentence

The accused stood charged on an amended information with having on
the 7th December, 2008 committed the offence of manslaughter on the
person of his wife Marie Christine Theodore, in breach of sections 215 and
223(3) of the Criminal Code. He pleaded guilty to the charge.
In the light of the guilty plea of the accused, he was found guilty as
charged.
With regards to the facts of the case, the Accused confessed in his
statements that him and the deceased got married in 2001 and at the
material time they had four children. Their relationship turned sour in
2008 and the accuseds family moved out from the accused mothers place
to that of the deceaseds grandmother. It was after several over family
disputes and separation that the Accused came to know that the deceased
was having an affair with a man from Rodrigues and the deceased was
planning to move in with the latter in Roche Bois. As he loved the deceased
and was desperate as well as jealous, he managed to convince the deceased
to come back with him at his sisters place.

This is an appeal against the judgment of the Learned Magistrate of the

District Court of Pamplemousses, who found the appellant, then accused,
guilty under the charge of working as a canvasser without being the
holder of a canvassers permit, in breach of section 72 of the Tourism
Authority Act, and for which he was sentenced to pay a fine of Rs 8,000
plus Rs 100 as costs.
Grounds of appeal 1, 2 and 4 were argued together and relate to the
appreciation of the evidence adduced by the Prosecution by the Magistrate,
in particular that of Police Officer Bhunjun. Ground 3 was in relation to the
consideration or lack of consideration by the Learned Magistrate of the
version given by the Appellant as his defence.
The facts of the case are such that on or about 29 July 2010, while PC
Bhunjun was on patrol on the beach he saw accused soliciting tourists in
relation to water sports activities. In fact, accused had in his possession an
album of photographs which contained details of various offers in relation
to pleasure crafts activities and was speaking to the alleged tourists in
French. Accused does not deny those facts but stated that he was just
talking to customers who had been on his boat earlier.

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October 2015- Issue 52

The contention of the appellant is that the Learned Magistrate failed to

give enough weight to the fact that PC Bhunjun did not, either in his
statement to the police or in evidence in court, state the exact words which
the accused now appellant, allegedly told the tourists; he was not aware at
that material time that the appellant was in fact a skipper and was the
owner of a boat; and lastly no statements were recorded from the said
tourists.

Pamplemousses District Court of the offence of simple assault upon the

Counsel for the appellant submitted that had the Learned Magistrate
considered those elements, he ought to have found that there was not
enough evidence to conclude that appellant was soliciting. Counsel for
the prosecution on his part submitted that the act of soliciting can be
inferred from the conduct of the accused, and there was enough evidence
on record, for the Learned Magistrate to have inferred that the accused
was soliciting.

Learned Counsel for the respondent is not resisting the appeal and has
conceded that the sentence of two weeks imprisonment is manifestly
harsh and excessive inasmuch as in passing sentence the learned
Magistrate took into consideration matters which are not borne out by the
evidence on record. She also submitted that the learned Magistrate
appeared to have considered the not guilty plea of the appellant as an
aggravating factor.

As regards ground 3, appellant submitted that the Learned Magistrate

failed to take into account the version of the accused namely that he was
merely speaking to tourists who had been on his craft earlier. Counsel for
the respondent on the other hand pointed out that the Learned
Magistrate did make specific mention of the accuseds version and did
give adequate reasons why same was rejected.

The circumstances of the offence as related by the appellants wife to the

trial Court reveal that on 22 December 2012 a dispute arose between the
appellant and his wife following which the appellant slapped her several
times resulting in a swollen cheek and injuries to her eye.

The Appellate Court thus held that an indication of the exact words
spoken would have assisted but they held that there was enough material
before the Magistrate to justify his conclusion. The Court went on to
analyse the word to solicit and held that what amount to solicit would
depend upon:
(a) The circumstances under consideration and
(b) Whether an activity proved against the defendant amounts
to a request to another, will depend on the nature of the
activity proved and the circumstances in which the activity
took place.
Based on the above, the Court held that it is clear that not always active
participation or positive act will be required.
In the present case, clearly on the undisputed facts, coupled with the fact
that there is undisputed evidence that the accused had, at the material
time, in his possession an album which contained details of various offers
in relation to pleasure craft activities, the Learned Magistrate was
perfectly entitled to have come to the conclusion that appellant had been
soliciting.

person of his wife in breach of section 230(1) of the Criminal Code and was
sentenced to two weeks imprisonment.
He appealed against his sentence as being manifestly harsh and excessive.

The appellants version to his wifes allegations was a mere denial. The
Magistrate accepted the wifes version and convicted the appellant. After a
document showing that on 22 March 2013 the appellant was fined for a
breach of a protection order was admitted in evidence, the learned
Magistrate proceeded to sentence the appellant in the following terms:-

Taking into account all the circumstances of this charge including the
nature of the injuries sustained by the victim, the fact that accused has a
previous for breach of protection order which indicate a progressivity for
violence, his apologies in Court, and the fact that he chose to plead not
guilty. When the evidence has shown otherwise (he cannot benefit of the
early guilty plea discount). I sentence accused to undergo two weeks
imprisonment to pay Rs 100 costs.
The Appellate Court thus held that the appellants failure to comply with a
protection order was indicative of a progressivity for violence but was not
borne out by the evidence. The Court thus held that a trial Court when
passing sentence must take only relevant factors into consideration and
should refrain from drawing unnecessary inferences in the absence of
supporting evidence. Furthermore, a sentence must also reflect an
appropriate punishment for the offence for which the offender is being
sentenced. The Appeal was allowed and the case was remitted to the
relevant district court for a community service to be contemplated.

The grounds failed and the appeal was dismissed with costs.
PURMANUND D v THE STATE [2015] SCJ 333
Hon. N. Devat, Judge and D. Chan Kan Cheong, Judge

Assault , Sentence, Harsh and Excessive

The appellant was found guilty by the District Magistrate of

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List of new ly sworn-in barristers of the Mauritian Bar

October 2015- Issue 52

September 2015

The Mauritius Bar Association has, since 25th September 2015, 13 new members. They are Mr Sanjaye Bhuwanee, Mr Ajit
Joyekurrun, Mr Iqbal Mohammad Hematally, Ms Marie Valentine Mayer, Mr Arshaad Inder, Mr Yohann Rajahbalee, Mr
Trishul Yovan Naga, Ms Roudhita Devi Ramyead, Ms Marie Vronique Cui Ling Low Kwan Sang, Mr Vishwanath Ashvin
Ramdhian, Mr Nabiil Shamtally, Mr Shiv Koomarsingh Servansingh et Ms Kayal Vizhi Munisami.
The Office of the Director of Public Prosecutions congratulates the new barristers especially Ms Mayer, Mr Rajahbalee, Mr
Shamtally, Mr Ramdhian and Ms Munisami who were pupils at the Office.

Every man is guilty of all the good he

did not do.
Voltaire

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