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Issue 31 - Office of the Director of Public Prosecutions

1. Zaynah Essop State Counsel Crime Punishment The case of a ten year old stabbing to death a male adult of 50 has unleashed a flood of interesting and not so inte resting comments from numerous quarters and at the same time highlighted the anxiety of the population as to the inadequacy of our laws to deal with such cases undertake in this short article to offer an insight on the factors that are taken into account before a case of that nature is decided reading of the two relevant sections of our penal code sections 44 and 45 which deal with the prosecution of mi nors under the age of 14 clearly pre supposes that in Mauritius a child under the age of 14 can be prosecuted for a criminal offence The ultimate question is whether the child acted with or without discernment It is a matter for the jury to decide whether discernment exists in a case of murder or manslaughter What is discernment In simple terms it is the capacity of the child to understand the consequence of his or her action an ability to distin guish good from evil Guidance is normally sought from medical experts psychologists and very often from proba tion officers How is a case involving a child suspected of homicide decided Once the police enquiry is over and the case submitted to my office the decision whether to prosecute or not is taken on the basis of two important considerations namely a the sufficiency of the evidence and
2. veau national car l origine de chaque suicide existe une raison et qu en est il si la raison mane de la provocation d une autre personne Peut on l gitimer l euthanasie La Cour Europ ene des Droits de L homme r pond par l infirmatif dans un arr t da tant du 29 avril 2002 Pretty c Royaume Uni en estimant qu il n est pas possible de d duire de l article 2 de la Convention relatif au droit la vie un droit de mourir que ce soit de la main d un tiers ou par l assistance d une autorit publique N anmoins trois pays europ ens Pays Bas Luxembourg Belgique autorisent l euthanasie la demande du patient sur le fondement du droit de mourir avec dignit et non dans un tat d gradant D autres pays la r glementent en utilisant la formule d euthanasie passive Ainsi en France l euthanasie est encadr e principale ment par une loi de 2005 dites Loi L onetti qui dispose que le m decin peut renoncer poursuivre des traite ments qui apparaissent inutiles disproportionn s ou qui n ont d autre objet que le maintien artificiel de la vie Ce pendant en 2013 les penseurs sociaux en France se penchent pour un suicide m dicalement assist Yves Cla risse La L gislation du Suicide assist en France Le Point fr publication 16 d cembre 2013 Dans ce sph re le Pr sident du Comit Consultatif National d Ethique a propos un projet de loi au Pr sident Francais selon lequel toute personne majeure en phase avan
3. Ce jeune homme l gant l allure plut t joviale est le d tenteur d un Certificate in Management d un postgraduate diplo ma ainsi que d un Masters in Business Administration C est avec nor m ment d enthousiasme et d assurance que Mervyn s est adress son au dience leur faisant part de l impacte de son handicap sur son parcours pro fessionnel et de sa lutte constante dans son insertion sociale Les capacit s physiques et intellectuelles de Mervyn sont remarquables d autant que son outil de communi cation est la parole et la vue Se de cette mani re Mervyn d clare qu il n entendra jamais les mots qui sortent de sa bouche Je vous coute avec mes yeux nous confie t il ayant maitris la facult de lire sur les l vres Mervyn nous apprend que le handicap est une opportunit d tre diff rent et de r ussir diff remment Le seul v ritable obstacle selon lui est la mauvaise attitude synonyme d auto sabotage et de d valorisation de ses capacit s r elles Pour Mervyn le handicap ne doit pas constituer une excuse afin d viter d entreprendre ce que l on d sire La d termination la tenacit la confiance en soi sont des l ments parmi d autres qui forgent l esprit de leadership Ce brillant jeune homme a su s approprier ces qualit s afin de b tir la forte personnalit qu il renferme aujourd hui En relatant ses souvenirs d enfance Mervyn nous explique que bien s
4. Child in particular articles 3 9 12 37 and 40 and other relevant international instruments such as the Beijing rules A decision involving a child offender cannot be taken lightly and only after a full review of all the factors mentioned above In the case of the little girl suspected of homicide the police enquiry is still in progress A decision to pro secute or not can only be considered after all the circumstances of the case are fully enquired into including the submission of medical and psychological reports relating to the issue of discernment Satyajit Boolell SC DPP Rajsoomer Lallah Annual Lecture by Keir Starmer QC The first annual Rajsoomer Lallah memorial lecture was delivered by Mr Keir Starmer QC former UK DPP on 28th No vember 2013 on the theme of Human rights victims and the prosecution of crimes in the 21st century Judges of the Su preme Court members of the Judiciary the UK High Commis sioner several senior counsel and state counsel from the Attor ney General s Office and the Office of the Director of Public Pro secutions attended the function 4 At the outset of his speech Mr Keir Starmer QC paid tribute to the impressive achievement of late Rajsoo mer Lallah as a human rights advocate both locally and internationally He iterated the fact that late Rajsoomer Lallah was committed to the development of international human rights law both as a member of the United Nations Hu
5. Ramsamy Law Research Officer Africa Prosecutors Association s Capacity Building Institute Protecting the Vulnerable Gender and Sexual Based Violence Crimes Maputo Mozambique The Africa Prosecutors Association APA organised a con ference on the theme of protecting the vulnerable against gender and sexual based violence crimes The conference was held from 13th to 15th November in Maputo Mozam bique Mrs Johan Moutou Leckning Senior Assistant DPP and Mrs Zaynah Essop State Counsel from the Office of the Director of Public Prosecutions attended the confe rence Prosecutors from various African countries were present and they included Mozambique South Africa RE Zambia Angola Tanzania Democratic Republic of Congo main objectives of the conference were to ensure that each country had the ability to deal decisively with offenders who largely depend on the capacity of stake holders who have to ensure appropriate victim manage ment as well as efficient offender accountability and that the approach that needed to be implemented was one E DE LR A T that focused the existence of an enabling legislative and policy framework institutional capacity skilled and empathetic personnel The conference was chaired by advocate Thoko Majokweni special director of the sexual offences and community unit in South Africa Various presenta
6. application for new trial The Appellant claimed that it was his conduct rather than that of its legal advisers which had to be analyzed for the determination of the application for a new trial and that learned magistrate wrongly applied the case of Margaret Toumany and John Mullegadoo v Mardaynaiken Veerasamy 2012 UKPC 13 and the case of Sawmynaden Ramen v Ghoorun 2000 SCJ 185 It was held the defendant had its greater share of responsibil ity in keeping track of the case and failed in his duty to ascer tain the proper date of the trial from his attorney as well as in his duty to peruse the court record and note down the date of the trial Remarks made in the case of Sawmynaden Ra men v s Ghoorun and Margaret Toumaney Marday Naiken Veerasamy supra to the effect that counsel s conduct must not be unfairly reflected on the litigant unless there is at least some indication of negligence on his part as well did not find their application in the present case New trial on the ground of error Counsel argued that the case was being treated as one of forgetfulness rather error and did not therefore consider that the situation fell within the ambit of rule 62 of the Supreme Court rules which provides for new trial on the grounds of fraud error and violence Based on Halsbury Laws of Eng land 3rd Edition Volume 30 Practice and Procedure page 475 paragraph 891 a new trial may be ordered if a substantially wrong verdi
7. years for the same offence and therefore the cus todial sentence of four years is warranted Finally with re spect to the fourth factor the Court referred to the case of Elaheebocus v the State of Mauritius 2009 UKPC 7 where the Judicial Committee distinguished that case from Boolell v The State 2006 UKPC 46 The Judicial Committee consid ered the offence in Elaheebocus as of greater criminality than that in Boolell and concluded their Lordships on balance think it right to mark the undoubted constitutional breach in this case by making a modest reduction in the sen tence to be served In the result they quash the four year term and substitute for it a term of three and a half years penal servitude such sentence now to be served without fur ther delay To this extent and to this extent only the appeal is allowed The Judicial Committee gave guidance as to the weight to be attributed to a serious offence when ranked with the consti tutional breach and held that the delay in this case con stitutes a breach of the appellant s constitutional right A breach of that right will always be a factor to be considered in deciding upon the appropriate disposal In some instances it may not be a factor of great weight and there may even be some cases in which because of the strength of countervail ing factors such as the gravity of the offence it will be ac corded no weight at all But it will always be a factor to be co
8. December 2013 ees EDITORIAL TEAM Mrs Sulakshna Beekarry Sunassee Principal State Counsel Mrs Zaynah Essop State Counsel Mr Ashley Victor Public Relations Officer EDITORIAL SUB COMMITTEE Mr Nitish Toolsee Bissessur Mr Toshan Ral Bundhun Mr Yashvind Kumar Rawoah Mr Ajmal Toofany Legal Research Officers Office of the DPP THE MONTHLY LEGAL UPDATE NEWSLETTER DECEMBER 2013 br gt To No One Will We Sell To No One Deny Or Delay Justice Chapter 40 Magna Carta 1215 ATA T Table of Contents PAT UN MUN INSIDE THIS ISSUE EDITORIAL CRIME AND PUNISHMENT RAJSOOMER LALLAH ANNUAL LECTURE BY KEIR STARMER QC MAURITIUS BAR CONFERENCE 2013 AFRICA PROSECUTORS ASSOCIATION S CAPACITY BUILDING INSTITUTE PROTECTING THE VULNERABLE GENDER AND SEXUAL BASED VIOLENCE CRIMES MAPUTO MOZAMBIQUE DISABILITY INSPIRATIONAL AND MOTIVATIONAL COACHING LE PRINCIPE FONDAMENTAL DU DROIT ALA VIE INCLUT IL LE DROIT DE MOURIR CASE SUMMARY HIGHLIGHTS OF 2013 Issue 31 December 2013 Issue 31 EDITORIAL Dear Readers 2013 is reaching its end It is a year which has been full of ups and downs for many of us However what matters is that we keep on learning from our personal experiences that we grow and that we never give up no matter what The Office of the Director of Public Prosecutions has had its share of challeng
9. ainant to reach a finding of guilt against the appellant and there was no mis direction on the issue of corroboration appeal was dis missed ROOPCHAND THE STATE 2013 SCJ 416 By Hon A Caunhye Judge amp Hon 5 Domah Judge Principle against double counting and principle of proportion ality This is an appeal against a sentence of 5 months imprison ment imposed by the learned magistrate of Upper Plaines Wilhems under each of the three counts under which the appellant stood charged for issuing cheques without provi sion in breach of section 330B of the Criminal Code She fur ther ordered the terms of imprisonment under each count to run consecutively The appeal was based on only one ground namely that the sentence is manifestly harsh and excessive and wrong in prin ciple The Judges considered that there was no good reason for imposing a consecutive sentence imposed in this case They ordered the appellant to serve a term of 5 months un der each count and the sentence to run concurrently The points that the Judges took into consideration before amend ing the sentence were as follows Principle against double counting The manner in which the learned magistrate carried out her exercise offends the princi ple against double counting The Court reasoned that all the facts and circumstances of the case the law and case law in the matter and further that the offences concerned are of the
10. b the public interest in putting a child under 14 on trial before a jury The first consideration is an assessment of the quality of the evidence its reliability and credibility It is based on the prosecutor s objective assessment of the evidence including the impact of any defence and any other informa tion that a suspect may have put forward to buttress his or her defence The public interest component addresses essentially the best interest and welfare of a child As a rule it is recognized that the criminal justice system should treat minors differently from adults and that signifi cant weight must be attached to the age of the suspect if he is under the age of 18 or 14 for that matter The best interests and welfare of a child implies such consideration as to whether a prosecution is likely to have an adverse impact on his or her future prospects that may be disproportionate to the seriousness of the offence There are strong reasons militating against sending a child to face a court if he or she has committed a petty offence such as a shoplifting for the first time But that may not necessarily be the case for more serious offences especially where it is not the child s first encounter with the authorities The bottom line is that the younger the person the less likely it is that a prosecution is required Additionally the prosecutor must take into account the obligations of Mauritius arising under the UN Convention on the Rights of the
11. c e ou terminale d une maladie incurable provoquant une souffrance phy sique ou psychique insupportable et qui ne peut tre appais e puisse demander dans les conditions pr cises b n ficier d une assistance m dicalis e pour terminer sa vie dans la dignit Une telle l gislation risque de laisser porte ouverte des d rives dangereuses au niveau local car une grande place est laiss e la d cision m dicale qui peut s av rer subjective On peut tout de m me conclure que d s lors que le comportement d un individu porte pr judice autrui le droit peut intervenir mais le droit peut difficilement intervenir si l acte de l individu est caus lui m me Nitish Bissessur Legal Research Officer RUMMUN v THE STATE 2013 SCJ 406 By Hon S B Domah and Hon S Bhaukaurally Larceny with an offensive weapon sentencing delay breach of constitutional right The Appellant was convicted before the Intermediate Court for the offence of larceny with an offensive weapon He was sentenced to undergo 4 years penal servitude and the sen tence was maintained by the Supreme Court on appeal The Appellant appealed to the judicial committee of the Privy Council on the ground that in view of the substantial delay which had occurred in the case his constitutional right had been breached The Judicial Committee of the Privy Council considered that with regards to this issue three matters had to be considered 1 the c
12. ct has been given owing to one party having been taken by surprise or owing to the misconduct of a party or his solicitor or Counsel or owing to the discovery of fresh evi dence which could not with reasonable diligence have been discovered before the trial or owing to some inadvertence mistake or slip in the proceedings It was held that the situation was not one of forgetfulness but rather reveals a genuine confusion and mistake on the part of the counsel with respect to the date of trial thereby falling under the meaning of rule 62 Appellant was laboring under the mistaken belief that the case was fixed for the wrong date The Learned judge agreed that the magistrate had made a wrong appreciation of the evidence in concluding that the circumstances did not disclose any error within the am bit of rule 62 New trial in the interests of justice It was submitted by counsel for the appellant that the learned magistrate should have granted the application for new trial in the interests of justice in as much as 1 the ab sence of the appellant was not due to any laches on his part 2 the sum awarded is substantial and 3 the appellant had a good a bona fide defense to the claim It is a settled principle that When a litigant has obtained a judgment in a court of Justice he is by law entitled not to be deprived of that judgment without very solid grounds Brown v Dean A C 1910 373 but the reasons set out ab
13. d by Mr Herve Duval practical oe Annual Mauritius Bar Conference issues such as the organisation of the lawyers prospective entrants and opportunities within the out of court organi sations were raised The first specialist session of the second day dwelled on criminal law The session chaired by Mr Satyajit Boolell SC covered focal issues such as the role of the Prosecutor in upholding the Rule of Law white collar crimes rights of victims of crime and ethics concerning the representation of barristers The following session focused on arbitration and was chaired by Mr Duncan Bagshaw Opportunities for the Mauritian Bar were discussed Mrs Premilla Patten chaired the 6th specialist session about gender issues Mrs Moutou Leckning and Mrs Maura McGowan QC among others explored issues of gender bias in various legal and social institutions A session about taxation and financial law chaired by Mr Rajesh Ramloll was next It highlighted the importance of tax treaties and the regulation of the legal framework of the sector Last but not least the session about legal literacy chaired by Mr Eric Ribot SC underlined the effectiveness of awareness programmes mentoring sessions and campaigning when it comes to understanding the legal system It is also worth mentioning that the Bar Conference paid tribute to the stalwarts of the legal profession namely Sir Rampersad Neerunjun QC Sir Gaetan Duval QC and Mr Madan Gajadhur QC Nadiah
14. e sentence was manifestly harsh and excessive The Judges were therefore of the view that the sentence imposed by the learned Magistrate in that case was neither harsh nor exces sive nor wrong in principle They accordingly dismissed the appeal The reasons were as follows The appellant had already been fine twice Two years later he got involved in what appears to be a series of possession of stolen property cases spread out over a short period of time The court sentenced the appellant for the present offence taking into consideration all facts The court took into account the overall conduct of the appellant in the period November 2008 June 2009 as well as his failure to mend his ways since he was last fined SHAIK A M v STATE OF MAURITIUS 2013 SCJ 452 By Hon K P Matadeen Acting Chief Justice and Hon N Devat Application for review of sentence Applicant was convicted for the offence of unlawfully im porting dangerous drugs in breach of section 28 1 c of the Dangerous Drugs Act 1986 and sentenced to penal servitude for life An application is made under section 5 1 of the Crim inal Procedure Amendment Act 2007 for a review of the sentence Learned counsel for the applicant contended that sentence of penal servitude for life should be reviewed and replaced by a sentence of penal servitude for not more than twenty years given the fact that the applicant a had been detained on remand since his arre
15. er course with a specified person in breach of section 249 5 a c i of the Criminal Code to which he pleaded not guilty He was sentenced to three years penal servitude The Complain ant averred that when she was 14 years old she had sexual intercourse with her the appellant her biological father on three occasions Appellant appealed against his conviction Counsel for the appellant challenged the learned magis trate s appreciation of the evidence adduced and the assess ment of the credibility of the complainant The learned mag istrate noted that complainant was alive to the inconsisten cies in the prosecution s case but these were of minor im portance and had no consequential impact on her credibility However learned magistrate acted on the testimony of the complainant whom she found credible The learned judge observed that the findings of the trial court on the contradic tions and inconsistencies and the assessment of the com plainant s testimony were impeachable Two other grounds of appeal were to the effect that learned magistrate was wrong to convict the appellant in the ab sence of corroborative evidence having regard to the nature of the charge against the appellant The learned judges con sidered that caution was exercised by the learned magistrate when dealing with uncorroborated evidence of a victim in a sexual case The learned magistrate could be faulted for hav ing relied on the sole testimony of the compl
16. es too this year It has been a hectic year with a number of activities organized A highlights of this year s activities has been provided to you in this issue In this last newsletter of the year 2013 we provide you with in teresting details of Mr Keir Starmer QC s visit to our Office in November and an update of the successful Bar Conference held at Intercontinental Hotel Mrs Johan Moutou Leckning Senior Assistant DPP and myself have the pleasure to Share with you our experience of the conference held in Maputo Mozambique by the Africa Prosecutors Association on Protecting the Vulnerable Gender and Sexual Based Violence Crimes On the occasion of the international day of persons with disabilities the ODPP hosted a presentation by Mr Mervyn An thony on Disability motivational and inspirational coaching This issue also includes the article of the month on le principe fondamental du droit a la vie inclut il le droit de mourir Finally this issue provides you with the usual summary of the latest Supreme Court judgments On behalf of the editorial team and all the officers of the ODPP I wish you all a Merry Christmas and a happy new year 2014 May this new year bring you joy love prosperity and good health We also wish to thank you for having been with us throughout the year and for your constant sup port May this saying of Nelson Mandela be our driving force for 2014 t al ways seems impossible until it s done
17. exc d 14 semaines l hypoth se d une mineure enceinte section 235A Criminal Code Le Principe Fondamental du Droit la vie inclut il le Droit de Mourir ll Durant la Vie Le cas du suicide et de l euthanasie La notion du droit de mourir passe par la distinction selon laquelle A la personne est viable le cas du suicide B la personne est assist e m dicalement l euthanasie Le suicide ou le meurtre de soi m me n est punissable ni en la personne de l agent ni en celle du complice Le sui cide n tant pas un d lit p nal la tentative de suicide chappe galement la peine faute d un texte incriminateur En effet le suicide n entre dans le domaine du droit que lorsqu il fait intervenir un autre individu Sur le terrain natio nal le seul texte envisageable en cas de suicide par l assistance d un tiers est la section 39A 2 du Criminal Code sanctionnant la non assistance personne en danger de 2 ans d emprisonnement En France suite a la publica tion d un livre en 1982 intitul Suicide mode d emploi le l gislateur intervient en introduisant les articles 223 13 et 223 14 dans le code P nal Fran ais r primant respectivement la provocation au suicide et la propagande en faveur des moyens se donner la mort de 3 ans d emprisonnement En revanche lesdits d lits sont des d lits de r sultat car l incrimination n cessite la mort de l int ress Une telle l gislation serait vivement envisageable au ni
18. ion on Justice for Victims by the UN General Assembly The aim of the Declaration was to ensure that all victims have access to the justice system as well as support throughout the justice process The lecture of Mr Starmer QC will be the subject matter of review and comments in the Mauritius Criminal Law Review which will be launched early next year os Mauritius Bar Conference 2013 The annual Mauritius Bar Conference was held on the 29th and 30th of November 2013 at the Intercontinental Re sort The conference was attended by a plethora of professionals of the legal world It proved to be an excellent plat form as it allowed the speakers to provide fascinating insight into some of the hot topics in the legal profession After the keynote address by Maura McGowan the first plenary session kicked off with a highly relevant topic Access to Justice The speakers of that session were namely Mrs Touria Prayag Mr Keir Starmer QC and Mr Sa tyajit Boolell SC While Mrs Prayag focused her speech on how access to justice is perceived in Mauritius Mr Keir Starmer QC empha sised the importance of ethics in legal system Mr Boolell pertinently tackled the issue of delay in this intervention They all agreed on the growing significance of communication and cooperation between all stakeholders The second plenary session of the day was titled Interworkings within profession Distinguished speakers such as Premila Balgo bi
19. it la vie priv e Article 8 CEDH qui peut tre mise en cause par le biais d une perquisition domicile L esprit de l article 2 de ladite Convention veut que le droit la vie soit un droit inali nable dans la mesure o ce prin cipe est imm diatement articul l interdiction de la peine de mort N anmoins ce n est pas un principe absolu car cet article pr voit trois exceptions r siduelles notamment i la l gitime d fense ii l tat d inserruction ou de guerre iii emp chement de l vasion d un d tenu Cependant ces exceptions limitativement nonc es sont sujettes un largissement d s lors qu existe l incorporation du principe de la dignit humaine dans la notion de vie et de mort Ce constat justifie l intervention du droit d faut duquel on risque de d river des probl mes thiques et juridiques ma jeurs Euthanasie activement pratiqu e ou avortement non soumis des conditions pr alables Ainsi la vraie question est de savoir si le droit de vivre dignement est un corollaire du droit de mourir avec dignit Pour r pondre cette question il conviendrait de voir comment le droit prot ge le corps humain 1 Avant la Nais sance et Il Durant la Vie en passant par une analyse du droit compar Avant la Naissance L interruption Volontaire de Grossesse IVG C est une constatation vidente que l IVG ou l avortement oppose le droit la vie au droit la mort voire le droit de la fe
20. man Rights Committee for many years and as a UN Special Rapporteur Addressing the theme of Human rights victims and prosecution of crimes in the 21st century Mr Starmer QC argued that victims rights present a fundamental challenge to the basic criminal justice model which has been in place in most common law countries for decades if not centuries that key developments in victims rights would not have ta i i vee 0 7 d M 3 n 3 compared to the negative freedoms approach of the com lt m un ken place without the positive approach of human rights law P mon law and that the re adjustment of our criminal justice I arrangements to accommodate victims rights whilst well and truly under way is far from complete Mr Starmer QC identified four aspects of our criminal justice arrangements which are of critical importance to victims They are as follows a the criminal law itself b the investigation of individual allegations of crime c the decision of the prosecutor whether or not to bring criminal charges against a suspect and d the hearing before the court He considered that unless the law adequately and effectively protects the rights of victims there can be no question of a criminal investigation and prosecution a proposition which was accepted by the European Courts of Human Rights as far back as 1985 Such recognition resulted in the adoption of the UN Declarat
21. mme enceinte de disposer de son corps au droit du foetus Pour certains juristes l embryon et le foetus ne sont pas consid r s comme des sujets de droit autonomes et distinctes du corps de la m re En ce sens la Cour de Cassa tion en France refuse de condamner pour homicide involontaire un gyn cologue qui avait pr cipit par erreur l avor tement d une patiente Cass crim 30 juin 1999 N anmoins la Cour Europ enne des Droits de L Homme proclame le principe selon lequel la libert d avorter tait une libert fondamentale qui se d gage de la Convention CEDH 5 septembre 2002 BOSO Italie La l gislation francaise opte pour cette conception lib rale de l avortement Ainsi l article 223 10 du Code P nal francais actuel consacr l IVG est seulement conditionn e au consentement clair de l int ress car les autres conditions sont port e subjective Concernant l avortement illicite m me si la loi p nale francaise pr voit les m mes peines d emprisonnement que 7e criminal code mauricien en occurrence 5 ans d emprisonnement L approche mauricienne cependant semble tre plus pragmatique que l approche europ enne La l gislation nationale pr cise en effet les cas de figure pr cis l avortement devient licite notamment si la grossesse met en danger la vie de la femme enceinte la pr vention d une naissance d un enfant gravement handicap anormalit physique ou mentale du foetus la grossesse n a pas
22. n and Danielle Lagesse SA considered the relationship amongst the different actors within the profession and highlighted some potential areas of improvement The specialist sessions explored a wide spectrum of subjects ranging from public law to gender issues On day one three specialist sessions were held During the first one Public Law chaired by Mrs Aruna Narain the spea kers delved into issues of constitutional and human rights law The second one focused on commercial law and speakers such as Mr Gilbert Noel and Mr Jason Harel took up the interesting question of structuring investment and private client wealth management through Mauritius The closing session for that day chaired by Mr Anwar Moollan concentrated on civil law namely all aspects of civil procedure enforcement and execution issues The second day of the conference welcomed two more plenary sessions and five specialist sessions The third plenary session of the conference veered towards a more international dimension focusing on the international aspects of legal practice This session chaired by Mr Marc Hein assessed our organisation and competitiveness in light of other international approaches This assessment exercise was helpful in considering the position of Mauritian law firms An analysis of the different types of organisation of law firms was also provided The last plenary session dealt with the challenges within the profession During this particular session chaire
23. nsidered Taking into account all the factors and the circumstances of the case and of the appellant the sentence was substituted for a sentence of 3 years penal servitude from which the time spent on custody ought to be deducted GOPEE v THE STATE 2013 SCJ 407 By Hon S Bhaukaurally Judge amp Hon D Chan Kan Cheong Judge Insult This is an appeal from a judgment of the learned Magistrate of Upper Plaines Wilhems Curepipe Division convicting the appellant of the offence of insult in breach of section 296 of the Criminal Code He was sentenced to pay a fine of Rs 500 and was ordered to pay Rs 100 as costs One of the grounds of appeal was the Learned Magistrate erred in con cluding that the expression piss ar li amounted to an Insult The judges had no doubt from the tenor of the judgment of the learned Magistrate that he had the necessary experience to attribute the exact contextual meaning of the mentioned expression that should be attributed to the words and to come to the conclusion that they amounted to an insult They found no reason to disturb his finding on this issue All the grounds of appeal had failed and the appeal was dis missed with costs VAYAVERY v THE STATE 2013 SC 412 By Hon N Matadeen and Hon N Devat Sexual intercourse with specified person assessment of credi bility of a victim of sexual offence The Appellant was charged with the offence of sexual int
24. omplexity of the case 2 the conduct of the appel lant and 3 the conduct of the administrative and judicial authorities The board considered that the unduly complex nature of the case had not been raised The board found that appellant s conduct was passively acquiescent to several postponements although not actively complicit in delaying the trial It was also considered that prosecution authorities were responsible for much of the delay The case was remitted by the Board for examination on the following factors 1 a close examination of the reasons for the delay 2 the ranking of the seriousness of the offence against the breach of the appellant s constitutional right 3 guidelines regarding the range of sentence which would have been appropriate and 4 an adjustment in the range so as to reflect the breach With regard to the first factor the court observed that the postponements were mostly due to the other co accused s absence and only slightly in part to the absence of witnesses for the prosecution With regard to the second factor the court held that it cannot be gainsaid that the offence and the circumstances of its perpetration should be a matter of seri ous concern in our criminal justice system Concerning the third factor it was held that in the absence of sentencing guidelines on the range of sentence that would be applicable to the offence the sentences vary from 6 months imprison ment to 8
25. ouvent l encadrement acad mique et social lui avait inculqu l id e d impossibilit que ce soit au niveau de son insertion ou bien m me de se faire com prendre Cependant son attitude de battant a pris le dessus sur ces aspects n gatifs faisant de lui un winner Mervyn aspire non pas tre un barrister mais un outstanding barrister est plus que d termin r ussir et affirme avec beaucoup de conviction que ce n est pas son handicap qui l emp chera de se faire entendre par les juri dictions Il a d j labor un moyen tr s perspicace de communiquer lors des plaidoiries Le bureau du DPP est ho nor d avoir de tels officiers talentueux et rempli d avenir Nous lui souhaitons une carri re couronn e de succ s et de surtout continuer tre une source d inspiration Ajmal Toofany Law Research Officer Le Principe Fondamental du Droit la vie inclut il le Droit de Mourir Telle tait la question soulev e lors du Rajsoomer Lallah Annual Memorial Lecture 2013 qu on tenterait de r pondre au cours de cet article De prime abord il faut savoir que les libert s fondamentales nonc es par la Convention Eu rop enne des Droits de l Homme CEDH 1953 sont bas es sur un syst me corr latif A vrai dire chaque principe fondamental est v tu d un corollaire A titre d exemple On est libre de s exprimer Article 10 CEDH condition de ne pas commettre une diffamation On a un dro
26. ove by appellant were considered to be very solid grounds warranting a new trial and that it would be in the interests of justice that a new trial be granted The case of Grimshaw v Dunbar 1953 1 AER page 350 at page 355 was referred to and the following extract was re produced If by some mischance or accident an order is made in his the party absence then common justice de mands so far as it can be given effect to without injustice to other parties that that litigant who is accidentally absent should be allowed to come to the Court and present his case no doubt on suitable terms as to costs The judgment setting aside the application was quashed the appeal was allowed and a new trial ordered RAMSAMY P M v THE STATE 2013 SCJ 436 By Hon A R Hajee Abdoula Judge amp Hon P Fekna Judge Appeal Manifestly harsh and excessive sentence This was an appeal where the appellant stood charged be fore the Intermediate Court together with three other ac cused parties in an Information containing four counts The other three accused were charged under counts 1 3 whereas the appellant was charged under count 4 with the offence of possession of articles obtained unlawfully in breach of sec tions 40 301 1 305 1 and 301A of the Criminal Code pleaded guilty and was sentenced to undergo 9 months im prisonment and to pay Rs 500 as costs The appeal was based on only one ground namely that th
27. same nature involving substantial sums of money and the short interval of time between each of the offences The principle of proportionality In the view of the Judges there has been a breach of the principle of proportionality which is an overriding principle in sentencing an offender In the case of consecutive sentencing this falls also under the principle of totality Thus where a court is minded to impose consecutive sentences it should ensure that the cumulative effect of consecutive sentences for multiple offences does not exceed the overall guilt of the offender The cumulative effect of the consecutive sentences imposed turned out to be unduly long and harsh in the circumstances Fifteen months 5 months for each count for an offence of middle gravity offends the principle of totality though the previous convictions of the offender would be unduly long and harsh taking into account the mitigating factors ENERGY ENGINEERING INVESTMENT LTD v SANCHIS J P 2013 SCJ 426 By Hon R Mungly Gulbul and Hon N Devat Application for new trial duty of appellant error interests of justice This was an appeal against a decision for setting aside an application for new trial The appellant made an application for a new trial on the following grounds 1 a bona fide er ror as to the date of continuation 2 a strong defense to the plaint and 3 a new trial being in the interest of justice Determination of
28. sia Africa IFA Conference held at Hilton Mauritius Resort amp Spa Issue 31 17 f w MP Annual Conference hy and General Meeting oh erou Y b n E Rb 1 Visit of Judge Abdullah Malleck Goolab Ahmed at the ODPP 2 3 4 5 6 Advocacy training with Neil and Anthony Moore MOU signature between ODPP and Prosecutor General Office of the Russian Federation Meeting with Attorney General of England and Wales in Moscow Official visit of the DPP in Rodrigues 8 Visit of Mr Keir Starmer Issue 31 23 mobile 1 Football competition The ODPP Team 2 5 Team building activities Issue 31 t 2000S _ 10 46 18 THE eb TEAM Ai nes you
29. st 1997 b was aged 30 at the time of the commission of the offence c readily cooperated with the police and confessed to the commission of the offence d had a clean record at the time of the commission of the offence and e has not committed any breach of prison disci pline The Applicant had acted as a courier to convey a con siderable amount of drug from India to Mauritius The Appli cant had during his period of imprisonment been guilty of ten breaches of prison discipline Mitigating factors such as consideration of age clean record of the appellant at the time of the offence and his confession were taken into account but however the offence was con sidered to be a serious one It was held that pursuant to section 5 3 of the Criminal Procedure Amendment Act 2007 the sentence of penal servitude for life be substituted by a sentence of penal servitude for a term of twenty two years The applicant s time demand on remand was imputed from the sentence I learned that courage is not the absence of fear but the triumph over it The brave man is not he who does not feel afraid but he who conquers that fear Nelson Mandela 1 Launching ceremony of Tanya so Zistwar 2 Visit of Uganda delegation at ODPP 3 Courtesy visit of Dr Oberoi at ODPP 4 MOU signature between Asset Recovery Enforcement Authority FIU and MRA 5 Distribution of Tanya so Zistwar at College du St Esprit Riviere Noire 6 7th A
30. tions were also made by advocate Xolisile Khanyile Director of Public Prosecu tions in the Free State South Africa Mrs Khanyile explained the various steps and measures taken for the prosecu tion of sexual abuse cases in South Africa Mauritius alike their criminal legal system is an adversarial one which makes it traumatic for victims of crime to testify about the most intimate details of a sexual offence She emphasised the importance of providing adequate support and measures to victims of sexual abuse cases which would include the giving of evidence in camera and the use of age appropriate language when asking questions The representatives of each country were also requested to make a brief presentation of their respective laws on sexual offences human trafficking and domestic violence Johan Moutou Leckning Senior Assistant DPP amp Zaynah Essop State Counsel La journ e internationale des personnes autrement capables proclam e par les Nations Unies qui se tient annuellement le 3 d cembre a t marqu e au bureau du DPP par une pr sentation ax e sur le concept Disability Ins pirational and Motivational Coaching d livr e par Mervyn Anthony lui m me officier au sein de cette institution La particularit ainsi que l engoue ment qu a suscit e l v nement r side dans le fait que Mervyn a une d fi cience auditive caract ris e par la perte totale du sens de l ouie et un handi cap physique c r brale

Issue 31 - Office of the Director of Public Prosecutions

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