Supreme Court of Mauritius, 10 mars 2020, 2020 PL2 32 – POLICE v Helene & Ors

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POLICE v Helene & Ors

2020 PL2 32

POLICE v HELENE & Ors

CN: 3345/2019 THE DISTRICT COURT OF PORT LOUIS (Division II)

In the matter of:-

Police

v.

1. Dominique Binjamin HELENE 2. Marie Françoise MOKA 3. Maria Bianca Michaella MOKA

JUDGMENT

Accused nos.1, 2 and 3 are prosecuted on an information for the offence of assault in breach of sections 228(1) and 230(1) of the Criminal Code for having willfully and unlawfully inflicted blows upon the person of one Chrystelle Helene [hereinafter referred to as “the alleged victim”].

The offence was allegedly committed on 10 January 2016.

Accused no.1 pleaded guilty, whereas, Accused nos.2 and 3 pleaded not guilty.

The case for Prosecution rests on: – the respective statements given by the three accused [marked as Doc B, Doc B1 and Doc B2]; – the sworn testimony of the alleged victim in Court; and – the PF 58 dated 10 January 2016 delivered by the Jeetoo Hospital to the alleged victim [marked as Doc A].

Accused no.1 confessed in his written statement [Doc B] and admitted in his oral statement from the dock during trial that there was a dispute between himself and the alleged victim, being his wife, and that he had beaten her on the face, on the head, on the hip and on different parts of the body. The injuries, as described in the PF 58 [Doc A], on the forehead and on the lower back, though described as not of a serious or dangerous character, substantiate the sworn testimony of the alleged victim that Accused no.1 had beaten her on the face and on the back. In the circumstances, the Court finds that the guilt of Accused no.1 is proven beyond reasonable doubt, and as such, finds him guilty as charged.

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As regards, the alleged participation of Accused nos.2 and 3 in the dispute between Accused no.1 and the alleged victim, reference can be made to principles of co-authorship as laid down in the Supreme Court judgment of The Director of Public Prosecutions vs. Mudhoo & anor [1986 SCJ 23] where it was observed that: “there must be a common object (and this may legitimately be inferred from the separate acts of the different accused parties); there must also be “simultaneité d’action” and “assistance réciproque” (again this may legitimately be inferred from the acts of the different participants), the overall principle being the degree of participation of an accused party in the offence.”

In the present matter, after the case was closed for Prosecution, Accused nos. 2 and 3 were informed of their constitutional rights to remain silent or to give sworn or unsworn evidence, and they elected to make their respective oral statements from the dock. Accused no.2 stated that she tried to avoid the dispute between Accused no.1 and his wife and in her written statement to the Police she stated that : “…moi mo pas fine trouve aucaine la guerre. Mo fine prefère evité rentre dans zotte discussion et mo fine rentre endans dans lacase et ferme la porte” [Doc B1]. The oral statement of Accused no.3 consist of denying her participation in the dispute, and in her written statement she stated that: “Moi mo pas fine trouve aucaine laguerre et mo pas fine batte personne. Mo ti trouve mo tonton et matante Chrystelle discuter mais mo pas finne trouve personne batte mo matante” [Doc B2]. However, Accused no.1 in his written statement [Doc B] and in his oral statement from the dock admits that he had beaten the alleged victim but denied the participation of Accused nos. 2 and 3.

The inconsistencies pertaining to the written statements of Accused nos. 2 and 3 that they had not seen the alleged victim being beaten up [Doc B1 and Doc B2] and the acknowledgment of Accused no.1 that he had beaten the alleged victim affect the credibility of Accused nos. 2 and 3. It is to be noted that Accused nos. 2 and 3 were not subject to cross-examination given that they elected to give unsworn evidence from the dock. On the contrary, the alleged victim testified under oath that Accused nos. 2 and 3 joined Accused no.1 and had beaten her on the hips and on different parts of the body. Accused nos. 2 and 3 cross-examined the alleged victim as to whether they had indeed beaten her and the latter replied in the affirmative. The alleged victim further stated that she went to the hospital and a PF 58 was issued to her [Doc A]. It is apposite to note that the PF 58 remained unrebutted by all the three accused. In the circumstances, the Court finds that the acts of Accused nos. 2 and 3, as described by the alleged victim, amount to “simultanéité d’action” and “assistance réciproque” in the assault initiated by Accused no.1 against the alleged victim with the common object of perpetrating the said assault. The participation of Accused nos. 2 and 3 as co-authors, having been established beyond reasonable doubt, the Court finds both accused guilty as charged.

Z Cassamally (Dr) Ag. District Magistrate 10.03.2020