Supreme Court of Mauritius, 15 juin 2020, 2020 INT 71 – POLICE V LOUIS JOHN BRANT VIVIEN AND ANOR

1 POLICE V LOUIS JOHN BRANT VIVIEN AND ANOR

2020 INT 71

CN:- 187/2017 THE INTERMEDIATE COURT OF MAURITIUS (Criminal Division) In the matter of:- Police v/s 1. Louis John Brant Vivien 2. Louis Sohair Vivien 3. Louis John Petos Vivien 4. Marcelino Pierrot Placathose

JUDGMENT All 4 accused parties stand charged under two counts of the Information with the following offences: Count 1: “Assault with premeditation” in breach of sections 228(1) and 230(1)(2) of the Criminal Code; Count 2: “Assault causing incapacity for personal labour for more than 20 days” in breach of section 228(1) of the Criminal Code.

Accused 1 stands charged under four other counts of the Information as follows: Count 3: “Using a firearm with intent to intimidate” in breach of section 37(1) of the Firearm Act; Counts 4 & 7: “Assault” in breach of section 230(1) of the Criminal Code; Count 6: “Damaging enclosure” in breach of section 362 of the Criminal Code.

Accused 4 stands charged under another count of the Information with the following offence: Count 5: “Firing a firearm with intent to intimidate” in breach of section 37(1) of the Firearm Act.

They all denied the charges against them at enquiry stage and they pleaded not guilty to the respective charges in court. They were duly represented by counsel at the trial. The case for the prosecution was also conducted by counsel from the Office of the Director of Public Prosecution.

I have duly considered all the evidence on record.

Under count 1&3 The charges under these two counts of the Information relate to incidents involving Jean Caël Permes, witness 22. It has been averred under count 1 of the Information that on the 11 December 2015, at Cité Ste Claire, Goodlands, all four accused wilfully, unlawfully and with premeditation, inflicted wounds and blows in and upon one Mr Jean Caël Permes, and under count 3, it has been averred that on the same date and place, accused 1 “pointed a black revolver of about 20 cm towards the head of Mr Jean Caël Permes and threatened him in the following words: retourne sa casse la sinon mo pou touye toi.”

Witness 22 stated under oath that he did not wish to proceed with the cases against all four accused as he was now in good terms with all the four of them and that he wished to maintain a peaceful relationship with them. In light of such statement, the prosecution moved for some time to take a stand on whether they would press on the charges under these counts. They eventually decided to proceed with the case. The matter was fixed for continuation. When the matter was called anew, witness 22 did not turn up in court and the police officer who was detailed to warn him to attend court on the date for continuation, informed the court that the witness could not be met with at his given address as he was on the run and was wanted by the police. The prosecution prayed for a last postponement in order to ascertain the presence of the witness in court but all 4 accused parties objected to such motion on the ground they were being unfairly prejudiced as the present case had been dragging on for a long time. They further highlighted that witness 22 had already shown his disinterest in proceeding with the cases against them. After giving due consideration to the above and also to the fact that witness 22 has been absenting himself from court on several occasions, the motion for postponement was not allowed by the court. The prosecution closed their case.

As matters stand therefore, there is nothing on record connecting the accused parties to the offences charged under each of counts 1 and 3. There is no evidence on record to substantiate

3 the averments under these counts. The charges against the four accused are therefore dismissed.

Under counts 2&6 It has been averred under these two counts of the information that the offences were perpetrated upon the person of Jean Anthony Permes, witness 21. Under count 2, all four accused parties are charged with having “wilfully and unlawfully inflicted wounds and blows upon the person of Mr. Jean Anthony Permes and which said wounds and blows so inflicted have caused incapacity for personal labour for more than 20 days” and under count 6, it has been averred that accused 1 “did, wilfully and unlawfully, destroy an enclosure, in part, to wit: three window panes belonging to Mr Jean Anthony Permes.”

Witness 21 stated under oath that he has forgotten about the incident and was thus unable to give any evidence in court. He further stated that he has forgiven the accused parties and that he did not wish to proceed with the case. No further evidence was adduced in court. The evidence on record therefore fell short of establishing the offences charged against the accused parties under these two counts. The charges against them are therefore dismissed.

Under counts 4&7 The Information avers that on the 11 December 2015 and on the 12 December 2015, accused 1 wilfully and unlawfully assaulted one Miss Marie Joanna Fabiola Mimi, withess 24. The latter however stated under oath that she did not recollect anything about the said incidents and that she did not wish to proceed with the case. She stated that she was now in good terms with accused 1 and that she has forgiven him.

Bearing in mind the above, I find that there is nothing on record to establish the charges against accused 1 under these two counts of the Information. The charges against him are accordingly dismissed.

Under count 5 The information avers that on the 12 December 2015, accused 4 did “wilfully and unlawfully fire a firearm with intent to intimidate another person, to wit: he pointed a single-barreled shotgun make Remington M887 serial NO. ARM0336556 of bore 12/12 and fired in the direction of one Louis Noel Jovani St Louis and Jean Rubin Zoë Mimi.”

4 Louis Noel Jovani St Louis, witness 25, was not called by the prosecution to give evidence in court as he was abroad. Jean Rubin Zoë Mimi, witness 26, for his part, stated under oath that he did not wish to proceed with the present case as he held no grudge against accused 4 and that he was now in good terms with him. No other evidence was adduced in court. Consequently I find that the charge against accused 4 under this court has not been established and the charge against him is accordingly dismissed.

I.Dookhy-Rambarun (Mrs) Magistrate, Intermediate Court (Civil Side) 15 June 2020