Supreme Court of Mauritius, 16 mars 2020, 2020 ROD 13 – POLICE v PRUDENCE NOELLA

POLICE v PRUDENCE NOELLA

2020 ROD 13

POLICE v PRUDENCE NOELLA Cause No: 537/2019

THE COURT OF RODRIGUES

In the matter of:- POLICE

VERSUS

NOELLA PRUDENCE ———- JUDGMENT 1. Accused stands charged with the offence of false and malicious denunciation in writing in breach of section 297 of the Criminal Code. Accused pleaded not guilty and was not assisted by Counsel at trial. 2. The following documents are on record. i) One report comprising of 9 pages emanating from the Forensic Science Laboratory and signed by Mr. Auckloo. (Doc.A ). ii) Two statements recorded from Accused. (Doc.B and Doc. C). The trial 3. This is a case where the police is prosecuting Accused because she made a false declaration of rape against the declarant, Mr. Louis Wifred Daya (“W4”).

4. To prove its case, the police first of all relied on the written declaration made by Accused on 25 March 2015 and in which she stated that she was raped by W4 and felt pregnant following the rape. She made such statement because Accused said that she was having her menstrual period as usual prior to the rape but same stopped after that rape and that her body started to change. 5. The police enquired into the declaration made by Accused and a DNA test was made after having taken a buccal swab from Accused, W4 and from the new born baby. A sample of blood was also taken from the new born baby who already passed away at that time. The clothes which Accused allegedly was wearing at the time of the rape were also send for examination. 6. The clothes did not reveal any presence of blood nor semen and the DNA test revealed that W4 was not the father of the baby of Accused. 7. The consequences which followed after those results were obtained from the Forensic Science Laboratory was that a statement was recorded from Accused and was informed of the nature of the charge in respect of the present case. Accused maintained her position and it is W4 who is the father of her new born baby as she became pregnant after the rape commited by W4. 8. As regards to Accused, she stated from the dock that she wanted to finish with this case as she made her life with someone else. The law 9. As regards to the first count, section 297 of the Criminal Code states that :- Any person who makes a false and malicious denunciation in writing against any individual to any officer of justice or to any officer of police, whether administrative or judicial, shall be liable to imprisonment for a term not exceeding 5 years and a fine not exceeding 100,000 rupees.

10. In Ramputh v The Queen [1952 MR 317], the Court enunciated the elements which the Prosecution had to prove for an offence of false and malicious denunciation in writing and they are as follows:

(1) A statement in writing; (2) made to an officer of Police; (3) which is false; (4) to the knowledge of the defendant; (5) concerning an offence; (6) which offence is imaginary, i.e.has not taken place; (7) to the knowledge of the defendant.

11. Further, according to the existing jurisprudence, when determining a case under Section 297 of our Criminal Code, a denunciation, however false and malicious. will not fall within the ambit of section 297 of the Criminal Code (art. 373 French Penal Code) unless it has been made spontaneously ("spontanéité d'action" ) (Garçon C.P.A. 1956 Ed. Art 373 note 14).

Assessment of facts and issues.

12. I shall first assess all the evidence on record and this shall be done in conjunction with all the elements referred above and which the prosecution had to prove beyond reasonable doubt.

A statement in writing made to an officer of Police

13. As regards to the fist element to be proved, there is a statement which was recorded from Accused by Woman Police Constable Clair (“W3”) and in which Accused stated that she was raped by W4 and that she felt pregnant following that rape. Accused stated that she stopped to have menstrual period after she raped by W4. 14. Hence at this stage I am of the view that first two elements have been proved beyond reasonable doubt.

Which is false to the knowledge of the defendant concerning an offence which has not taken place to the knowledge of the defendant.

15. What prompted the police to believe that Accused did give a false statement is that the DNA test which was made as per Doc. A, reveals that W4 was not the father of the baby delivered by Accused.

16. After the police obtained the DNA report (Doc.A), a further statement was recorded from Accused by Woman Police Constable Collet (“W5”) on 27 March 2015. In her statement, Accused maintained that she was raped by W4 and that she became pregnant following that rape.

17. Hence, from the above, taking into consideration the fact that the DNA report does not support the version of Accused in the statement which she gave to W3 and W5, this leads me to the irresistible inference that Accused was well aware of the false allegation she levelled against W4.

18. I therefore find that the last five elements for the offence of false and malicious denunciation in writing has been proved beyond reasonable doubt by the Prosecution.

19. Now, as regards to the element of spontaneity, Garçon (C.P.A. 1956 Ed.Article 373) provides that:

La dénonciation est essentiellement un acte spontané qui a pour but et pour objet de provoquer une poursuite judiciaire ou des mesures disciplinaires contre la personne dénoncée. Lorsque ce caractère manque on ne se trouve plus en présence d'une véritable dénonciation et l'art. 373 cesse d'être applicable. Ce principe eet constant en jurisprudence, et un grand nombre d'arrêts ont, en effet, jugé soit expressément soit implicitement, que la dénonciation calomnieuse, pour être punishable, doit être le résultat de la volonté libre et spontanée de la part de son auteur …..

22. From the above, taking into consideration the fact that Accused gave her statement of her own free will and without any constraint, I find that this element has also been proved.

23. A situation where the element of spontaneity would not have been present is as stated by Garcon C.PA 1956, Article 373, note 23. Same reads as follows:-

23. Il suit d'abord de ce principe que l'art. 373 n'est pas applicable à l'individu qui, pour se défendre dans une poursuite dirigée contre lui, accuse dans ses interrogatoires une personne qu’il sait innocente et lui impute d"avoir commis le délit qui lui est reproché. Cass., 9 mars 1889, Puel (B. 104, S. 90.1.143, P. 90.1.321, D. 89.1.387) dans une espèce ou l'accusation calomnieuse avait été produite au cours d'une enquête antérieurement à l'information du juge d'instruction, et avait été ensuite renouvelée devant ce magistrate. Riom, 25 mai 1887 (J. des Parq., 87.2.65), dans une espèce ou une fille poursuivie pour infanticide avait mensongèrement accusé son amant.

24. From the evidence on record, this was not a statement which Accused did give so as to avoid her being prosecuted neither to put the blame on an innocent party nor from enquiries or investigation made by the police. Instead, it was a statement which Accused gave from her own free will prior to the investigation. Hence, in that respect, I find that the element of spontaneity cannot be contested

26. As regards to Accused, despite of having maintained that she was raped by Accused and as a result of which she became pregnant, I am of the view that she has failed to cast doubt in the case for the prosecution.

Conclusion 29. For the reasons set forth above, I, accordingly, find Accused guilty as charged.

D.J.A Dangeot District Magistrate Delivered on 16 March 2020.