Supreme Court of Mauritius, 17 janvier 2020, 2020 ROD 5 – POLICE V CUPIDON STENIO JOSEPH

POLICE V CUPIDON STENIO JOSEPH

2020 ROD 5

POLICE V CUPIDON STENIO JOSEPH

Cause Number :- 769/2019

THE COURT OF RODRIGUES

In the matter of: –

POLICE

V

JOSEPH STENIO CUPIDON

JUDGMENT

Introduction. 1. Accused stands charged with the offence of insult in breach of section 296 (b) of the Criminal Code. Accused pleaded not guilty and was not assisted by Counsel at trial. The case for the prosecution. 2. On 23 February 2019, at 18.00 hours, the declarant, Mrs. Paquerette Cupidon (“W2”) was at her place and was putting her clothes on her clothing line. At the material time, she heard someone calling and saw Accused who was looking for her husband. She told Accused to call her husband on his mobile phone and in reply Accused said to W2: “qui pe prend toi, c’est to couleur qui pe coullione toi” and Accused went on to say: “to ene femme, to sale, to pena valer, mo male lichien pas pou oule prend toi, to sale”. W2 testified that she felt humiliated and that those words were uttered in a loud tone.

The case for the defence. 3. Accused testified that he did not insult the declarant.

The law. 4. As regards to the law, section 296 of the Criminal Code reads as follows:-

Any injurious expression or any term of contempt or invective, or other abusive language, not carrying with it the imputation of a fact, is an insult (‘injure’) and any person who is guilty of the offence shall be liable to the following penalties – (a) where the offence is committed by means of words, exclamations or threats not made use of in public, a fine not exceeding 50,000 rupees;

(b) where the offence is committed by means of words, exclamations or threats made use of in public, a fine not exceeding 100,000 rupees;

Assessments.

5. I have assessed all the evidence on record. 6. In the present case, the case for the prosecution rests on the testimony of W2. After having given her version of events and after she was cross examined by Accused, I have found that she came forward as a witness of truth.This is being said taking into consideration as to how she explained in clear terms the sequence of events in examination in chief and there was no indication of invention. 7. As regards to Accused, I have found that he failed to cast doubt in the case for the prosecution. This is being said because I have found that he failed to shake the version of W2 from the questions he asked during the course of cross examination. Furthermore, under oath, Accused only denied of having committed the present offence and gave as explanation in cross examination that W2 levelled a false charge against him because W2 did not want anyone to be in good terms with her husband. But if the explanation put forward by Accused is to be believed, I find it totally incomprehensible that W2 would go

as far as to level a false charge against Accused especially when, as per the version of Accused, it is W2 who insulted him. 8. Hence, from the analysis made above, I find for the version adduced by W2. 9. Having found for the prosecution, the next step is whether the words uttered by Accused amount to an insult in law. 10. Insult is defined in Dalloz, Repertoire de Droit Pénal et de Procedure Pénale (2e edition) as: “toute expression outrageante, terme de mépris ou invective qui ne renferme l'imputation d'aucun fait determine”. 11. At Note 10 of the repertoire, the elements as regards to the offence of insult are set out as follows:- i. Une expression outrageante, un terme de mépris ou une invective; ii. à l’adresse d’une personne ou d’un corps qui a été visé et justifié etre atteint; iii. dans une intention coupable; iv. publiée par l’un des moyens énoncés.

12. Furthermore, at Note 15, the following was said: “ par contre, in n’est pas nécessaire que le propos ou l’éxpression soit de nature à porter atteinte à la respectabilité. En effect, une expression, à raison de sa violence ou sa grossièreté, peut avoir un character injurieux et blessant. Il en est ainsi du terme de mépris et de l’invective qui impliquent la violence ou la grossièreté”. 13. Relying on the French authorities and after having analysed the words uttered by Accused, I am of the view that those words uttered constitute an insult in law.

14. As regards to the mens rea for present offence, in Carpen v The State [2010 SCJ 105], the Supreme Court stated the following

15. “….the offence of insult by means of words consists in the use of abusive language not carrying with it an imputation of fact. The requisite mens rea is a malicious intent which is however presumed in expressions which are injurious or offensive per se «jusqu’à ce que l’auteur du propos eût prouvé qu’il ne voulait pas injurier la personne à laquelle il l’a adressée» – Morel v. Couve [1912 MR 78].” 16. Hence, to that effect, the expression that has been used by the accused clearly fall within the definition of the law and the presumption of malicious intent was in no way rebutted by the defence.

17. As regards to the elements of publicity, the fact that no evidence has been adduced to that effect, I find that the police has failed to prove this aggravating circumstance and hence, find that the police has proved its case under section 296 (a) of the Criminal Code.

Conclusion.

18. Therefore, for the reasons referred above and in the light of the evidence on record, I find Accused guilty under section 296 (a) of the Criminal Code.

D.J.A Dangeot Senior District Magistrate Delivered on 17 January 2020.

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