Supreme Court of Mauritius, 2 avril 2026, 2026 CCT 4 – Police v Abedin Nubee

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Police v Abedin Nubee

2026 CCT 4

CN 54/25 The Children’s Court of Mauritius (Criminal Division)

In the matter of: Police v Abedin Nubee

JUDGMENT

1. The Accused stands charged with the offence of Child Ill-treatment in breach of sections 13(1) and 18(4) of the Child Protection Act 1 for having in or about the 20 th January 2022 threatened to do bodily harm to his nephew, Witness 3, who was then aged 14 years

2. Accused pleaded not guilty and was inops consilii

3. .The two main witnesses called by the prosecution are Witness 3 and witness 1, PC Ah-Seek. Latter produced 2 defence statements from the Accused dated 25 th February 2022 and 5 th October 2023 respectively

1 It is to be noted that when the present matter came for trial, the Child Protection Act was already repealed by the Children’s Act 2020. However, in view of section 17(3)(e) of the Interpretation and General Clauses Act, this court can still hear a case which has been lodged under the Child Protection Act as if the enactment has not been repealed.

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(Docs B and B1 respectively);. Prosecution also produced the Birth certificate of Witness 3 (Doc A); 4. In his first out of court statement (Doc B), the Accused stated that Witness 3, the Declarant, is his nephew and he is not on good terms with latter’s parents due to inheritance disputes. He denied the allegations leveled by Witness 3 maintaining that he was at a shop at the material time; He added that the family of Witness 3 frequently seeks to cause trouble and levels false charges against him. In his subsequent out of court statement (Doc B1), when confronted with a surveillance footage and extracted images, the Accused denied that the voice in the recording was his and denied appearing in the photos

5. With respect to the alibi raised by the Accused, Witness 1 stated that the 20 th January 2022 was a Thursday.to enquire into this alibi, Witness 1 visited the shop mentioned; although the shop owner refused to give any statement, he mentioned that his shop is closed on Thursdays

6. Witness 3 was called to testify. As he was a minor at the time of his deposition, he was permitted to give evidence via video link. He explained that he attends a special needs school and has always resided in Stanley, Rose Hill, where his neighbors include his uncles, aunts, and cousins. In court, he identified the Accused as one of his uncles.

7. Witness 3 stated that on 20 January 2022, he was at home, specifically on his terrace. Although he was initially supposed to accompany his brother to the hospital, he was later told to stay behind. He then saw the Accused, who was armed with a knife and attempted to throw same at him. The Accused insulted him and threatened to shoot and kill him. The witness could not recollect the exact words uttered by Accused as there were too may injurious words, which included “zourer mama” and “zourer

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papa.” He noted that the Accused spoke in a harsh tone while pointing at him. The Accused was standing approximately five meters away with no barriers between them. Witness 3 then retreated inside the house, noting that he felt sad and feared that Accused would kill him.

8. Under cross-examination, Witness 3 clarified that he was not injured by the knife as it was small. He further stated that he did not bleed because he was able to move away quickly when the knife was thrown. When asked whether the Accused owned a rifle, Witness 3 replied, “maybe he has one.”

9. The Accused suggested to Witness 3 that he (the Accused) had not left his house that afternoon. The witness countered that the incident occurred at approximately 14:30. Finally, the Accused asserted that 20 th

January 2022 was a Friday and that he was at the Mosque at the time. Witness 3 responded by stating that his mother has video footage of the incident recorded from their security camera

10. The Accused elected to give evidence under oath after being advised of his available options. He maintained that his police statement was accurate. He explained that his disputes with the family of Witness 3 are rooted in property disagreements, specifically regarding a road frequently obstructed by the family of Witness 3, which hinders his right of way. He stated that on the day of the incident, he went to the shop; upon his return, the Complainants allegedly used their child as a pretext to file a report against him. Due to these ongoing family tensions, he moved out to rent a house elsewhere. He noted that the stress of the case has impacted his health, and while he denied committing the offence, he asked for leniency and reiterated his poor health.

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11. Under cross-examination, the Accused conceded that he failed to mention the right of way disputes in his initial police statement. He agreed that he was at his residence during the material time. When confronted with the inconsistency between his testimony and his out-of- court statement regarding his visit to the shop, he clarified that he had gone to the shop but found it closed. He denied being at the locus when the incident occurred.

12. The wife of the Accused testified on his behalf, stating that on the day of the incident, the Accused was at home, leaving only briefly for the shop. She confirmed the existence of friction between her family and the family of Witness 3. She admitted that she did not provide any statement during the initial police enquiry and was not a witness to the incident itself. Furthermore, she denied being a “témoin de complaisance”

13. The Court has duly analysed all evidence on record as well as the submissions of the prosecution.

14. The prosecution bears the burden of proving beyond reasonable doubt that (a) Witness 3 was a child within the meaning of the Child Protection Act at the time of the alleged offence; and (b) the Accused ill-treated that child.

15. A ‘child’ has been defined under section 2 of the Child Protection Act as meaning ‘any unmarried person under the age of 18.’ In the light of the birth certificate of Witness 3 (Doc A), he was clearly below the age of 18 on or about the 20 th January 2022.

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16. With regards to the second element, the issue to be addressed is whether the prosecution has established beyond reasonable doubt that the Accused has indeed ill-treated Witness 3 on the aforesaid date and place. Ill-treatment has not been defined in the Child Protection Act. Hence the Court shall rely on its ordinary dictionary meaning which, according to Oxford Dictionary, is ‘to treat someone or something cruelly.’

17. In the present matter, the case for the prosecution rests essentially on the testimony of Witness 3. Latter provided a clear and consistent account of the event, including specific details as to where he was and the nature of the threats. His testimony withstood cross-examination, namely when he explained that his lack of injury was due to his own quick movements rather than the Accused’s lack of intent. Thus, I have no reason to believe that he has levelled false allegations against the Accused and after I have carefully observed his demeanour when he testified in Court and after having carefully considered his evidence In the present case, I have come to the conclusion that he is a credible witness and I can safely rely on his testimony. I am aware of the danger of acting upon the uncorroborated evidence of a child but in the present matter I am of the considered view that I can safely rely upon his uncorroborated evidence as it is trite law that the court can act on the uncorroborated evidence of the complainant if latter impresses the Court as being a reliable, genuine and trustworthy witness.

18. The credibility of Witness 3 is bolstered by his spontaneous mention of security camera footage held by his mother. Furthermore, the Accused’s alibi was inconsistent as he claimed to be at a Mosque but he also claimed to be at home or a closed shop, creating a material contradiction.

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19. The Accused’s wife admitted she was not a witness to the actual incident and failed to provide a police statement at the time of the enquiry. This renders her testimony unreliable,

20. At this stage, it is also relevant to refer to the particulars of the Information, which aver that the Accused uttered the following specific words: 'Liki ou mama, pilon sorti dehors mo pou touye toi, mo pou donne toi koute bal.' During his testimony, Witness 3 clearly stated that while he could not recollect the exact words used, the Accused insulted him and threatened to shoot and kill him. He further stated that the injurious words included 'zourer mama' and 'zourer papa.'

21. I find it appropriate to refer to Vythilingum v State [2017] SCJ 379, where the Supreme Court held: that “Giving evidence in court is not a memory test and failure to recollect with precision all the circumstances and details of an incident is understandable. What is important is for the court to be satisfied that a witness is speaking the truth in substance”. I therefore find that Witness 3 has offered sufficient proof regarding the words used by the Accused to insult him, namely, that the Accused used swear words regarding the witness's mother and threatened to shoot and kill him.

22. I therefore find that these injurious words and threats tantamount to treating the witness cruelly and that the prosecution has established the acts constitutive of ill-treatment.

23. In light of the evidence on record, Prosecution has proved beyond reasonable doubt that Accused has ill-treated a child, namely Witness 3. I therefore find Accused guilty as charged

Delivered by

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……………………………. Mrs R. GOWRY-BHURRUT President Children’s Court This 31 st March 2026