Supreme Court of Mauritius, 22 juin 2020, 2020 PL2 43 – Pce v Dilmahmode

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Pce v Dilmahmode

2020 PL2 43

POLICE v DILMAHMODE Bibi Nazimah

CN:8230/19

IN THE DISTRICT COURT OF PORT LOUIS (2nd Division)

In the matter of:

POLICE V DILMAHMODE Bibi Nazimah

JUDGMENT

Accused stands charged with the offence of Insult in breach of section 296 (b) of the Criminal Code. Accused pleaded not guilty to the charge and was not represented at trial stage. Prosecution called witness no.1, PC Meeajun who read and produced defence statement of accused, marked as Doc A. Prosecution then called witness no.2, Mrs Parveen Hosenally, the complainant, who related that on 20/07/18 at 11.30 p.m, whilst at home at Cité Martial, the accused attended her residence, following which she started shouting. The accused allegedly swore at her and called her “Mauvais pitin” “To prend

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mari qui pas pu toi”. The complainant explained that she was scared and that she felt humiliated in front of her family and neigbours who were staring. The witness was cross-examined and the complainant denied that she was lying. Prosecution then closed its case. The accused was informed of her Constitutional rights and elected to make a statement from the dock. The accused stated that she went to the complainant’s residence and that the latter assaulted her with a mop and insulted her. The case was then closed for the Defence. The Court analysed the evidence on record with attention.

The case of Carpen v. The State (2010) SCJ 105 quoted with approval the case of Morel v. Couve (1912) MR 78, in which it was stated that the mens rea of the present offence is presumed in the content of the injurious expressions 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»

This is what « Encyclopédie Dalloz Penal Verbo Injure » has to say on the subject:

Note 27 «Constitue une injure, l'expression par elle-même outrageante comportant une intention perfide et un dessein de malveillance: »

The complainant gave a version which was similar to what has been couched in the information.

The Court notes that the complainant testified in a manner which came across as being convincing. Her demeanour was that of a witness of truth and she displayed no hesitation in relating her version. She displayed confidence and appeared aggrieved by the alleged acts of the accused, so that the Court finds no reason not to give credit to her version.

The accused elected to make a statement from the dock as she is perfectly entitled. This Court is of the view that the principle elicited in the case of Andoo v R [1989 MR 241] is of relevance in the present case: “This Court has repeatedly stressed that the unsworn statement of the accused is only evidence of what he told the Police. Where the evidence for the prosecution establishes a strong and unshaken prima facie

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case and the accused chooses not to swear to his statement and expose himself to cross-examination, the trial Court is perfectly entitled to conclude that the prosecution evidence remains unrebutted. It is of course true that the burden of proving the guilt of an accused squarely lies on the prosecution and that the accused is entitled to remain silent. His right to silence, however, is exercised at his risk and peril when, at the close of the case for the prosecution, a prima facie case has been clearly established since the burden then shifts on him to satisfy the Court that it should not act on the evidence adduced by the prosecution. We need only repeat what was said by Sir A Herchenroder CJ in Ramkalawan v R [1914 MR 124] [at page 125] namely that the observation of Beccaria should never be forgotten-“imperfect proofs, from which the accused might clear himself, and does not, become perfect.’ This principle has been reaffirmed in the case of ANNIA T. v THE STATE 2006 SCJ 262 as follows:

“However, where the prosecution adduces evidence which is strong and credible enough to support the charge, it will be open to the trial court to act upon that evidence unless the accused party adduces such evidence as to satisfy the trial court that it should not act on the evidence adduced by the prosecution. This principle has been reaffirmed in a number of cases and more recently in DPP v Bhageerutty [2006 SCJ 158]”

The case of Director of Public Prosecutions v Nepaulsing K (2012 SCJ 490) provided the following guidelines with regard to the issue of statement from the dock:

“The Court in R v Coughlan (Supra) also referred to the South African case of CELE [1959] 1. S.A. Law Rep. 245 in which the learned Judge of Appeal conclusively stated that “in a defended case it will, therefore, in my opinion, be relatively rare that an unsworn statement from the dock provides an effective counter to contrary sworn testimony”. (…) The question was further considered by the Court of Appeal in R v Campbell, [1979] 69 Cr App. R 221, which highlighted the practical difficulties involved in assessing the evidential value of an unsworn statement given from the dock.

(…)The Court [Bridge L.J] had this to say in that connection at pg 225: “A statement from the dock is not, of course, evidence. It is, as many think – the fact that a defendant is still at liberty to make a statement of fact from the dock, invite a jury to consider his version of the facts without taking the oath and without subjecting himself to cross-examination – an anomalous historical survival from the days before the Criminal Evidence Act 1898 when a person could not give evidence on his own behalf.

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There it is, anomaly or not; the courts have to grapple with it and a statement from the dock unsworn now seems to have taken on in current practice a somewhat shadowy character half-way in value and weight between sworn evidence and mere hearsay. A jury cannot be told to disregard it altogether. They must be told to give it such weight as they think fit, but it can be properly pointed out to them that it cannot have the same value as sworn evidence which has been tested by cross-examination.”

Accordingly, Court finds that the Prosecution has proven its case beyond reasonable doubt and accordingly finds the accused guilty as charged.

Mrs Manjula Kumari Boojharut (District Magistrate) Delivered on 22/06/2020