Supreme Court of Mauritius, 22 mai 2020, 2020 ROD 22 – POLICE V RAVINA ARLAINE

POLICE V RAVINA ARLAINE

2020 ROD 22

POLICE V RAVINA ARLAINE

Cause Number :- 1588/2019

THE COURT OF RODRIGUES

In the matter of: –

POLICE

V

ARLAINE RAVINA

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 trial. 2. For the prosecution, Elsa Louis (“W2”) testified that on 25 October 2018, around 16.00 hours, she was near Tiré Shop at Montagne Charlot when Accused approached her and uttered to her: “Qui to dire pitain, kar to pitain vrai même to ine faire ene zomme vine pilon. To alle donne fesse en ville”.

3. W2 testified that she felt humiliated being given that she is married and there were members of the public who were present. 4. For the defence, after Accused was informed of his constitutional rights, she elected to keep her right of silence.

The law. 5. 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.

6. I have assessed all the evidence on record. 7. In the present case, the case for the prosecution rests on the testimony of W2. 8. As regards to the version adduced by W2, I find that she deponed as a witness of truth. This is beings aid because Accused did not challenge W2 as regards to the words allegedly uttered by her during the course of her cross examination. The line of questioning put by Accused to W2 was regarding the issue of publicity. 9. Hence, in the light of the above, I find for the version put forward by W2. 10. Having found for the prosecution, the next step is whether the words uttered by Accused amount to an insult in law.

11. 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”. 12. 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 être atteint; iii. dans une intention coupable; iv. publiée par l’un des moyens énoncés.

13. 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”. 14. Relying on the French authorities, I have no doubt that those words uttered by Accused is an insult in law.

15. As regards to the mens rea for present offence, in Carpen v The State [2010 SCJ 105], the Supreme Court stated the following 16. “….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].”

17. 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.

18. Now, as regards to the element of publicity, I find that same has been proved. This is being said because, despite the fact that Accused has challenged W2 regarding this aggravating factor, I find that the offence was committed in a public place by its very nature.

Conclusion.

19. Therefore, for the reasons as referred above and in the light of the evidence on record, I find that the prosecution has proved its case beyond reasonable doubt. Accordingly, I find Accused guilty as charged.

D.J.A Dangeot Senior District Magistrate Delivered on 22 May 2020.