Supreme Court of Mauritius, 28 avril 2026, 2026 INT 100 – Police v Aruna Devi Gangoosingh

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Police v Aruna Devi Gangoosingh

2026 INT 100

The Intermediate Court of Mauritius (Criminal Division)

In the matter of: CN 101/2023

Police

V

Aruna Devi GANGOOSINGH

Judgment

1. The Accused is being prosecuted under one count of an information for the offence of `’using an information and communication service for the transmission of a message which is of an obscene character’ in breach of sections 46(h)(i) and 47 of the Information and Communication and Technologies Act (‘ICTA’) as amended by Act 21/16. As per the information, it is averred that on or about 10 th day of April in the year 2021, one Aruna Devi Gangoosingh, at Royal Royal Road, Rivière des Créoles, wilfully and unlawfully used her Facebook account on her profile name ‘Aruna Gangoosingh’ and uploaded a video clip showing the following message viva voce: ‘Moi mone plein, guete sa, guet bannes falour zotte mama…Hey bannes Gogot guete…tous pieds zotte pou couper bannes falou zot mama la…dire li rasse so liki vini…mo pisse are zotte…zotte bannnes gogot.’ The Accused pleaded not guilty and he was represented by learned defence counsel Mr N.Dulloo, who appeared informa pauperis. The prosecution was represented by Miss Soogah, State Counsel.

2. The first witness called by the prosecution was WPC Euphemie (W2) who produced 2 defence statements of the Accused given at the CCID (Documents A3 and A4). She stated being one of the main enquiring officers. An OB was opened following an incident at Providence in Rivière des Créoles whereby Accused was saying rude words. Hence the Cybercrime Unit referred the present matter to

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the CCID in view of the nature of the language used by the Accused. In cross- examination, W2 stated that she is not a language expert but, in her opinion, a rude language would be classified as obscene and that would be a ‘propos indécent ou malelver.’ The words uttered by the Accused are insulting but she could not confirm whether they came out as a result of an emotional rage. According to the version of the Accused, W2 stated that the incident occurred in relation to the cutting down of trees in Providence for a construction to be carried out but she was not aware of any further details. W2 was not re-examined by the prosecution.

3. The next witness called by the prosecution was PC 9883 Dwarka (W4) who stated that on 10 th April 2021, he received instructions to go to Providence. He met with the Accused and calmly invited her to make a declaration at the police station in relation to any complaint she may have concerning the cutting down of trees. The Accused had a mobile phone in her hand at the material time but she did not utter any swear words in the presence of the police. On 15 th April 2021, he accompanied the Accused to the Cybercrime Unit for viewing of the video. W4 stated that he could not remember what the Accused was saying in the said video but with the police she acted normal. They also viewed the video which was posted live on the Facebook account of the Accused. In cross-examination, he agreed with learned defence counsel that the Accused was at Providence as she was in absolute disagreement with the cutting down of trees. W4 explained that there was a construction project by the government at that place to protect the sea and prevent soil erosion. W4 agreed knowing the Accused very well as the latter is an activist in the south for the protection of the environment. W4 was not re-examined by the prosecution.

4. The next witness called by the prosecution was SI Marday (W8) who explained that on 12 th April 2021, under the instructions of DI Bundhoo (W6), he carried out a cyber patrol. A video was found on the Accused’s Facebook account profile. A report was made on that day and produced in Court (Document B). Following that first report, he found 3 other videos posted on that same profile on 12 th April 2021 and another video posted on 10 th April 2021. He made 2 additional reports (Documents C and D). He explained that, as per Document D, CD No 4 concerns

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a video posted on 10 th April 2021 of duration of 28 minutes and 11 seconds. On the 2 nd and 3 rd pages of Document D, there are screenshots from the Facebook profile of the Accused dated 10 th April 2021 whereby the video received 138 comments and 75,000 views. In cross-examination, he could not confirm whether the video had been edited but it appeared genuine. He could neither say how many times it had been shared. He explained that a cyber patrol is carried out to check whether any criminal offence has been committed. Should they find such offence, they put up a report and forward same to the CCID. According to him the video contained abusive words and that is why they sent a report to the CCID. W8 could not remember the exact context and purpose of the said video made by the Accused. In re-examination, he confirmed that the video was retrieved from the Facebook account of the Accused.

5. The prosecution then called WPC Thomas (W7) who stated that on 14 th April 2021, Inspector Ramlagun of CCID remitted to her a video of which she made a transcript and she produced same in Court (Document E). In cross-examination, she explained that when viewing a video, she will make a transcript of comments made by people but also of all words uttered in a video. If the person speaking in that video can be identified, she will include that information as well. In re- examination, W7 confirmed that it was indeed the voice of the Accused which was heard and recorded in the transcript as per her report (Document E).

6. The prosecution called Inspector Bundhoo (W6) who explained that under his instructions, SI Marday (W8) carried out a cyber patrol on 12 th April 2021 following which W8 made a report on 12 th April 2021 (Document B) and 2 others on 13 th April 2021 (Documents C and D). On 14 th April 2021 at 6h55 they proceeded to the place of the Accused in possession of a search warrant. The Accused was doing a live and requested them to wait. They then entered her place, carried out a search and they secured a mobile phone. They also seized a laptop and 2 other mobile phones of make Huawei P30 and Samsung A70 respectively. These were duly sealed and remitted to PC Walter (W1) who brought them to the Cybercrime Unit for examination. He confirmed that there was no complaint made. In cross-examination, W6 stated that they would carry a cyber patrol on and off. Following a question from learned defence that the

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cyber patrol is done to keep watch on citizens of the Republic of Mauritius and their behaviour on digital platforms, W6 replied in the negative but stated that they would carry out a check in the event that they receive a particular link and see whether there is anything incriminating. He was not aware as to whether the Accused is an activist for the protection of the environment. W6 was not re- examined by the prosecution.

7. PC Walter (W1) was called by the prosecution to produce 3 defence statements recorded from the Accused at the CCID on 22 nd April 2021 and 3 rd May 2021 (Documents A, A1 and A2). He confirmed that following a search carried out at the place of the Accused on 14 th April 2021, the police had seized 3 mobiles phones and 1 laptop and he brought them to the Cybercrime Unit for examination. Following the examination, these were all duly returned to the Accused and no complaint was made. In cross-examination, he admitted that Accused fully cooperated with the police. W1 was not aware if other defence statements had been recorded from the Accused but the CCID decided to record further statements. He knows nothing about the Accused’s character. He is only aware that there was an OB whereby the Accused had allegedly used inappropriate language in a public place concerning complaints about the environment as an activist. W1 was not re-examined.

8. The last formal witness called by the prosecution was ex-WPC Ramkelawon (W9). She confirmed that on 27 th April 2021, in presence of the Accused and Ws 1 and 2, she requested the Accused for access to the Facebook account to retrieve a video. The Accused personally logged in her Facebook account on her laptop following which W9 retrieved the video and saved same on a CD marked as Video OB 360/2021/CCID. The CD was produced before a previous bench and marked as Document F. She positively identified the said CD and put it in anew. She had also put up a report to that effect (Document G). At that point in time, the video contained on the CD was viewed in Court and W9 confirmed thereafter that it was the same video that she had retrieved from the Accused’s laptop. The witness was not cross-examined by learned defence counsel.

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9. The prosecution called Dr R.M.Seetohul (W11), a registered specialist in psychiatry and mental health since 2013. He medically examined the Accused on 1 st September 2023, together with Dr Ghoorah (W10) in order to determine whether the Accused was fit to stand trial. According to his file, the Accused was on a wheelchair speaking with a coarse voice. Her mental state was calm. coherent, conscious, well oriented and mood was stable. There was no evidence of hallucination or signs of psychosis and no suicidal thoughts. Hence, she was found fit to stand trial. W11 never personally examined the Accused prior to 2023. In cross-examination, upon perusing the medical file of the Accused, W11 confirmed that the Accused is borne on record at the Brown Sequard Hospital and her first attendance dates back to 8 th October 2020 following a referral from SSRN Hospital for breach of quarantine rules for being restless, refusal of treatment and unpredictable behaviour. The Accused was discharged on 13 th

October 2020. She was then examined by Dr Deenoo (W10) and Dr Gopee. As per the medical file, the Accused was talkative stating that she has political connection and wants to change the world. There was no auditory hallucination but had delusion of grandiosity. A diagnosis of hypomania was accordingly made. The Accused was found to have a bipolar disorder in a manic phase as opposed to the depressive phase. People with bipolar disorder have oscillations in their moods and conduct if ever they are not diagnosed and medicated. There are several triggering factors which might lead to such behaviour such as alcohol, substance abuse, excessive coffee, energy drinks. When someone is in a manic phase, that person’s behaviour can go beyond frustration that a normal person would have. When something is happening in society which they are not in agreement with, it can act as a triggering factor leading such person to have a moment of grandiosity and be vulgar. There is an absence of insight in that moment and the acts that follow are linked to her bipolar mood disorder. As per the medical record, the Accused last attended treatment at BSH on 28 th

November 2024 and she was discharged from the managerial committee on 29 th

November 2024 as she requested to be seen by a private psychiatrist. In re- examination, learned counsel for the prosecution requested W11 to elaborate on the fact that a person with bipolar disorder has no self-control. W11 explained that for example if a person is already suffering from bipolar mood disorder and that person is taking excessive coffee, energy drinks alcohol or substance abuse,

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that person can go in a manic phase causing them to behave incorrectly with regards to established societal norms. They have no insight into their condition and do not know how they are behaving. By having no insight, W11 means that for example, when he would explain to a patient that he or she is suffering from bipolar mood disorder, that person would deny same and would rather say that the doctor has a problem. Upon a question from learned counsel for the prosecution as to whether he would equate lack of insight with lack of awareness, W11 stated that lack of insight depends on the degree of the manic phase because when patients are questioned about events that have occurred, some will say that they remember either in fragments or not at all but some with remember. So, it is a case to case basis.

10. The last witness called by the prosecution was Dr Ghoorah-Deenoo (W10), psychiatrist at Brown Sequard Hospital. She has been working for the Ministry of Health and Wellness since 2007 but she is a psychiatrist since 2013. She confirmed having put up a report on 9 th July 2021 pertaining to the Accused who was admitted at BSH from 8 th to 13 th October 2020 as an involuntary patient (Document B). She was referred to BSH in 2020 as she was unmanageable at SSRN Hospital. As per her report (Document B), the 5 doctors diagnosed the Accused with bipolar disorder in a manic phase. W10 explained that bipolar disorder is a psychiatric illness whereby a patient has severe mood swings ranging from low mood depression to very high mood called mania. When the Accused was admitted in 2020, she was in a mania phase with grandiosity. Being in that state means that a patient feels so good about herself that she feels she can do anything and everything without any consequence, feeling that she has big contacts and can manage to do anything without causing any harm as well as she can take risks without any consequence. This can cause one’s judgment to be impaired and this can have an impact on the day to day life. Some of them may be aware they are doing something wrong and yet they still continue and that would be on a case to case basis. W10 had examined the Accused again in 2023 together with Dr Seetohul (W11). At that time the Accused was very different from the first time she had seen her inasmuch as she was stable, calm, cooperative and her mood was normal. She was speaking coherently. W10 was not cross-examined by learned defence counsel.

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11. The prosecution closed its case. The defence elected to close its case without adducing any evidence and the version of the Accused is therefore found in her out-of-court statements (Documents A-A4). Learned counsel for the prosecution submitted that for an offence under section 46(h)(i) of ICTA, the following elements of the offence have to be proved beyond reasonable doubt: (a) Accused used an information and communication service; (b) for the transmission of a message; and (c) of obscene character. She addressed the first 2 elements together. She referred to the definition of ‘information and communication service’ under section 2 of ICTA. To establish these two elements, in a gist, the prosecution is relying on the out-of-court statements (Documents A to A4) of the Accused and the evidence of witnesses 4 and 8. In the light of these, it is undisputed that the Accused made use of a mobile phone to record a video on 10 th April 2021 at Royal Road, Providence which she later published on her Facebook account in the name of Aruna Gangoosingh. With regards to the 3 rd

element, the prosecution is relying on the testimony of witnesses 7 and 9 that the said video was retrieved from the Accused’s personal Facebook account after she personally logged in following which a transcription report was made. Given the fact that the term ‘obscene’ is not defined in ICTA, the ordinary dictionary meaning will have to be looked at. She relied on the cases of Police v Gundowry [2018 INT 137], Police v Bhinda [2016 INT 458] and Police v Roussety [2017 INT 131] whereby the ordinary dictionary meaning of the word ‘obscene’ has been described as ‘offensive or disgusting by the accepted standards of morality or decency.’ Learned counsel for the prosecution made a parallel with the offence of insult under section 296 of the Criminal Code which criminalises any injurious expression and abusive language not carrying with it the imputation of fact. It was humbly submitted that if an injurious expression and abusive language can be penalised in real life interactions, the same kind of language will be sanctioned in the online space as well. Finally, with regards to the mens rea of the Accused, the prosecution is relying on the out-of- court statements of the Accused and the testimonies of both Dr Ghoorah (W10) and Dr Seetohul (W11). Between April and June 2021, 5 out-of-court statements (Documents A-A4) were recorded from the Accused in which she never made mention of the fact that she suffered from any type of mental disorder. She

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readily admitted in her defence statements having the uttered the words as alleged. Hence, from the very beginning, the Accused took full responsibility for her actions and the words she uttered in the video clip dated on 10 th April 2021. She showed no remorse for any of the words qualified as obscene by the prosecution. With regards to the medical evidence, learned counsel for the prosecution drew the attention of the Court to the fact that Ws 10 and 11 were on the list of witnesses following a motion made to determine whether the Accused was fit to stand trial. There is no motion before this Court pertaining to the fact that the Accused is not fit to stand trial nor has the plea of insanity been raised at the outset of this case. Moreover, the defence has not adduced any evidence to support or establish the fact that the Accused was having or suffering from a disorder at the time of the offence on 10 th April 2021. Dr Ghoorah (W10) examined the Accused in 2020 and in 2023 but not in 2021. Dr Seetohul only examined the Accused in 2023. There is no evidence on record to suggest that at the time of the offence, the Accused was having an episode of bipolar disorder or that she was not under medication causing her to have a lack of insight. Hence the prosecution submits that the Accused had the required mens rea. Finally, she referred to the case of Andoo v The Queen [1989 SCJ 257] inasmuch as the Accused has chosen not to adduce any evidence and the prosecution’s case has remained unshaken such that the case has been proved beyond reasonable doubt.

12. On the other hand, in a gist, learned defence counsel stated that the prosecution has used many different words to describe the word 'obscene’ but that was not the intention of Parliament. According to him the word ‘obscene’ is not ‘injurious, abusive, vulgar or foul language.’ It is something immoral. He submitted that our jurisdiction has so far refrained from describing the real meaning of obscenity but according to him it has a sexual connotation or a sexual gesture but words cannot be qualified as obscene. A gesture is obscene and it has to be put in context. He relied on an extract of Dalloz, Attentat aux Moeurs, Tome 1, Note 13, where he quoted the following, ‘Il importe donc peu que l’acte n’ait pas un caractère lubrique ou même ne soit intrinsèquement immoral, il suffit de considérer objectivement qu’il soit impudique ou obscène.’ Learned defence counsel added that had it been a picture having a sexual connotation

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being transmitted, then that would amount to obscene character. ‘Obscene’ cannot be under the umbrella of words amounting to threat or insult. The prosecution is proving words in this case and not a guilty mind. Offences under ICTA require proof of the requisite intent and purpose. In the present matter, the psychiatric evidence raises serious doubt as to the Accused’s capacity to form the requisite mens rea. He submitted that the prosecution has not proved that the words used and complained of meet the legal threshold of obscenity. According to learned defence counsel, the testimony of both doctors, the mens rea has not been proved in the light of the testimony of both Ws 10 and 11.

13. In reply, learned counsel for the prosecution submitted that the defence has described the term ‘obscene’ to something having a sexual connotation, more specifically to a gesture. The prosecution submitted that this is a matter of opinion of learned defence counsel and it is not grounded on any precedent from our domestic courts. Secondly, the medical evidence adduced has shown that the Accused was having an episode of bipolar disorder in 2020 but in 2023 the same person was found to be stable and well-oriented and fit for trial. To argue that the Accused was having an episode which prevented her from having control over her actions at the time of the commission of the offence without any evidence is an inference.

14. The Court has duly assessed all evidence on record as well as the submissions of both learned counsel for the prosecution and for the defence. The Accused is being prosecuted under one count of an information for the offence of ‘using an information and communication service for the transmission of a message which is of obscene character in breach of section 46(h)(i) of ICTA and the relevant provision of the law is reproduced below:

“46. Offences

Any person who: …. (h) uses, in any manner other than that specified in paragraph (ga), an information and communication service:

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(i) for the transmission or reception of a message which is grossly offensive, or of an indecent, obscene or menacing character; or …. shall commit and offence.”

15. Hence, the prosecution has to prove the following elements beyond reasonable doubt against the Accused that on or about 10 th April 2021, the latter:

(a) Used an information and communication service; (b) For the transmission of a message; (c) Which is of obscene character.

16. The Court shall deal with the first two essential elements of the offence together. As far as definition is concerned, with regards to the first essential element, section 2 of ICTA defines ‘information and communication services’ as follows: ‘any service involving the use of information and communication technologies including telecommunication services.’ ‘Information and communication technologies’ is further defined in section 2 of ICTA as meaning ‘technologies employed in collecting, storing, using or sending out information and include those involving the use of computers or any telecommunication system’ whereas ‘telecommunication services’ has been defined as meaning ‘means a service for carrying a message by means of guided or unguided electromagnetic energy or both; (b) subject to paragraph (c), includes radio-communication; (c) does not include public broadcasting.’ Concerning the second essential element, section 2 of ICTA defines ‘message’ as including ‘any communication whether in the form of speech, or other sound, data, text, visual image, signal or code, or in any other form or combination of forms.’

17. In the present matter, the Court finds that there is undisputed evidence on record to show that the Accused did use an information and telecommunication service for the transmission of a message. It is admitted by the defence that on 10 th April 2021 the Accused was indeed at Providence in Riviere des Creoles protesting about the cutting down of trees and she made a video. This is confirmed by the

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testimony of W4 who was on spot and who saw that the Accused had a mobile phone in her hand. The video recording made on that day and posted live on her Facebook account was thereafter viewed during the police enquiry in his presence. There is also the oral testimony from W8 who confirmed that, following a cyber patrol, having found the said video from the Facebook account of the Accused which was posted live on 10 th April 2021 as a result of which a report was accordingly made (Document D). Furthermore, according to the Accused’s own out-of-court statement dated 21 st April 2021 (Document A3), there is a clear admission on her part of having used her mobile phone to do a live Facebook video on 10 th April 2021 whereby she was protesting against the cutting down of trees. Lastly, the said video was retrieved from the Accused’s personal Facebook account and viewed in court which clearly show that she was at the material place and time with her mobile phone in her hand. In the light of such evidence, the Court finds that the Accused did indeed use an information and telecommunication service for the transmission of a message. The Court is therefore satisfied that the prosecution has proved these first two elements beyond reasonable doubt.

18. The third element to be proved by the prosecution is that the message transmitted was of ‘obscene’ character. The term ‘obscene’ has not been defined in ICTA and hence it is the contention of the prosecution that the ordinary dictionary meaning has to be considered. On the other hand, learned counsel for the defence states that the Court has to look at the intention of Parliament and the meaning of ‘obscene’ has to have a sexual connotation which ought to be a gesture as opposed to words uttered.

19. True it is that there is no definition of the word ‘obscene’ in ICTA. Hence, on this issue of rule of statutory interpretation, guidance is sought from the case of State v Julius [2010 SCJ 328] whereby the then Honourable Justice Caunhye stated the following:

‘It must be borne in mind, however, that dictionary meaning may be invoked only as an aid to interpretation for the purpose of construing the legal meaning in the context of the Act. The Court has the task of determining the legal meaning

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of an enactment by ascertaining the intention of the legislator as expressed in the enactment. Dictionary meaning, therefore, can only be used for that limited purpose. Any dictionary meaning must be read subject to this basic rule of statutory interpretation that the Court is not bound by the dictionary meaning but it may only be used as an aid to interpretation to assist the Court in construing the legal meaning of the terms used which is the meaning intended by the legislator in the factual situation of the instant case. (See Halsbury’s Laws of England [Fourth Edition Vol 44(1) Re Issue Statutes para 1373 and para 1414]).’

20. Relying on the reasoning in Julius (supra), the Court therefore refers to the Parliamentary Debates (Hansard) of 15 th November 2016 bearing reference No 32 of 2016 when amendment was brought to section 46 of ICTA and the following was discussed:

“The Then Acting Prime Minister stated at page 105:

‘section 46 so as to enable the Act to cater for such offences as sending, delivering or showing a message which is obscene or indecent and tampering with the International Mobile Station Equipment Identity (IMEI), which is a unique identifying number for mobiles…’

The then Minister of Public Infrastructure and Land Transport (Mr N.Bodha) stated at page 114:

‘The law is also becoming more severe as regards the use of telecommunication equipment to send, to deliver or to show a message which is obscene, indecent, abusive, threatening, false or misleading or is likely to cause distress and anxiety…So, we are 1.4 x1.3 million! We are almost 2 million mobiles in Mauritius! And, we have had a number of cases where people are tempted, in fact, wilfully or not or recklessly to use telecommunication equipment to send obscene, indecent, abusive, false or misleading information.’”

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21. A perusal of the above Parliamentary debates does not provide any specific definition or explanation as to the meaning of the word ‘obscene.’ In such circumstances, this Court has no alternative than to go to the ordinary dictionary meaning as an aid to interpretation to assist it in construing the legal meaning of the term ‘obscene’ as per the meaning intended by the legislator in the factual situation of the instant case. Such approach pertaining to the rules of statutory interpretation has been consistently followed by our Courts over the years (Narayanasawmy v The State [2013 SCJ 405], Low Kwet Chun v The State [2015 SCJ 302] and De Senneville v The State [2019 SCJ 41]).

22. As stated in the cases of Police v Gundowry (supra), Police v Bhinda (supra) and Police v Roussety (supra) and as referred to by learned counsel for the prosecution, the Concise Oxford English Dictionary, 10 th Edition, Revised, the meaning of the term ‘obscene’ is defined as ‘offensive or disgusting by accepted standards of morality and decency.’ The Court has no hesitation in finding that the following words uttered by the Accused such as ‘guet bannes falour zotte mama…Hey bannes Gogot guete…tous pieds zotte pou couper bannes falou zot mama la…dire li rasse so liki vini…mo pisse are zotte…zotte bannnes gogot’ (underlining is mine), used in the Mauritian context were clearly offensive and disgusting by the accepted standards of morality and decency the more so that these words were loudly uttered by the Accused on a public road against workers and posted live on her Facebook page whereby it received 138 comments and 75,000 views by members of the public. It can be gathered from the cross-examination of several prosecution witnesses that learned defence counsel has sought to lay much emphasis on the fact that at the material time, the Accused was an activist feeling deeply aggrieved by the cutting down of trees and was engaged in her fight for the protection of the environment. The Court is indeed of the view that the protection of our environment is a matter of great importance but that does not in any manner give full leeway to an activist to behave in a manner which falls below the accepted standards of morality or decency in his or her fight against any matter of concern.

23. It has been the contention of learned defence counsel that the term ‘obscene’ ought to specifically have a sexual connotation and that too should amount to a

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gesture as opposed to words uttered and he referred to an extract in Dalloz as cited above at paragraph 12. The Court finds that the extract in Dalloz has to be read in its context and it refers to the offence of ‘attempt upon chastity’ or ‘attentat à la pudeur’ under section 248 of our Criminal Code which is altogether a completely different offence from the present one under section 46(h)(i) ICTA. Furthermore, as stated by learned defence counsel himself in his submissions, in interpreting the word ‘obscene’, this Court has to look at the intention of Parliament and hence the contention that the extract from Dalloz ought to be taken into account cannot stand since it pertains to a completely different offence from that found in the Parliamentary Debates relevant to ICTA. In any event, even if this Court was to subscribe to the argument of learned defence counsel that the term ‘obscene’ is to strictly have a sexual connotation, the Court is of the view that the words ‘falour zotte mama’, ‘Gogot’ and ‘so liki’, as admittedly uttered by the Accused, do have a sexual connotation in the Mauritian context. On the contention of learned defence counsel that the term ‘obscene’ under section 46(h)(i) of ICTA ought to be strictly limited to a gesture, the Court cannot agree with this argument inasmuch the definition of the term ‘message’ under section 2 of ICTA clearly reads as ‘including any communication in the form of speech, or other sound, data, text, visual image, signal or code, or in any other form or combination of forms’ (underlining is mine). Hence the words transmitted in a message in the form of speech can clearly be qualified as ‘obscene.’ In the light of the evidence adduced, the Court finds that this 3 rd essential element of the offence has been proved beyond reasonable doubt by the prosecution.

24. Learned defence counsel submitted that the Accused did not have the required mens rea at the time of the commission of the present offence inasmuch as the psychiatric evidence raises a serious doubt as to her wilfulness in view of her diagnosis for bipolar disorder in a mania phase. He is relying on the testimony of both Dr Seetohul (W11) and Dr Ghoorah-Deenoo (W10). Learned defence counsel appears to have raised a defence of insanity in view of the fact that he made it a live issue during the trial in the cross-examination of prosecution witnesses and in his submissions that the Accused did not have the required

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mens rea given her mental condition. Hence, it is apposite at this stage to refer to section 42 of the Criminal Code which is as follows:

‘(1) There is neither crime nor misdemeanour, where an accused person was in a state of insanity at the time of the act, or where he has been compelled to commit such act by a force which he could not resist, and in consequence he shall be acquitted. (2) In this section “insanity” includes mental disorder rendering the accused incapable of appreciating the nature and quality of the act or of knowing that it was wrong’ (underlining is mine).

25. Reference is also made to section 115 of the Criminal Procedure Act which is as follows:

‘115 Acquittal on account of insanity (1) Where it is given in evidence on the trial of a person charged with an offence that the person was suffering from insanity as provided in section 42 of the Criminal Code at the time of the commission of the offence and the person is acquitted, the Court shall be required: (a) to find specially whether that person was suffering from insanity at the time of the commission of the offence; (b) to declare whether it has acquitted him on account of such insanity.

(2) Where the Court finds that the accused was suffering from insanity at the time of the commission of the offence, the Court shall order that the accused be confined in a mental health care centre as provided in the Mental Health Care Act.

(3) The Court shall not make a finding under subsection (1), except on the evidence of not less than 2 registered psychiatrists.’

26. According to the medical evidence on record, it is undisputed that in October 2020 the Accused was diagnosed with a bipolar disorder in mania phase and as per the testimony of Dr Ghoorah-Deenoo (W10), this is classified as a psychiatric

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illness which would falls within the meaning of ‘mental disorder’ under section 42 of the Criminal Code. However, a close reading of both sections 42 of the Criminal Code and section 115 of the Criminal Procedure Act clearly indicates that an accused has to be suffering from insanity ‘at the time of the act’ or ‘at the time of the commission of the offence’ in order to be successful as a defence. The Court therefore has to address its mind as to whether ‘at the time of the act’ or ‘at the time of the commission of the offence’, that is on or about 10 th

April 2021, the Accused was having a bipolar disorder episode in mania phase to the extent that she had no insight or control over her actions and this impaired her wilfulness, putting her in a state of insanity.

27. In the present matter, it is on record that the Accused was examined in October 2020 by Dr Ghoorah-Deenoo (W10) and other psychiatrists whereby the Accused was diagnosed with the abovementioned mental disorder. As per the medical evidence on record, the next medical examination of the Accused was done in 2023 by both Dr Seetohul (W11) and Dr Ghoorah-Deenoo (W10) whereby the Accused was found to be fit to stand trial, stable and well-oriented. There is undoubtedly no medical evidence on record to show that ‘at the time of the act’ or ‘at the time of the commission of the offence’ the Accused was having an episode of bipolar disorder in manic phase leading to the impairment of her mens rea.

28. On the issue of mens rea, learned defence counsel has elected not to adduce any evidence but to rely only on the cross-examination of prosecution witnesses, more specifically to W10 and W11, in order to elicit evidence with regards to the mental state of the Accused. However, it is apposite at this stage to refer to the Supreme Court judgment of Bahadoor v The State [2018 SCJ 92] whereby the then Honourable Justice Caunhye and late Honourable Justice Fekna set out the legal principles pertaining to the burden of proof in the following terms when the defence of insanity is made a live issue:

‘It follows from the principle that the legal burden lies on the prosecution to prove the guilt of an accused that it (the prosecution) also has the burden of adducing sufficient evidence to establish the guilt of the accused beyond

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reasonable doubt. This is usually referred to as the evidential burden that lies on the prosecution. However, where the legal burden lies on an accused to prove an issue, such as insanity, the evidential burden that he has to discharge is different. Indeed, where the issue of insanity arises, the accused has to prove same on a balance of probabilities which is a lower standard than that which lies on the prosecution… In the context of the Mauritian criminal justice system, the placing of the legal burden on the accused to prove insanity is fully justified and falls within the purview of section 10(11)(a) of the Constitution.’

29. In the present matter, the defence has failed to satisfy that legal burden on a balance of probabilities for reasons set out above. Moreover, there is the evidence of both psychiatrists (Ws 10 and 11) who stated that such mental disorder can be controlled by medication. The Court has been left in the dark by the defence as to whether any medication was prescribed to the Accused and that on the material day, she had failed to have proper medication leading to an episode of bipolar disorder causing an impairment in her mens rea.

30. Furthermore, this Court agrees with the contention of learned counsel for the prosecution that the Accused has given 5 defence statements between April and June 2021 (Documents A-A4) whereby no mention has been made by her that she was suffering from such disorder at the material time. On the contrary, there is a clear admission by the Accused as to the commission of the present offence as well as the words uttered as set out in the particulars of the information. In her out-of-court statement dated 21 st April 2021 (Document A3), she unequivocally states the following on several occasions, ‘j’assume mes propos et je ne m’excuse pas…’ In her out-of-court statement dated 23 rd of June 2021 (Document A4), when confronted with the report made following the examination of her Facebook account, she unequivocally admitted to the content same and tendered her apologies, thereby confirming the accuracy of the words uttered and comments made during her live Facebook video on 10 th April 2021 at Providence in Rivière des Créoles.

31. The defence has elected to close its case without calling the Accused to give evidence under oath or to make a statement from the dock which it was perfectly

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entitled to in law. It was stated in the case of McLeod v The Queen [2017 UKPC 1] that, the decision whether to give evidence or to make an unsworn statement, or to do neither, is one such decision, important as it certainly is in most trials.’’

32. Furthermore, in the judgment of R v Nagi Al – Zubeidi [1999 EWCA Crim 81] [1999 CLR 906] whereby the accused did not depose under oath, the Court observed that; ‘he chose not to give evidence, and without evidence there was no foundation for the defence that he was advancing.’

33. The following guidelines were expressed in the case of Annia T v The State [2006 SCJ 262] to the effect that; ‘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.’

34. In the present matter, for reasons set out above, the Court finds that the prosecution has adduced evidence strong and credible beyond reasonable doubt to support the charge. Moreover, relying on the reasoning in DPP v Aumont [1989 SCJ 338], in the light of the confession of the Accused in her own out-of- court statements as set out in paragraph 30 above, which is direct and positive and satisfactorily proved by the prosecution is the best evidence that could be produced against her.

35. For reasons set out above, the Court finds the Accused guilty as charged.

Z.B.Essop (Ms) Magistrate Intermediate Court (Criminal Division) This 28 th April 2026