Supreme Court of Mauritius, 28 février 2020, 2020 PL2 15 – Pce v Kameereddy

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Pce v Kameereddy

2020 PL2 15

POLICE v KAMEEREDDY Marie Rudy James Christian Nicolas

CN:7993/19 IN THE DISTRICT COURT OF PORT LOUIS (2ND Division) In the matter of:

POLICE V KAMEEREDDY Marie Rudy James Christian Nicolas

JUDGMENT

Accused stands charged with the offences of 1. Outrage against depository of Public Authority in breach of section 156 (1) (3) of the Criminal code. 2. Failing to comply with signal given by a police officer on duty in breach of Section 123 AD (1)(3)(4) and 163 of RTA. 3. Fittings out of good and serviceable condition in breach of Reg 4(1) and 125 of Road Traffic Regulation 53/2010.

Accused pleaded not guilty to the charges and was not represented at trial stage. Prosecution produced a memo NTA for vehicle registration number 3184 ZM 99, marked as Doc A. Prosecution produced a memo from HR Manager, emanating from witness no.4, marked as Doc B. Prosecution produced a memo from witness no.5, marked as Doc C. Prosecution called witness no.1, PC Bukhory, who stated that the accused declined to provide a statement in writing. Prosecution called witness no.2, PC Ajeda, who related that on 29/03/19, whilst he was at corner Louis Pasteur to regulate traffic, dressed in police uniform, at 16.50 hrs, he noticed that the vehicle driven by the accused was causing obstruction. He signaled the driver to move forward, so as to normalize the flow of traffic. The accused refused to move ahead on account that there was a yellow box. He was informed of the fact that he could move ahead given the traffic was regulated by the police. The accused switched off his engine and stated: “ Banne gogot, mo frere ene la police et mo parenté ar commissaire de police et mo pou faire transfert zot et bour zot la Cour”. The witness explained that he felt humiliated in public as it was peak hours. The witness stated that his colleague, PC Kaully attempted to assess the situation but the accused attempted to drive away. The witness was informed that he would be booked for the said offence. The witness asked him to park his vehicle and the accused abided. The accused produced his driving licence. He was duly cautioned and his particulars were duly noted. The witness stated that he noticed that the upper side of the windscreen was cracked. The accused was informed of same and he grew vexed. The accused threatened to give a declaration. The accused then proceeded towards the police station. The witness was duly cross-examined. Prosecution then called witness no.3, PC Kaully, who related that on 29/03/19 at around 16.50 hrs, whilst performing duties at CNR Farquhar and Pasteur street, in police uniform, he noticed the car driven by the accused. He explained that PC Ajeda asked the driver to move and that the latter refused. He grew vexed and stated outrageous words within his hearing. The driver spoke in a loud tone and there were members of the public around which caused them to feel humiliated. When the officer spoke to the accused, the latter stated that he is a good citizen and refused to move away. The witness explained that the windscreen was cracked.

The case was then closed for the Prosecution. The accused was informed of his Constitutional rights and he elected to testify under oath. The accused explained that he was in company of his children and was driving home. Whilst at junction Louis Pasteur , just before the white line, the traffic was dense. After the white line, there was a yellow box and he saw Pc Ajeda directing traffic. The latter asked him to move forward, so that he was the first one in the line. Upon seeing that traffic was dense on the opposite side, he raised his hand to tell the officer no. The officer approached him to ask him why he would not move forward. The accused informed the officer that there was a yellow box and that by moving forward, he would block traffic. The officer informed him that he had to obey him and asked him to park his car on the left hand side of Louis Pasteur. PC Ajeda took down particulars of the vehicle. The accused explained that he came out of the car to ask the officer what he was doing. He stated that he told the officer that his brother is a police officer and that he wanted to solve any grievances the latter had against him. The officer then told him: “ Mo pisser quand meme to frere gallant commissaire de police”. The accused stated that he realized that the officer was booking him for something without informing him what same was for. He told the officer: “ Nu ava guetter devant Magistrat”. The accused explained to the officers that his children were in the car and that they were not setting a good example. The accused produced his driving licence and told the officers that he would give a statement at the police station. The accused explained that the officer informed him that he was booking him for cracked windscreen. The accused was cross-examined. The case was also closed for the Defence. The law concerning the offence of outrage against depository of Public Authority under Section 156 (1) and (3) of the Criminal Code reads as follows:

“Any outrage committed publicly, in any manner, whether against one or more members of the Cabinet or of the Assembly, or against a tribunal or court or one or more Magistrates, or a public functionary, or a minister of a religion recognised in Mauritius provided such outrage is committed against any of the aforesaid, whilst acting in the exercise of their functions, or on account of such functions, shall be punished by imprisonment, and by a fine not exceeding 100,000 rupees.

Where the offence is against a ministerial officer, or an agent of the civil or military authorities, the punishment shall be imprisonment for a term not exceeding 1 year, and a fine not exceeding 25,000.”

In the case of Appadoo v the State (2010 SCJ 411), reference was made to the following extract of Dalloz Recueil Vo Outrage note 2 which gives an in-depth outlook of the offence of outrage which is hereby reproduced:

“L’outrage «s’entend de toute expression dont la signification menaçante, diffamatoire ou injurieuse est propre à diminuer l’autorité morale de la personne investie d’une des fonctions de caractère public désignée par la loi et, par voie de conséquence, à porter atteinte au respect dû à la fonction»

Note 7 Dalloz Recueil Vo Outrage indicates the elements which constitute outrage:

«1. l’outrage doit être adressé à certaines personnes désignées et dont la qualité est déduite de la fonction exercée; 2. le fait doit revêtir une forme d’expression déterminée par la loi et avoir une signification outrageante; 3. Il doit y avoir relation entre l’outrage et la fonction; 4. l’outrage doit réaliser une atteinte effective de la personne outragée; 5. l’intention coupable est nécessaire»

The case of Bhayat v. The Queen (1982) MR 128, made reference to Garçon, Code Pénal Annoté, articles 222 à 225: «Nous croyons donc qu'en principe l'outrage est punissable, alors même que le fonctionnaire outragé agirait irrégulièrement. Le délit ne disparaîtrait que si l'acte était entaché d'une illégalité telle qu'il serait impossible de le rattacher en aucune manière à l'exercice des fonctions de la personne outragée. L'outrage, dans ce cas, ne serait plus constitué, parce qu'il ne serait pas reçu dans l'exercice ou à l'occasion de l'exercice des fonctions. N. 150. Des arrêts plus récents ont décidé que le caractère délictueux de l'outrage envers les agents de l'autorité n'est nullement subordonné à la valeur légale des actes qu'ils accomplissent; que, alors même

que l'irrégularité de ces actes permettrait d'en demander l'annulation ou la réparation, elle ne saurait jamais autoriser ni excuser l'outrage dirigé contre le fonctionnaire au moment où il représente l'autorité publique et qui par suite atteint cette autorité. N. 152… que l'outrage fait à un agent de la force publique est punissable alors même qu'il se produit à l'occasion d'un fait que cet agent considérait par erreur comme un délit. »

The case of Appadoo quoted above made reference to the following excerpt of Garçon, CPA 1956 Ed, article 330, at N 31 et seq., which states: “la publicité existe non seulement au cas où l’acte … a été vu par une ou plusieurs personnes, mais aussi lorsqu’il est certain, notamment par la nature du lieu où il a été commis, que cet acte a été offert aux regards du public, et qu’il a pu être aperçu, même fortuitement”.

The Court has listened with great attention to the testimony of all the prosecution witnesses as well as the sworn testimony of the accused. .

The Court takes note of the following salient features of the present case: • It is clear that the complainant is a member of the police force as established by Doc B. • The officer was performing his duties. • Clearly the conversation between the accused and the complainant was loud and the tone was raised on both sides. • The Court took note of the version of PC Ajeda with regard to count I, given that the witness did not come across as convincing on this issue. The Court found him hesitant and he appeared to be relating a well-rehearsed version of facts. • PC Kaully was convincing in his demeanour but his version appeared to be a photocopy of the version of PC Ajeda. The Court notes the use of mostly identical words to describe the events which allegedly occurred. • The Court is of the view that a such excessive similarities appear to be far from coincidental and in fact does not serve the case for the Prosecution.

The Court is of the view that given the state of the testimonies of the complainant and the supporting witness, it would be unsafe to rely upon same to convict accused under count I.

With regard to count II and III, the accused having admitted to same in the course of cross-examination , the Court finds no reason to impeach the evidence put forward by the Prosecution.

The Prosecution having failed to prove its case beyond reasonable doubt under count I, Court dismisses count I.

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

Mrs Manjula Kumari Boojharut ( A. Senior District Magistrate) Delivered on 28 February 2020