Supreme Court of Mauritius, 29 mai 2020, 2020 ROD 25 – POLICE V ERNEST CLARY JEAN AND ANOR

POLICE V ERNEST CLARY JEAN AND ANOR

2020 ROD 25

Cause No: 1585/2019 THE COURT OF RODRIGUES

In the matter of:- POLICE

VERSUS

JEAN CLARY ERNEST DANIEL COLLET ———- JUDGMENT Introduction. 1. Under the first count, Jean Clary Ernest stands charged with the offence of assault committed upon Marie Santana Polimon in breach of section 228 and 230(1) of the Criminal Code. 2. Under the second count, Daniel Collet stands charged with the offence of assault committed upon minor Alexia Vivianna Ernest in breach of section 228 and 230(1) of the Criminal Code. 3. Both accused pleaded not guilty and were not assisted by Counsel at trial. The case for the prosecution. 4. The prosecution opened its case by producing the medical certificate (P.F 58) of the minor. Police Constable Raffin was then called who read and produced the out-of-court

statement of each accused. The two complainants were then called but maintained, as they did previously, that they no longer wish to proceed. The minor also testified that he is now in good terms with the second Accused who is also the nephew of the first accused. The case for the defence.

5. After both accused were informed of their constitutional rights, they both elected to speak from the dock.

6. The first accused begged for excuse and stated that he committed the present act in a moment of anger.

7. As regards to the second accused, he begs for excuse and stated that he never had any intention to assault the minor.

The law.

8.. As regards to the law in relation to the present charge, section 230 of the Criminal Code reads as follows:-

Where such wound, blow or other violence or assault has not caused any sickness or incapacity from personal labour of the description mentioned in section 228 the offender shall be punished by imprisonment for a term not exceeding two years, and by a fine not exceeding 50,000 rupees.

Assessments.

9. I have assessed all the evidence on record.

10. As regards to the first accused, despite the fact that his concubine did not adduce any evidence as to how she was assaulted, there is a clear confession which the first accused made in his out- of- court statement. Furthermore, there is also the statement which he made from the dock where he stated that he committed the act in a moment of anger.

11. Now, in the present matter, at no point in time did the confession of guilt made by Accused came under challenge. Furthermore, there were no contradictions made by Accused in his statements or anything else done which could lead this Court to believe that it was not a true confession.

12. In R v Skyes 8 Cr. App. R 233, The Court of Appeal held that:

“A man may be convicted on his own confession alone; there is no law against it. The law is that if a man makes a free and voluntary confession, which is direct and positive, and is properly proved, a jury may, if they think fit, convict him of any crime upon it…”

13. In the case of Ibrahim v The King AC 599, their Lordships of the Privy Council stated that:

‘no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.’

14. Hence, In the present circumstances, I am of the opinion that I can safely rely on the truthfulness of the confession made by Accused in the absence of the allotment of any substance to an argument made as to the falsity of the confession or having been given involuntarily or not from his own free will and accord.

15. In the light of the above, I find that the prosecution has proved its case beyond reasonable doubt against the first accused.

16. As regards to the second accused, the case for the prosecution rests on the medical certificate of the minor and the out-of-court statement of the second accused.

17. However, true it is that there is a medical certificate stating that the minor had a small laceration at the forehead but the minor did not adduce any evidence to say as to how she was assaulted by the second accused. Furthermore, in respect to the out-of-court statement of the

second Accused, he stated that after having smashed a bottle on the wall that a piece of the glass from the bottle hit the minor.

18. Note 26 of Encyclopédie Dalloz, Droit Penal, Vo. Coups et Blessures, which deals with the mental element of assault, reads as follows:

‘Il est nécessaire que l’acte qui a porté atteinte à l’intégrité corporelle ait été conscient et volontaire, qu’il ait été le résultat d’une faute intentionnelle.’

19. Further, Note 51 of Encyclopédie Dalloz, Droit Penal, Vo. Voies de Fait, provides that

‘dans tous les cas où la loi fait allusion aux voies de fait, celles-ci doivent s’entendre d’agissements accomplis volontairement, avec intention de nuire.’

20. Now, the circumstances in which the complainant was injured are material in determining the mens rea of the accused at the material time. Being given that a specific intent is required to establish an assault and in the absence of any evidence regarding the version of complainant as to how she was assaulted, the Court is of the view that the prosecution has failed to prove that the second accused had the requisite mens rea for the second count.

Conclusion.

21. For the reasons referred above, I find Jean Clary Ernest, the first accused, guilty under the first count and the second count is dismissed against Daniel Collet, the second accused.

D.J.A Dangeot Senior District Magistrate Delivered on 29 May 2020.