Supreme Court of Mauritius, 30 janvier 2020, 2020 LPW 12 – Police v Kavita Jeelall

Police v Kavita Jeelall

2020 LPW 12

IN THE DISTRICT COURT OF LOWER PLAINES WILHEMS

Cause Number 8280/19

In the matter of:

Police

v/s

Kavita Jeelall

JUDGMENT

The Accused stands charged with the offence of ILLTREATING AN ELDERLY PERSON in breach of section 11 (1) (a), 2 of the Protection of Elderly Persons Act. She pleaded not guilty to the charge and stood inops consilii at trial stage. The Court proceedings were conducted in Creole language for the benefit of the Accused party.

THE CASE FOR THE PROSECUTION

Prosecution witness No.1, WPC Douce Boodhun identified, read and produced the defence statement of the Accused recorded by her on 13 th March 2019 at 10 45 hours at Quatre Bornes police station after the Accused was informed of the charge against her, after she was duly cautioned and was informed of her Constitutional Rights. The defence statement of the Accused was marked as Doc A on record and the Accused elected not to cross examine her.

Prosecution Witness No.2, Mrs Dropatee Bagwantee explained that on 10 th March 2019 she was washing her clothes at home when the Accused threw hot water on her from upstairs. The Declarant explained that the Accused who was living in with her son was drunk at that time. The Complainant went on to state that the Accused party was not on good terms with her and that by chance on that day she was not

burnt as the hot water fell in front of her and not on her. The case for the prosecution was then closed after the Accused elected not to cross examine the Complainant.

THE CASE FOR THE DEFENCE

After she was explained her Constitutional rights, the Accused elected to make a statement from the dock. The Accused denied the charge and stated that she was at the police station making a complaint regarding water issues at her place when the alleged incident occurred. The case was then closed for the Defence.

I have assessed the evidence on record. I have considered the deposition of the main prosecution witness with utmost case. I find that the Complainant deposed with confidence in court and her version has remained unchallenged as the Accused elected not to cross examine her. I have addressed my mind to the fact that no independent witness has been called by the prosecution to corroborate the version of the Declarant in court. At this stage I find it apt to refer to the case of DPP V SUBRATTEE [2010 SCJ 207] in which the Court of Appeal made the following observations:

“In general, however, at common law one credible witness is sufficient (vide DPP v Hester [1973 A.C 296], Lord Diplock at p 324). With the development of the common law, the corroboration requirement is said to be required in such categories of cases which include the evidence of a complainant in sexual cases, the evidence of an accomplice when called by the prosecution and the evidence of children. Apart from these established categories, the authorities have established the need for a corroboration warning where the evidence of a witness is suspect and which would include the evidence of a co-accused, the evidence of mental patients and the evidence of witnesses who may have improper motives or interests of their own to serve (Beck [1982 1 WLR 461]; Spencer [1987 AC 128] and Brown [1992 Crim LR 178])”.

I find that the throwing of hot water on the Declarant, an elderly person by the Accused amounted to an assault as per the legal characteristics of the offence of assault defined as “voies de fait” in French Law. These are set out in Encyclopédie Dalloz, Droit Pénal Vo Coups et blessures, as follows:

“Les voies de fait ont été incriminées par la loi du 13 mai 1863 pour réprimer les violences volontaires qui ne constituaient techniquement ni des coups ni des blessures (GARCON, sous art. 309 à 311, no.11). Ces a gissements, qui s’apparentent aux coups, s’en distinguent surtout par le peu de gravite de l’acte lui- même et par les consequences réduites qu’il a produites. Les voies de fait peuvent ne pas laisser de trace sur le corps de l’individu. Ainsi, constituent de simples voies de fait le fait de bousculer intentionnellement quelqu’un, de le jeter a terre, de lui fermer brutalement la porte au nez, de lui cracher au visage »

In the present matter, I further find that the Accused has not adduced any evidence or shown any reason as to why the present Court should not act on the evidence adduced by the Prosecution. She simply stated that she was not present on spot when the alleged offence occurred and was at the police station. I have further considered the fact that no defence witness was called nor was there any evidence adduced to support her version in court and sustain her alibi (RE: FOOLLEE O. v THE STATE (2004 SCJ 251). I therefore find that the Prosecution destroyed the alibi raised by the Accused through the evidence of the Declarant who deposed in a clear and confident manner.

For all the above reasons, the Court finds that the Prosecution has proved its case beyond reasonable doubt against the Accused. I therefore find her guilty as charged under the present information.

B. PRAYAG-RAJCOOMAR (Mrs) District Magistrate This 30 th January 2020