{"id":1056059,"date":"2026-06-06T17:51:34","date_gmt":"2026-06-06T15:51:34","guid":{"rendered":"https:\/\/kohenavocats.com\/jurisprudences\/supreme-court-of-mauritius-17-juin-2020-2020-int-74-police-vs-ducasse-christian-rene-guy-marcel\/"},"modified":"2026-06-06T17:51:37","modified_gmt":"2026-06-06T15:51:37","slug":"supreme-court-of-mauritius-17-juin-2020-2020-int-74-police-vs-ducasse-christian-rene-guy-marcel","status":"publish","type":"kji_decision","link":"https:\/\/kohenavocats.com\/en\/jurisprudences\/supreme-court-of-mauritius-17-juin-2020-2020-int-74-police-vs-ducasse-christian-rene-guy-marcel\/","title":{"rendered":"Supreme Court of Mauritius, 17 juin 2020, 2020 INT 74 – POLICE VS DUCASSE CHRISTIAN RENE GUY MARCEL"},"content":{"rendered":"
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POLICE VS DUCASSE CHRISTIAN RENE GUY MARCEL<\/p>\n

2020 INT 74<\/p>\n

POLICE VS DUCASSE CHRISTIAN RENE GUY MARCEL Cause Number : 1003\/14 THE INTERMEDIATE COURT OF MAURITIUS (Criminal Division) In the matter of:- POLICE VS DUCASSE CHRISTIAN RENE GUY MARCEL RULING INTRODUCTION The Accused stands charged with the offence of involuntary homicide by negligence in breach of section 239(1) of the Criminal Code. He pleaded not guilty. Learned Senior Counsel appeared for the Accused and the Prosecution was assisted by Counsel. The particulars of the charge against the Accused are that on or about the 26 th March 2008, he unlawfully and by negligence, was the unwilling cause of homicide of one Kisnamah Choychoo, hereinafter referred to as the deceased. Learned Senior Counsel for the defence moved for particulars of the negligence as averred in the Information. The Prosecution particularized same as follows: \u201cOn the date aforesaid, the Accused did administer an injection of diclofenac to one Kisnamah Choychoo when he was not authorized to do so and qualified as such\u201d. After the statement of the Accused was produced during the course of the proceedings, Learned Senior Defence Counsel moved that the case be permanently stayed as at no point during the enquiry was it put to the Accused that he had injected diclofenac to the deceased. State Counsel objected to the motion and an Argument was heard on the matter.<\/p>\n

OBSERVATIONS I have assessed the evidence on record and the submissions of both Counsel in the case. I have taken into account the statement of the Accused given to the police in relation to the present case. \u201cIn a criminal case it is normal to assume that the version that is put to an accused party when recording his or her defence is the very complaint that was made by the victim\u201d. (RE: P MARDAY VS THE STATE (2000) SCJ 225). The allegation against the Accused in the present matter, emanates from the son of the deceased who gave a statement to the police wherein he stated that on the 26 th March 2008, he brought his mother to the pharmacy of the Accused where the latter gave her an injection of diprostene and pills called xploid, which allegedly caused complications to the deceased. The charge that was therefore put to the Accused is that he administered an injection of diprostene and gave xploid pills to the deceased. The Accused denied this version and averred that he never administered any injection to the deceased but only gave her xploid. The issue raised in the present matter is whether the case should be stayed against the Accused as the police never put to the Accused that he had injected diclofenac to the deceased. On this score, it is noteworthy that over recent years, the importance of the charge against an Accused party has been analyzed in a series of cases before the Court.<\/p>\n

The Case Law In England, there was the case of R VS MOHAMMED IMRAN AND SAJID HUSSAIN (1997) before the Criminal Division of the Court of Appeal. The case concerned an appeal which centered on the fact that when the police started to interview the Accused, they cautioned him perfectly properly but failed to inform him that he had been caught on video. The Court of Appeal upheld the statement of the Learned Judge as follows: \u201cIt is totally wrong to submit that a defendant should be prevented from lying by being presented with the whole of the evidence against him prior to the interview\u201d.<\/p>\n

However, it is an interesting point in that case, that halfway through the interview, the police officers disclosed the existence of the video. The Appellant was asked whether he sought to view the video and whether he knew that he had a right to see it before going on with his interview and the Appellant conceded that he did not wish to see it. In this case, it can safely be concluded that the Appellant was made aware of the evidence against him which would be in line with the charge. In Mauritius, in the case of JHOOTOO M.E. VS THE STATE (2013) SCJ 373 , the Appellant was charged under Counts 2 and 3 under section 42(1)(a) of the Dangerous Drugs Act for giving false statements in relation to the offence of drug dealing. However, there was no charge under section 42(1)(a) which was put to the Appellant. Instead, the Appellant was asked to give his defence on a charge of drug dealing – possession of 50 packets of cannabis for the purposes of distribution. The Trial Court relied on the defence of the Accused in relation to the charge of drug dealing to convict the Accused for an offence of giving false statements in relation to the offence of drug dealing. The Appeal Court had this to say: \u201cFor the reasons given above, the convictions under counts 2 and 3 cannot stand on the ground that the appellant had not been given an opportunity to exercise his constitutional rights. The appellant had a right to know in the first place the details of the case regarding the false statement. Nothing shows that it was ever put to him that he would be charged for an offence of giving a false statement in connection with a drug offence. Section 10 (2) provides that every person who is charged with a criminal offence … shall be informed as soon as reasonably practicable, in a language that he understands, and, in detail, of the nature of the offence.\u201d That constitutional imperative has been breached in this case and a conviction cannot be based on that core irreducible minimum of fairness\u201d.<\/p>\n

The case of JHOOTOO M.E. VS THE STATE (2013) SCJ 373 was distinguished in the case of SEETAHUL V VS THE STATE (2015) SCJ 328 in as much as in the case of SEETAHUL V VS THE STATE (2015) SCJ 328, the version of the Prosecution witness was put to the Appellant. Therefore the Appellant was aware of the charge against him. The Court held: \u201cIt was not incumbent at the stage of the enquiry to put each and every element of the offence to the appellant. It suffices that the version of the complainant was put to him so<\/p>\n

that he was made aware of the case against him and the evidence on which it is based so as to enable him to prepare his defence\u201d.<\/p>\n

I have also considered the dicta in 2 rulings delivered by His Lordhip, Judge Marie Joseph in the cases of THE STATE VS PETER WAYNE ROBERTS (2015) and THE STATE VS RAJCOOMAR SEEGOOLAM & ANOR (2017) . In the case of THE STATE VS PETER WAYNE ROBERTS (2015) Learned Senior Counsel for the defence took objection that a witness be made to identify 2 pictures relating to evidence of an incident forming part of the Prosecution case that was never put to the Accused during the course of the investigation. The Court reiterated the principle that \u201cthe failure to confront the accused with the evidence or case against him at enquiry stage constitutes a breach of his imperative constitutional rights to be informed of the case against him and to be given an opportunity to respond to what lies against him\u201d. However, in another ruling in the case of THE STATE VS RAJCOOMAR SEEGOOLAM & ANOR (2017), the Court came to a different conclusion when the charge was not put to the Accused No.1 in so many words. The reason was that the Accused No.1 could not be said to be totally unaware of the Prosecution case, the Accused parties were aware of the autopsy report and all the instruments secured by the enquiring officers were shown to the Accused parties. In the case of NOWZADICK I VS THE STATE (2017) SCJ 283 , the Court found that the failure to specially put the charge of involuntary wounds and blows by imprudence to the Appellant was not fatal to the case for the Prosecution, in as much as the case concerned a simple road accident where the Appellant was asked to give his version as to the manner in which the accident occurred. In 2018, His lordship, Judge Madhub, as he then was, laid down the principle that the baseline is that the Accused must be made aware of the case against him in the case of THE DPP VS T P J M LAGESSE & ORS (2018) SCJ 257. He went on to state: \u201cWhere there is a complaint, it would de facto imply that the suspect has to be confronted with that complaint; and if there were additional incriminating evidence gathered during the course of the enquiry those should be put to the suspect. Obviously, if the police as part of their enquiry do have incriminating evidence, the suspect has to<\/p>\n

be cautioned and informed of his right to be legally assisted, i.e. right against self incrimination and right to be legally assisted\u201d.<\/p>\n

Discussion Taking into account the above different case law, one can find that different conclusions have been reached in different cases and each case has been determined on its specific facts and merit. Be that as it may, I find that the essence of the principles in the different case law boils down to the same notion, that is, an Accused party ought to know the charge against him. It is not necessary that the Accused must know each and every element of the offence against him or the legal technicalities of the charge, it suffices that the Accused must be generally aware of the charge which he has to answer.<\/p>\n

The Constitution of Mauritius offers a guarantee that every person who is charged with a criminal offence shall be informed as soon as reasonably practicable, in a language that he understands and, in detail, of the nature of the offence under section 10(2)(b) of the Constitution. The question that arises is whether an Accused party ought to made aware of the charge against him at enquiry stage when his statement is being recorded by a police officer. This is where Rule II of the Judges\u2019 Rules comes into play. Rule II reads as follows:<\/p>\n

\u2018As soon as the police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions, or further questions, relating to that offence.<\/p>\n

The caution shall be in the following terms:<\/p>\n

You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence.\u201d<\/p>\n

The meaning, purport and relevance of Rule II of the Judges\u2019 Rules has been fully canvassed in the case of STATE VS RUHUMATALLY (2015) SCJ 384 wherein the Court explained the nature and form which a caution should take in line with the offence for which the Accused stands charged. He stated as follows:<\/p>\n

\u201cBut there is one important aspect that cannot and should not be overlooked. The caution is not given generally in a void; rather, it is given in relation to an identifiable offence that the accused is suspected of having committed. The further questioning by the police officer \u2018relates to the offence which the person is suspected to have committed\u2019. The person \u2018not being obliged to say anything\u2019 once again relates to the offence which he is suspected to have committed. If he has anything else to say which is of a general nature and which can be helpful to the police, he can still do so under his civic duty to help the police in solving crimes.<\/p>\n

The above situation begs the question: \u2018How does a person exercise the rights and privileges afforded to him by the caution if he does not know what offence he is being suspected of having committed?\u2019 An effective interpretation of Rule II would require that we read into it the obvious proposition that a person has to be informed of the nature of the offence he is suspected of having committed so that he may exercise his rights and privileges under the caution in an informed way. This does not mean that he has to be informed of one or more offences in legal language, or of the section\/s of the law which have been breached, or of the elements of the offence. But the person must be given an idea which is elaborate enough concerning what is reproached of him and which constitutes a breach of the penal laws of Mauritius and to which he is being asked to answer\u201d.<\/p>\n

Turning back to the present case, the charge against the Accused as per the Information is that he committed the offence of offence of involuntary homicide by negligence. The negligence is the administration of diclofenac by the Accused on the deceased when he was not authorized and qualified to do so, and which caused the involuntary homicide. I have considered the expert evidence in the case, through the testimony of Dr Bholah and Dr Dusowuth. Dr Bholah was the consultant in charge who examined the deceased and found that she had developed a severe skin rash and high temperature. As the days went by, the deceased developed multiple organ failure and she eventually passed away. Dr Bholah explained that the diagnosis reached was that the deceased had a condition called Stevens- Johnson syndrome which is a severe skin body reaction caused by a drug. According to Dr<\/p>\n

Bholah, diclofenac is a well-known cause of the Stevens-Johnson syndrome and as a medical practitioner was informed by the Accused\u2019s son that the deceased was administered diclofenac on the eve of her admission to hospital. Dr Dusowoth, confirmed in his capacity as a consultant physician, that he examined the deceased and was informed that the deceased was administered with an injection of diclofenac prior to her admission in hospital. Diclofenac is one of the very rare drugs that cause the Stevens-Johnson syndrome. He explained that diclofenac and diprostene are 2 different drugs, one being steroidal and the other being non-steroidal. Diprostene would not cause the Stevens- Johnson syndrome. It is therefore clear that the charge against the Accused should be that he committed the offence of involuntary homicide by negligence, by administering an injection of diclofenac to the deceased when he was not authorized to do so and qualified as such. However, in truth and in fact, the Accused has never been charged with administering an injection of diclofenac to the deceased. In fact, he has been charged with an offence of administering an injection of diprostene on the Accused. Dr Dusowoth has clearly testified that diclofenac and disprostene are 2 different, distinct and exclusive medicines, such that the effect of one cannot be compared to the other. In the present case, the involuntary homicide was caused by an injection of diclofenac only and was not the result of an administration of diprostene. Learned State Counsel has argued that the Court should not impose a stay of proceedings because there has been no resulting prejudice on the Accused as the latter made a blanket denial of having administered an injection. His argument was to the effect that the denial of the Accused did not raise any prejudice as his defence was not about an injection of diclofenac but about having not administered any injection at all. I find the reasoning of Learned State Counsel to be flawed and I say so for the following reasons. First, it is the duty of the Prosecution to put the right charge to the Accused, that is, the Prosecution must put to the Accused in general terms the constitutive elements of the charge. It is the Constitutional right of the Accused to be informed as soon as reasonably practicable, in a language that he understands and, in detail, of the nature of the offence against him in a language which the Accused understands. The onus is therefore on the Prosecution to uphold the rights of the Accused.<\/p>\n

I find that the Prosecution cannot justify the correctness of the charge put to the Accused depending on the defence of the Accused. Irrespective of the legal technicalities, the charge put to the Accused must be the correct one. The Accused will then have the choice to remain silent, to confess or to deny the charge. The fact that the Accused makes a blanket denial does not render the charge put to him correct nor does it alter the duty of the Prosecution in explaining the charge to the Accused correctly. In the present case, the charge put to the Accused was that he administered an injection of diprostene, which is the source of negligence and the cause of the involuntary homicide. However, the police ought to have put the charge of administering diclofenac. I therefore find that the charge put to the Accused was in breach of his Constitutional rights to be made aware of the nature of the offence against him. In light of the above, I have considered whether the failure on the part of the Prosecution to put the right charge to the Accused would warrant a stay of proceedings. Section 10(1) of our Constitution guarantees that any person charged with a criminal offence shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law. In line with the protection afforded by the Constitution, his Lordship Mr Justice Caunhye had this to say in the case of STATE VS WASSON S J & ORS (2008) SCJ 209 :<\/p>\n

\u201cThe Courts have a duty to protect the integrity of the criminal process and to secure fair treatment to any person charged with a criminal offence in conformity with the norms prescribed under the Constitution. In exercising its power to ensure that there should be a fair trial in accordance with these norms, a criminal Court has a general and inherent power to stay proceedings not only to protect its process from abuse but also to secure a fair trial to those persons who are charged with a criminal offence\u201d.<\/p>\n

In the present case, I have found that the wrong charge was put to the Accused, in breach of his rights to be made aware of the nature of the offence against him. In so doing, the Accused was denied the opportunity to give his defence in relation to the proper charge against him. I find that this is a clear departure from the standard of a fair trial. I deem it to refer to the Privy Council case of KANDA V GOVERNMENT O F MALAYA [1962] AC 322, 337 as follows:<\/p>\n

\u201cIf the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know<\/p>\n

what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them.\u201d<\/p>\n

Trials are conducted on the basis of the principle of natural justice. There are a number of strands to this. A party has a right to know the case against him and the evidence on which it is based. He is entitled to have the opportunity to respond to any such evidence and to any submissions made by the other side. The other side may not advance contentions or adduce evidence of which he is kept in ignorance.<\/p>\n

In relation to the present case, I find that the failure on the part of the Prosecution to put the proper charge to the Accused is against the principle of natural justice which has prejudiced the Accused in his defence. I also find that even if the case was to proceed against the Accused, the Prosecution would eventually face an evidential burden of proving the cause of death of the deceased, being given that the cause of death is an administration of diclophenac but the Prosecution case, as per the charge put to the Accused, is that the Accused allegedly administered diprostene on the Accused.<\/p>\n

In view of the above, I find that the present case is an apt one where it would be unfair to try the Accused or not to deviate from the general rule that a stay of proceedings can only be granted in exceptional circumstances. (RE: ATTORNEY GENERAL\u2019S REFERENCE (NO 2 OF 2001) [2003] UKHL 68, [2004] 2 AC 72).<\/p>\n

CONCLUSION<\/p>\n

In light of the above, I uphold the point of Law raised by the defence. I order that proceedings be stayed against the Accused.<\/p>\n

Ruling delivered by: M.GAYAN-JAULIMSING, Magistrate, Intermediate Court Ruling delivered on: 17 th June 2020<\/p>\n<\/div>\n

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Sources officielles :<\/strong> consulter la page source<\/a> · PDF officiel<\/a><\/p>\n

Supreme Court of Mauritius – public domain<\/em><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

POLICE VS DUCASSE CHRISTIAN RENE GUY MARCEL 2020 INT 74 POLICE VS DUCASSE CHRISTIAN RENE GUY MARCEL Cause Number : 1003\/14 THE INTERMEDIATE COURT OF MAURITIUS (Criminal Division) In the matter of:- POLICE VS DUCASSE CHRISTIAN RENE GUY MARCEL RULING INTRODUCTION The Accused stands charged with the offence of involuntary homicide by negligence in breach of section 239(1) of the…<\/p>\n","protected":false},"featured_media":0,"template":"","meta":[],"kji_country":[92666],"kji_court":[92667],"kji_chamber":[125247],"kji_year":[41198],"kji_subject":[7646],"kji_keyword":[93616,128179,105092,8066],"kji_language":[7611],"class_list":["post-1056059","kji_decision","type-kji_decision","status-publish","hentry","kji_country-maurice","kji_court-supreme-court-of-mauritius","kji_chamber-mrs-m-gayan-jaulimsing-magistrate-intermediate-court","kji_year-41198","kji_subject-divers","kji_keyword-christian","kji_keyword-ducasse","kji_keyword-marcel","kji_keyword-police","kji_language-anglais"],"yoast_head":"\nSupreme Court of Mauritius, 17 juin 2020, 2020 INT 74 - 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