Supreme Court of Mauritius, 30 mars 2026, 2026 FLQ 52 – Police vs Perrine

Police vs Perrine

2026 FLQ 52

IN THE DISTRICT COURT OF FLACQ In the matter of: CN: 4674/25 Police Vs Louis Berman PERRINE JUDGMENT A. Introduction

1. The Accused is being prosecuted under the charge of assault in breach of Section 228 & 230 (1) of the Criminal Code.

2. The particulars of the offence, as averred in the information, are as follows: On or about the 21 st of July 2024, at Veranda Hotel Palmar, the Accused did wilfully and unlawfully commit assault upon the person of one Vidyaprakash Gurbah.

3. The Accused pleaded not guilty to the charge and was represented by Me. Saulick, of Counsel.

4. The case for the prosecution was conducted by Police Prosecutor. Proceedings were held in creole.

B. The Case for the Prosecution

5. At the outset, the Prosecution produced the medical examination certificate of Witness No.2 (PF58), dated 21.07.24 at 09.20hrs and under the signature of Witness No.3. Same was marked as Doc A.

6. The Prosecution then moved to call Witness No.1, PS Kalloo, who recorded a defence statement from the Accused on 02.09.24 at 11.40hrs after the latter was duly cautioned and given the usual warning. The out-of-court defence statement of the Accused was produced and marked as Doc B.

7. During cross-examination, Witness No.1 confirmed that he did not secure any exhibit in this case as it is the duty of the officer who recorded a statement from the declarant. He also confirmed that he did enquire into this case and that there was only a statement from the declarant and no exhibit was produced to the police. However, in re-examination, he clarified that there is a statement

from the officer who took the declaration of the declarant stating that the declarant’s shirt was torn.

8. He was also questioned as to whether he had gone to the declarant to enquire whether he owed money to the Accused, to which he replied in the negative.

9. Witness No.1 could not confirm whether the Accused was arrested or detained for the present offence as he stated that he is not aware. He also stated that he is not aware of any issues between the Accused and the declarant in the past. In re-examination, he explained that he did not enquire into this as the Accused never mentioned that he had issues with the declarant in the past.

10. The Prosecution thereafter called Witness No.2, Mr Vidyaprakash Gurbah, the declarant in this matter. The latter explained under oath that on 21.07.24 at 08.10 a.m, upon reaching Veranda Hotel, Palmar, he was parking his car when he saw the Accused (whom he positively identified in Court), walking towards him. The latter was limping and had a stick in his hand. The declarant, who was in his car, lowered his window and the Accused reproached him of owing the latter Rs 600. The Accused then took the said stick and stroke him in his eye and grabbed his shirt while the declarant was still in his car, as a result of which his shirt was torn. The declarant then alighted from the car, pushed the Accused and went to the police station. He took a PF58 and went to the hospital for treatment.

11. Witness No.2 was thoroughly cross-examined by Defence Counsel.

C. The case for the defence

12. The case for the defence was put forward during cross-examination of the Prosecution Witnesses.

13. Furthermore, the Accused elected to make a statement from the dock and stated that he had given a work to the declarant, who was supposed to give him a commission on same. He stated that when he asked the declarant for his money, the latter threatened him. He denied having assaulted the Accused with a wooden stick. He further alleged that the declarant pushed him down and strangled him and the other taxi drivers had to intervene. He also alleged that he has been to the police station thrice but nobody took his statement whereas when the declarant went to the police station, the Accused was subsequently arrested for two weeks.

14. At the close of the case for the defence, Defence Counsel submitted that:

(a) The Prosecution ought to have produced the stick and the torn shirt as exhibits;

(b) There is a motive as to why the Complainant has levelled this allegation against the Accused, namely because as per the version of the Accused, the Complainant owed him a sum of money; (c) The sworn testimony of the Complainant did not appear to be a reliable and plausible version; (d) The PF 58 has not revealed any serious injuries around the eye of the Complainant given that Witness No.2 stated under oath that the Accused allegedly hit him with his walking stick;

And prayed for the case to be dismissed against the Accused as the Prosecution did not prove its case beyond reasonable doubt.

D. The Law

15. The relevant provisions for the offence of assault under the Criminal Code, are as follows: 228. Assault with aggravating circumstance (1) Any person who wilfully inflicts any wound or blow, or is the author of any other violence or assault, shall, if such act of violence has caused any sickness or incapacity for personal labour for more than 20 days, be punished by imprisonment and a fine not exceeding 100,000 rupees. […] 230. Assault (1) 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 2 years, and by a fine not exceeding 50,000 rupees. […] 16. Although the heading of section 230 is couched under the generic term of “Assault”, the provision in question, in fact, encompasses three distinct offences, namely wounds and blows (“coups et blessures”), blows (“coups”) and assault (“voie de fait”). (vide Peerbux v The State [2016 SCJ 15]) 17. In the present matter, the Accused stands charged with the offence of “assault” in the generic sense of the heading and I note that the body of the information does not give any particulars for the alleged act of assault. However, after gleaning through the defence statement of the Accused (Doc B), it becomes apparent that the charge being put to the Accused is one of “coups et blessures”.

E. Analysis

18. I have duly analysed all the evidence on record. As per Doc A, the Complainant was examined on 21.07.24 at 09.20hrs and the latter bore the following injury: “abrasion left zygoma”.

19. However, there is no indication as to whether the injury was of a serious or dangerous character. It would appear that the Complainant was admitted to Flacq Hospital, although the said Doc A, does not explicitly state so. Be that as it may, the Prosecution did not adduce any evidence pertaining to the length of time during which the Complainant was admitted to the hospital, if he was indeed admitted.

20. I have also perused Doc B, wherein the version that was put to the Accused was as follows:

« li fine dire qui Dimanche le 21 juillet 2024 vers le 08 heures 10 gramatin li ti dans parking l’hotel le Veranda Palmar quand mo fine alle envers li avec ene du bois et fine pique so li yeux cote gauche avec sa du bois la et fine essaye batte li avec ene baton mais li fine reussi separé et apres mo fine trappe so chemise avec tous les deux la main et fine risse fort et so chemise fine déchiré. Li fine blessé dans so li yeux gauche ».

21. Doc B nonetheless contains a denial of the charge and the Accused essentially stated that on the given day, he had asked the Complainant for the money which the latter owed him and he also alleged that the latter has levelled a false case against him so as not to return him his money.

The testimony of Witness No.2

22. The case for the Prosecution rests squarely on the testimony of Witness No. 2, the Complainant. The latter initially stated that the Accused had a stick in his hand and he used same and assaulted him in the eye. He further testified that the Accused grabbed his shirt and caused same to be torn.

23. During cross-examination, the Complainant was questioned as to whether he did produce his torn shirt to the police and whether he did take a photo of same and produced it to the police. However, he explained in detail that the officer who recorded his statement even measured the length of the shirt which was torn.

24. The Complainant was even ready to show a picture on his phone showing his injuries and his torn shirt and candidly replied that the officer had told him that same will be used in Court. However, the officer who recorded his declaration was not called as a witness for the Prosecution. I do note that, Witness No.1,

in his capacity as enquiring officer, did confirm, during re-examination, that there is a statement from the officer who took the declaration of the Complainant to the effect that the declarant’s shirt was torn. However, be that as it may, the Prosecution is seeking to rely on the truth of the contents of that statement which has neither been produced and nor was the maker called and such evidence would be hearsay and inadmissible.

25. The next issue which I have to consider is the alleged inconsistency as to where the Accused allegedly assaulted the Complainant. As per the record, the Accused initially testified that the Accused poked him in the eye with his stick. (he used the words “pique mo lizier” when describing the alleged act of assault). During cross-examination, he clarified that the stick he was referring to was in fact the Accused’s walking stick. However, when he was asked to show exactly where the Accused allegedly assaulted him, he went on to show underneath his eye, which is in fact consonant with the PF58 (Doc A) showing an abrasion at the left zygoma. The submission made by Learned Defence Counsel on this score is clearly neither here nor there.

26. Defence Counsel then flagged up the alleged inconsistency being given that in his statement to the police, the Complainant had stated “et li fine pique moi kot mo lizier côté gauche”. The Complainant, nonetheless, calmly reasserted that he mentioned “line pique moi kot mo lizier” (near the eye) and not “dans mo lizier” (in the eye). The Court is alive to the fact that the meaning of these two phrases depends on the preposition used in the creole language and which can easily be distorted during translation.

27. Despite being thoroughly cross-examined by Defence Counsel, Witness No.2 was not the least flustered and he deponed in a calm and coherent manner. He did not give the impression of someone who was lying. I have no qualms in believing his version. I also find that Doc A further buttresses the version of Witness No.2. There was no need for the Prosecution to physically secure the walking stick or the torn shirt as exhibit in order to prove its case.

28. Be that as it may, I shall now consider the issue of bad blood which has been made a live issue by the defence. On this score, I find it relevant to quote Jeeha v The State [2019 SCJ 133], where the learned Judges made the following observation:

“The argument of bad blood between the parties is a double-edged sword. If it is easy for one party to lodge a false charge against another party, it is equally easy for someone to actually assault a party with whom he is not on good terms and to, later, claim bad blood as a defence. This is why each case has to be judged on its own facts.”

29. In the present matter, Witness No.1 (the Enquiring Officer) stated during re- examination that he did not enquire as to whether the Accused and the declarant have had issues in the past, as this was never brought up by the Accused. Defence Counsel only cross-examined the Complainant in relation to the alleged sum of Rs 600 which the Complainant allegedly owed the Accused and for which, the Complainant has made up a false allegation against him. The Complainant confidently refuted the said allegation and maintained that he did not owe any sum of money to the Accused and even went on to say that he is a “millionaire”.

The unsworn statement of the Accused from the dock

30. In the present case, having had the opportunity of seeing and assessing the demeanour of the Complainant, who has stood the test of cross-examination I find that the Prosecution established a prima facie case, it was incumbent on the Defence to adduce evidence to rebut same.

31. It is trite law that the value of the unsworn statement made by the Accused from the dock, which is not given under oath, is merely of persuasive value rather than of evidential value, as opposed to the sworn evidence given by Witness No.2. (vide Director of Public Prosecutions v Kumar Nepaulsing [2012 SCJ 490]) I find it relevant to quote the following extract cited therein –

“What is said in such a statement is not to be altogether brushed aside; but its potential effect is persuasive rather than evidential. It cannot prove facts not otherwise proved by the evidence before the jury, but it may make the jury see the proved facts and the inferences to be drawn from them in a different light. Inasmuch as it may thus influence the jury’s decision they should be invited to consider the content of the statement in relation to the whole of the evidence. It is perhaps unnecessary to tell the jury whether or not it is evidence in the strict sense. It is material in the case. It is right, however, that the jury should be told that a statement not sworn to and not tested by cross-examination has less cogency and weight than sworn evidence.”

32. I must point out that I was not the least persuaded by the version given by the Accused, for reasons which will become apparent.

33. The Accused, for the very first time, mentioned that it was in fact the Complainant who had pushed him down and the latter even strangled him and other taxi drivers had to intervene. However, I do note that he never mentioned any such incident when he gave his version to the police. As per Doc B, the Accused simply mentioned that they had a dispute over an alleged sum of money and the Accused even stated that he has no witnesses.

34. If the version that he gave from the dock, is to be believed, it would follow that there were other taxi drivers who had witnessed such incident and the Defence was ill-advised not to have called those witnesses, who could have shed light on the incident. Unfortunately, the Defence did not deem it important to call these witnesses to buttress the Accused’s version, nor did the Accused come under oath.

35. In Mandary v The State [1998 SCJ 72], the Court cited with approval the following extract from Beckford v R (1987) LRC (crim) 467,which is a decision of the Judicial Committee of the Privy Council on an appeal from Jamaica:

“Before parting with this appeal there is one further matter upon which their Lordships wish to comment. The appellant chose not to give evidence but to make a statement from the dock which, because it cannot be tested by cross-examination, is acknowledged not to carry the weight of sworn or affirmed testimony”.

36. As stated in Andoo v The Queen [1989 MR 241]:

“Where the evidence for the Prosecution establishes a strong and unshaken prima facie case and the accused chooses not to swear to his statement and expose himself to cross-examination, the trial Court is perfectly entitled to conclude that the Prosecution evidence remains unrebutted.”

F. Conclusion

37. In light of the evidence adduced by the Prosecution and for all the above- mentioned reasons, I am of the considered view that the Prosecution has been able to prove its case beyond reasonable doubt.

38. I hasten to add that the submissions of Learned Defence Counsel, which have already been addressed, are devoid of any merits.

39. I accordingly find the Accused guilty as charged.

A. K. Nundloll Acting District Magistrate 30 March 2026