Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1698144298940.pdf (Mauritius)
Office of the Director of Public Prosecutions ‘To No One Will We Sell, To No One Deny or Delay Right or Justice’ Chapter 40, Magna Carta 1215 E-newsletter - Issue 91 April 2019 In this Issue Editorial 3 ODPP VIDEO • Mr AH SEN Jean Michel, Principal State Counsel 5 Courtesy Visit of Justice Madan Bhimarao Lokur 7 Reviewing the scheduling of Cannabis and Cannabis-related substances within the International Drug Control Conventions 9 QuickFacts 12 Case Summary 15 Editorial Team Ms Anusha Rawoah, Senior State Counsel Mrs Shaaheen Inshiraah Dawreeawoo, State Counsel Ms Veda Dawoonauth, Temporary State Counsel Ms Neelam Nemchand, Legal Research Officer Ms Pooja Domun, Legal Research Officer Ms Genisha Raudhay, Communication/Liaison Officer The views expressed in the articles are those of the particular authors and should under no account be considered as binding on the Office.
E-newsletter - Issue 91 April 2019 Page 2 Editorial Dear Readers, Welcome to the 91st issue of our monthly e-newsletter.

In this issue, in the ODPP Video section, our law officer provides an insight of a recent Supreme Court judgment, elaborating on the legal notion of ‘self-defence’.

On a different note, the ODPP was pleased to receive the visit of Justice Madan Bhimarao Lokur, retired judge of the Supreme Court of India.

An overview of his visit to the ODPP is provided.


Also, you will read an article on the recent recommendations made by the World Health Organisation, to the United Nations Secretary-General, on the possibility to review the status of cannabis and cannabis-related substances under international conventions.

Our usual rubric ‘Quick Facts’ is found at page 12.

In this issue, we give an insight of the various offences under the Beach Authority (Use of Public Beach) Regulations 2004 and their penalties.
Finally, summaries of recent Supreme Court Judgments are found at page 15.

We wish you a pleasant read and always welcome your comments on odppnewsletter@govmu.org.
Anusha Rawoah Senior State Counsel E-newsletter - Issue 91 April 2019 Page 3 ODPP VIDEO E-newsletter - Issue 91 April 2019 Case Commentary and the notion of Self-Defence under Mauritian law Click on the ‘Play’ icon below to view video E-newsletter - Issue 91 April 2019 Page 5 ARTICLES E-newsletter - Issue 91 April 2019 Courtesy Visit of Justice Madan Bhimarao Lokur It was with great honour and privilege that Mr Satyajit Boolell, SC Director of Public Prosecutions, received the visit of Justice Bhimarao Lokur at the office on 26 March 2019.
Also present were Mr Rashid Ahmine, Deputy Director of Public Prosecutions and Mrs Moutou-Leckning, Senior Assistant Director of Public Prosecutions.

Justice Madan Bhimarao Lokur is a retired judge of the Supreme Court of India who has been at the forefront of judicial activism in India in view of promoting and protecting rights of vulnerable people in India.

Justice Lokur has established himself as a legal polymath at the Supreme Court of India.
His rich career path and wide experience make invaluable reading and give an insight in a man whose life has been devoted to the practice of the law.

In 1977, he obtained his LLB.

degree from the Faculty of Law, Delhi University.

His professional path started in July 28, 1977 when he enrolled as an advocate.

He practised in the Delhi High Court and the Supreme Court of India in civil, criminal, constitutional, revenue and service matters.
He was appointed as Additional Solicitor General of India in July, 1998.

He was then appointed as Additional Judge of the Delhi High Court on February 19,1999 and as Permanent Judge on July 5, 1999.

He was appointed as Chief Justice of the Gauhati High Court on June 24, 2010.

He was transferred as the Chief Justice of the Andhra Pradesh High Court on November 15, 2011.

He was appointed as a Judge of the Supreme Court of India on June 4, 2012.

He has retired on December 30, 2018.


Justice Lokur has always been an achiever who has a keen interest on Mr Satyajit Boolell, SC matters pertaining to judicial reforms, computerization of courts, judicial Director of Public Prosecutions (Left); education, legal aid and services, juvenile justice and ADR.
In effect, he was Justice Madan Bhimarao Lokur, Retired Judge, Supreme Court of India (Right) a Member and later, Judge in charge of the Mediation and Conciliation Project Committee of the Supreme Court of India since its inception on 2005 till 2018.

He was the Judge in Charge (presently Chairperson) of the E- Committee of the Supreme Court if India from 2012.
He also chaired the One Man Juvenile Justice Committee from 2013 till 2018 set up under Effective Implementation of the Juvenile Justice (Care and Protection of Children) Act.

Additionally, he was the Chairperson of the Supreme Court Legal Services Committee from September 2017 till October 2018, and the Executive Chairperson of the National Legal Services Authority from October 2018 till December 2018.
E-newsletter - Issue 91 April 2019 Page 7 A Courtesy Visit of Mr Justice Madan Bhimarao Lokur to the DPP The visit of Justice Lokur has been beneficial to all members of the legal profession in Mauritius as he has shared his experiences and in particular, his thoughts on the evolution of the law in India and the role judges have to play in the promotion and protection of the rights of the most vulnerable people in society.
Legal professionals in Mauritius have fully benefited from the wisdom of Justice Lokur and engaged in an effective dialogue about the legal and human rights issues during a talk held at the Institute for Judicial and Legal Studies of Mauritius (IJLS) during his visit.
Justice Madan Bhimarao Lokur, Retired Judge, Supreme Court of India (Left): Mr Rashid Ahmine, Deputy Director of Public Prosecutions (Right) E-newsletter - Issue 91 April 2019 Page 8 Reviewing the scheduling of Cannabis and Cannabis-related substances within the International Drug Control Conventions Marijuana is the leading drug of choice when it comes to illicit drug trafficking.
As time passes, however, an increasing number of governments are starting to recognise its medicinal value, its potential to fight the opioid crisis and organised crime as well as the possibility for it to become a viable and lucrative industry if its production, trade and consumption become legal.

Policy shifts are underway.


With Canada becoming the second nation, after Uruguay in 2013, to legalise recreational marijuana use at federal level in 2018, and even having a legal national marijuana marketplace, the international press has been drawing much attention to the contentious issue of whether the international policies are now outdated.
The three major international drug control conventions are the Single Convention on Narcotic Drugs of 1961, the Convention on Psychotropic Substances of 1971 and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988.

They place cannabis and cannabis products under the strictest controls.
Growing tensions are being felt as the laws and practice in Member States’ jurisdictions are being reformed, beyond the boundaries which the treaties can legally accommodate, to provide access to the use of cannabis for medical and non-medical purposes.

In the United States for example, some states are legalising cannabis by ballot or legislative votes since 2012, starting with Colorado where marijuana consumption is legal for adults over the age of 21.
As international pressure increases, the United Nations might be considering reviewing its position on the control of marijuana.

This is, perhaps, to be expected as it is under the current leadership of Secretary-General António Manuel de Oliveira Guterres, former Prime Minister of Portugal, who played a key role in decriminalizing all drugs in his country in 2001.
The UN’s health agency, the World Health Organisation, made formal recommendations by way of letter addressed to the Secretary-General, on the 24th of January 2019, following a thorough investigation of cannabis and cannabis-related substances by its Expert Committee on Drug Dependence.

Their potential for harm, dependence and abuse from a public health perspective, as well as their therapeutic usefulness were all evaluated before the making of informed recommendations.
E-newsletter - Issue 91 April 2019 Page 9 Reviewing the scheduling of Cannabis and Cannabis-related substances within the International Drug Control Conventions The first recommendation concerned the removal of the whole-plant cannabis and cannabis resin from the most restrictive category (Schedule IV) of the 1961 Convention such that they would only be classified under Schedule I, the least restrictive category, within the 1961 Convention.
The second recommendation was for dronabidol to be deleted from Schedule II of the 1971 Convention and added to Schedule I of the 1961 Convention.

The third recommendation was that tetrahydrocannabinol be added to Schedule I of the 1961 Convention and be deleted from Schedule I of the 1971 Convention.

The fifth recommendation was in regards to the deletion of extracts and tinctures of cannabis from Schedule I of the 1961 Convention.
The sixth recommendation pertained to cannabidiol preparations and was that preparations considered to be pure cannabidiol and not containing more than 0.2 percent of delta-9-tetrahydrocannabinol should not be classified within the International Drug Conventions.

This is an important recommendation as this means that pure cannabidiol is not to be placed under international drug control as the substance was not found to have psychoactive properties, and presents no potential for abuse or dependence.
The seventh and last recommendation was in relation to the addition to Schedule III of the 1961 Convention of the preparations produced by chemical synthesis or as preparation of cannabis which are compounded as pharmaceutical preparations with one or more other ingredients and in such manner that dronabinol cannot be recovered by readily available means or in a yield which would be a risk to public health.
The new recommendations will have to be voted on by the UN’s Commission on Narcotic Drugs before amendments, if any, can be brought to the International Drug Control Conventions.

The global implications of such amendments are enormous.

If the Commission on Narcotic Drugs adopts these recommendations, the United Nations would be setting a significant precedent which Member States might be tempted to follow.

Mauritius has been a member of the United Nations since 1968.
It was also a former member of the Commission on Narcotic Drugs (1997-2001), established by the Economic and Social Council of the UN.

As a signatory nation to the UN conventions, Mauritius had passed domestic legislation to fulfil its treaty obligations and prohibit cannabis and cannabis products.

Should the UN move towards a smoother approach to cannabis, Mauritius could opt to review its own laws.
Anusha Sheila Aubeelack Temporary State Counsel E-newsletter - Issue 91 April 2019 Page 10 z\ QUICK FACTS E-newsletter - Issue 91 April 2019 Quick Facts Beach Authority (Use of Public Beach) Regulations 2004 Examples of offences under the Regulations Damage, or interfere with any flora, including trees and grasses on a public beach Penalty for contravention of the regulations Fine not exceeding 10,000 rupees and imprisonment for a term not exceeding one year Source: www.coloursofmauritius.com Remove, deface, damage or destroy any sign or post placed on a public beach E-newsletter - Issue 91 April 2019 Source: emtouree.com Page 12 Light a fire outside a place designated by the Authority Leave a fire unattended at such designated place until the fire is completely extinguished Source: www.shutterstock.com Deposit or leave any object, including any rubbish or litter on the public beach, except in receptacle or within an area provided for that purpose Source: weluvmu.com Damage, remove or otherwise interfere with any floats or buoys Deposit or dispose of any waste or rubbish, oily liquid, acid or other chemical or toxic or polluting substance into the marine environment on a public beach Source: www.deamstime.com Abandon a vessel, motor vehicle or any other property on a public beach E-newsletter - Issue 91 April 2019 Page 13 SUPREME COURT JUDGMENTS SUMMARY E-newsletter - Issue 91 April 2019 SUMMARY OF SUPREME COURT JUDGMENTS: April 2019 CANGY J.B.C v THE STATE [2019 SCJ 87] By Hon.
Chief Justice, Mr. K.P.Matadeen, Hon Judge, 9.

The Judge has failed to leave an alternative verdict to the Jury.

The Jury has been left with “all or nothing” choice, which renders the conviction unsafe.

10.

The Judge misdirected the Jury on the issue of intention to kill.

The intention to kill has been equated to inflicting violence, which is a much lower threshold.

The conviction so obtained is therefore unsafe.

Mr. D. Chan Kan Cheong, Hon Judge Mrs. G. 12.


The sentence is manifestly harsh and excessive.” Jugessur-Manna Attempt at Manslaughter – Court of Criminal Appeal – the use of the word “confession” – the element of Intention to Kill – Sentence manifestly harsh and excessive The grounds were grouped and were threefold: i. the learned judge was wrong not to leave an alternative verdict to the jury (grounds 3, 4 and 9); ii.
the learned Judge misdirected the jury by using the The Appellant was charged before a Judge and a Jury word “confession” in relation to the appellant’s out of with attempt at manslaughter.

He pleaded not guilty but court statement to the police (ground 8); he was found guilty by a majority verdict of 8 to 1.

He was thereafter sentenced to 10 years’ penal servitude.

iii.
iii.

the learned Judge misdirected the jury on a material element of the offence, namely the “intention to kill” The appellant challenged his conviction and sentence on (ground 10).

no less than 12 grounds.

At the hearing of the appeal, the appellant dropped several grounds.

The remaining grounds of appeal read as follows: The facts of the case were as follows: The complainant broke up with the Appellant and they were both students at the time.

On the material day, the complainant was on “3.


The learned Judge misdirected the Jury by making her way back home from tuition with her friend and whilst them believe that he would give them the option of an they were passing in front of the Appellant’s premises, the alternative count so that they would return an alternative latter approached the complainant to talk to her but she verdict if they find Appellant not guilty of Attempt at refused.

The Appellant then removed a knife and stabbed Manslaughter.
the complainant in her belly and at other parts of her 4.

The learned Judge misdirected the Jury by making body.

them believe that they could come up with an Alternative She managed to grab and snatch the knife which broke verdict where in truth no alternative counts were given to and she sustained a laceration between her right thumb them and they were convened to give a verdict only with and index in the process.

She then fell down and whilst the count relating to Attempt at Manslaughter.
she was on the ground, the Appellant dealt her blows and 8.

The Judge misdirected the Jury by using the word “confession” several times before them.

There was never a “confession” in law for an attempt at manslaughter in the out of court statement to the police.

The verdict of guilty obtained in such circumstances is therefore unsafe.

kicks before leaving the spot where several persons had gathered.
She suffered a penetrating wound at her abdomen and bowels which required for a survival operation and lacerations at various other parts of her body.

According to her, the appellant threatened to kill her during the assault and would have done so if she had not disarmed him.
E-newsletter - Issue 91 April 2019 Page 15 As far as grounds 3,4, and 9 were concerned, the Court For the reasons above, the Court find no merit in any of held that not every alternative verdict must be left to the the grounds of appeal and same was accordingly jury unless it was an “obvious alternative”.

dismissed.
dismissed.

In his summing up the Judge is not obliged to direct the jury about the option of finding the accused guilty of an alternative offence, even if that option is available to them as a matter of law.

THACOOR R. v THE STATE [2019 SCJ 101] By Hon.


Judge, Mr. P. Fekna Swindling – Challenging Conviction In relation to ground 8, which was in relation to the use of the word “confession” by the Judge in his summing up, the Court of Appeal after perusing the out of court statements of the Appellant, held that the Learned Judge made an infelicitous and ill-advised used of the word “confession” when he referred to the partial admissions contained the Appellant’s written statements.
However, they held that the impugned extracts of the summing up of the Judge must not be read in isolation and out of context.

They further held that what matters is that the summing up on its whole was a fair summing up and put the issues fairly before the jury, giving correct directions of law and including an accurate review of the main factual issues and evidence.

Conclusively, it was held that the summing up met the standard of objectivity and was presented fairly to the jury.
Ground 10 was in relation to the element of the intention to kill.

According to the Appellant, the Learned Judge equated “intention to kill” to inflicting violence which was a lower threshold.

The Court held that the criticisms levelled at the directions of the learned Judge on the issue of “intention to kill” are unwarranted and unjustified.

In fact, it was held that the learned Judge painstakingly directed the jury on this element of the offence.
Ground 12 which was in relation to the sentence meted out.

The Court held that the learned Judge adopted the accepted principles in sentencing by laying emphasis on the need for proportionality and individualization of the sentence and the need to decide each case on its own merits.

It was held that same was not manifestly harsh and excessive.

The Appellant was charged before the District Court of Pamplemousses for the offence of “swindling” in breach of Section 330 of the Criminal Code.
He pleaded not guilty to the information.

The learned Magistrate found him guilty as charged and he was sentenced to undergo one- month imprisonment which was suspended and converted into 70 hours of Community Service.

The Appellant is now challenging his conviction based on four grounds of appeal which essentially purport to put into question the findings of facts by the learned Magistrate.
The complainant stated that in the month of November 2013, he intended to travel to India for the purposes of getting married there.

The Appellant approached him and made him understand that the he was a travel agent and could do the needful for him.

He was showed bank cheques and by acting in that way, the complainant believed that the appellant was a person of means.
The Appellant further took the complainant to Moka and showed him a man who was allegedly his employer in the business of organizing travel tours.

Finally, the appellant called a person on his cellular phone and made the complainant understand that the person on the other side of the line was from India.

The complainant had a conversation with that person in the Hindi language.
The issue of the complainant intending to get married in India was discussed and the person stated that he ‘would introduce [the complainant] to people’, implying that those persons could organise his wedding.

The complainant thereafter remitted the sum of Rs 25,000 for the buying of the air ticket.

The Appellant subsequently requested for another Rs 10,000.

E-newsletter - Issue 91 April 2019 Page 16 By January 2014 the trip to India had not been finalized.

(3).
(3).

The learned Magistrate’s findings are perverse, He called the Appellant and the latter pretended the unwarranted and unreasonable, inasmuch as she should complainant never remitted any sum of money to him.

not have concluded that the prosecution had established The matter was reported to the police.
the appellant’s guilt beyond reasonable doubt based on In his statements to the police, the Appellant admitted that the evidence put before her.” he knew the complainant and explained that he had a The learned Magistrate was in presence of two versions, fight with his neighbors and the complainant also got namely one from witness no.

2 and one from the involved in the incident.


Since then the complainant had a appellant, and erred in opting to act solely on the grudge against him and every now and again, the evidence of witness no.

2 on the ground that the appellant complainant would get drunk and call the appellant and appeared to be a cunning person”.

threaten to level a false charge against him in order to trap him because of the bad blood between them.
Ground 4 reads as follows: “The learned Magistrate should have made an assessment of the bad blood relationship between the appellant and witness no.

2 and the possible motives of witness no.

2”.


It was held that the learned Magistrate considered that: [a] the witness was well-composed which was indicative of him being confident; [b] he was accurate and unchanging in the version of the facts that he gave; and [c] he successfully withstood the test of cross- The Court perused the judgment of the Learned examination.
Magistrate which showed that the latter was fully alive to The learned Magistrate based on the above found that the this issue which was the very crux of the defence of the witness was worthy of belief and that he had spoken the Appellant and was dealt with in her judgment.

In truth.

determining whose version was plausible, the Learned Magistrate rightly examined the demeanors of the parties The appeal was accordingly dismissed with costs.
before reaching a decision as to whom she ought to LACLOCHE J.C.B v THE STATE [2019 SCJ 93] believe.

She found that the appellant appeared to be a cunning person who was trying to weave his way out of the charge whereas the complainant was clear and straightforward when he gave evidence in Court.

Hence the Appellate Court was not prepared to interfere with the findings of facts of the learned Magistrate.

As far as Ground 2 and 3 were concerned, they read as follows: By Hon.

Chief Justice, Mr. K.P.


Matadeen, Hon Judge Mrs. N. Devat, Hon Judge, Mr. D. Chan Kan Cheong Attempt at Manslaughter – Court of Criminal Appeal – the use of the word “confession” – the element of Intention to Kill – Sentence manifestly harsh and excessive The appellant was prosecuted before a Judge and a Jury for having on or about 7 December 2012 at Ruisseau des “(2).
The learned Magistrate erred in her assessment of Creoles, Port Louis, committed the offence of the evidence given by the appellant since there is no manslaughter on the person of Ameerchand Rughooa in proper finding as to whether the learned Magistrate breach of sections 215 and 223(3) of the Criminal Code.

believed the version of the appellant or not.


There was a duty on the part of the learned Magistrate to assess the version of the appellant and to thereafter decide whether such version is true or false”.

Appellant pleaded not guilty to the charge.

he was found guilty as charged by a Jury by a majority verdict of 7 to 2.

E-newsletter - Issue 91 April 2019 Page 17 He was sentenced by the learned Presiding Judge to On 06.12.2012 at about 10 pm, the deceased went to buy undergo 23 years’ penal servitude.
The evidence adduced cigarettes in a nearby shop.

Mrs. Bacsou accompanied by the prosecution consisted of the testimony of the him to the front door of the house and from there watched deceased’s wife, Mrs Bacsou, the medical evidence of Dr him going towards the main road.

M. Sajjid Aungraheeta, the Surgical House Officer, who examined Ameerchand Rughooa upon his admission at Dr Jeetoo Hospital around midnight on 6 December 2012 following injuries sustained.
She saw the appellant in company of Yanish and Papou who are brothers and who lived opposite her rented house.

They were all talking and swearing loudly.
The deceased gazed at them, turned towards her and stated: The medical evidence of Dr Gungadin who had performed “Gate amene mo sabre.” She asked the deceased for a post-mortem examination on the deceased, the medico- what purpose and the latter retorted “mais mo laisse sa legal report, photographs of the post-mortem examination, trois couillon la batte moi kuma lot fois la?” photographs and plan of the scene where the offence took place, the various exhibits secured by the police during the enquiry, the evidence of the Forensic Scientist on his examination of the exhibits and the statements given to the police by the appellant.
She went inside the house and picked up a box in which was a sabre.

The deceased snatched the box from her hands and made his way towards the appellant and the two others.

She followed the deceased and saw the appellant and his two friends also walking towards the The cause of death according to Dr Gungadin was shock deceased.

due to ruptured spleen.

Mrs Bacsou gave a detailed account of the event of the 6th December 2012.
She related that she was married to There were an exchange of swear words which culminated in an argument on the bridge between the deceased and the appellant, Yanish and Papou in the Ameerchand Rughooa, the deceased, and was living with course of which the deceased brandished the sabre.

The him in a rented room in a house situated at Ruisseau des appellant sprung on the deceased, pulled him by his T- Creoles, Port Louis.
In the rented house lived four other shirt and tried to snatch the sabre from him whilst families, amongst whom were the appellant, his father, his slapping and punching him in the face.

sister Doris and another sister.

She tried to intervene but the appellant pushed her, swore The four families, including the deceased and herself, at her and threatened to do her bodily harm.

The sabre were sharing a single toilet and a bathroom.
There was fell on the bridge and upon the appellant’s instructions, also a single water meter and at the end of each month Papou put his foot on the sabre and prevented her from the water bill would be divided equally amongst all the picking it up.

tenants.

Doris was responsible for collecting money from the tenants and for settling the bills.
Yanish and Papou held the deceased by his arms whilst the appellant continued to give him blows on his face and At the beginning, the deceased’s relationship with the body and hitting him several times on the head with the other tenants, including the appellant and his family, was handle of a knife given to him by Yanish.

The deceased civilised.


However, gradually, relationship with the fell and whilst he was down on the road in a weakened appellant became tense due to housekeeping matters, state, the appellant knocked his head repeatedly on the non-payment of water bills by Doris and cuts in their water tarred road and kicked him on his abdomen and sides of supply.

the body.

The deceased was injured at his head and was bleeding.
E-newsletter - Issue 91 April 2019 Page 18 The appellant denied: (i) the presence of Akshay Ground 10 Jhingoor (Papou) during the fight; (ii) that Papou and Yanish held the deceased by his arms whilst he repeatedly hit the latter until he was in a state of weakness and could not defend himself; (iii) that No reasonable Jury could have come to the decision that there is no Self Defence in the teeth of evidence adduced, thus making the finding of the jury perverse.
Yanish gave him a knife; and (iv) that after he gave the Ground 11 first blow to the deceased and the latter fell down, he (the deceased) was no longer a threat to him.

The appellant did not admit that the degree of violence used to assault the deceased was such that the latter had his spleen and kidney ruptured.
The grounds were as follows: Ground 1 The Learned Judge was wrong to ask Learned Counsel appearing for the State to answer back to the closing speech of Counsel appearing for the Appellant whilst at the same time refusing Counsel for the Appellant to reply to same.

Ground 2 The Learned Judge was wrong not to explain to the members of the Jury what the elements of Provocation are.
The Learned Judge failed to refer to the physical impossibility of the evidence adduced by witness Mrs Bacsou, as described in the medical report of Dr Gungadin and as per the Doctor’s testimony Ground 12 The Learned Judge did not refer at all to the fact that witness Bacsou was found lying on the issue of false teeth (fausse dents) as borne out by the evidence of Dr Gungadin and the photos of the deceased at the mortuary.
Ground 14 That the Learned Judge was wrong in not giving the “Lucas Direction” to the jury in relation to the potential lies, if any, found by the jury in statements given to police by the Appellant.

Ground 17 Ground 6 The Learned Judge did not refer at all to the case of the Defence in a balanced way thus poisoning the mind of the members of the Jury.
That in view of the evidence adduced, no reasonable jury could have come to the conclusion that there is manslaughter in the absence of any evidence to support Ground 7 The Jury’s decision was perverse as no the elements of manslaughter as per section 223 of the reasonable Jury with the evidence adduced could have Criminal Code.

come to the conclusion that the Appellant had the intention to commit manslaughter.
Ground 19 Sentencing Ground 8 The Learned Judge was wrong not to refer the members of the Jury the forensic results on the sabre and the DNA of the Appellant found on the clothes of the deceased, thus not directed (non direction of the Judge) the Jury on an important component.

Ground 9 The Learned Judge failed in his summing up to refer that the sabre was contaminated by Police Officers as per the evidence adduced.
That in all the circumstances of the case to sentence is against the principle of proportionality.” Under Ground 1, the record showed that at the close of the case for the defence, after Counsel for the prosecution and Mr Valayden had addressed the Jury, the learned Presiding Judge stated the following to Counsel for the prosecution: “Yes, Mr Ah Sen. Re re-mark in law.” E-newsletter - Issue 91 April 2019 Page 19 It was held that the exchange between the Learned It was further held that the prosecution having satisfied Judge and Counsel for the prosecution could hardly be the Jury that the appellant could not have acted in qualified as an invitation by the learned Judge to necessary self-defence, the Jury could not be faulted for Counsel for the prosecution to reply to the closing having rejected the appellant’s defence of self-defence speech of Counsel for the defence.
It was further held and his contention that he did not have the requisite that such remarks could not have negatively impacted intention to kill.

The arguments of Counsel in support of on the mind of the jury.

The ground of appeal was the criticisms levelled against the verdict of the Jury were dismissed.

unfounded and devoid of merit.

Grounds 7, 10 and 17 Under Ground 2, the court held that provocation was equally failed.

not made a live issue before the Jury.


The case for the Ground 14 was that the Learned Judge was wrong in not appellant rested solely on self-defence.

In fact, learned giving the Lucas Direction to the Jury in relation to counsel for the Appellant failed to point out what potential lies, if any, found by the Jury in statements given evidence on record could in his view, amount to to the police.

provocation.

Ground 2 was accordingly dismissed.


In his summing up the Judge is not obliged to direct the Under Grounds 6, 8, 9, 11 and 12 which were argued jury about the option of finding the accused guilty of an together, the Court held that there was no duty from alternative offence, even if that option is available to them the Learned Judge to rehearse each and every as a matter of law.
inconsistency and contradiction in the evidence of a witness, be it for the prosecution of the defence as they were canvassed in the submissions made by counsel for the prosecution and the defence.

The Court did not find any justification in the appellant’s complaints and criticisms levelled against the learned Presiding Judge.

Under Grounds 7, 10 and 17 it was submitted that on the evidence adduced, the jury’s decision finding the appellant guilty of the offence of manslaughter was perverse.
The Appellate Court pointed out from the outset that the appellant made no complaint against the direction of the Learned Judge to the Jury on the It was further held that there was no need for the learned Judge to give a Lucas Direction to the jury as it was clear that the prosecution never relied on any lie of the appellant to support evidence of his guilt.

Ground 14 was dismissed.


As far as Ground 19 was concerned, the Court held that the sentence was certainly not one where a reasonable man would go away with burning and justified sense of grievance.

It was in fact held to be on the low side.

The Court was also of the view that there were no such particular and exceptional circumstances as contended by the appellant which would justify a lesser sentence.

issue of self-defence and intention to kill.

For the above reasons, the appeal was dismissed.


There was also no complaint against the direction of the Learned Judge to the Jury that they were entitled to find proved that the appellant inflicted on the deceased violence and injuries which caused him death.

“Speak less than you know; have more than you show” –William Shakespeare E-newsletter - Issue 91 April 2019 Page 20 E-newsletter - Issue 91 April 2019 Page 21