Office of the Director of Public Prosecutions

Transcription

1 Office of the Director of Public Prosecutions

2 In this Issue Editorial 3 Celebrating the 100th birth anniversary of Mandela 4 NAGTRI International Fellows Courtroom Etiquette: A perspective of how to behave in court 7 Team Building Activity of the ODPP 9 Case Summary 11 Editorial Team Ms Anusha Rawoah, Senior State Counsel Mrs Pooja Autar-Callichurn, State Counsel Mrs Shaaheen Inshiraah Dawreeawoo, State Counsel Ms Neelam Nemchand, Legal Research Officer Ms Pooja Domun, Legal Research 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. Page 2

3 Editorial Dear Readers, We are pleased to bring to you the 84 th issue of our monthly newsletter. As the 18 th marked the 100 th birth anniversary of the iconic leader, Nelson Mandela, an article is provided to honour his invaluable legacy. The United Nations in fact, declared the 18 th July as Mandela Day and this year the Nelson Mandela Foundation has dedicated Mandela Day to Action Against Poverty, honouring Nelson Mandela's leadership and devotion to fighting poverty and promoting social justice for all. Anusha Rawoah Senior State Counsel On another note, in this issue, one of our law officers provides an insight of her experience as a NAGTRI (National Attorneys General Training and Research Institute) International Fellow. Another riveting topic of interest, especially relevant to our young members of the bar, has also been thrashed out in this issue, namely Courtroom Etiquette. The article emphasizes on areas such as appropriate attire and punctuality. Moreover, readers will get a glance of the team building activity organised by the ODPP for its law officers and support staff. Finally, in our endeavour to keep readers abreast with recent judgments of the Supreme Court, summaries of same are provided at page 11. We wish you a pleasant reading. Page 3

4 CELEBRATING THE 100 TH BIRTH ANNIVERSARY OF MANDELA Nelson Mandela The 18 th marked the centenary of the birth of Nelson Mandela. As one of the iconic leaders of the 20 th century, Nelson Mandela fought for democracy, justice, peace and reconciliation. He showed the world what it meant to live a life in the service of others. Born in Transkei, South Africa, on July 18, 1918, Nelson Mandela, also known as Madiba, was one of the most well-known anti-apartheid activists in South Africa. He was jailed in 1963 for leading the liberation movement against apartheid and for his stance on the human right to live in freedom. After 27 years in prison, Nelson Mandela was freed in 1990 and negotiated the end of apartheid in South Africa, bringing peace to a racially divided country and leading the fight for human rights around the world. Mandela s efforts resulted in him becoming elected as South Africa s president in He remained in office as president until He also won the Nobel Peace Prize, together with another former South African president Frederik Willem de Klerk, in In 2007, Mandela formed the Elders, an independent group of global leaders who offer their influence and experience to support peace building, help address major human suffering causes and promote shared interests of humanity. In November 2009, in recognition of Mandela s contribution to the culture of peace and freedom, the UN General Assembly declared 18 July "Nelson Mandela International Day". As such, Resolution A/RES/64/13 recognizes Mandela s values and his dedication to the service of humanity in: conflict resolution; race relations; promotion and protection of human rights; reconciliation; gender equality and the rights of children and other vulnerable groups; the fight against poverty; the promotion of social justice. The resolution acknowledges his contribution to the struggle for democracy internationally and the promotion of a culture of peace throughout the world. Subsequently, in December 2015, the General Assembly extended the scope of Nelson Mandela International Day to also be utilized in order to promote humane conditions of imprisonment, to raise awareness about prisoners being a continuous part of society and to value the work of prison staff as a social service of particular importance. Nelson Mandela International Day 2018 marks 100 years since the birth of Nelson Mandela. The Centenary is no doubt an occasion to reflect on his life and legacy, and to follow his call to make of the world a better place. The Nelson Mandela Foundation has dedicated this year's Mandela Day to Action Against Poverty, honouring Nelson Mandela's leadership and devotion to fighting poverty and promoting social justice for all. Page 4

5 To honour Nelson Mandela s legacy of peace and service through leadership, the U.S. government launched the Mandela Washington Fellowship for Young African Leaders in The Fellowship is a highly competitive flagship programme of the Young African Leaders Initiative (YALI) that empowers young people through academic coursework, leadership training, and networking. It brings young African leaders to the United States for academic coursework and leadership training and creates unique opportunities in Africa for Fellows to put new skills to practical use in leading organizations, communities, and countries. I was privileged to be selected as part of the 2018 Mandela Washington Fellowship for Young African Leaders. The Fellowship provides outstanding young leaders from Sub-Saharan Africa with the opportunity to hone their skills at a U.S. higher education institution with support for professional development after they return home. Each Mandela Washington Fellow takes part in a six- week academic and leadership institute at a U.S. university in one of three tracks: business and entrepreneurship, civic leadership, or public management. I was chosen for the Public Management track, for which I attended the Georgia State University. Following the academic component of the Fellowship, all Fellows visited Washington, D.C. for a three-day summit. During the Summit, we took part in networking and panel discussions with U.S. leaders from the public, private, and non-profit sectors. No doubt, Mandela Day not only celebrates Nelson Mandela s life, but it is also a global call to action for people to recognize their ability to have a positive effect on others around them. In his own unique way, Mandela helped to restore the world s trust and confidence in South Africa after apartheid. To truly honour Mandela s legacy, we should espouse the values of active citizenship and help promote and sustain confidence in our country. Mandela Day calls on us all, every day, to make the world a better place to live in. Anusha Rawoah Senior State Counsel Page 5

6 NAGTRI International Fellows 2018 Kevina Poollay Mootien, Senior State Counsel of the Office of the Director of Public Prosecutions was selected as a 2018 NAGTRI (National Attorneys General Training and Research Institute) International Fellow. NAGTRI is the research and training arm of the National Association of Attorneys General (NAAG). The NAGTRI vision is recognized as the premiere national organisation for training and research throughout the government legal, law enforcement, and prosecutorial arenas. Kevina Poollay Mootien Senior State Counsel The purpose of the NAGTRI International Fellows Program is to provide a forum for elite government attorneys from around the world to learn from each other, explore common issues together, and establish an international network to the mutual benefit of their respective offices. Approximately twenty participants are selected yearly to take part in the program. It is a challenging and demanding program, requiring full engagement in the materials, and research and discussion, with a presentation as the ultimate goal. The 2018 NAGTRI International fellowship started in Washington D.C. with lectures from Experts such as Frank Abagnale a prominent security consultant and Daniel Marti, former senior White House Official as well as a meeting with the U.S. Attorney General, Jeff Sessions and ended with a presentation at New York University School of Law. It is the second time a prosecutor from Mauritius has been selected for this prestigious fellowship. NAGTRI International Fellows 2018 Page 6

7 COURTROOM ETIQUETTE: A PERSPECTIVE OF HOW TO BEHAVE IN COURT It s a truth universally acknowledged that etiquette is essential for making a good impression. In fact, all legal professionals begin their studies with one of the main lessons of life at the bar, that court room etiquette rules require them to be on time, be polite to the magistrate, the judge, opposing counsel and court staff and to dress appropriately. With time, the basics are forgotten and with the joining in of new members at the bar, these etiquette rules tend to be ignored. Below is a refresher of the main, and undoubtedly non-exhaustive list of court etiquettes which is by no way, compiled in an order of importance. They each carry equal weight and worth. Appropriate Attire: Dressing Conservatively There has never been an official dress code for barristers and attorneys. However, because a court room is considered to be a formal place, there is an expectation for men to always wear a suit and women who tend to have more options are to wear outfits which are equivalent to office attire accompanied with a degree of modesty. Both men and women should watch their colours. Punctuality It is important to arrive in court on time. Whilst it can be difficult, efforts should be made not to keep a court waiting whilst occupied in other courts for other matters. In the likelihood that lateness is contemplated, it is important that the court staff is made aware of the whereabouts of counsel/attorneys. Where a court has been waiting for an appearance, it is important to apologise to the Court for the delay and to provide the reason for the delay at the outset. Bow to the Magistrate of Judge When entering and leaving the court room, all legal practitioners and court officials are expected to bow to the Magistrate or Judge to show that they have acknowledged his or her presence. Such common law tradition owns itself to the fact that the coat of arms sits behind the bench where the Judges or Magistrates sit. Upon entering the Court room, it is customary to bow to the Coat of Arms and indirectly those presiding over the case. Page 7

8 Relations with Court Staff and Members of the Legal Profession COURTROOM ETIQUETTE: A PERSPECTIVE OF HOW TO BEHAVE IN COURT All members of the legal profession irrespective of their seniority must treat the Court staff and their colleagues in a respectful and courteous manner. Aggressiveness towards any members of the legal profession should be inexistent. Success and the best outcome of cases is always desired but it should never be at the expense of good manners and respect for others. Turn Off All Electronic Devices Before entering a court room, all electronic devices must be turned off so as not to disturb and hinder the proper recordings and holding of court procedures especially when an oath is being taken, a person is being sentenced or when a judgment is being delivered. While waiting to appear Whilst waiting for a court appearance, it is important to remain patient and courteous when waiting for a matter to be called on. It is inappropriate to talk loudly inside the court room. At the Bar Table It is important to always speak from the bar table and not from elsewhere when addressing the Court. A legal practitioner should not speak when someone else is speaking. Whilst submitting, the opponent counsel should always remain seated. In the likelihood that the opponent is objecting or standing, then the other party must sit down. The purpose behind the rule is that at any point in time, only one person should be addressing the Court. Irrespective of whether the legal practitioner has won or lost, it is vital that graciousness be displayed. Leaving the Bar Table During the hearing of cases, the bar table must not be left unoccupied. A legal practitioner must be given leave of the Court before vacating the bar table. Shaaheen Inshiraah Dawreeawoo State Counsel Page 8

9 Team Building Activity of the ODPP 23 June 2018 at Sofitel Mauritius L Imperial Resort & Spa Page 9

10 Team Building Activity of the ODPP 23 June 2018 at Sofitel Mauritius L Imperial Resort & Spa Page 10

11 SUMMARY OF SUPREME COURT JUDGMENTS: THE STATE V DZITSE R.M.K. [2018 SCJ 249] By Hon. Judge Mr. A. Hamuth, Judge Sentence Mitigating factors Aggravating Factors On the 06 th of, the Accused was convicted for the offence of knowingly delivering dangerous drugs consisting of heroin contained in grams of brown powder. He was further found to be a drug trafficker. The Court considered the Accused s clean record, his cooperation with the police, his unblemished record whilst on remand awaiting trial, his plea in mitigation, the fact that he assisted the police and prisons security in the maintenance of law and order in prison and the fact that he was away from his home and country. The Court also considered the harm which could have been caused to society and to the youths of Mauritius, the value of the drugs, the purity of the drugs and the range of sentences of penal servitude and fine for such type of offence. Before sentencing the Accused, the Court also considered the fact that he was on remand for ten years and went on to cite the case of P. Boolell v The State [2006 MR 175]; [2005 PRV 39] which speaks of delay of which the Accused was not responsible for. He was tried anew after a first trial. The court then concluded that a reduction of 2 years from the custodial sentence was warranted. Based on the above, the Accused was sentenced to 29 years of penal servitude and to pay a fine of Rs 100,000. The total number of days he spent on remand was to be deducted from the sentence. DADANG SUNGKAWA V THE STATE [2018 SCJ 256] By Hon. Judge, Mr. D. Chan Kan Cheong and Hon. Judge, Mr. O.B.Madhub Wounds and Blows without intention to kill Sentence Manifestly harsh and Execessive Guilty Plea - Joint enterprise The Appellant and three other co-accused were charged before the Intermediate Court with the offence of wounds and blows without intention to kill which resulted into the death of the victim. The facts of the case are as follows: On the 20 th September 2015 at Quay D Port Louis Harbour a fight broke out on board of a vessel whereby one Vietnamese seaman was assaulted and thrown into the sea. The Medical report confirmed that the victim suffered multiple injuries and died of asphyxia due to drowning. All the 4 accused parties, who were all foreign nationals, were legally assisted during the trial and pleaded guilty to the charge of wounds and blows causing death without intention to kill. All 4 accused were sentenced to 7 yeas penal servitude. The Appellant however appealed against the sentence and stated in his ground of appeal that the sentence meted out to him was unreasonable, manifestly harsh and excessive and wrong in principle. The contention of the Appellant was to the effect that the Learned Magistrate failed to take into account the low degree of involvement of participation of the appellant in the offence. The Court after having considered the whole court record came to the conclusion that the Appellant did not raise or canvass the issue that his participation was beyond the agreed common purpose. The plea of guilty was clear, unequivocal and was made after consultation with his legal adviser. The Court also considered the sentencing trend as stated in some similar cases and therefore it held that the sentence was not unreasonable, manifestly harsh and excessive and wrong in principle. The Appeal was dismissed. Page 11

12 GOPAUL Z V THE STATE 2018 SCJ 262 By Hon. Judge, Mr. D. Chan Kan Cheong and Hon. Judge, Mr. O.B. Madhub Swindling Mitigating Sentence Social Enquiry Report Inordinate Delay The Appellant was charged for the offence of swindling and attempt at swindling under Counts I and II of an information before the Intermediate Court. She pleaded guilty to both counts and was found guilty as charged. After the hearing on sentence, the learned Magistrate inflicted a sentence of 6 months imprisonment to the Appellant under both counts. The grounds of appeal were as follows: 1. Because the Appellant s right to a fair trial under section 10 of the Constitution has been infringed in view of inordinate delay between the occurrence of the offence and the sentence. 2. Because the Learned Magistrate has failed to give due and proper consideration to the following compelling mitigating factors namely: a) Timely guilty plea; b) The remorse of the Appellant and her prayer for a last chance in life; c) Her responsibility as a mother of two school going children and as sole bread earner in the family; d) Her full cooperation with the police; e) The prejudice caused was only Rs 3,500; f) Time lapse and the circumstances surrounding the commission of the offence. 3. Because the Learned Magistrate has failed to consider the principles of proportionality and parity whilst inflicting a custodial sentence. 4. Because the Learned Magistrate has failed to consider that inflicting a non-custodial sentence would have sufficiently met the ends of justice. 5. Because the sentence is manifestly harsh, excessive and wrong in principle. 6. Because the Learned Magistrate was wrong to attach too much importance to the record of the Appellant. As far as the issue of delay was concerned, the Appellate Court went through the Court record and noted that the information was lodged on the 20 th of May 2013, the case was called pro forma on 10 th July The Accused pleaded guilty on 23 rd September 2016, the hearing on sentence was heard on 8 th February 2017 and sentence was inflicted on 13 th February The Appellate Court agreed with the Respondent and held that the Appellant contributed to the delay for various reasons on several occasions and secondly the delay could hardly be considered as inordinate. The Appellate Court also noted that this point was not raised before the Court below, but it was blatantly clear that the learned Magistrate was fully conscious of the time factor and did take account of same in considering the sentence to be inflicted. The Appellate Court held that the guilty plea came 3 years after the case was called and in the circumstances could not be considered as being timely. They noted that the Learned Magistrate took into consideration all the mitigating factors put forward by the Appellant. In view of the fact that the Appellant took steps to reform and mend her ways and that she was in a gainful employment and now taking care of her two children of tender age and her parents, the Court decided to call for a Social Enquiry Report before pronouncing them on the appeal. The Social Enquiry Report would then assist in deciding on the most suitable way of dealing with the Appellant. STATE V ST MART J B [2018 SCJ 248] By Hon. Judge, Mr. J. Benjamin G. Marie Manslaughter- Sentence Mitigating Factors Aggravating Factors The Accused was charged for the offence of manslaughter in breach of Sections 215 and 223(3) of the Criminal Code. The Accused pleaded guilty and was found guilty as charged. The facts of the case were to the effect that the Accused was working as a lorry helper and he used to live with a woman with whom he has a girl. After they separated, he started going out with one P. Gukhool who was his girlfriend. Page 12

13 On the day of the incident, the Accused was partaking drinks with his brother and friends when he received a call from his girlfriend who was requesting him to meet up. At the meeting place, the girlfriend showed the Accused the deceased and explained to the Accused that the former proposed her to sleep with him for the sum of Rs 500. Accused approached a young man, reproached him and slapped the latter whom he knew. However, his girlfriend came and explained to him that he was not the deceased. He was then shown the deceased who was walking faster on seeing the Accused and entered his yard and closed the gate. The deceased uttered swear words to urge Accused to go away and even insulted him. Accused got angry, picked up a concrete block, hurled it at the deceased. The latter fell on his back when the concrete block hit him. He then jumped over the gate in the deceased yard, blocked the deceased and dealt him with fisty cuff blows on the face before running away. People respond in accordance to how you treat them Nelson Mandela The Accused further stated that he had no intention to kill the deceased and that he regretted his death. The Court considered the seriousness of the offence, the circumstances in which it was committed, the violence which was inflicted on the deceased who was 71 years old and which according to the Court was blatantly disproportionate with what the Accused had to reproach him, the fact that the Accused was under the influence of alcohol and acted out of passion, and the fatal injuries caused. Based on the above, the Accused was sentenced to 25 years penal servitude from which was deducted 80% of the 1232 days he spent on remand. Page 13

14 Page 14