THE LAW PRACTITIONERS (AMENDMENT) ACT 2011

558 Acts 2011
THE LAW PRACTITIONERS (AMENDMENT)
ACT 2011
Act No. 30 of 2011
I assent
SIR ANEROOD JUGNAUTH
11th November 2011 President of the Republic
___________
ARRANGEMENT OF SECTIONS
Section
1. Short title
2. Interpretation
3. Section 2 of principal Act amended
4. Section 4 of principal Act repealed and replaced
5. Section 5 of principal Act repealed and replaced
6. New section 5A inserted in principal Act
7. Section 8 of principal Act amended
8. Section 9A of principal Act amended
9. New sections 9B and 9C inserted in principal Act
10. Section 10 of principal Act amended
11. Section 11 of principal Act repealed and replaced
12. New section 11A inserted in principal Act
13. Section 12 of principal Act repealed and replaced
14. New section 12A inserted in principal Act
15. Section 21 of principal Act amended
16. New section 21A inserted in principal Act
17. Section 22 of principal Act amended
18. Schedule added to principal Act
19. Consequential amendment
20. Transitional provision and savings
21. Commencement
SCHEDULE
_______________
An Act
To amend the Law Practitioners Act
ENACTED by the Parliament of Mauritius, as follows –
1. Short title
This Act may be cited as the Law Practitioners (Amendment)
Act 2011.
2. Interpretation
In this Act –
“principal Act” means the Law Practitioners Act.
3. Section 2 of principal Act amended
Section 2 of the principal Act is amended –
(a) by deleting the definitions of “certificate of competency” and
“Council”;
(b) in the definition of “law practitioner”, by inserting, after the
words “entered on”, the words “, and not been erased from,”;
(c) in the definition of “Legal Secretary”, by inserting, after the
words “public office of”, the words “Chief Legal Secretary,
Legal Secretary or Assistant”;
(d) in the definition of “signing practitioner”, by deleting the
semicolon and replacing it by a full stop;
(e) by inserting, in the proper alphabetical order, the following
new definitions –
“accredited person” means the University of Mauritius or a
person who is the holder of an authorisation granted under
section 12A(3);
“applicant” means a person who has applied, or intends to
apply, to be admitted as a law practitioner;
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“Board” means the Judicial and Legal Studies Board referred
to in section 7 of the Institute for Judicial and Legal Studies
Act 2011;
“Continuing Professional Development Programme” means a
Programme devised, organised and conducted under section
9B;
“Council” means the Council for Vocational Legal Education
established under section 11;
“Institute” means the Institute for Judicial and Legal Studies
established under the Institute for Judicial and Legal Studies
Act 2011;
“law degree” means a degree in law awarded, following a
course of studies for such period and at such level as may be
prescribed under section 22(1)(c), by –
(a) the University of Mauritius;
(b) a university in the United Kingdom; or
(c) such university or other tertiary education institution in
Mauritius, the United States, another Commonwealth
country or a civil law State, as may be approved by the
Council;
“legal officer” means an officer who holds an office specified
in the First Schedule and includes the Chief Legal Secretary,
the Legal Secretary and the Assistant Legal Secretary;
“professional qualification” means an attestation, in such form
as the Council may approve, to the effect that a person who
holds a law degree has a qualification as, or equivalent to that
of, barrister entitling him to practise in England and Wales,
Australia, New Zealand, Canada or France;
“pupil master” means a person designated as such by the
Council under section 5A(2);
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“Secretary” means the person appointed as such under section
11A;
“vocational course” means the course referred to in section
4(2)(a)(iii)(B) and enabling a person to qualify as a law
practitioner;
“Vocational Examinations Board” means the Board set up
under section 11B.
4. Section 4 of principal Act repealed and replaced
Section 4 of the principal Act is repealed and replaced by the
following section –
4. Qualifications of law practitioners
(1) Any citizen of Mauritius may apply for admission to
practise law in Mauritius under section 6 where he satisfies the
requirements of subsection (2).
(2) The requirements of this subsection are that an applicant
shall have –
(a) (i) in the case of a prospective barrister who
qualified as such in a State other than
Mauritius, a professional qualification;
(ii) in the case of every other prospective
barrister or every prospective attorney –
(A) been awarded a law degree;
(B) completed the vocational course in
accordance with section 5; and
(C) sat for and passed an examination
conducted by the Vocational
Examinations Board;
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(iii) in the case of a prospective notary –
(A) the qualifications referred to in
subparagraph (ii);
(B) attained the age of 25 years; and
(C) been authorised by the Prime
Minister, after consultation with the
Attorney-General, to apply for
admission; and
(b) in every case, undergone pupillage and, in the case of a
prospective barrister referred to in paragraph (a)(i),
followed a prescribed course of training in accordance
with section 5A(6).
5. Section 5 of principal Act repealed and replaced
Section 5 of the principal Act is repealed and replaced by the
following section –
5. Vocational course
An applicant shall, for the purpose of section 4(2)(a)(ii)(B),
have completed the vocational course where he has –
(a) followed such course as may be approved by the
Council and conducted by an accredited person, in the
subjects specified in the Second Schedule; and
(b) satisfied the Council of his proficiency in the subjects
specified in the Second Schedule, following such oral
and written examinations as the Vocational
Examinations Board may conduct.
6. New section 5A inserted in principal Act
The principal Act is amended by inserting, after section 5, the
following new section –
5A. Pupillage
(1) (a) The Council shall, after consultation with the Bar
Council, the Mauritius Law Society Council or the Chamber of
Notaries, as the case may be, for the purpose of determining whether
a law practitioner is able to provide the required amenities and
training to be a pupil master, draw up and keep under review a list of
law practitioners of not less than 15 years’ standing, from each of the
3 branches of the profession, who may be pupil masters.
(b) The Council may –
(i) proprio motu remove a person’s name; or
(ii) at a pupil master’s request, remove his
name,
from the list.
(2) Subject to subsections (4), (5) and (6), pupillage shall,
for the purposes of sections 4 and 21(4), consist –
(a) in the case of a prospective barrister –
(i) who qualified in Mauritius, of attachment
to –
(A) the chambers of a barrister for
9 months; or
(B) the chambers of a barrister for
3 months and a barrister in a law
firm for 6 months,
and the office of an attorney for 3months; or
(ii) who qualified as such in England and
Wales,Australia, New Zealand, Canada or
France –
(A) of attachment for a period of not
less than 12 months to the chambers
of a barrister of not less than 15
years’ standing in the State in which
he qualified; or
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(B) of attachment for an aggregate
period of not less than 9 months to
the chambers of one or more
barrister of not less than 15 years’
standing in Mauritius, England and
Wales, Australia, New Zealand,
Canada or France, and of
attachment for a consecutive period
of not less than 3 months to the
office of an attorney in Mauritius;
(b) in the case of a prospective attorney, of articleship
in, or attachment to, the office of an attorney in
Mauritius, or to an attorney in a law firm in
Mauritius, for 12 months; and
(c) in the case of a prospective notary, of articleship
in, or attachment to, the office of a notary in
Mauritius for 24 months,
under the supervision of a pupil master designated by the Council
with the consent of the pupil master and the pupil, where pupillage
is undergone in Mauritius, and a pupil master proposed by the pupil
and approved by the Council, where pupillage is undergone outside
Mauritius.
(3) The duties of a pupil master shall be to –
(a) ensure that the applicant is in attendance for such
aggregate number of hours per week as may be
determined by the Council;
(b) provide him with the necessary assistance and
guidance in the completion of his preparation
before he is able to practise;
(c) in the case of a prospective barrister or attorney,
make him familiar with proceedings in Court;
(d) give the applicant the necessary and appropriate
opportunity to interact with clients; and
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(e) provide the Council with a comprehensive report,
in such form and manner as the Council may
require, on the applicant’s performance during
pupillage.
(4) A period of permanent employment of a prospective
barrister or attorney as a Legal Assistant, or in such other office as
may be prescribed, in theAttorney-General’s Office or the Office of
the Director of Public Prosecutions, or in the Judicial Department as
a Court Officer, shall be deemed to be pupillage, for the period
determined under subsection (2) or part of it, as the case may be.
(5) Where the Council is satisfied that there are no facilities
available for pupillage in the case of an applicant, it may authorise
him to undergo such other form of training as it may specify, instead
of pupillage.
(6) (a) Every prospective barrister who holds a
professional qualification and who undergoes pupillage inMauritius
shall, during his period of pupillage, follow, to the satisfaction of the
Council, a course of training conducted by the Institute in such
subjects as may, in the Council’s opinion, be necessary to enable him
to practise in Mauritius.
(b) Where a prospective barrister who holds a
professional qualification undergoes pupillage in England andWales,
Australia, New Zealand, Canada or France, the course of training
referred to in paragraph (a) shall be followed before he takes the oath
of office to be admitted to practise law in Mauritius.
(c) A person referred to in paragraph (a) or (b) shall
not be required to sit for any examination.
7. Section 8 of principal Act amended
Section 8 of the principal Act is amended, in subsection (1), by
inserting, after the words “he shall”, the words “, subject to section 15,”.
8. Section 9A of principal Act amended
Section 9A of the principal Act is amended –
(a) by numbering the existing provision as subsection (1);
(b) in the newly numbered subsection (1), by inserting, before the
words “on the recommendation”, the words “subject to
subsection (2) and”; and
(c) by adding the following new subsection –
(2) No barrister or attorney shall be appointed
pursuant to subsection (1) unless he is, and has been, a barrister
or an attorney of not less than 15 years’ standing.
9. New sections 9B and 9C inserted in principal Act
The principal Act is amended by inserting, after section 9A, the
following new sections –
9B. Continuing Professional Development
(1) The Institute shall devise, organise and conduct
Continuing Professional Development Programmes for each of the
three branches of the legal profession with a view to broadening the
knowledge of law practitioners and legal officers, keeping them
abreast of developments in the law, encouraging them to share
experiences and enhancing their professional skills.
(2) AProgramme referred to in subsection (1) may include
attendance at such lectures, workshops or seminars, as may be
approved by the Institute.
(3) Every law practitioner and legal officer shall, in every
year, participate in a Continuing Professional Development
Programme for the prescribed number of hours unless he is excused
by the Chief Justice for reasons such as age or ill health.
(4) Notwithstanding section 13, where a person referred to
in subsection (3) fails, without reasonable excuse, to follow a
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Continuing Professional Development Programme, the Institute
may –
(a) in the case of a legal officer, report the matter to
the Judicial and Legal Service Commission; and
(b) in the case of a law practitioner, refer the matter
to the Chief Justice who may –
(A) issue a written warning to him; or
(B) suspend his right to practise for a period
not exceeding one year.
9C. Courses for prospective judicial and legal officers
(1) Any person who wishes to be considered for
appointment as a Judge, Magistrate or legal officer shall follow a
course referred to in subsection (2), which shall be approved by the
Judicial and Legal Service Commission.
(2) The Institute shall devise one or more courses with a
view to enabling persons referred to in subsection (1) to familiarise
themselves with the duties which they will be required to perform in
the office to which they wish to be appointed.
(3) Where a person has followed a course in accordance
with this section, the Institute shall forward to the Judicial and Legal
Service Commission a report on the person’s attendance and
performance.
10. Section 10 of principal Act amended
Section 10 of the principal Act is amended by –
(a) repealing subsection (3) and replacing it by the following
subsection –
(3) The Supreme Court –
(a) may, on its own motion or an application
by the person concerned, and after making
such enquiry as it thinks fit –
(i) amend an entry on the Roll;
(ii) remove the name of a person from the Roll
following an order made under section 14
or where the person has ceased to be a
member of a body referred to in section
3(1)(b);
(b) may cause the name of a person which has been
removed from the Roll to be restored on the Roll.
(4) The Supreme Court shall, for the purposes of this Act,
keep a list of –
(a) barristers in private practice;
(b) legal officers;
(c) law firms and law practitioners employed by
them;
(d) law practitioners in employment; and
(e) legal consultants.
11. Section 11 of principal Act repealed and replaced
Section 11 of the principal Act is repealed and replaced by the
following subsection –
11. Establishment of Council
(1) There is established for the purposes of this Act a
Council for Vocational Legal Education, which shall be a body
corporate.
(2) The Council shall consist of –
(a) a Chairperson, who shall be a person who holds
or has held judicial office, a law practitioner or a
legal officer of not less than 10 years’ standing, or
a person who has proven ability and experience
in legal education, to be appointed by the Chief
Justice, after consultation with the Attorney-
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General and such other persons as he may deem
fit;
(b) the Registrar;
(c) the Solicitor-General or his representative;
(d) the Director of Public Prosecutions or his
representative;
(e) a member of the academic staff of the Faculty of
Law of the University ofMauritius designated by
the Vice-Chancellor of the University;
(f) 3 law practitioners, to be appointed by the
Attorney-General;
(g) such other persons, not exceeding 3 in number,
as the Chief Justice may, after consultation with
the Chairperson, co-opt on the Council either
generally or for any specific purpose.
(3) (a) The persons referred to in subsection (2)(f)
shall –
(i) be law practitioners of not less than
10 years’ standing; and
(ii) include a barrister, an attorney and a notary
appointed on the recommendation of the
Bar Council, the Mauritius Law Society
Council or the Chamber of Notaries,
respectively.
(b) Every member, other than the members referred
to in subsection (2)(b), (c) and (d), shall hold office for 2 years but
shall be eligible for re-appointment.
(4) (a) Where a vacancy occurs in the membership of the
Council, the vacancy shall, in the case of a person appointed under
subsection (2)(a) or (f), be filled by a person appointed by the Chief
Justice or the Attorney-General, as the case may be, in accordance
with subsection (2).
570 Acts 2011
(b) The person appointed under paragraph (a) shall
hold office for the remainder of the term of office of the member
whom he is replacing.
(5) (a) The Council shall meet as often as is necessary at
such place and time as the Chairperson thinks fit.
(b) The Secretary shall convene a meeting of the
Council on a request made by not less than 4 members.
(c) At a meeting of the Council, 5 members shall
constitute a quorum.
(6) Every member shall be paid such allowance as the Chief
Justice may determine.
12. New sections 11A and 11B inserted in principal Act
The principal Act is amended by inserting, after section 11, the
following new sections –
11A. Secretariat of Council
(1) The Council shall, on such terms and conditions as it
may determine, appoint a Secretary to the Council.
(2) (a) There shall be such public officers designated by
the Registrar as may, in the opinion of the Council, be necessary to
assist the Secretary.
(b) Every person referred to in paragraph (a) shall be
under the administrative control of the Secretary.
(3) The Secretary shall –
(a) be the chief executive officer of the Council;
(b) act in accordance with such directions as he may
receive from the Chairperson; and
(c) ensure that assistance and guidance are available
to law students at all reasonable times.
(4) Service of process on or on behalf of the Secretary shall
be deemed to be service on or by the Council.
(5) The Council may pay to a person referred to in
subsection (2) such allowance as it thinks fit.
11B. Vocational Examinations Board
(1) The Council shall every year set up a Vocational
Examinations Board for the purpose of organising and conducting
the vocational examinations on behalf of the Council.
(2) The Vocational Examinations Board shall consist of –
(a) 2 representatives of the Council;
(b) a member of the Faculty of Law of the University
of Mauritius;
(c) not more than 3 representatives of accredited
persons other than the University of Mauritius;
(d) 2 examiners from foreign recognised institutions.
13. Section 12 of principal Act repealed and replaced
Section 12 of the principal Act is repealed and replaced by the
following section –
12. Functions and powers of Council
The Council shall –
(a) be responsible for the granting of an authorisation to run
a vocational course;
(b) supervise vocational courses and organise, through the
Vocational Examinations Board, oral or written
examinations for prospective law practitioners;
(c) after consultation with the appropriate professional
body, draw up and keep under review a list of law
practitioners of not less than 15 years’ standing who are
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able to provide the required amenities and training to be
pupil masters; and
(d) where appropriate, formulate and cause to be published
in the Gazette a Code of Ethics for any of the three
branches of the profession.
14. New section 12A inserted in principal Act
The principal Act is amended by inserting, after section 12, the
following new section –
12A. Accredited persons
(1) No person, other than an accredited person, shall run a
vocational course, or hold himself out, by advertisement or otherwise,
as being a person who runs or is entitled to run a vocational course.
(2) Any person, other than the University of Mauritius,
wishing to be an accredited person shall make a written request to
the Council, accompanied by the prescribed application fee, and
furnish to the Council such information as the Council may require
regarding his or its ability to run a vocational course.
(3) The Council shall, on receipt of a request under
subsection (2), make such enquiry as it thinks fit and may, on
payment of the prescribed accreditation fee, authorise the person to
run such vocational courses as it may approve.
(4) An accredited person shall, where required by the
Council to do so, run a vocational course in accordance with
section 5.
(5) An accredited person, other than the University of
Mauritius, shall not require any person to pay a fee in excess of such
amount as may be prescribed for the purpose of following a
vocational course.
(6) The Council may, where an accredited person other than
the University of Mauritius contravenes subsection (4) or (5),
572 Acts 2011
suspend or revoke an authorisation granted pursuant to
subsection (3).
(7) Where an accredited person runs a vocational course,
the Council may –
(a) require the accredited person to submit its
syllabus or programme to it for approval; and
(b) make such arrangements as it thinks fit to
supervise the running of the course.
15. Section 21 of principal Act amended
Section 21 of the principal Act is amended by adding the following
new subsection –
(4) (a) Notwithstanding sections 3 and 6, a prospective
barrister or attorney who has completed 6 months of pupillage
may, in the presence of his pupil master, represent his pupil master’s
client at any stage of any proceedings before a Magistrate other
than –
(i) a trial on the merits;
(ii) arguments on a matter of law; or
(iii) submissions at the end of a case.
(b) Every pupil master shall ensure that a prospective
barrister or attorney who is his pupil is suitably attired for the
purposes of paragraph (a).
16. New section 21A inserted in principal Act
The principal Act is amended by inserting, after section 21, the
following new section –
21A. Access to Courts and Library
(1) Every prospective law practitioner shall, on payment of
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the prescribed fee, be issued by the Council with a means of
identification showing that he is following a vocational course or
undergoing pupillage, which he may be required to produce for the
purposes of subsection (2).
(2) The Registrar shall make appropriate arrangements in
order that –
(a) a person following a vocational course may have
access to the Supreme Court Library –
(i) up to 9.30 a.m. and after 3.30 p.m. on week
days; and
(ii) during opening hours on Saturdays; and
(b) a prospective law practitioner undergoing
pupillage may have access –
(i) to the Supreme Court Library; and
(ii) in the case of a prospective barrister or
attorney, to the places in a Court reserved
for barristers or attorneys where he is
representing his pupil master’s client in
accordance with section 21(4).
17. Section 22 of principal Act amended
Section 22 of the principal Act is amended, in subsection (1), by
repealing paragraph (c) and replacing it by the following paragraph –
(c) in relation to any other matter, including an amendment
of the Schedule, by the Council, with the approval of
the Attorney-General.
18. Schedule added to principal Act
The principal Act is amended by adding the First and Second
Schedules set out in the Schedule to this Act.
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19. Consequential amendment
The Tertiary Education Commission Act is amended in –
(a) section 2, by inserting, in the proper alphabetical order, the
following new definitions –
“programmes” does not include vocational course;
“vocational course” has the same meaning as in the Law
Practitioners Act.
(b) section 6 –
(i) by numbering the existing provision as subsection (1);
and
(ii) by adding the following new subsection –
(2) Without prejudice to section 2 of thisAct, in this
section, “programmes” includes vocational course.
20. Transitional provision and savings
(1) Where, at the commencement of this Act, the Council is
satisfied that a prospective law practitioner has, in accordance with the
repealed section 4 of the principalAct, started undergoing pupillage, it may,
subject to such conditions as it thinks fit, authorise him to continue and
complete his pupillage which shall be deemed to be pupillage for the
purposes of section 5A.
(2) Any certificate issued or approval given by the former Council
before the commencement of this Act shall, at the commencement of this
Act, be deemed to have been issued or given by the Council.
(3) All assets and liabilities of the former Council shall, at the
commencement of this Act, vest in the Council.
(4) Every agreement and instrument to which the former Council
was a party or which affected the former Council shall, at the
commencement of this Act, have effect as if the Council were a party to it
or affected by it instead of the former Council.
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(5) Any proceedings pending immediately before the
commencement of thisAct to which the former Council was a party may be
continued as if the Council was a party to these proceedings instead of the
former Council.
(6) Any Code of Ethics made by the former Council and which is
in force at the commencement of this Act shall be deemed to have been
made by the Council.
(7) Where thisAct does not make provision for any transition, the
Attorney-General, or the Council with the approval of theAttorney-General,
may make such regulations as may be necessary for such transition.
(8) The members of the former Council shall, at the
commencement of this Act, be deemed to be members of the Council and
continue as such for the remainder of their term of office.
(9) All employees of the former Council shall, at the
commencement of this Act, become employees of the Council.
(10) In this section –
“Council” means the Council for Vocational Legal Education
established under section 11;
“former Council” means the Council of Legal Education
established under the repealed section 11 of the principalAct.
21. Commencement
(1) Subject to subsection (2), this Act shall come into operation
on a date to be fixed by Proclamation.
(2) Different dates may be fixed for the coming into operation of
different sections of this Act.
Passed by the National Assembly on the eighteenth day of October
two thousand and eleven.
Ram Ranjit Dowlutta
Clerk of the National Assembly
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SCHEDULE
[Section 18]
FIRST SCHEDULE
[Section 2]
Attorney-General’s Office
Solicitor-General
Deputy Solicitor-General
Parliamentary Counsel
Assistant Solicitor-General
Assistant Parliamentary Counsel
Principal State Counsel
Senior State Counsel
State Counsel
Chief State Attorney
Deputy Chief State Attorney
Principal State Attorney
Senior State Attorney
State Attorney
Office of the Director of Public Prosecutions
Director of Public Prosecutions
Deputy Director of Public Prosecutions
Senior Assistant Director of Public Prosecutions
Assistant Director of Public Prosecutions
Principal State Counsel
Senior State Counsel
State Counsel
Chief State Attorney
Deputy Chief State Attorney
Principal State Attorney
Senior State Attorney
State Attorney
SECOND SCHEDULE
[Section 5]
VOCATIONAL COURSE
SUBJECTS
PART I – Prospective law practitioners
Conferencing
Drafting of legal documents
Ethics
Opinion writing
PART II – Prospective barristers and attorneys
Administrative and constitutional law
Advocacy
Arbitration and mediation
Civil Procedure
Commercial and business law
Criminal Procedure
Evidence
Family law
PART III – Prospective notaries
Civil Procedure
Commercial and business law
Practical aspects of family law
Practical aspects of the law of immovable property
Rédaction des actes
Responsabilité notariale
Revenue and Taxation Laws
Tenue de l’office notarial
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BY AUTHORITY: THE GOVERNMENT PRINTER, LA TOUR KOENIG 100/11/11 – 1366

Political Will: What is it?

What is political will? How does one possess it? How is it put into action? Can it be measured?


These are some of the questions which spring in our head when we hear of political will and very often they are left unanswered, as no one wants to answer them!


To politicians and advocates, political will is the holy grail of the political arena. However, political will in simple terms refers to the combination of an opinion, plus intensity, plus salience. For political will to have any relevance, it must be related to public affairs.


POLITICAL WILL = OPINION + INTENSITY + SALIENCE


Opinion begins with the simple fact of having one. Most people have their opinion of how this Country must be run, however there are lots of important people and issues on which most people may have no opinion. Opinion is also shaped by how issues are framed. 


Intensity is the second factor in political will. On many issues, people have opinions, but the are not strongly held.  Manchester United or Liverpool? Toyota or Nissan? Do you really care that much? On others, people feel strongly such as recruitment policy in the public sector/civil service or to do something about global warming? If there's not much intensity there is no political will.


Yet strong opinions form political will only if they are salient to public choice. There is no political will if they have no connection to public affairs. 


Then if political will is the combination of the above features, how do we measure it? The answers is simple through polls.


Our Constitution which is the Supreme Law of the Land makes provision for referendum to decide on major proposals and has since 1967-1968, been left unused. The last proposal decided by referendum was the independence of Mauritius from Great Britain.

A referendum (also known as a plebiscite or a ballot question) is a direct vote in which an entire electorate is asked to either accept or reject a particular proposal. This may result in the adoption of a new constitution, a constitutional amendment, a law, the recall of an elected official or simply a specific government policy. It is a form of direct democracy.

Under our Constitution the referendum is binding but unfortunately it has not been put to fruitful use in recent times. The founders of our Constitution entrenched this provision so that the people of Mauritius could participate in the running of the Country in a democratic manner and prevent the reign of Despotism and injustice.


We often hear that, in Mauritius, youngsters are disgusted with politics and they prefer to distance themselves from it. The real reason why it is so lies in the manner in which politics is conducted and the government is run. Politicians (Ministers) curb in front of pressure from their followers and we end up with political nominations in all branches of the government which compromises the whole system. We ultimately end up with all sorts of scandals, frauds, etc.. at the end of the day!


Recent events have once more brought this question to the forefront: 


Do our Politicians have the necessary political will to cope with the one-a-many issues affecting our Country's stability as a democracy? Does everyone get a fair chance and equal opportunities or are we lapsing in what we refer to as a "banana republic" (No offense to the Trademark "Banana Republic") where each and everyone is looking for his/her own baser motives? Where is the political will to bring change? Please express it! 


"Fear The Ones With Nothing To Lose"




Next: The Referendum: Power of the People by the People! 

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Case Notes: Law of Evidence

 

Burden and Standard of Proof

Dowool v Dowool 1982 MR 292

This case concerned an action “en desaveu de paternite”’ and according to article 312 of the Civil code the Court held that it need not, as before, be satisfied that “la paternité est impossible” but may content themselves “d'une série de présomption précises et concordantes (impossibilité morale de cohabitation)”.

R v Ramlochun 1980 MR 175

In this case concerning a murder, the issue in contention was the direction given by the judge to the jury on circumstantial evidence adduced by prosecution. The Court following the case of McGreevy, came to the conclusion that: In a trial in which the case for the prosecution, or any essential ingredient thereof, depends as to the commission of the act wholly on circumstantial evidence, no duty rests upon the judge, in addition to giving the usual direction that the prosecution must prove the case beyond reasonable doubt, to give a further direction in express terms that this means that they must not convict on circumstantial evidence unless they are satisfied that the facts proved are (a) consistent with the guilt of the defendant and (b) exclude every possible explanation other than the guilt of the defendant. Therefore the direction given by the judge was a good one and the appeal was dismissed.

R v Wahedally 1973 MR 103

The right of a person charged with a criminal offence to remain silent is one of the fundamentals of our criminal law and section 10(7) of the Constitution to which reference has been made and which enacts that no person who is tried for a criminal offence shall be compelled to give evidence at the trial has done nothing more than give constitutional protection to a particular form of the exercise of that right. Consequently, any statement that may be construed as denying that right to the accused would be wrong in law. On the other hand, it is equally well-settled that the trial Judge may comment on the prisoner's silence, but his comment must not in any circumstances amount to an invitation to the jury to form an adverse view of the prisoner from the fact of his silence and, if it could so amount, should at least be accompanied by an indication that the prisoner has a right to remain silent.

National Bank of SA v Merven 1924 MR 53

First, as regards the application of the law of Estoppel in this Colony: Estoppel (Taylor on evidence para: 89 et seq.) “may be ranked in the class of conclusive presumptions… They are usually divided into 3 classes, viz: those “by matter of record, those by deed and those in pais. Paragraph 89 contains the following: -

“The doctrine of Estoppel has been guarded with great strictness; not because the party expressing it is presumed to be desirous of excluding the truth, for the more reasonable suggestion is that that is true, which the opposite party has already solemnly admitted; but because the Estoppel may exclude the truth. Hence estoppels must be certain to every intent, for no one shall be prevented from setting up the truth, unless it be a plain contradiction, to his former allegations and acts.

Best (Evidence 12th Edn. 1922) para. 543 contains the following: -

“… the following rule has been laid down by authority, and may be looked on as established: “where one by his words or conduct wilfully causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as its alter his own previous position, the former is concluded from avering against the latter, a different state of things as existing at the same time. It has indeed been said that unless the representation amounts to an agreement or licence by the party who makes it, or is understood by the party to whom it is made as amounting to that, the above rule would not apply. But it would seem that the application of the rule is not thus limited. Moreover by “wilfully” in the rule must be understood, not that the party represents that to be true which he knows to be untrue, but only that he means his representation to be acted upon, and that it is acted upon accordingly. For if, whatever a man’s real intention may be, he so conducts himself that a reasonable man would take his representation to be true, and believe that it was meant that he would act upon it as true, - the party making the representation will be equally precluded from contesting its truth. And conduct by negligence or omission, where a duty is cast upon a person by usage of trade or otherwise, to disclose the truth, may often have the same effect…”

Para. 533 (p. 463): - “…On the whole, an Estoppel seems to be when in consequence of some previous act or statement to which he is either a party or privy, a person is precluded from showing the existence of a particular state of facts. Estoppel is based on the maxim allegans contraria non est audiendus and is that species of presumption juris et de jure, where the fact presumed is taken to be true, not as against all the world, but as against a particular party, and that only by reason of some act done: it is in truth a kind of argumentum ad hominem. Hence it appears that Estoppels must not be understood as synonymous with conclusive evidence - the former being conclusions drawn by law against parties from particular facts, while by the latter is meant some piece or mass of evidence sufficiently strong to generate conviction in the mind of a tribunal, or rendered conclusive on a party, either by common or statute law…”

Looking generally at the question of applicability of Estoppel in our system of laws, we note, in the civil code, such articles as articles 1349 to 1353, which deal with presumptions: 1354 to 1356 which deal with certain admissions in certain circumstances (aveux judiciaires et extra judiciaires.”) A comparative synopsis of instances of Estoppel at common law in England and of express and definite provisions in the civil code dealing with cognate cases would go far beyond the purposes of this judgment, besides unduly delaying our decision. For the purposes of the case it is sufficient to say that we are prepared to hold that where our local law provides for the effect and legal purport of certain admissions or presumptions, it should be applied to the exclusion of the English Law of Evidence on the same subject, be that law in the shape of Estoppel or otherwise.

Witnesses

General Rule

POORUN vs THE QUEEN 1981 MR 367

The cases of Ranglall v. Q. [1861 MR 43]and Mazerieux v. R. [1883 MR 66]afford examples of convictions being quashed because the record omitted to state whether witnesses who had undisputably solemnly affirmed had done so as Hindus or Moslems.

In R. v. Dawousse 1881 Gr. No. 124 and quoted in Lalouette’s Digest, Vol. II, Evidence Pt VI s. 4 at note 494, it was held that whether a witness was duly sworn when giving his evidence before the trial Court was a fact conclusively proved by the record itself.

In Rama v. R [1861 MR 282], a conviction was quashed where the proceedings in the Court below did not state whether the witnesses were sworn.

Following the principles enunciated in those cases we hold that the failure to record whether the witnesses had given evidence on oath or solemn affirmation was a serious defect, fatal to the conviction.

Children

BHANGEERUTHEE V. THE QUEEN 1962 MR 143

The case for the prosecution was that the appellant, a teacher of the Hindi language at Champ de Lort Government School Port Louis, in the course of a lesson assaulted the complainant, a girl aged 7, by holding her cheeks with his hands and biting her lip. The witnesses for the prosecution were the complainant herself, one Anita jugdharry, another girl of the same age and Mrs. Edna jouana, another teacher of the school.

We would, however, draw attention to the fact that the magistrate, after hearing the evidence of the complainant, a girt of seven, on a promise from her to speak the truth without being sworn, acting rightly in accordance with the provisions of section 109 of the Criminal Procedure Ordinance (Cap. 169), followed the same procedure with regard to the witness Anita jugdharrv, also a girl aged seven. In our view, he was wrong to do so. Section 106 of the Ordinance provides that, in a criminal trial, a witness can only be admitted to give evidence after he has sworn, according to the religion he professes or made such solemn affirmation as by law is receivable in place of an oath, to speak the truth. Section 109 provides, by way of exception, that when an offence has been committed upon an individual of tender years such individual, if under nine-years of age, may be admitted as a witness at the trial without being sworn provided the Court is satisfied that the said individual has sufficient, intelligence to make a correct statement on the subject of the trial. The witness under reference not coming within the purview of section 109 and at having been sworn, her evidence was consequently not receivable.

JUGARSING AND ANOR vs THE KING 1952 MR 13

 At the time of the trial the conditions under which the unsworn evidence of a child under nine years of age could be received in evidence were laid down in sections 6 and 7 of Ordinance No. 12 of 1866 which read: -

“6. In every trial of any offence charged as having been committed, or attempted to be committed, upon the person of an individual of tender years, such individual, if under nine years of age, shall be admissible as a witness, provided the Judge or Magistrate by or before whom the case is tried, shall be satisfied that the said individual has sufficient intelligence to make a correct statement on the subject of the trial, although he or she may not understand the nature of an oath, or of a solemn affirmation in lieu of an oath.

7. Any individual who shall be admitted as a witness under the last section, shall not be examined on oath, or solemn affirmation, but shall, before giving evidence, make, in presence of the Judge or Magistrate aforesaid, a promise, in terms of the Schedule, to speak the truth."

      The Schedule referred to in section 7 runs as follows:

“I do promise that I will speak the truth in answer to any questions which shall be put to me in this Court."

      The record of the proceedings does not show that the requirements of the law regarding an investigation by the Magistrate as to whether the girl Indranee Beenud was possessed of sufficient intelligence to make a correct statement on the subject of the trial and the necessity of her making a promise to speak the truth had been fulfilled.

      In the case of Ackbar v. R., [1918 MR 11], [1918 MR 7], where the only witness of the indecent assault, the girl, was not heard on oath and the Magistrates failed to ascertain whether she understood the nature of an oath before taking down her statement and did not ask her to make, a promise to speak the truth in terms of the Schedule to Ordinance No. 12 of 1866, the conviction was quashed.

BASENOO  VS THE QUEEN  1983 MR 89

The victim in this case was a girl aged five, who, was accompanied in Court by her father. Her testimony was of capital importance because, not only she was the person on whom the alleged indecent act was committed, but, as is to be expected in such cases, she was the only witness to describe the offence. Before she started to depone before Magistrate Oozeerally on the 7th August, 1981, she informed the Court that she knew that she must tell the truth and that she knew what it was to take an oath. After a few postponements, in the course of which there was a change in the constitution of the Court, the case was continued before Magistrate Balgobin who was authorised to take, follow up and determine the case. When the proceedings were resumed on the 29th January, 1982, the victim's examination in chief continued without any indication to show whether her testimony before the second Magistrate was given on oath or otherwise.

Sections 106, 109 and 110 of the Criminal Procedure Act deal with the swearing of witnesses and the evidence of a child victim as a witness. They provide as follows:

106. Swearing of witness.

Any person who is produced or appears as a witness, against or for an accused on a criminal charge, shall before he is admitted to depone or give any manner of evidence-

(a) be sworn by the Court according to the form of the religion he professes; or

(b) make such solemn affirmation as is receivable in place of an oath, to speak the truth, the whole truth and nothing but the truth.

109. Child victim as witness.

In every trial of an offence charged as having been committed, or attempted to be committed, upon a child of tender years, the child, if under the age of 9, shall be admissible as a witness, where the Judge or Magistrate by or before whom the case is tried, is satisfied that he has sufficient intelligence to make a correct statement on the subject of the trial, although he may not understand the nature of an oath or of  a solemn affirmation.

110. Child witness not to be sworn.

A child who is heard as a witness under section 109, shall-

(a)    not be examined on oath or solemn affirmation;

(b)    before giving evidence, make, in presence of the Judge or Magistrate, a promise to speak the truth in terms of the First Schedule.

The First Schedule reads:

I promise that I will speak the truth in answer to questions which shall be put to me in this court.

In Phipson, Twelfth Edition, para 1498 we read:

Present Law-General Rule

1498. With certain exceptions as to criminal proceedings, all witnesses who are capable of under-standing the nature of an oath and giving rational testimony are competent. A witness may therefore be incompetent from defective intellect, or from infancy.

and    at para 1500:

Incompetency from infancy

1500. No precise rule can be laid down as to the limit of age, or degree of knowledge and intelligence, which will exclude the testimony of infants. Their competency, however, depends not so much on years as ability to understand the nature of an oath and the consequences of  falsehood. Thus, children of seven, six or even five years of age have been allowed to testify, upon the Court being satisfied in open Court on the above points; while, where not satisfied, the testimony of a child of seven, or even eight, has been rejected; as also the dying declarations of a girl of four, the Court remarking that it was impossible her understanding could be sufficient for the purpose. The following answers have sufficed to admit the testimony: "What becomes of a liar?" "He goes to hell";     or, “Is it a good or bad thing to tell lies?" "A bad thing;" A child destitute of religious education has been allowed to be qualified therein with a view to the trial. Such an application must, it has been held, be made before the jury are sworn. On a claim for damages by the next friend of an infant of nine, who did not understand the meaning of an oath, Judge Cluer, of the Shoreditch County Court, adjourned the case for the child to be instructed in the oath. The sole criterion is the understanding of the nature of an oath. It is apparently for the judge, and not the Counsel tendering the witness, to examine such witnesses to his competency.

From what we have cited above the following rules can be formulated: A person who is over the age of 9 is always competent to depone as a witness on oath or solemn affirmation. Secondly, if he is under the age of 9 and he can understand the nature and implication of an oath, he may depone on oath or solemn affirmation whether he depones as an ordinary witness or a child victim. Thirdly, if he is under 9 and he cannot understand an oath, then, if he is the victim in the case, he can depone provided (a) he shows that he has sufficient intelligence to make a correct statement on the subject of the trial and (b) before giving evidence he makes a promise to speak the truth in terms of the First Schedule of the Criminal Procedure Act. This last proposition meets the requirements referred to "obiter" in Bhangeeruthee v. The Queen [1962 MR 143]at p. 145.

The sole criterion, in the case of a child deponing on oath or on a promise to speak the truth in case he does not understand the nature of an oath, is the understanding of the nature of an oath in the former case and the possessing of enough intelligence to make a correct statement an the subject matter of the trial in the latter case. It is for the trial Magistrate or Judge to examine the witness as to his competency in either case and the record of the proceedings must show that he has carried out that investigation (vide Jugarsingh v. R. [1952 MR 13]). The test is one which has to be made by the Court in either case and such test cannot be substituted by a statement from the child that she knows the meaning of an oath or knows that she must tell the truth.

In this case, when the child started to depone on oath before Magistrate Oozeerally there was a serious flaw in the proceedings in that the Magistrate did not carry out the test to ascertain whether she was competent to depone on oath. Her testimony given before that Magistrate was thus vitiated and deprived of evidential value.

Jhowry v R  1990 MR 317

The appellant was charged before the intermediate Court with the possession of a firearm with intent to endanger the life of a girl Devika Rajpot, in breach of Sec. 19 of the Firearms Act.

Regarding the testimony of a child victim as witness which is raised in ground 3, we feel that it will be appropriate first to quote sections 106, 109 and 110 of the Criminal Procedure Act relating to swearing of witness, child victim as a witness and child witness not to be sworn respectively;

106.Swearing of witness

Any person who is produced or appears as a witness, against or for an accused on a criminal charge shall before he is admitted to depone or give any manner of evidence-

(a)      be sworn by the court according to the form of the religion he professes; or

(b)      make such solemn affirmation as is receivable in place of an oath,

to speak the truth, the whole truth and nothing but the truth.

109.        Child victim as witness

In every trial of an offence charged as having been committed or attempted to be committed, upon a child of tender years, the child, if under the age of 9, shall be admissible as a witness, where the Judge or Magistrate by or before whom the case is tried, is satisfied that he has sufficient intelligence to make a correct statement on the subject of the trial, although he may not understand the nature of an oath or of a solemn affirmation.

110.        Child witness not to be sworn

A child who is heard as a witness under section 109, shall-

(a)    not be examined on oath or solemn affirmation;

(b)    before giving evidence, make, in presence of the judge or Magistrate, a promise to speak the truth in terms of the First Schedule.

In view of the above three sections, it is easily seen that, except in the case of a victim who is under 9 years of age and does not understand the nature of an oath or affirmation, every witness in a criminal case must give evidence on oath or affirmation.In the present case, it was not open to the Magistrates to allow, as they did, the child victim, Devika Rajpot, aged 10, to depone without oath or affirmation on the ground that she understood the meaning of telling the truth.  In doing what they did, can it be said that this is a ground to quash the conviction? The testimony of the victim added hardly anything to the other evidence led by the Prosecution.  All in all it only confirmed the testimony of Dharamdeo Jagesar that Rajman Jhowry was running at the material time.  We are of opinion that, even if the magistrates had, as they should have done, discarded the evidence of the child, they would have reached no other conclusion, on the evidence which they accepted otherwise, that the guilt of the appellant had been proved.

Ruttun R. v The State 1999 SCJ 368

The appellant is challenging his conviction on four grounds which essentially question the learned Magistrate’s reliance on the evidence of the child victim without ascertaining her ability to depone and the general appreciation of the evidence by the learned Magistrate.

The only witness on whose evidence the prosecution could rely to establish how the accident occurred was the victim who was a child and who gave her age to the court, before deponing, as being 10 years.  The record shows that the court accepted her evidence on solemn affirmation without carrying out any test to ascertain whether she was competent to give evidence on oath or otherwise contrary to the principle laid down in Basenoo v the Queen [1983 MR 89], where the court said:

“In this case, when the child started to depone on oath before Magistrate 0ozeerally there was a serious flaw in the proceedings in that the Magistrate did not carry out the test to ascertain whether she was competent to depone on oath.  Her testimony given before that Magistrate was thus vitiated and deprived of evidential value”.

            It is a matter of regret that 16 years after Basenoo, we find a Magistrate still committing the same blunder.  In the circumstances, the learned Magistrate was not entitled to rely on the evidence of the young child to convict the appellant, and as there was no other evidence to establish that the appellant was reversing from his parked position without ensuring that it was safe to do so, the appellant’s conviction cannot stand.

MOSSAI A v THE STATE 2006 SCJ 5a

The appellant appeared before the Intermediate Court to answer a charge of willfully and criminally committing an indecent act (attentat à la pudeur) upon a female under the age of 12 years, in breach of section 249(3) of the Criminal Code.

The child victim was 6 years old at the time of the alleged incident. She was one day short of ten years when she came to testify in court, having been born on 11.07.93 and testifying as she was on 10.07.03. Considering her age and the date on which she was being called upon to give evidence, she should not have been treated as a child witness under section 109 but an ordinary witness under section 106 of our Criminal Procedure Act. 

Section 106 of the Criminal Procedure Act sets the general rule as regards the deposition of witnesses in a criminal trial and it provides that every person who testifies –

“on a criminal charge shall before he is admitted to depone or give any manner of evidence – 

(a)               be sworn by the court according to the form of the religion he professes; or

(b)               make such solemn affirmation as is receivable in place of an oath,

to speak the truth, the whole truth and nothing but the truth.”

That general rule is qualified by section 109 when it comes to the case of taking the deposition of a child witness who by our law is one who is under the age of 9. This section provides that his or her evidence is admissible -

                        “where the Judge or Magistrate by and before whom the case is tried, is satisfied that he(in this case she) has sufficient intelligence to make a correct statement on the subject of the trial, although he may not understand the nature of an oath of  a solemn affirmation.”

            It is when the witness is under the age of 9 that the law provides that the child shall not be examined on oath or solemn affirmation but that before giving evidence, he or she shall make in presence of the Judge or Magistrate, a promise to speak the truth in the following terms:

            “I promise to speak the truth in answer to questions which shall be put to me in this Court.”

            This procedure has been sufficiently explained in the case of Basenoo v. R [1983 MR 89] into which we need not go for being only of indirect interest in our case.

            What the trial Magistrate in the present case did was to treat the witness as one who was over the age of 9 as one who was under that statutory age. Admittedly, the record shows that when the complainant entered the witness box she was assumed to be of 9 years of age. However, it was plain that, soon after, in her very first sentence, she stated in so many words that she was going to be 10 the next day. This was in any case so obvious from the information and the date on which the trial was taking place. On such facts, she should have been solemnly affirmed as a witness like any other witness of age, as per the general rule set in section 106. However, the prosecution treated her as a witness under section 109 and adopted a procedure applicable to a child witness under 9. The lapse did not strike even the Magistrate who proceeded to submit her to the section 109 procedure requiring her to promise to speak the truth instead of submitting her to the section 106 procedure requiring her to solemn affirmation to speak the truth, the whole truth and nothing but the truth in the witness box.

            This witness’ evidence was not of a negligible nature in proof of the case which the appellant had to meet. But, through a lapse which, in our view, was purely procedural in nature and technical in character, what she came to complain about amounted to no evidence at all under our procedural law. We are of the view that it would not serve the ends of justice either to the appellant or the complainant that, through a lapse of the prosecution and the trial court, both should be denied a proper hearing as per our law, all the more so when it is an irregularity that is not in the competence of the appellate court to amend.

TENGNAH  vs THE QUEEN  1976 MR 11

The appellant was prosecuted under section 249(3) of the Penal Code Ordinance, Cap. 195, before the district Court of Curepipe for having committed an indecent act attentat à la pudeur upon the person of a female child aged seven years, and he pleaded not guilty to the charge.

At the trial, the victim, who did not understand the nature of an oath in view of her young age gave unsworn testimony and the prosecution produced the statement given to the Police by the appellant in which he flatly denied the charge.

Counsel for the Crown submitted that the conviction of the appellant by the Magistrate was bad and could not be supported, inasmuch as the conditions laid down by law under which the unsworn testimony of a child under nine years of age could be received had not been fulfilled. In support of his submission he quoted the decision of this Court in Jugarsing and anor. vs. The King, [1952 MR 13]which, we agree, applies to the case before us.

The provisions of the law regarding the admission of the unsworn evidence of children under nine years of age are laid down in sections 109 and 110 of the Criminal Procedure Ordinance, Cap. 169, and in the first schedule thereto - 109. In every trial of any offence charged as having been committed, or attempted to be committed, upon the person of an individual of tender years, such individual, if under nine years of age, shall be admissible as a witness, provided the Judge or Magistrate by or before whom the case is tried, shall be satisfied that the said individual has sufficient intelligence to make a correct statement on the subject of the trial, although he or she may not understand the nature of an oath, or of a solemn affirmation in lieu of an oath.

110. Any individual who shall be admitted as a witness under the last article, shall not be examined on oath, or solemn affirmation, but shall, before giving evidence, make, in presence of the Judge or Magistrate aforesaid, a promise, in terms of the Schedule, to speak the truth.

Schedule I - I do promise that I will speak the truth in answer to any questions

which shall be put to me in this Court.

The record of the proceedings does not show that the requirements of the above provisions of the law were complied with by the Magistrate.

We agree with the view expressed by this Court in Jugarsing and anor. vs. The King (supra) that before the unsworn testimony of the girl (the victim) could have been received, the Magistrate had to satisfy himself that the girl was possessed of sufficient intelligence to make a correct statement on the subject of the trial and, if so satisfied, had to ask her to make a promise in terms of the above schedule.

The evidence given by the girl in this case cannot be taken into consideration as the formalities conditioning its admission have not been complied with.

Spouses

Ah Yune v R  1990 MR 291

the prosecution called the appellant’s wife to depone as its witness, learned counsel then appearing for the appellant objected to the evidence of that witness on the ground that it was inadmissible inasmuch as she was the wife of the appellant.  He submitted that the matter was not governed by either of Sections 164 or 187 of the Courts Act which, as an exception to the general rule, allow the spouse of an accused partly to depone in a criminal case when the offence is charged to have been committed by the accused against the person or property or the conjugal rights of the spouse of the accused.  The Senior Crown Counsel who assisted the prosecution argued the point.  In its ruling the Court held that Sections 164 and 187 were applicable and made the appellant’s wife competent witness since the offences allegedly committed by the appellant affected her conjugal rights and her property.

Section 164 is clearly a reproduction of what was then article 4 of Ordinance No. 15 of 1881 while section 187 is a faithful copy of what used to be article 4 of Ordinance No. 30 of 1909.  But article 6 of the later Ordinance reads as follows:-

Repeal clause.  6. Articles 4 and 5 of Ordinance No. 15 of 1881 and any other Ordinance now in force are repealed in so far as the same are inconsistent with any of the provisions of this Ordinance.

(See Laws of Mauritius, Ed. of Herchenroder and Koenig, Vol.4 pp. 2264, 2274 and 2275).

In the circumstances, it would have been more appropriate for the editors of the Revised laws in 1945 and 1981 to omit section 164 of the Courts Act altogether.  At any rate, it is clear that section 187 must prevail and that, when a spouse is competent to give evidence, he or she is not a compellable witness.

On a proper construction of those sections of the Act we have no doubt that the rights of the spouse in the community of goods existing between her and her husband or wife came within the exceptional clauses contained in both sections.  The Magistrates therefore came to the right decision when they held that the appellant’s wife was a competent witness.

MOHIT  VS THE QUEEN  1974 MR 54

The appellant was prosecuted before the District Court of Rivière du Rempart for the offence of larceny (s. 301 of the Penal Code).

In fact the first material witness called by the prosecution was one Rajman Mohit who started by saying this: "Accused is my wife civilly married. We are not divorced". Having thus clearly established why that witness should not have been called, the prosecution proceeded to elicit from him evidence tending to corroborate that of the declarant, and learned magistrate allowed that evidence to be recorded.

But to call a husband to testify against his wife goes far beyond admitting incompetent evidence. It is a principle deeply enshrined in our law that no man should be compelled to incriminate himself. To the extent that husband and wife are one, to use spouses to incriminate one another is equally objectionable. The principle is given statutory force by s. 164 of the Courts Ordinance (Cap. 168). Any breach of that rule is a serious irregularity which makes the trial unfair. The case law in England shows that wherever such an irregularity has occurred the Courts have been quick to quash the conviction

LALLBAHADOOR vs THE QUEEN 1982 MR 120

The appellant was prosecuted before the District Court of Black River on a charge of blows upon his mother contrary to sections 230 and 231 of the Penal Code Ordinance.

We also note with concern that a person who described the appellant as her husband and who the Magistrate himself called “accused's wife” was, in the teeth of section 184(c) of the Courts Ordinance, allowed to depone as a witness for the prosecution against her husband.

In Mohit v. The Queen [1974 MR 54]this Court held that “to call a husband to give evidence against his wife in a criminal case is a serious irregularity which goes far beyond the mere misreception of evidence: such irregularity justifies the quashing of the conviction”. In that case the trial Magistrate had not in his judgment specifically referred to the inadmissible evidence; yet the appellate Court considered that the normal inference was that he had been influenced by the evidence of the husband.

In the present case the Magistrate clearly acted on the evidence of the wife of the appellant who, according to him, corroborated that of the declarant. In the circumstances we have no alternative but to quash the appellant's conviction.

Examination of Witnesses

Duty on prosecution to call witnesses

REGINA v. DAUPHINE 1959 MR 179

Counsel for the Crown having stated that he did not intend calling certain witnesses whose names appeared on the list of witnesses for the Crown, counsel for the defence moved that two of those witnesses be tendered for cross-examination.  Counsel for the Crown objected, stating that those witnesses, who were in attendance, were, in his view, not material ones and that they could be called by the prisoner, if he so wished, as his own witnesses.

HELD, following Adel Muhammed El Dabbah v. Attorney General for Palestine,(1944) A.C. 156, that the prosecution in a criminal case had a discretion as to what witnesses they should call; that, as a rule, unless prosecuting counsel had a good reason to the contrary, witnesses whose names appear on the list for the Crown and who have not been called should be tendered for cross-examination; but that this remained a matter for the discretion of the prosecuting counsel.

Barbeau v. R 1988 MR 247/1988 SCJ 384

The principles governing the calling of witnesses by the prosecution may be summarised as follows  -

(i) The prosecution, as a general rule, should have present in Court all the witnesses whose names appear on the list of witnesses but they have a discretion whether to call all of them or not (Archbold 42^nd Ed. para. 4-182, page 335).

(ii) Where the prosecution choose not to call a witness, two courses are open to them: they can either tender the witness for cross-examination or just leave it to the defence to call him. (R v. Dauphine 1959 MR 179; R v. Teerumalai 1972 MR 131). Where they opt for the second course of action, it is their duty to make available to the defence any statement made by the witness (R v. Nellayah [1985 SCJ 106]; R v. Teerumalai (supra)).

(iii) The discretion of the prosecution not to call a witness is theirs only and should be exercised fairly. It will not be interfered with by the court unless there are strong reasons for so doing (R v. Oliva (1965) 49 C. App. 298; Adel Muhammed El Dabbah v. Attorney-General for Palestine (1944) AC 156).

(iv) If the prosecution feel that a witness will confuse, deceive or mislead the Court they are not bound to call such a witness (R v. Teerumalai (supra); R v. Nugent (1977) 3 A11 ER 662.