STATE v CHARLES JEAN DESIRE HUBERTO

2012 SCJ 407

Record No: CS 16/10

IN THE SUPREME COURT OF MAURITIUS

In the matter of

The State

Jean Desire Huberto Charles

Ruling (Constitutionality of dying declaration)

The accused stands charged with having, on 6 May 2006, criminally, wilfully and with
premeditation killed one Marie Greta Menes in breach of Sections 215, 216, 217 and
222(1) of the Criminal Code. He has pleaded not guilty to the charge. Following a
Preliminary Enquiry which was held before the District Court of Pamplemousses, it has
come out that the prosecution is relying mainly on a dying declaration given by the
deceased, Ms Menes.

We have reached the stage where the plea of the accused has been recorded and the
jury has been empanelled. However, before any witnesses were called, the defence
made the following motion:
“Defence objects to the production of any statement made by Mrs Marie
Gretta Menes on the grounds that it does not fulfil the conditions as laid
down by the rules of evidence concerning dying declaration as an exception
to the hearsay rule.”

The particulars of the motion were then set down under 12 different items.

Defence counsel added a second limb to the motion which purported to challenge the
constitutionality of the dying declaration. The motion reads as follows:
“[1]. Defence will move the Court to consider the alleged or so called
declaration, i.e. the dying declaration of the late Marie Gretta Menes, which
is a common law exception to the hearsay rule, as being alien to our
Constitution, i.e. unconstitutional, more particularly under section 10(2)(e) of
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the Constitution which allows any defendant or counsel on his behalf to

cross examine any witness against him.
………………………………………………………………………………………..
[2] Furthermore the common law concept of dying declaration has not been
enlisted as any exception in the Constitution nor can’t it be said to be
subsumed in our laws.
[3] Any acceptance of the said dying declaration in the present instance will
not only infringe section 10(2)(e) of our Constitution but will also impose, as
a domino effect, on the Accused to take the witness box which in itself
infringes section 10(7) of the Constitution
………………………………………………………………………………………..

[4]. Defence pray that the present matter, which is a novel point of
Constitutional importance and which is likely to influence many other
decisions in criminal cases in the future, be referred to the Supreme Court
before the Full Bench of the Supreme Court in order to have same
determined under S 84 of the Constitution.”

The prosecution objected to the motion and the matter was heard in a voir-dire. After
some evidence was adduced, defence counsel stated that he was dropping the first limb
of the motion. However, he was pressing with the constitutional point on the basis of the
evidence that had already been adduced. Thereafter, counsel for both sides offered
submissions in law.

Submissions of defence counsel

Criticisms of the very concept of dying declarations
Counsel for the defence, Mr Valayden, submitted that what is involved is the very
concept of ‘dying declarations’. He stressed that there is a strong religious element in the
concept which can be traced back to the Ten Commandments, the reasoning being that
a person would not go to meet his Creator with a lie on his lips.

But, Mr Valayden argued, that the principle has been subjected to strong criticisms. It
has been observed that, even at the moment of death, witnesses have spoken lies and
this for various reasons. Therefore, dying declarations can be dangerous because they
are made with no fear of any subsequent prosecution for perjury.

Historical developments
Referring to the history of the concept, counsel admitted that dying declarations have
formed part of the English common law since a very long time. One of the first major
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pronouncements of the principle goes back to 1789 in the well-known case of R v

Woodcock.

As far as Mauritius is concerned, Mr Valayden referred to S 162 of the Courts Ordinance

1945 which reads as follows:
“Except where it is otherwise provided by special laws now in force in
Mauritius or hereafter to be enacted, the English law of evidence for the time
being shall prevail and be applied in all Courts of Mauritius”

Following elections which were held in 1967, the Constitution of Mauritius came into
force on 12 March 1968. It is the contention of counsel that, historically speaking, the
provisions of the Constitution which enact the ‘will’ of the ‘people of Mauritius’ must be
taken as having superseded previous common law principles in so far as those
principles are contrary to or contradict the provisions of the Constitution.

Wide purposive interpretation of the Constitution to secure protection of the law

Counsel then referred us to Chapter Two of the Constitution which deals with the
‘Protection of Fundamental Rights and Freedoms of the Individual’. Section 10 which is
entitled ‘Provisions to Secure Protection of the Law’ finds it parallel in the European
Convention of Human Rights. Counsel submitted that S 10, by its very nature, must be
generously interpreted. The Court is not required to reject the plain meaning of words
used in the section, but where there is any doubt as to the meaning to be ascribed to
any word, phrase or expression, the wording of the Constitution should be interpreted
widely so as to give effect to the ‘Protection of the Law’ to every citizen.

Counsel referred to S 10(2)(a) and (e) of the Constitution which provide:

“Every person who is charged with a criminal offence –
[a]. shall be presumed to be innocent until he is proved or has pleaded guilty;
……………………………………………………………………………………….
[e]. shall be afforded facilities to examine, in person or by his legal
representative, the witnesses called by the prosecution before any court …..”

Counsel submitted that the right to cross-examine is fundamental to our adversarial

system of justice. The ability to test the evidence adduced by the prosecution is at the
very root of our system which provides that the prosecution has the burden of proving
the case against the accused. Referring to the cases of Appa v R and Coonjan v R
[1988 MR 237] and Appadoo v R [1998 MR 26] counsel submitted that the right to
 4

cross-examine is so important that the failure of affording the accused the opportunity to
cross-examine must be taken as being fatal. This has been an established principle in
Mauritius and in other countries such as South Africa.

Counsel stressed that a dying declaration is made by a person who has since then
passed away. When the declaration is tendered as evidence in court, the maker is no
longer available to be cross-examined and his version remains untested. This will
assume all its importance in the present matter where the prosecution’s case rests
mainly on a dying declaration given by the victim herself. Counsel concluded his
submissions on this issue by saying that the constitutional guarantee provided to the
accused party under S 10(2)(a) would not be respected.

Accused compelled to give evidence

The second limb of the argument of defence counsel revolved around the presumption
of innocence which is guaranteed under S 10(2)(a) of the Constitution. He argued that,
once a dying declaration is admitted, it has the practical effect of turning upside-down
the presumption of innocence inasmuch as a presumption of guilt hangs over the
accused once the words spoken by the deceased implicating him in the commission of
the offence have been admitted in Court. The only way for the accused to reverse this
situation is for him to give evidence under oath since a dying declaration is often
considered as carrying the same weight as evidence given under oath. Thus, a
declaration given by the accused from the dock would not suffice. Counsel referred to S
10(7) of the Constitution which provides:
“S 10 Provisions to secure protection of law
(7) No person who is tried for a criminal offence shall be compelled to give
evidence at the trial.”

He argued that the constitutional guarantee stated above is nullified if an accused is put
in a situation where, for all intents and purposes, he has no other choice than to go in
the witness-box and to give evidence under oath. The downside obviously being that the
accused is thereby under an obligation to open himself to cross-examination by counsel
for the prosecution. Counsel concluded by intimating that an accused may choose, of his
own free will, to give evidence under oath; but any element of compulsion which has the
result of forcing the accused into the witness box is unconstitutional.
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Motion to refer to the Full Bench of the Supreme Court

Finally Mr Valyden submitted that this is a motion under S 84 of the Constitution which
provides that:
“Where any question as to the interpretation of this Constitution arises in any
court of law established in Mauritius (other than the court of Appeal, the
Supreme Court, or a court martial) and the Court is of the opinion that the
question involves a substantial question of law, the Court shall refer the
question to the Supreme Court”.

According to him, the question which has to be decided is whether the point has been
raised in front of the Supreme Court in the past and has been decided by it. He
submitted that the motion raised by the defence has not been addressed before by the
Supreme Court and the point is one of importance since it may influence the future
conduct of criminal cases involving dying declarations. Counsel conceded that the
present trial is being held before the assizes which is an instance of the Supreme Court
itself. However, the case is being presided over by a single Judge. The contention of
defence counsel is that, in view of the importance of the constitutional point which has
been raised and its possible implications, the matter should be referred to the full bench
for authoritative determination once and for all.

I have duly considered the motion made by defence counsel and I propose to address
the points it raises in turn and whether there is a need for it to be referred to the Full
Bench of the Supreme Court.

THE RIGHT TO CROSS-EXAMINE

Importance of the right
As concerning the right of an accused party to cross-examine witnesses for the
prosecution, we must go back into its historical developments. The common law has
always jealously guarded against the admissibility of hearsay evidence. Hearsay
evidence is evidence (be it oral or in documentary form) which is sought to be admitted
in court in order to prove the truth thereof when the maker of the statement is not a party
to the proceedings. The main reason behind the non-admissibility of hearsay evidence is
precisely that the maker would not be available for cross-examination and his evidence
could therefore not be tested, the ability to test the evidence of the opposing party being
one of the tenets of the adversarial system.
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The right of an accused to cross-examine adverse witnesses by facing them in court was
dealt with in the case of R v Davis [2008 UKHL 36]. The accused was charged with two
counts of murder based on the allegation that he had shot two persons at a party. The
trial Judge allowed a few witnesses to give evidence from behind a screen and with their
voices having been distorted by the use of a mechanical device. The above was done to
encourage the witnesses to give evidence since there were genuine grounds to believe
that they feared for their safety. On appeal, it was argued that the restrictions at the trial
were contrary to the common law and inconsistent with article 6(3)(d) of the European
Convention of Human Rights. The appeal was dismissed by the Court of Appeal.

However, subsequently, the matter was referred to the House of Lords on a point of
public importance, namely whether it was permissible for a defendant to be convicted
based solely or to a decisive extent upon the testimony of one or more anonymous
witnesses. Lord Bingham of Cornhill made an exposition of the reasoning behind the
common law principle and the historical developments that followed, not only in the
United Kingdom but in other States as well. I believe that it would be apposite to
reproduce the relevant extract in toto:
“It is a long-established principle of the English common law that …….. the
defendant in a criminal trial should be confronted by his accusers in order
that he may cross-examine them and challenge their evidence. This principle
originated in ancient Rome
…………………………………………………………………………………………

The practice of confronting defendants with their accusers so that the latter
may be cross-examined and the truth established was recognised by such
authorities as Sir Matthew Hale (The History of the Common Law of England
(6thed, 1820, pp 345-346), Blackstone (Commentaries on the Law of
England (12thed, 1794, Bk III, p 373) and Bentham (Rationale of Judicial
Evidence (1827), Vol II, Bk III, pp 404, 408, 423). The latter regarded the
cross-examination of adverse witnesses as “the indefeasible right of each
party, in all sorts of causes” and criticised inquisitorial procedures practised
on the continent of Europe, where evidence was received under a “veil of
secrecy” and the door was left “wide open to mendacity, falsehood, and
partiality.” The common law right to be confronted by one’s accusers was
included within the colonial constitutions of several North American colonies
(among them Massachusetts, New Hampshire, North Carolina, Maryland
and Virginia: see Alvarado v Superior Court of Los Angeles Country 23 (Cal
4th 1121, 1137-1140 (2000) and other states adopted similar declarations at
the time of independence. By the sixth amendment to the United States
constitution adopted in 1791 it was provided that “In all criminal
prosecutions, the accused shall enjoy the right … to be confronted with the
witnesses against him …”. The rule has been strictly applied: in Alford v
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United States 282 US 687 (1931) a conviction was quashed where a

government witness had been excused from answering a question about
where he lived.

Not an absolute right – the issue of exceptions

The importance of the right to cross-examine cannot be over-stressed. However, the
common law has, for a very long time, recognised that the right cannot and ought not to
be considered as absolute. One of the recognised exceptions is the admissibility of dying
declarations. Thus, in the case of R v Davis (supra), following the extract which has
been quoted above, Lord Bingham went on to add:
There have been long-recognised exceptions to the right of confrontation in
this country (dying declarations and statements part of the res gestae are
examples)……”

The recognition of exceptions to the rule is based on powerful considerations. Indeed,

the basic reasoning is that the Court should not be deprived of the opportunity of
considering evidence which would be of probative significance if properly assessed (see
R v Lawson [1998] Crim LR 883).

The case of Neville Nembhard v The Queen [1979] Privy Council Appeal no 30
concerned a special appeal to the Council from Jamaica. The deceased was a police
officer who was shot and he named his assailant to his wife before passing away a few
hours later. The dying declaration was admitted and the appellant was found guilty. The
ground of appeal concerned whether the jury had to be given a corroboration warning
concerning the dying declaration. Delivering the judgment of the Council, Sir Owen
Woodhouse explained the reasons why dying declarations are admitted as exceptions to
the hearsay rule:
“It is not difficult to understand why dying declarations are admitted in
evidence at a trial for murder or manslaughter and as a striking exception to
the general rule against hearsay. For example, any sanction of the oath in
the case of a living witness is thought to be balanced at least by the final
conscience of the dying man. Nobody, it has been said, would wish to die
with a lie on his lips. So it is considered quite unlikely that a deliberate
untruth would be told, let alone a false accusation of homicide, by a man
who believed that he was face to face with his own impending death.”

The basic principle is that when a person is about to die, every motive to lie is silenced
and the mind acts under the most powerful consideration to tell the truth, that is to say
impending death. Dying declarations are therefore admitted as an exception to the
 8

hearsay rule with the resulting effect that an accused party is precluded from cross-
examining his accuser.

The second justification for the exception is the long-recognised principle that an
accused party ought not to be allowed to take advantage of his own wrongdoing based
on technical reasons concerning the admissibility of evidence. The concept of ‘fair trial’ is
much wider; if, on the one hand, the accused has to be afforded all necessary
guarantees to ensure that the proceedings against him is fair, the prosecution, on the
other hand, must be treated with equality of arms and should be given a fair chance to
present the evidence available to it bearing in mind the public interest that lies in the
prosecution of serious crimes.

Expatiating on the issue of exceptions, Lord Mance said the following in the case of
Davis (supra):
“Lord Bingham in para 5 et seq discusses the long-established principle of
English common law that, ………… the defendant in a criminal trial should
be confronted by his accusers in order that he may cross-examine them and
challenge their evidence. Common law exceptions to this principle include
the rules permitting proof of dying declarations in cases of homicide and of
statements made by witnesses as part of the res gestae. Another common
law exception is the rule, recognised by the Judges in Lord Morley’s case
(1666) 6 St Trials 770, para 5 and permitting the reading at trial of a
statement by a witness who had been deposed before a coroner but who
was absent at trial because detained by the means or procurement of the
defendant incriminated by the statement. Subsequent authorities were
considered and this exception again accepted in R v Scaife (1851) 17 QB
238, where Hunter arguendo (at p 241) referred to the maxim that justice
“will not permit a party to take advantage of his own wrong” and also noted
(p 240) that the coroner’s deposition in Lord Morley’s case had probably
been taken in the absence of the defendant. The exception was endorsed by
the United States Supreme Court (though wrongly attributed to the House
itself) in Reynolds v United States 98 U.S. 145 (1878), 158-9, as an
“outgrowth” of the same maxim which “if properly administered, can harm no
one”. It was recently referred to by the Supreme Court in Crawford v
Washington 124 S Ct 1354 (2004), 1370 as a “rule of forfeiture by
wrongdoing (which we accept), [which] extinguishes confrontation claims on
essentially equitable grounds; it does not purport to be an alternative means
of determining reliability”.

Statutory exceptions
It cannot be disputed that the common law exceptions have created inroads into the rule
that an accused has the right to cross-examine witnesses. In the case of
 9

Davis(supra)Lord Bingham of Cornhill referred to the ‘further exceptions [that] have

been enacted by statute’ and Lord Mance referred to certain ‘statutory qualifications’ to
which the rule is now subjected. In Mauritius, the Legislator has also created further
inroads by what have, now, become recognised statutory exceptions to the right to
cross-examine. It would suffice for our purposes to refer to two such instances. Section
45 of the Bank of Mauritius Act provides the following:
“45. Evidence in proceedings
(1). In any proceedings in which the genuineness of a currency note or coin
purporting to have been issued by the Bank is in question, a certificate under
the hand of a Deputy Governor to the effect that such currency note or coin
is spurious or genuine shall be received in all Courts as conclusive evidence
of the spuriousness or genuineness, as the case may be, of such purported
currency note or coin.
(2). The Deputy Governor shall not be examined or cross-examined with
respect to any such certificate.
(3). The certificate shall be in the form specified in the Fourth Schedule. (The
underlining is mine)

The reason why the Legislator made such a provision is obvious. Should the Deputy
Governor of the Bank of Mauritius be subjected to cross-examination on the
spuriousness of bank notes, sensitive information about how genuine notes are made is
likely to be revealed. Thus, the harm which is likely to ensue when potential forgers get
to know this information greatly outweighs the right of an accused to cross-examine the
witness from the Bank of Mauritius. The exception is amply justified in these
circumstances.

Section 47 of the District and Intermediate Courts (Criminal Jurisdiction) Act provides the
following:
“47. When deposition may be used as evidence
(1). Where on the trial of such accused person, it is proved that any witness,
whose deposition has been taken is dead or so ill as not to be able to travel,
or had left the Island of Mauritius and there are no reasonable expectations
of his speedy return, and also if it is proved that such deposition was taken in
presence of the accused and that he or his barrister or attorney had a full
opportunity of cross-examining the witness, then where such deposition
purports to have been taken, it shall be lawful to read such deposition as
evidence in such prosecution without further proof of it, unless it is proved
that the deposition was not in fact signed by the Magistrate purporting to sign
the same.
(2). This provision shall apply to the trial of an accused person by a
Magistrate or an Intermediate Court for an offence within the jurisdiction of
such Magistrate or Intermediate Court.”
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In essence the section provides that the written deposition of a witness who has given
evidence at a Preliminary Enquiry and who has subsequently passed away or is
unavailable may be read at the trial, and received as evidence in court notwithstanding
that the witness is not available for cross-examination during the trial. The accused party
has had the opportunity to cross-examine the witness at the Preliminary Enquiry;
however, should he have failed to do so or should he have thought it wiser to reserve
cross until the trial proper, he would be deprived of the opportunity of cross-examining
the witness at the trial.

In the case of Police v Jean Pascal Rudy Marie Joseph [2003 MR 92], the point
raised was whether S 47 was in contravention of Section 10 of the Constitution. Y.K.J
Yeung Sik Yuen, SPJ and E. Balancy, J concluded their analysis of the issue by saying:
“In the light of our observations, we hold that:
(1) the requirement in section 10(2)(e) of the Constitution that an accused
party must be given the opportunity of cross-examining any witness called by
the prosecution is not infringed by a law which provides that the deposition of
a witness who has given evidence at the preliminary enquiry, where his
evidence could be tested by cross-examination, can be produced in
evidence at the trial where the witness is no more available to be called at
the trial: accordingly section 47(1) of the D.I.C.A. does not infringe section
10(2)(e) of the Constitution;
(2). in connection with the cross-examination of a witness, the notion of “fair
hearing” in section 10(1) of the Constitution does not necessarily require that
the evidence emanating from a witness who deposed at a preliminary
enquiry, where he could be cross-examined, should be excluded where such
witness is no more available to be cross-examined at the trial itself,
accordingly section 47(1) of the D.I.C.A. does not infringe section 10(1) of
the Constitution.

Fair Trial
At the end of the day, without in any way derogating from the importance of the right
afforded to an accused party to cross-examine adverse witnesses, when it comes to the
constitutional guarantee afforded in S 10, the issue is not really about the niceties of
arguments that may be developed in support of the right to cross-examine, but is the
more fundamental principle of ‘fair trial’. The real question is whether, having regard to
all the circumstances of the case, the accused has benefited from a fair trial,
notwithstanding the unavailability of one or more witnesses for cross-examination.
 11

The case of Al-Khawaja and Tahery v The United Kingdom (Grand Chamber
Strasbourg 15 Dec 2011)involved two appellants; the first appellant was charged with
indecent assault and the statement of the victim was read over to the jury at the trial
since she had passed away. The second appellant was charged of wounding with intent
to cause grievous bodily harm and the statement of the victim was also read over to the
jury because she feared attending the trial. Both accused were convicted. We can read
the following at page 51 of the Judgment:
“For these reasons, the Court has consistently assessed the impact that the
defendant’s inability to examine a witness has had on the overall fairness of
his trial. It has always considered it necessary to examine the significance of
the untested evidence in order to determine whether the defendant’s rights
have been unacceptably restricted ……. At the same time, however, the
Court has always interpreted Article 6(3) in the context of an overall
examination of the fairness of the proceedings.”

Need for precautions

In order to ensure a fair trial, dying declarations have to be properly administered so that
no prejudice ensues to anyone and, in particular, not to the accused party. The following
was held in the case of Neville Nembhardv The Queen (supra):
“There is the further consideration that it is important in the interests of
justice that a person implicated in a killing should be obliged to meet in court
the dying accusation of the victim - always provided that fair and proper
precautions have been associated with the admission of the evidence and its
subsequent assessment by the jury. In that regard it will always be
necessary for the jury to scrutinise with care the necessarily hearsay
evidence of what the deceased was alleged to have said both because they
have the problem of deciding whether the deponent who has provided the
evidence can be relied upon and also because they will have been denied
the opportunity of forming a direct impression against the test of cross-
examination of the deceased’s own reliability.”

Thus, it has been considered better to admit the evidence and allow the court to assess
its probative value, rather than to prevent the evidence from being placed before the
Court altogether. This was stressed in the case of Al-Khawaja and Tahery v The
United Kingdom (supra). We can read the following at para 147:
“147. The Court therefore concludes that, where a hearsay statement is the
sole or decisive evidence against a defendant, its admission as evidence will
not automatically result in a breach of Article 6(1). At the same time where a
conviction is based solely or decisively on the evidence of absent witnesses,
the Court must subject the proceedings to the most searching scrutiny.
Because of the dangers of the admission of such evidence, it would
constitute a very important factor to balance in the scales, to use the words
 12

of Lord Mance in R. v. Davis (see paragraph 50 above), and one which

would require sufficient counterbalancing factors, including the existence of
strong procedural safeguards. The question in each case is whether there
are sufficient counterbalancing factors in place, including measures that
permit a fair and proper assessment of the reliability of that evidence to take
place. This would permit a conviction to be based on such evidence only if it
is sufficiently reliable given its importance in the case.”

Further reference can be made to the case of R v Horncastle [2009 EWCA Crim 964 ]
in as much as the reasoning and the approach taken by the court is interesting. The
case involved the admissibility of a written statement made by a witness who had since
then passed away. The evidence was sought to be admitted pursuant to the provisions
of the Criminal Justice Act 2003 which allowed, inter alia, the admission of statements
made by deceased persons. It was sought to challenge the evidence so adduced based
on article 6(1) and 3(d) of the Convention which is very similar to S 10 of our
Constitution. Article 6(1) and 3(d) read as follows:
“(1). In the determination of his civil rights and obligations or of any criminal
charge against him, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law
……………….
(3). Everyone charged with a criminal offence has the following minimum
rights . . . (d) to have examined witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same
conditions as witnesses against him.”

It was stated that ‘the critical question is to what extent the specific rights set out in art
6(3), and specifically that in art 6(3)(d), are absolute, or can be qualified provided the
overriding principle that a criminal trial must be fair to the accused and his rights
respected is observed - a principle which the law of England and Wales has long
recognised in the context of an adversarial and oral procedure and for which it has
evolved detailed rules of evidence and procedure to that end’.

The final decision of the court exposes, in a summary form, the considerations that have
to be borne in mind when dealing with article 6 rights of an accused party:
“There was no breach of art 6, and in particular art 6(3)(d), of the convention
if a conviction was based solely or to a decisive degree on hearsay evidence
admitted under the 2003 Act, provided the provisions of the 2003 Act had
been followed. Where hearsay evidence was demonstrably reliable, or its
reliability could properly be tested and assessed, the rights of the defence
were respected; there were, in the language of the Court of Human Rights,
sufficient counterbalancing measures and the trial was fair. It followed from
 13

the case law of the Court of Human Rights that the right to confront
witnesses for the prosecution under art 6(3)(d) of the convention was not an
absolute one. If the right were absolute there would be a prohibition upon all
hearsay evidence, whether crucial or otherwise; however, the case law
demonstrated that the right to confront a witness could in certain limited
circumstances de restricted, provided that the trial was fair, a legitimate
justification for the admission of the absent witness’s statement had to be
established and appropriate counterbalancing measures had to be taken to
ensure that the defendant was not placed at an unfair disadvantage and that
his rights were respected………………………. Where the evidence before
the court was that of an identified but absent witness, there was no reason
for a further absolute rule that no counterbalancing measures could be
sufficient where the statement of the absent witness was the sole or decisive
evidence against the defendant. That would include cases where the
hearsay evidence was demonstrably reliable, or its reliability was capable of
proper testing and assessment, thus protecting the rights of the defence and
providing sufficient counterbalancing measures.”

Finally, the practical ways in which a fair trial can be held notwithstanding that certain
witnesses have not been made available for cross-examination were explained by
reference to certain concrete examples in the case of Al-Khawaja and Tahery v The
United Kingdom (supra).. Thus, it was held:
“144. Traditionally, when examining complaints under Article 6(1), the Court
has carried out its examination of the overall fairness of the proceedings by
having regard to such factors as the way in which statutory safeguards have
been applied, the extent to which procedural opportunities were afforded to
the defence to counter handicaps that it laboured under and the manner in
which the proceedings as a whole have been conducted by the trial judge
…………………”

In the light of the above analysis, I find that there would be no breach of the
constitutional right of the accused to cross-examine witnesses for the prosecution, and in
particular, Marie Greta Menes who has passed away if her dying declaration were to be
admitted. This is subject, of course, to the overall fairness of the trial being scrupulously
respected and all precautions being taken from a practical point of view to ensure such
fair trial.

COMPELLATION TO GIVE EVIDENCE

The second limb of the argument concerns the contention that the accused would be
compelled to give evidence once the dying declaration would have been produced. At
this stage, I believe that a distinction has to be drawn between the ‘legal burden’ and the
‘evidential burden’. The legal burden refers to the obligation placed on a party to prove
 14

or disprove certain facts in issue. That burden rests generally on the prosecution in
criminal cases, with a few established exceptions where the accused is required to prove
certain matters. The three main exceptions are where the accused pleads insanity,
where the burden is specifically placed on the accused by statute and where it can be
said that the burden has been impliedly placed on the accused. The evidential burden,
on the other hand, refers to the obligation on a party to adduce sufficient evidence to
sustain a fact in issue which it has to prove.

It is trite law that the legal burden does not shift; once there has been a determination as
to where the legal burden lies, it would not move from one party to another. However,
the evidential burden may and does shift. This occurs where a party has adduced
enough quality evidence on one or more issues and the other party runs the risk of an
adverse finding being made against him if he does not adduce counter-evidence. This is
where the evidential burden is said to shift on the other party. It must be pointed out that
there is no ‘obligation’ on the other party to adduce such counter-evidence. He may
leave things as they are, but as has been said earlier, he runs the risk of an adverse
finding being made against him. Thus, as a matter of tactic, it is advisable for the other
party to adduce counter-evidence if he does not want to run the risk of losing the case.
There are several ways for the other party to adduce such counter-evidence. He may do
so by cross-examining the witnesses of the first party or he may call witnesses on his
own behalf to give evidence in his favour. The law does not, at any moment, place any
obligation on the other party to come in the witness-box and to give evidence under
oath. It is one of the options which he may choose to exercise or not to exercise.

In the case of Andoo M v The Queen [1989 MR 241] the accused was prosecuted
before the District Court of Curepipe for the offence of dangerous driving. The learned
Magistrate found him guilty based on the sole evidence of the declarant. The accused
had given an unsworn statement to the police in which he denied the charge and stated
that he had not seen the declarant on the day in question. One of the grounds of appeal
read as follows:
“Because the learned Magistrate seems to treat the statement of the
appellant as no evidence at all:
(a) Had the appellant given evidence on oath she would have concluded
differently
(b) She seems to labour under the erroneous concept that it is up to the
defence to prove its innocence”
 15

The Supreme Court considered the matter and held that:

“In the absence of any explanation of the appellant, the declarant’s evidence,
if believed, clearly proved a case of dangerous driving.

This Court had repeatedly stressed that the unsworn statement of an

accused is only evidence of what he told the Police. Where the evidence for
the Prosecution established a strong and unshaken prima facie case and the
accused chooses not to swear to his statement and expose himself to cross
examination, the trial court is perfectly entitled to conclude that the
Prosecution evidence remains unrebutted. It is of course true that the burden
of proving the guilt of an accused squarely lies on the Prosecution and that
the accused is entitled to remain silent. His right to silence, however, is
exercised at his risk and peril when, at the close of the case for the
Prosecution, a prima facie case has been clearly established since the
burden then shifts on him to satisfy the Court that it should not act on the
evidence adduced by the Prosecution.”

Having set out these basic principles, let us now turn to consider the issue in the present
case. I am of the view that the production of a dying declaration before the jury would not
in any way place any legal burden on the accused to come and give evidence under
oath. There is no obligation imposed on him which would force him to open himself to
cross-examination in the witness-box. There are several ways in which he can attack the
reliability of the dying declaration. He may do so by cross-examining the recording officer
and other persons who may have relevant evidence to give in relation to the declaration.
It is trite law that certain conditions have to be met before a statement can be considered
as a dying declaration proper. If, for example, the accused can show that those
conditions have not been met, he would have shaken the very foundation of the so-
called dying declaration. There would be no need for him to come and give evidence
under oath in such circumstances. At the end of the day, it is for the accused to decide
as a matter of tactics whether he wishes to give evidence under oath or not in order to
rebut the evidence which has been adduced by the prosecution in the form of a dying
declaration. There is no objection which can be taken based on S 10(7) of the
Constitution where the evidential burden shifts on an accused in the course of a trial.

S 118 OF THE COURTS ACT

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For the sake of completeness I feel that I have to deal with one additional point which
has been raised by defence counsel in the course of his oral submission even though
this does not form part of the written grounds of objection which has been filed. Counsel
referred to S 118(1)(c) of the Courts Act which reads as follows:
“118 Further powers of District Magistrate
[1] A District Magistrate may, and may be required to, even in a district which
has not been assigned to him –
………………………………
[c] take and receive any dying declaration”

The evidence which has been adduced in this case shows that a police officer went to
record the dying declaration from the deceased when she was admitted in hospital on
Sunday 7 May 2006. Counsel submitted that Section 118 has the effect of limiting the
circumstances in which a dying declaration can be recorded. Thus, a dying declaration is
alien to our Constitution if not recorded by a Magistrate under oath.

S 118 provides that a Magistrate ‘may’ record a dying declaration. S 5(4) of the
Interpretation and General Clauses Act provides:
“5 General rules of interpretation
(4)(a) The word ‘shall’ may be read as imperative
(b) The word ‘may’ shall be read as permissive and empowering”

It is clear why the Legislator chose to use the word ‘may’ and not the word ‘shall’ in S
118 of the Courts Act. There may be circumstances where it would simply not be
practical to call a Magistrate to record a dying declaration; for example, a Magistrate
may not have the time to attend to a person who, fatally wounded, is about to die. Thus,
the Legislator did not exclude the possibility that a dying declaration may be recorded by
somebody else, be it a police officer or even an ordinary person who happened to be by
the side of the person who was about to die. The fact that the dying declaration was
recorded by a police officer and not by a Magistrate under S 118 of the Courts Act does
not infringe any constitutional guarantee afforded to an accused to have a fair trial.
There is therefore no constitutional bar to the dying declaration being admitted as
evidence before a jury in this case. It is, of course, open to the defence to challenge the
reliability of the dying declaration on such grounds as it deems fit, including whether it
was practical for the police to obtain the attendance of a Magistrate, whether the
provisions of S 118 were deliberately ignored and whether the declaration was recorded
in such a manner that the conditions precedent for a statement to be considered as a
 17

dying declaration have been or have not been met by the police officer who actually
recorded same.

CONCLUSION
I have duly considered the point raised by the defence and the submissions of both
counsel. True it is that the Parliament of Mauritius has not yet enacted a specific
statutory provision to deal with the admissibility of dying declarations and other
connected issues. Quite a few countries of the Commonwealth have chosen to do so.
The constitutionality of one such provision was challenged in the case of Grant v The
Queen [2006 UKPC 2] (16 January 2006). The State of Jamaica deemed it fit to enact,
by virtue of S 31D(a) of the Evidence (Amendment) Act 1995, that a statement made by
a person in a document shall be admissible in criminal proceedings as evidence of any
fact of which direct oral evidence by him would be admissible if it proved to the
satisfaction of the court that such person is dead. The Privy Council found that such a
provision does not infringe the constitutional right of an accused to cross-examine
witnesses which is secured by S 20(6)(d) of the Jamaican Constitution and it is
interesting to see how the matter has been dealt with. It bears pointing out that S 20(6)
of the Jamaican Constitution is very much similar to S 10 of our own Constitution.

For the time being, the situation being what it is in Mauritius, I will simply quote the
words of Patrick Crooks, J in the case of State of Wisconsin v Marvin L. Beauchamp
[2010 WI App 42] a Court of Appeal decision reported at 324 Wis. 2d 162 which I
findwisely sets out the approach that may be taken when the court is confronted with
dying declarations in the prosecution of alleged crimes:
“While the United States Supreme Court has yet to give its explicit blessing
to the dying declaration exception, it has given us no reason to abandon a
principle that is so deeply rooted in the common law. Nor does Beauchamp.
The fairest way to resolve the tension between the State’s interest in
presenting a dying declaration and a defendant’s concerns about its potential
unreliability is not to prohibit such evidence, but to continue to freely permit,
as the law does, the aggressive impeachment of a dying declaration on any
grounds that may be relevant in a particular case.”

As concerning the motion of the defence that the matter be referred to the Full Bench
under S 84 of the Constitution, I am of the opinion that there is no need to do so in view
 18

of the considerable number of pronouncements on the issue, a few of which have been
extensively dealt with in the present ruling.

The objection taken by the defence is set aside. I declare the dying declaration
admissible. Full latitude will, however, be given for its reliability to be tested before the
jury.

P. Fekna
Judge

30 October 2012

For the State: Ms M. Naidoo, Assistant DPP

Mr R. Rammaya, State Counsel

For Accused: Mr R. Valayden, of Counsel

Mr S. Teeluckdharry, of Counsel