STATE v MOHIT I

2015 SCJ 150

Record No. CS 1/14

THE SUPREME COURT OF MAURITIUS

In the matter of:-

The State
v
Indraduth Mohit

Ruling

The accused stands charged before the Court of Assizes with the offence of
manslaughter committed on 11/03/2007 on the person of one Dharmanand Ruttan, in breach
of sections 215 & 233(3) of the Criminal Code. He has pleaded not guilty to the charge.

After the plea of the accused was taken and before the empanelling of the jury for the
trial, learned counsel for the defence formally raised certain preliminary objections which I
have set aside as the defence could not proceed with the motions tagged to them as
formulated. The defence has come up with the same preliminary objections, this time tagged
with the motion inviting me to withhold the present proceedings sine die couched as under:

i. The list of 75 jurors provided to us, out of which only 25 jurors have
turned up in Court today, is not a fair representation of the general
cross-section of the Mauritian society inasmuch as the list contains
only or mostly the names of civil servants excluding the names of
persons who work in the private sector, and/or those who are
jobless and/or those who are self-employed and/or taxi drivers,
traders, hawkers and others; it will be submitted that same infringes
Accused right to a fair trial before an independent and impartial
Court under Sections 1 and 10(1) of the Constitution;
ii. The list as per the Juror’s Book which contains 6,307 names of
persons who are mostly, if not all, civil servants also does not fairly
represent the general cross-section of the Mauritian society; it will
be submitted that same infringes Accused right to a fair trial before
an independent and impartial Court under Sections 1 and 10(1) of the
Constitution.
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iii. Section 42 of the Courts Act 1945 which prescribes the number of
jurors, i.e. 9, infringes Accused’s right to fair trial, protection of the
law and due process of the law in as much as the international norm,
be it in the UK or the USA, is 12. It will therefore be submitted that
Section 42 of the Courts Act infringes Sections 1, 3 and 10 of the
Constitution.
iv. The information as couched as per Section 22 of the Criminal
Procedure Act 1853 does not provide the particulars of the offence
of manslaughter; It will therefore be submitted that that Section 22 of
the Criminal Procedure Act 1853 contravenes Section 10(1) and s
10(2)(b) of the Constitution.
In view that

First, the above are novel constitutional issues of great general

importance;

Secondly the Accused has serious apprehensions that he will not be

afforded a fair hearing before an independent and impartial tribunal as
the potential jury will be constituted from a restrictive list of 25 persons
who are all-if not mostly- civil servants employed by the State; and

Thirdly in the interests of justice as justice must not only be done but
must manifestly be seen to be done;

the defence shall most humbly invite Your Lordship in the exercise of
his sovereign unlimited jurisdiction as guardian of the Constitution;

- be it in accordance with the settled practice and jurisprudence as

alluded by Your Lordship namely Muntroneea v DPP 1983,
Peerbocus v R 1991, R v Boyjoo 1991, Manraj v ICAC 2003, State v
Charles 2012;

- be it under Section 2 of the Constitution;

- be it under Section 17 of the Constitution;

- or be it under any other provisions of the Constitution or any other

provisions of the law

to determine the constitutionality of the impugned legislations, and to stay

proceedings sine die until Your Lordship’s determination or until the law is
amended to cure the mischief so that the jury trials can be held in line with
the letter and the spirit of the Constitution and in line with the international
jurisprudence as to constitutional right of an accused party to an impartial
jury and the fair representation of a cross section of the community on jury
panels.

The prosecution has taken objection to the preliminary objections and the motion
for stay of proceedings based on them.
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Points (i) and (ii) can be considered together as they are based on the American
principle that a jury should reflect a fair representation of a cross-section of the society.
In his elaborate submissions on those points, learned counsel for the defence referred
extensively to the relevant leading American cases and other foreign cases as well as
articles and other written materials published on the matter to contend that the
representativeness of a general cross-section of the society is a requirement that would
ensure in a jury trial a fair trial by an independent and impartial tribunal and the
protection of the law in a democratic society as provided under sections 1 and 10(1) of
the Constitution. He thus endeavoured to make the point that a pool of prospective
jurors from which the Jury is to be drawn does not satisfy the principle of fair
representation of a cross section of the society if a section of the community is
deliberately or otherwise by the method of selection of jurors exclude from that pool.

Having regard to the arguments of learned counsel, it is relevant in dealing with

preliminary points (i) and (ii) to consider whether or not section 10(1) of the
Constitution which affords to an accused party the right to a fair trial by an independent
and impartial tribunal indeed implies that for such guarantee to be effectively ensured in
a jury trial, the jury should reflect a fair representation of a cross-section of the society.
In relation to Mauritius the point has been touched upon in a few cases.

For instance, in the case of Peerbocus v R [1991 MR 90] where the issue which
the Court had to consider was whether the trial Court was improperly constituted and
the appellant had been denied the protection of the law in the form of a trial before an
independent and impartial Court on account of the fact that the jury that tried him did not
include any woman. Glover CJ and Boolell J in the majority judgment they handed had
this to say

“To our minds the issue must be considered in relation to sections 3

and 10 of the Constitution which, we agree, entitle an accused person,
whose case is heard by a Judge and jury, to be tried by a jury which is
not selected or made up in such a way that it can in no way be said to
reflect a reasonable cross-section of his fellow-citizens.”

The above quoted observations were considered to be only obiter by the Court
composed of Glover CJ and Lallah SPJ in the case of Poongavanam v DPP [1993 MR
298], which was an action for constitutional relief based on section 17(1) of the
Constitution. The plaintiff who had been convicted at the Assizes complained had he
not been afforded a fair trial by an independent and impartial tribunal. The Court
remarked in that respect that it “may be noted, in this connection, that what was
said obiter in the majority judgment in Peerboccus v R [1991 MR 90], to the effect
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that an accused party may expect to be tried by a jury “which is not selected or
made up in such a way that it can in no way be said to reflect a reasonable cross-
section of his fellow-citizens,” went further than what Their Lordships were
prepared to do.” In referring to “Their Lordships” the Court meant those who delivered
the majority judgment in 1989 in the appeal that the plaintiff had lodged before the Privy
Council against his conviction, namely, the case of Poongavanam v The Queen [1989
PRV 27].

In the latter case, appellant Poongavanam invoked amongst other grounds of

appeal the ground that the jury did not represent a fair cross-section of society
inasmuch as it excluded women and persons living in Rodrigues. Their Lordships
considered the question whether this principle, which they referred to as a well
recognized principle in the United States, can be derived from section 10(1) of the
Constitution. After reviewing the American principle as expounded and explained in
the cases of Thiel v Southern Pacific C0. 328 U.S. 217 (1946) and Taylor v State of
Louisiana 419 U.S. 522 (1975), which learned defence counsel in the present case
referred to extensively in the course of his submissions, Their Lordships made the
following observations:

“Whether any such broad principle can be derived from section 10(l) of
the Constitution of Mauritius depends upon the construction to be
placed upon the word "impartial" in that section. On the natural
meaning of the words of the section, the provision is directed towards
the actual Tribunal before which the case is heard, and the hearing
before that tribunal; and the introduction of the word "impartial" is
designed to ensure that the members of that tribunal are not only free
from actual bias towards the accused but also, as the European
jurisprudence shows, manifestly so in the eyes of the accused. The
American principle however transcends such requirements. It is
directed not to impartiality in the ordinary meaning of that word, but to
the representative character of the list from which the jury is to be
drawn. The effect is therefore that, however impartial the actual jury may
in fact have been, the principle may nevertheless be offended against if
those from whom the jury are selected are not representative of society.
(underlining is mine)

Furthermore, the principle is not directed towards the constitution of the

particular jury in question. It is recognised that it is impossible to
achieve, by the process of random selection, a representative jury,
indeed if the aim was to achieve a representative jury, this could only be
done by interference with the process of random selection which itself
would not only be open abuse, but however fairly done could be
suspected of abuse, and could never in fact achieve a jury truly
representative of all sections of society. This is no doubt why the
American Principle looks rather to the lists from which individual juries
 5

are drawn, and requires that those lists shall be compiled from a fair
cross-section of society. This makes it all the more difficult to derive the
principle from a provision such as section 10(1) of the Constitution of
Mauritius, which is concerned rather with the actual tribunal by which
the case is tried, and with the impartiality of that tribunal.
…………………………………………………………………………………………
………………………………………………………………………………………….

Their Lordships have however come to the conclusion that in the

present case, it is unnecessary for them to answer that question of
interpretation in relation to section l0(l) of the Constitution of Mauritius.”

It arises out of the observations quoted above that the Privy Council in the case
of Poongavanam v The Queen did reach the conclusion that the American principle of
a fair representation of a cross-section of the society in a Jury cannot be derived from
section 10(1) inasmuch as it implies the representative character of the list from which
the Jury is to be drawn rather than a principle related to impartiality in the ordinary
sense of the latter word. This is confirmed in the judgment in the case of Poongavanam
v DPP where it was observed that “Their Lordships clearly took the view that the
work should be given its ordinary meaning, so that an accused person could only
claim a breach of his constitutional rights if he could aver that the members of the
jury that tried him were not free from bias or that it had not been manifestly
shown that such was the case. Their Lordships very much doubted whether it
was possible to derive from section 10(1) of our Constitution a principle similar to
the American concept whereby the right to a fair trial may be offended against if
those from whom the panel of jurors is selected, that is the persons on the jury
list, are not representative of society.” (underlining is mine)

However, at this stage, it is apposite to refer to the case of Rojas v Berliaque [Privy
Council Appeal No. 100 of 2002] in which the point that had to be determined was
whether there was an infringement of the constitutional right to a fair hearing by an
independent and impartial court or authority as guaranteed under section 8 of the
Constitution of Gibraltar, which is the equivalent of section 10(1) of our
Constitution, in a jury trial where the jurors are selected from a jury list compiled on a
sex discriminatory basis. The majority in that case did not accept the approach in
Poongavanam v The Queen, which they said was one tending to equate a discriminatory
list with a lack of impartiality. But they held that a non-discriminatory method of
compiling jury lists was an essential ingredient of a fair trial by Jury. The reasoning of
Their Lordships in that respect is set out in the following extracts of the judgment.
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“9. Where their Lordships part company with the Attorney

General’s submissions is that they cannot accept that section 8 is
powerless to assist in a case where the method of selection of
members of the jury is blatantly, indefensibly discriminatory.
Section 8 contains an open-ended constitutional guarantee of a
fair trial. This is one of the most important guarantees in the
Constitution. Section is to be interpreted so as to ensure citizens
of Gibraltar receive the full measure of protection this guarantee
is intended to provide.
…………………………………………………………………………………
…………………………………………………………………………………
14. It seems that in the Poongavanam case the appellant sought
to equate a discriminatory jury list with a lack of impartiality in the
selected jury. A similar approach was adopted on behalf of Ms
Rojas in the present case. This approach, concentrating on the
requirement of impartiality, all too easily distracts attention from
another, fundamental requirement of jury trial. This requirement
is an essential feature upon which jury trial depends for its very
validity. Since juries are chosen at random from jury lists, a non-
discriminatory method of compilation of the jury lists is an
essential ingredient of a fair trial by jury. This is inherent in the
concept of a fair trial by an impartial jury. Fairness is achieved in
the composition of the jury by random selection from a list which
is itself fairly constituted. This is the “fair cross-section”
principle underlying the American jurisprudence. It is a principle
equally applicable to article 6(1) of the European Convention on
Human Rights and to corresponding constitutional guarantees, of
which section 8 of the Constitution of Gibraltar is an instance. A
jury list compiled on a basis which, without any objective
justification, excludes from jury service virtually one half of the
otherwise eligible population is a jury list complied on a
discriminatory basis. A jury list complied on this basis is the
antithesis of a fairly constituted jury list. Trial by a jury derived
from such a list does not satisfy the constitutional requirement of
a fair trial by an independent and impartial court.” (underlining is
mine)
It is clear in the above extracts that the Privy Council sets out a principle which is
applicable to section 6(1) of the European Convention on Human Rights and “to
corresponding constitutional guarantees, of which section 8 of the
Constitution of Gibraltar is an instance.” In the circumstances, I consider that
I am bound by the principle propounded, and this, for the reason that whenever
they are relevant, our courts are bound by the authoritative pronouncements of
the Privy Council on foreign constitutional guarantees corresponding to those of
our Constitution and section 6(1) of the European Convention on Human Rights
from which it has been said section 10(1) of our Constitution is inspired. This being so,
 7

I come to the conclusion that there is authority to consider that the American principle
that in a jury trial, the Jury must reflect a fair representation of a cross-section of the
society for a fair trial by an impartial tribunal applies to section 10(1); and in the words of
Their Lordships in the majority judgment in the case of Rojas, such fairness is
achieved in the composition of the Jury by random selection from a list which is
itself fairly constituted.

In applying the principles alluded to above to the present case, it is

appropriate to recall in the first place that the complaints of the defence to claim
a breach of section 10(1) under points (i) and (ii) of the preliminary objections are
in substance (a) the fact that both the Jury List and the panel selected by
random selection from which the jury is to be drawn are restrictive in the sense
that they are composed mostly of civil servants and (b) they are as a
consequence discriminatory in that they exclude people who are employed in the
private sector and particularly those who are jobless, self-employed, taxi drivers,
traders, hawkers and so on. The complaints of the defence further express the
apprehension of the accused that the Jury would be biased in favour of the State by the
fact that the members of the Jury are employed by the latter party.

In considering the complaints of the defence, it is relevant to look at the law

providing for the method of selection of jurors for a jury trial. It is to be pointed out in that
respect that the main provisions governing trial by jury are embodied under section 42
of the Courts Act. Section 42(1)(2)(3) provides for the eligibility to act as juror. One can
read from these provisions that every citizen of Mauritius is eligible to act as juror
provided that (i) he has been resident in Mauritius for a period of one year, (ii) he is
aged between 21 and 65 and (iii) he has not been convicted of a crime.

With regard to the method for the constitution of a Jury, section 42(4) further
provides for rules of Court to be made by Judges for the purpose of the compilation of a
list of persons to be summoned as jurors. Pursuant to this section, the Supreme Court
(Jury Lists and Panels) Rules 1992 published under G.N No. 166 of 1992 makes
provision for the method of compiling the Jury List, the random selection of a panel of
not less than 50 prospective jurors from which a Jury of 9 Jurors is to be eventually
drawn for a jury trial.

Rule 3 of the Rules provides for every person qualified as juror under section
42(2) of the Courts Act to make a written application to the Master and Registrar of the
Supreme Court by the 30th June for his name to be included in the Jury List for the
 8

ensuing year. The Master and Registrar has to include the names of the persons whose
applications have not been successfully objected to and publish in the Government
Gazette the updated Jury List for the ensuing year not later than 30th November.

Rule 5 further provides for the Master and Registrar to prepare a panel of not
less than 50 prospective jurors drawn from the list of jurors for the current year to be
summoned to attend each trial by jury during that year. The panel is to be constituted by
random selection by way of drawing of lot.

Another random selection exercice by the same process of drawing of lot is

carried out at the beginning of each jury trial to constitute the Jury of 9 Jurors from the
panel summoned by the Master and Registrar in accordance with rule 5 of the Supreme
Court (Jury Lists and Panels) Rules 1992.

My searches have led me to note that although this is not to be found in the
provisions governing the method of selection of the jury just alluded to, the Master and
Registrar has regularly called upon all those concerned whose names are not already
included in the Jury List that they can do so by way of a notice published in the
Government Gazette (see G.N 735 of 2007, G.N 697 of 2008, G.N 1092 of 2009, G.N
924 of 2010, G.N 1175 of 2011, G.N 1394 of 2013 and G.N 1305 of 2014 in that
respect).

The list of jurors for the current year containing 6307 names was published in
the Government Gazette issued on 23/10/14 under G.N No. 2668 of 2014. In the
present case, the court record shows that a panel of 75 jurors was duly drawn from that
list in accordance with rule 5 of the Supreme Court (Jury Lists and Panels) Rules
1992 by the Master and Registrar on 02/04/15. Those included in this panel have been
issued summons served at the addresses mentioned in the Jury List. When their
attendance was ascertained 25 of them were available for the selection of the Jury for
the trial, and this, due to the fact that personal service could not for one reason or
another be effected on a number of them and inability to serve on account of age and
illness for the others.

The conclusions which I draw from the observations made above on the law and
practice obtained for the constitution of the panel from which the Jury is to be drawn are:

i. jury service is by virtue of the provisions of section 42 of the Courts Act

open indiscriminately to all citizens of Mauritius who satisfy the conditions
required to be juror;
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ii. inasmuch as the conditions required apply indistinctively to all prospective

jurors, there is no restriction of jury service to a particular segment of so-
ciety nor its exclusion therefrom;
iii. in compiling the jury list it has always been a practice for the Master and
Registrar to invite by way of publication in the Government Gazette per-
sons capable of acting as juror to have their names included in the list;
iv. the increase in the number of jurors in the Jury List between 1995 and
2015 indicate that indeed, albeit not in large number, citizens have shown
interest in jury service; and
v. the panel from which the Jury in the present matter is to be drawn has
been constituted by random selection in accordance with the procedure
provided.

Having regard to the conclusions I have drawn, it can hardly be disputed that the law
in Mauritius provides for a Jury List compiled on a non-discriminatory basis. This being so
and inasmuch as jury panels are constituted by random selection from that non-
discriminatory list, it cannot also it be said that the method of selection of such panels is
such that certain segments of the society are intentionally and unjustifiably excluded and
particularly those segments comprising people employed in the private sector, the jobless,
the self-employed, taxi owners, traders, hawkers and so on as contended by the defence.

True it is that in the present case the panel from which the Jury is to be drawn
consists mainly of civil servants. This is neither the result of a deliberate systematic exercice
aiming at including in those lists civil servants only and excluding those employed in the
private sector or having for occupation other professions. Of note, section 42 of the Courts
Act as couched indicates that jury service in Mauritius is voluntary rather than an obligation.
As a consequence, representativeness of a cross-section of society in the Jury List largely
depends on the willingness of those qualified to act as jurors to have their names included in
the list.

There is no explanation for the fact that the Jury List consists mostly of civil servants.
But there is nothing to suggest that it results from a deliberate and systematic exercice or
method of compilation tending towards this end. In fact, being given that the Jury List itself
consists mostly of civil servants, it is not surprising that the panel from which the jury is to be
drawn, which has been constituted by random selection from the list, presents the same
representative character. Having said so, I further see no merit in the argument that the
accused will be unfairly deprived of a cross-section of the Mauritian society in the jury that is
going to try him.

At any rate, it is recognised that a fair representation of a cross-section of the society

in the Jury is impossible to achieve and this observation has been made even in the
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American cases propounding the principle of fair representation of cross-section of the

society. The explanation which has been put forward is the difficulty to achieve in a random
selection exercice the constitution of a jury with such characteristics.

In relation to this particular issue one can read from Poongavanam v the Queen
(Privy Council) [1989 PRV 27] the following:

“It is recognised that it is impossible to achieve, by the process of

random selection, a representative jury, indeed if the aim was to achieve
a representative jury, this could only be done by interference with the
process of random selection which itself would not only be open abuse,
but however fairly done could be suspected of abuse, and could never
in fact achieve a jury truly representative of all sections of society. This
is no doubt why the American Principle looks rather to the lists from
which individual juries are drawn, and requires that those lists shall be
compiled from a fair cross-section of society.”

In fact in the case of Thiel v Southern Pacific Co. (1946) US 217 the Court stressed
that the principle of representative cross-section as propounded in America presupposes
that the broad representativeness of the community applies to the panel from which the jury
is to be drawn rather than to the specific jury to be constituted for the trial. I quote hereunder
the relevant passage from the judgment where both the difficulty to complete representation
of a cross-section and the fact that jury competence depends on the individual rather than a
group or class are also invoked:

“The American tradition of jury, considered in connection with either

criminal or civil proceedings, necessarily contemplates an impartial jury
drawn from a cross-section of the community. [Smith v Texas cited]
This does not mean, of course, that every jury must include
representatives of all the economic, social, religious, racial, political and
geographical groups of the community; frequently such complete
representation would be impossible. But it does mean that the
prospective jurors shall be selected by court officials without
systematic and intentional exclusion of any of these groups.
Recognition must be given to the fact that those eligible for jury service
are to be found at every stratum of society. Jury competence is an
individual rather than a group of class matter. That fact lies at the very
heart of the jury system. To disregard it is to open the door to class
distinctions and discriminations which are abhorrent to the democratic
ideals of trial by jury”.

Therefore, the fact that in the present case it is likely that the Jury will be eventually
constituted of mostly, if not completely, civil servants is no ground to successfully argue that
the accused will be deprived of a jury fairly representative of all the stratum of society that
would ensure him a fair trial by an independent and impartial jury as guaranteed under
section 10(1) of the Constitution.
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I now turn to the apprehension of the defence that the accused is likely to face a jury
which is going to be biased in favour of the prosecution by reason of it being constituted
mostly of civil servants. In answer to this, it is appropriate to quote Lord Rodger of Earlsferry
in the case of Regina v Connor and anor [2004 UKHL 2] where the risk of bias is
explained and how the legal system provides safeguards against such risk. In this case the
Court had to consider an allegation on behalf of the appellant that the members of the jury at
his trial were prejudiced against him on racial grounds.

In paragraphs 151 and 152 of the judgment his Lordship had this to say:

151. Since jurors are drawn from a cross-section of the population, we

must therefore suppose that in their everyday lives some may indeed be
racially prejudiced, whether against black people or against white
people, or against particular racial groups. But, unhappily too, this is
just one of many prejudices which may be found, we must also
suppose, in the pool of people summoned for jury service. Some may
be affected by religious bias, others may make it a rule always to believe
an Irishman but never to trust a Scotsman, others again will never trust
a man in a suit or a woman in trousers, while still others may be
predisposed to believe anything – or nothing – that a police officer says.
……………………………………… Yet, more often than not, jurors from
ordinary respectable backgrounds have to judge those who, the
evidence in the trial shows, lead very different lives – not working,
ruthlessly exploiting the social security system, taking drugs, regularly
drinking to gross excess and generally acting in an anti-social fashion.
There is an obvious risk that, hearing this kind of evidence, jurors may
be biased against such a defendant. What matters therefore is not the
particular type or source of prejudice but the risk that it may result in a
partial verdict. (underlining is mine)

152. The risk that those chosen as jurors may be prejudiced in various
ways is, and always has been, inherent in trial by jury. Indeed, only the
most foolish would deny that judges too may be prejudiced, whether,
for example, in favour of a pretty woman or a handsome man, or against
one whose dress, general demeanour or lifestyle offends. The legal
system does not ignore these risks: indeed it constantly guards against
them. It works, however, on the basis that, in general, the training of
professional judges and the judicial oath that they take mean that they
can and do set their prejudices on one side when judging a case.
Similarly, the law supposes that, when called upon to exercise judgment
in the special circumstances of a trial, in general, jurors can and do set
their prejudices aside and act impartially. The recognized starting-point
is, therefore, that all the individual matters of the jury are presumed to
be impartial until there is proof to the contrary(underlining is mine: Le
Compte, Van Leuven and De Meyere v Belgium (1981) 4 EHRR 1, 21,
para 58; Sander v United Kingdom (2000) 31 EHRR 1003, 1008, para 25.
The conclusion I draw from the authorities I have referred to is that even if a jury
reflects a cross-section society there is still not the full guarantee of a Jury totally free from
bias. The impartiality of the Jury, however, as put by Lord Rodger is a matter of presumption
 12

which must prevail until there is proof of the contrary. The impartiality of the Jury is ensured
by having them taking the oath of jurors whereby they do undertake to set aside their
personal prejudices and bias. This is further ensured in practice both at the start of the trial
with the explanations of the Presiding Judge in regard to their duties and functions and at the
end of the trial in the latter’s directions in his summing up where their duty of impartiality and
integrity are reminded and the correct approach to the evidence is highlighted.

In the present case, the same procedure and practice will be applied after the
empaneling of the Jury. Furthermore, there has been no evidence forthcoming from the
defence that would suggest any possibility of bias by the potential jurors present. At any rate
in case the defence has any doubt as to the impartiality or the ability of any person selected
to form part of the Jury, it is open to them to challenge his selection as they are entitled by
law. Therefore, I find it difficult to uphold the view of the defence that in view the potential
jurors available, the accused run the risk of being faced with a Jury that would be biased in
favour of the State.

At this juncture, I find no merit in points (i) and (ii) of the preliminary objections of the
defence that the composition of the jury would be in breach of his right to a fair trial by an
independent and impartial tribunal as guaranteed under section 10 (1) of the Constitution.

I now turn to point (iii) of the preliminary objections which challenges the
constitutionality of section 42 of the Courts Act to the extent that it provides for jury of 9
persons whereas in the USA and UK, it is 12. In the contention of the defence what is
obtained in the USA and UK constitutes the international norm and as section 42 provides
for a lessor number of jurors it offends sections 1, 3 and 10 of the Constitution. In his brief
submissions on the point learned defence counsel recalled that we are in a democracy
where universally recognized human rights are enshrined under Chapter 2 of the
Constitution. According to him, there is no reason in the circumstances why a person
charged with murder or manslaughter should enjoy lesser rights than in the USA and UK
where the number of jurors has traditionally been 12 for the same offences. Learned counsel
further explained in that respect that persons accused in the two countries mentioned
enjoyed the advantage of having his case decided by 12 persons instead of 9.

I have given due consideration to the arguments of learned defence counsel.

However, I consider that the point that section 42 is in breach of sections 1, 3 and 10 of the
Constitution for providing for 9 jurors instead of what he considered to be the international
norm is untenable, and I say so for three reasons.

Firstly, the defence had to show in the first place that there is indeed an international
norm for juries to be constituted of 12 persons. Learned counsel rested content with citing
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the USA and UK as examples where such norm applies. It is difficult to accept that there
exists such an international norm by referring to the practice in two countries only.
Furthermore after looking at relevant authorities it can even be observed that although
traditionally juries consist of 12 persons in these countries it cannot, as pointed out by
learned counsel for the prosecution be said that it is an absolute norm. As a matter of fact, it
is to be observed that it is not in all cases that a jury of 12 is applied. In fact, in so far as UK
is concerned, a Jury of 12 is not always the practice as can be gathered from Halsbury’s
Laws of England, 5th Edition, Volume 61: Juries, para 803 which is reproduced
hereunder:

803: Number of a jury. The tradition that a jury consists of 12 persons is

ancient and well established1, but is no longer always carried out in
practice2. A county court jury must consist of eight persons3 and a jury at
an inquest must consist of not less than seven nor more than 11
persons4. In the High Court and the Crown Court juries may consist of
any number of persons, not above 125, provided (in the case of the Crown
Court) there are at least nine6.
The position in England as explained in the paragraph quoted above is illustrated by
reference to the relevant legislations, namely, The Juries Act 1974, the Criminal Justice
Act 1972 and the County Courts Act 1984.

As regards the position in the USA it can be observed from the cases which have
been cited by learned counsel during the course of their submissions there are provisions for
juries of 6 in criminal and civil cases. The constitutionality of these has been upheld by the
U.S Supreme Court: see Williams v Florida, 399 U.S. 78 (1970) and Colgrove v Battin,
413 U.S 149 (1973).

Secondly, the defence did not come up with authoritative pronouncements that in so
far as Mauritius is concerned, once a practice has been considered as an international norm
it should be considered as a constitutional norm also with which all laws of the country must
be consistent. Furthermore, there has been no attempt to show that the practice of juries of
12 by virtue of an international norm or otherwise can be imported into or derived from the
provisions of the Constitution alleged to be breached.

Thirdly, it is appropriate to observe that the Courts Act is in force since 07/03/45
when Mauritius was still a British colony and that in his wisdom, the Legislator at that time
made provision for 9 jurors. The Act has been amended on a number of occasions before
and after independence without this provision being touched. Our Parliament being
supreme as long as it legislates within the framework of the Constitution (Motee v R [1969
MR 34] and Jeeawoody v The Queen [1989 SCJ 356]. This being so, it stands to reason
that it cannot be compelled to follow a practice obtained in another jurisdiction be it by
 14

tradition or in application of what could be considered to be an international norm unless it is

shown that the principles underlying such practice can be derived from the relevant
constitutional provisions upon a true construction of these provisions.

The last point of the preliminary objections to be considered is point iv which

challenges the constitutionality of section 22 of the Criminal Procedure Act, which
reads as under:

22. Information for homicide

(1) In an information for murder or manslaughter, it shall not be necessary

to specify the manner in which the means by which the death of the
accused was caused.

(2) It shall be sufficient –

(a) for murder, to charge that the accused did criminally, willfully and of his
malice afterthought, kill the deceased, and

(b) for manslaughter, to charge that the accused did criminally and willfully
kill the accused.

It is alleged that being given that this section provides that in cases of murder or
manslaughter it is sufficient for the information to aver the elements of the offence
charged, it offends section 10(2)(b) of the Constitution. According to the latter
constitutional provision, a person charged with an offence is entitled to be informed in
detail of the nature of the offence.

In relation to this point, learned counsel for the defence contended that the
constitutional provision invoked should be construed as meaning that details to be
provided are those such as the cause of death, the number of injuries inflicted and how
they were inflicted and so on. He added that the alleged constitutional irregularity of the
impugned section cannot be cured by the supply of particulars of the offence nor the
fact that the defence is provided before the trial with a complete brief including used and
unused materials as contended by learned counsel for the prosecution.

Now, section 10(2)(b) of the Constitution indeed provides for the right of an
accused party to be informed in detail of the nature of the offence. This section reads as
follows:

10(2) Every person who is charged with a criminal offence

(a)………………………………………………………………………..
 15

(b) shall be informed as soon as reasonably practicable, in a language that

he understands and, in detail, of the nature of the offence charge.

No doubt that section 22 of the Criminal Procedure Act along with section 17 of the
same Act are meant to give practical effect to the constitutional guarantee alluded to
above. Except that as observed in the ruling of Fekna J in the case of The State v
Treebhoowon & anor [2012 SCJ 214], whereas section 17 is of general application,
section 22 applies specifically to cases of murder and manslaughter.

It is also correct to say that section 22 is restrictive in so far as the material

circumstances of the offence to be averred in an information is concerned as compared
to section 17 to the extent that it restricts such averments for murder and manslaughter
to the essential elements of the offence and excludes details relating to the manner or
means by which death was caused. Can it be said for that much that section 22 fails to
satisfy the constitutional requirement under section 10(2)(b) of the Constitution?

I hold the view that the answer to this question is to be found in the rational
behind this section. I would in that respect refer to the observations made in The State
v Treebhoowon (supra) which I find to be relevant despite the fact that in the latter
case the issue that had to be determined related to the supply of particulars of the
offence requested by the defence. The relevant passage in The State v Treebhoowon
(supra) is reproduced hereunder:

“…………………one can imagine the difficulties that are likely to arise if

the prosecution were, in every case of murder or manslaughter,
required to expatiate by way of particulars on the individual elements of
the offences set out in the Information. The Legislator deemed it fit to
set at rest any controversies that may arise concerning requests for
particulars for the serious charges of murder and manslaughter by
stating, in statutory form, what has to be averred in such Informations.
Moreover, the Legislator must have considered, at that time, the fact
that committal proceedings are held which disclose to the defence the
material circumstances of the charge prior to the trial. Nowadays, the
communication of the brief and of unused materials to the defence
certainly reveals what the prosecution is relying on to prefer and prove
the charge against the accused. Thus, the prejudice caused to the
defence by the non-communication of particulars over and above the
elements set out in S 22 is minimal, if not inexistent, in a normal and
simple trial for murder. This is not to say that there will never be cases
where the need to communicate particulars to the defence in relation to
a charge of murder or manslaughter would arise. But such cases must
be very rare and exceptional and the defence must ask for the
particulars. Moreover, before ordering the furnishing of particulars, the
court must be satisfied that there are specific circumstances justifying
the communication of such particulars.”
 16

I hold the view that the observations just alluded to provide the justification for the
enactment of section 22 in the way it is couched. I would further highlight the view
expressed that this section, however restrictive, does not fall foul of the practice that has
always existed to avoid in informations particulars over and above those necessary to
disclose to the accused the nature of the offence with which he stands charged to enable
him to plead, which particulars at times may amount to disclosure of evidence rather than
particulars as such.

At any rate, it cannot be said that section 22 deprives the accused of any possibility
of ensuring his constitutional right to be informed in detail of the nature of the offence be
respected. This section cannot, as observed in the case of State v Treebhoowon, be
construed to mean that the accused is precluded from obtaining particulars where same
ought, according to principles applicable, to be supplied to enable him to plead.

One should not overlook the fact that as a matter of practice before the Court of
Assizes the plea of the accused would not be taken until communication of the prosecution
brief, including unused materials, if requested. This is a clear advantage allowing the
accused to know fully well before tendering his plea of what he is accused of both in terms of
the law and on the facts. This practice along with the information effectively comply with the
constitutional requirement imposed under section 10 2(b) of the Constitution.

Therefore, to conclude on point iv of the preliminary objections of the defence, I hold

that despite the fact that section 22 restricts the particulars of the offence that have to be
averred in the information for murder and manslaughter, it cannot be said that such
restriction renders the section inconsistent with the constitutional guarantee afforded to an
accused party to be informed in detail of the charge he has to answer. Having said so, I find
that there is no merit in point iv of the preliminary objections of the defence also.

For the above reasons, I refuse to grant the motion to stay the present proceedings
sine die and I accordingly order that the case be proceeded with.

J. Benjamin. G. MARIE JOSEPH

Judge

15 May 2015

For the State: Mr S. Bhoyroo, State Counsel

Mr A. Ramdahen, State Counsel

For Defence: Mr S. Teeluckdharry, of Counsel

 17

Mr R. Rutnah, of Counsel
Mr E. Mooneeapillay, of Counsel
Mr N. Hyderkhan, of Counsel
Ms M. Nagen, of Counsel