COUNCIL FOR VOCATIONAL LEGAL EDUCATION

ATTORNEYS’ EXAMINATION – SEPTEMBER 2016

PAPER IV– CRIMINAL PROCEDURE

(THREE HOURS)

Candidates have ten minutes to study the Examination Paper

which consists of 8 pages before they start writing.

Marks will be granted, where appropriate, for correct reference to

enactments and case law.

EACH QUESTION MUST BE ANSWERED ON SEPARATE SHEETS

WITH CLEAR MARKING AS TO THE QUESTION ANSWERED AND
THE NUMBER OF PAGES.

MAKE SURE THAT YOU PUT ALL YOUR ANSWERS IN THE

ENVELOPE PROVIDED.

All questions carry equal marks and there are SIX QUESTIONS in
all.

Candidates must answer only FOUR QUESTIONS

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Question 1
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Aaron is facing trial before the Supreme Court for the offence of murder.
The information is couched in the following terms:

“On or about the 23rd July in the year two thousand and sixteen at
Pope Hennessy Street, Port Louis, Aaron Mard’haie, then aged 47, no
calling, residing at Mard’haie Lane, Seizieme Mille, did wilfully and with
premeditation, kill one Anoushka Mordel.

Against the peace of the State and against the form of the Act in such
case made and provided, to wit sections 216, 217 and 222(1)(a) of the
Criminal Code”

He pleaded not guilty to the charge and is represented by counsel who

has moved to be communicated with the details of the material
circumstances of the charge, namely those concerning the killing and
the premeditation. Counsel for the prosecution is objecting to the
motion.

(a) Give written submissions to support the above motion.

(b) Give your written arguments as counsel appearing for the
prosecution.

Question 2

Martin Chun was charged before the District Council of Moka with the
following offence committed on the 29th July 2012, namely:

Driving a motor vehicle with alcohol concentration found to be

above the prescribed limit, in breach of sections 123F(1)(a)(3)(5) and
52 of the Road Traffic Act

Martin was represented by counsel Fez Hairdespray when he first

appeared in Court and pleaded guilty to the charge. The learned
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Magistrate fixed the hearing to the following day but Fez Hairdespray
informed the Court that he would not attend the hearing due to “lack of
instructions” and that he would leave sentencing “in the able hands of
the Court”.

The Court record for the day of the hearing reads as follows:

23rd July 2016

Accused present.

Chief Inspector Lakshion solemnly affirms and sustains the charge.

Proceedings are conducted in Kreol.

The prosecutor states that the accused declined to give a statement of

defence to the police and closes case for prosecution without adducing
evidence.

The accused is explained his rights and has nothing to say. Case is
closed for the defence.

Judgment

I find the accused guilty.

Prosecutor produces certificate of previous convictions, which is marked

Document X.

Document X shows that accused was convicted by another District

Court on the 17th July 2015 in respect of an offence which is similar to
the present charge.

Sentence

In view of the accused’s guilty plea and the fact that he already has one
conviction for driving under influence of alcohol, I am of the view that a
custodial sentence is needed for him to fully understand the gravity of
such road traffic offences.

I therefore sentence the accused to pay a fine of Rs 20,000 and to

undergo imprisonment for 6 months. He also has to pay Rs 100 for
costs.
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His driving licence is cancelled and he is disqualified from

obtaining/holding a licence for all types of vehicles for a period of 8
months.

Martin has retained your services and you are requested to draft
grounds and skeleton arguments for a possible appeal.

Question 3

Zegna was charged before the Intermediate Court with one count of
larceny whilst being two in number and with another count of larceny
whilst being masked.

During client conference Zegna explained that after he had dropped out
of Industrial and Vocational School at the age of 15 his girlfriend gave
birth to their first child after four years. The offences were committed a
couple of months later as he had been desperate to obtain some money
to feed his child since he was unemployed.

After three postponed trial dates, Zegna eventually pleaded guilty to

both counts and at the close of the case for the prosecution whilst in
presence of counsel who was at that time appearing for him, he made a
statement from the dock begging for forgiveness.

The defence then closed its case and counsel for Zegna submitted as
follows:

“Your Honour, it is my humble submission that in his case

only a Community Service Order is appropriate in the light
of my client’s timely plea of guilty and the recovery of all
stolen articles. I am otherwise fully confident that this is a
fit case for this Court’s recognised leniency.”
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The Intermediate Court found Zegna guilty and postponed the sentence
to allow the prosecution to update the record of past convictions. Zegna
was subsequently sentenced in absence of his counsel to penal
servitude for three years under each of the two counts, to be served
consecutively.

Following dismissal of his appeal by the Supreme Court you are

instructed to apply for leave to appeal to the Judicial Committee of the
Privy Council (i) as of right and (ii) based on issues of great general or
public importance.

Outline the procedure in respect of such an application and draft written

submissions on the arguments that can be raised to support the
application.

Question 4

Aladene was prosecuted before the District Court of Grand Port for the
offence of brothel keeping. She was inops consilii and pleaded guilty to
the charge.

On the 28th February 2016 she was sentenced to pay a fine of

Rs 10,000 and to undergo imprisonment for three months. She gave
notice of appeal on the same day raising a single ground of appeal to
the effect that the sentence was wrong in principle and that it was
manifestly harsh and excessive in the circumstances.

On the 10th March 2016 Aladene’s legal advisers filed a second notice
of appeal with the District Court Manager containing two additional
grounds of appeal against conviction.

The appeal was prosecuted before the Supreme Court and notice was
served on the State on the 14th March 2016.
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(a) You are instructed to appear and give written submissions for the
respondent on a preliminary argument to the effect that the Court
should not entertain the appeal inasmuch as it has not been
prosecuted within the prescribed delay.

(b) Set down your written submissions as counsel for Aladene at the
appeal outlining the relevant law and procedure in the event that
additional grounds of appeal were filed on the 21st March 2016.

Question 5

Matapan who is an American citizen and who came to Mauritius on a

work permit five years ago, was convicted by the Learned Judge sitting
at the Assizes for the offence of manslaughter committed on the 30th
July 2012. He was arrested on the 1st August 2012 and was kept on
remand until his conviction and sentence on the 1st December 2014.

The Learned Judge’s sentence reads as follows:

“I have taken into account the mitigating factors highlighted

by counsel for the defence, namely the accused’s clean
record, his plea of guilty, his relatively young age and the
fact that he had no relatives or friends visiting him in
Mauritius during the long period spent on remand. In these
circumstances I give him a discount on the initial sentence
contemplated and impose a sentence of 12 years
imprisonment instead. He is further ordered to pay Rs 100
for costs”.

Three months later, Novish, who is in his first year of practice as a

barrister, is retained by Matapan. He intends to lodge a Plaint with
Summons against the State to pray for Judgment declaring that the
period spent on remand by Matapan be deducted from the overall
sentence and counted as served sentence.

Before lodging the case, Novish consults you for a second opinion, you
are to set down the legal position in relation to the procedure
contemplated by Novish, as well as the legal arguments which can be
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raised to assist Matapan, whilst taking into account the implications with
regard to remission following the sentence imposed.

Question 6

Jenny surrendered to the police on the 1st August 2015 after being
actively looked for by the police in relation to her husband’s death. She
was met by her counsel at the police station a few minutes later after
she reached there and she was allowed to have a private interview with
him during 20 minutes.

She then volunteered to give a statement to the police in presence of

counsel wherein the following was stated:

“Statement recorded from Jenny Maquair, 29-year-old, no

calling, of Grand Port, who voluntarily states the following
after being given the usual caution:

I know that I don’t have to say what happened but I wish to

inform the police that on the day that my husband passed
away as a result of stab wounds I was alone with him in our
house. At the time immediately preceding his death I was
holding a kitchen knife and chopping onions whilst
preparing dinner when my husband came home drunk and
started insulting me and accused me of having an affair
with our neighbour. I became very upset because I had
been the victim of his disposition for more than 20 years
and I started thinking about a way of stopping such ill-
treatment once and for all.
At this stage the suspect is again given the usual warning
and she chooses to remain silent.
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The enquiring officer informs the suspect that there are

another 230 questions that he will ask her notwithstanding
her wish to remain silent.”

The statement was then recorded in “question and answer” form with
the same reply to each question from Jenny to the effect that she had
nothing to say. Jenny was then arrested and provisionally charged with
murder on the same day. The police later recorded a further statement
from her in absence of counsel by asking her another 153 questions but
Jenny refused to answer these questions since her legal adviser was
not present.

Jenny is now being tried and the defence has moved that the
proceedings be stayed on the ground that it would be unfair to proceed
with the trial in view of the several breaches of the accused’s rights and
of applicable Rules.

You are requested to outline the legal arguments on behalf of:

(a) Counsel for the defence;
(b) Counsel for the prosecution.