Jean Louis C.S.

v The State
2000 SCJ 153
Record No. 6340

IN THE SUPREME COURT OF MAURITIUS

In the matter of:

C.S. Jean Louis Appellant

v.

The State Respondent

…..

JUDGMENT

The appellant was charged before the Intermediate Court with the offence of having unlawful

sexual intercourse with a female under the age of sixteen under section 249(4) of the Criminal Code.

He pleaded not guilty. After hearing evidence, the learned Magistrates found him guilty as charged

and sentenced him to undergo imprisonment for a term of two years.

There are five grounds of appeal, the first four of which challenge his conviction

and the last one the sentence passed. The first ground is to the effect that the learned

Magistrates erred in holding that the information was not defective. We understand this

ground to convey that the information did contain a fundamental defect as, of course, not

every defect will make an information “bad” in the sense of being invalid. Indeed, at the

end of the trial in the court below, when learned counsel for the appellant submitted that

the information was “defective” inasmuch as it had not been averred that the appellant had

“wilfully” had the alleged sexual intercourse, counsel argued that the defect went to the

root of the information.

Section 249(4) as it stood at the time when the offence is alleged to have been
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committed, read as follows:

“Any person who has sexual intercourse with a female under the age of 16 even

with her consent, shall be liable to penal servitude for a term not exceeding 10

years”

[Subsequently, section 6 of Act 13 of 1998, made any “minor” – as opposed to just

a “female” – as well as a mentally handicapped person potential victims under the section

reproduced above.]

The information averred that on or about 0ctober 1994, at Nouvelle France, the

appellant “did, criminally and unlawfully have sexual intercourse with a female under the

age of sixteen, to wit: one Marie Sheila Agathe, born on the seventeenth day of February,

in the year one thousand nine hundred and eighty.”

It is at once obvious that the information contained a full description of the offence

in the words of the enactment creating the offence, with the addition of the adverbs

“criminally” and “unlawfully”: section 125(1) of the District and Intermediate Courts

(Criminal Jurisdiction) Act lays down that a description in the information of the offence in

the words of the law creating the offence, with the material circumstances of the offence

charged, shall be sufficient.

In Baba v R (1888) M.R. 46, it was made clear that an information which is framed
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so as to embody the words of the enactment creating the offence is good in law. In that

case, the offence created by statute was that of making use of a false pair of scales. It was

not an offence of strict liability and so the requirement of guilty knowledge was to be read

into the enactment creating the offence. The Court held that it was sufficient, in the

information, to use the wording of the statute. We understand the reasoning in Baba to be

that, although an offence may not be one of strict liability, the idea that something is done

wilfully may just be implied in the language used by the legislator: if the same language is

used in the information, the idea that the act was done “wilfully” is similarly implicit.

The situation in the present case is comparable to that in Baba: there is no doubt,

that, as submitted by counsel for the appellant, the offence under section 249(4) of the

Criminal Code would not be committed if the sexual intercourse with the female under the

age of 16 was not committed “wilfully” such that the words “any person who has sexual

intercourse with a female under the age of 16” should be understood as meaning “any

person who wilfully has sexual intercourse with a female under the age of 16”. That does

not mean, however, that it will not be sufficient to describe the offence in the words of the

statute. The source of the existence of the offence is the statute, and the best description of

the offence is normally achieved by following the wording of the enactment creating the

offence. The exception to that rule is the situation where, as a result of poor drafting, the

wording of the statute could be misleading and fail to convey the essence of the offence .

Thus, in Cheekoree v R (1982) M.R. 124, it was held insufficient to aver that the accused

was a “person on wages”, following the terminology of section 309(2)(a) of the Criminal

Code, to convey the aggravating factor, in relation to larceny, which consisted in

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committing the larceny to the prejudice of one’s master or employer.

The present case falls under the general rule exemplified in Baba and not within

the exception illustrated by Cheekoree. Surely when the information in the present case

was read to the appellant, charging him with having criminally and unlawfully had sexual

intercourse with a female under the age of 16, he could only have understood that he was

being accused of having done so wilfully.

Counsel for the appellant relied, in his submissions, upon the case of R v

Narrainsawmy (1861) M.R. 193 where the omission of the word “wilfully” was held fatal

to an information charging murder. But that case is of no assistance to the appellant as the

court based itself on the specific reference, in the relevant enactment (Article 14 of

0rdinance No. 29 of 1853, commonly called the Criminal Procedure 0rdinance) to the word

“wilfully” in the statement of what averments would be sufficient in an information

charging murder. That was a radically different situation from that in the present case

where the word “wilfully” does not appear at all in the enactment creating the offence.

In the light of our above reasoning, ground 1 fails. Ground 2 is to the effect that the

date when the offence was allegedly committed was not specified in the information

contrary to the provision in the Constitution that an accused party should be informed “in

detail” of the charge lying against him. Section 10(2)(b) of the Constitution provides that

every person who is charged with a criminal offence “shall be informed as soon as

reasonably practicable, in a language that he understands and in detail, of the nature of the
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offence.” The accused is normally so informed when he is arraigned for plea and the

information is read or, more commonly, translated to him, the translation being most of the

time into the creole language. The constitutional provision that the information should

state in detail the nature of the charge means, in our view, that the charge should be

sufficiently particularised, a requirement already existing in our statute book for quite some

time and found, notably, in section 125 of the District and Intermediate Courts (Criminal

Jurisdiction) Act which provides that an information containing a description of the offence

in the words of the law creating such offence “with the material circumstances of the

offence charged” shall be sufficient. The specific question we have to ask ourselves is

whether the time of the offence was sufficiently particularised in the present case where the

information averred that the accused committed the alleged offence “on or about the month

of 0ctober in the year one thousand nine hundred and ninety four.”

In Hurry v R (1958) M.R. 274 it was held that where time is not of the essence of

the offence, the date specified in the information as being that of the commission of the

offence is not a material circumstance. The court in this case referred to R v Dossi 13 Cr.

App. R. 158 where Atkin J. said

“From time immemorial a date specified in an indictment has never been a

material matter unless it is actually an essential part of the alleged offence.”

Where the precise date is not of the essence of the offence, an information which

does not state such precise date will simply be one lacking in particulars. Now, such an
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information is not bad as such and its fate will very much depend on what happens at the

trial, in particular whether there is a request for particulars and whether such request should

reasonably be acceded to: See Police v Kuderbux (1994) SCJ 424.

Now, there are cases where certain reasonable particulars have been unduly omitted in the

information, such that particulars should be furnished. There are also, others however, where the

particulars requested may not have been available to the prosecution, notably where the precise date of

commission of the alleged offence could not be ascertained.

In Lai Wan Chut & Co. Ltd. v R (1981) MR 20 the accused was convicted for the

offence of filling a bottle with wine without the bottle being thoroughly clean, in breach of

reg. 4(2) of the Drinks and Trade Regulations 1976. The first ground of appeal averred that

“the learned Magistrate was wrong to have thought that the date the wine was actually

bottled was not of the essence of the offence”. The Court dealt with that ground as follows:

“Ground 1 is singularly devoid of merits. The information originally averred that

the offence was committed “on or about the month of September, 1979”. Counsel

for the appellant objected to that information on the highly peculiar ground that

there was “multiplicity as the date was not specified”. Counsel for the prosecution

then panicked, and moved to amend by replacing the word “month” by “21st”.

The amendment was granted, although, as the magistrate himself held in the

judgment it was quite unnecessary. In cases of this sort, it is impossible to know on

what day the offence was committed, and the information as it originally stood was

good. It now avers that the offence was committed “on or about the 21 st of
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September 1979”. Although the evidence shows that it was committed before the

21st of September time is not of the essence, and no prejudice resulted to the

appellant.”

In the present case, the learned Magistrates decided the issue in the following terms:

“It is clear from the evidence of the declarant that she could remember the month

and year of the alleged offence but not the exact date. In these circumstances the

prosecution could not aver in the information the exact date of the offence. The

fact that the declarant has given the precise month and year of the alleged offence

sufficiently particularizes the time of the offence. We are of the view that the

information is a perfectly valid one and described the date of the alleged offence

with sufficient precision and clarity and no prejudice has been caused to the

accused nor has he been misled in his defence. Accused knew of the nature of the

charge against him.”

It is clear, having regard to our case law referred to above, that the learned

Magistrates did not err. It is to be noted, furthermore, that the defence never complained,

throughout the trial, about the alleged lack of particulars: this was an additional reason

which could have been invoked by the learned Magistrates to buttress their decision that

there had been no insufficiency of particulars of a nature to prejudice the accused.

Accordingly, ground 2 also fails.

Grounds 3 and 4 challenge the appreciation of the evidence by the learned

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Magistrates.

The undisputed evidence showed that in the course of 1994 the appellant, who is a

native of Rodrigues Island, came to stay at the place of his cousin, the mother of the

complainant. The evidence of the prosecution consisted in:

1) the testimony of the declarant which was to the effect that she knew the

appellant by the name of Dany; that the appellant and herself were in love and

had sexual intercourse in the room of her brother in 0ctober 1994 after she had

come back from school; that she was then 14 years old, and had told her age to

the appellant; that after the appellant had left for Rodrigues in December 1994,

she wrote a letter to him; that Doc. J. shown to her in court was indeed that

letter; that she also sent to the appellant 2 photos and that Docs. K1 and K2

shown to her in court were those very photos.

2) the evidence of Corporal Surroop who searched the appellant on 29 January

1995, after the latter had been arrested in Rodrigues and taken to Mauritius, and

who found on the appellant’s person:

i) the letter addressed to “Dany” and identified by the declarant

in court as the one she sent to the appellant after he had left

for Rodrigues in December 1994; and

ii) the two photographs (one showing her on her own and the

other one showing her in the company of her little brother

and the appellant) identified by the declarant as those she

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sent to the appellant

3) the finding of the police medical officer, in his report, that at the time of

examination on 23 January 1995, the alleged victim was not a virgin, and that

her vagina showed hymen tears at 10, 8, 2, 4 and 5 o’clock positions.

The appellant did not adduce any evidence. His version as per his statement to the

police was to the effect that, whilst he did stay at the place of his cousin, the declarant’s

mother, for some seven to eight months prior to his departure for Rodrigues on 29

December 1994, he had never been in love with the declarant or had any intimate

relationship with her. He denied that he had sexual intercourse with her, as alleged by her,

in 0ctober 1994. He admitted that she had given him the two photos whilst he was in

Mauritius and said he had brought them along with him because of her complaint against

him. He admitted too, that police had found on him a letter which she had written to him.

Finally, he denied that she had told him that she was 14 years old.

Ground 3 is based on the learned Magistrates’ statement, in their judgment, that the

declarant’s version was “supported” by the medico-legal report which revealed that she

was no longer a virgin and by the letter and two photographs secured from the appellant.

Counsel for the appellant submitted, in that connection, that such evidence was no

corroboration and that it should be assumed that the learned Magistrates were not fully

satisfied with the declarant’s evidence since they actually looked for corroboration. It is

clear to us that the learned Magistrates did not consider either the medical evidence or the

fact that the letter and photographs were found on the appellant as corroboration since they
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went on to say that although the testimony of the alleged victim was uncorroborated, they

found it safe to act on it. 0f course, they loosely and improperly referred to such evidence

as “supporting” her version, when such evidence was at the most, merely compatible with

her allegations that she had had sexual relations and that she had sent the letter and

photographs to the appellant, respectively. But such incorrect use of the word “support”

cannot be relied upon to say that the learned Magistrates committed a serious misdirection

when the general tenor of the judgment clearly shows that they were prepared to act on the

sole evidence of the declarant.

Ground 4 finds fault with the learned Magistrates’ approach to the performance of

the declarant under cross-examination. The record shows-

i) that, at one stage, counsel for the appellant said to the declarant: “I put it to

you that you are used to changing stories many times” and she answered

“Yes.”

ii) that, at another stage, counsel for the appellant said to her “I put it to you

that accused was merely friendly to you without any more” and again she

answered “yes”.

0n the basis of these two answers, it has been contended, in ground 4, that the

learned Magistrates “hopelessly failed to record that in cross-examination and re-

examination the alleged victim flatly destroyed her testimony in examination in chief on

the issue of love making” and held “perversely” that her testimony reflected the truth.
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We find this piece of negative criticism cast in scathing language and directed

against the learned Magistrates to be completely unjustified. A reading of the above

answers within their context and in the light of the overall testimony of the declarant

would, in our view, convey to any objective mind that she had not grasped the true

implications of the question. It was all the more open to the learned Magistrates who had

seen the witness depose, to say, as they did in their judgment:

“In cross-examination she at times deponed in a genuinely candid and naïve

manner but we are satisfied that in substance her testimony reflects the truth.”

Grounds 3 and 4 accordingly fail. We are thus left with ground 5 which relates to

the sentence passed. The learned Magistrates noted upon passing the sentence of two years

imprisonment, that, although the accused had a clean record, he had taken advantage of a

situation where he was received as a guest by the declarant’s family who trusted him and

he had abandoned the minor and not shown the slightest remorse for his misdeed. We are

unable to say, as contended in ground 5, that those were irrelevant factors. However, we

do consider that the learned Magistrates did not give due weight to the respective ages of

the appellant and the declarant and the fact that, according to the declarant’s own

testimony, the appellant and herself had sexual relations in the context of a love

relationship. In Bahorun v The State (1998) SCJ 333, this court summed up the factors

relevant to sentence in the case of an offence under section 249(4) of the Criminal Code.

The Court, which was in presence of certified copies of the informations and judgments in
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some 27 cases under sect. 249(4) heard by the Intermediate Court in 1995 and 1996, also

said:

“We note that in the case of consensual intercourse between girls aged 14

and 15 and young men in their late teens, twenties and even early thirties,

conditional discharge is a very common sentence passed by the

Intermediate Court, where this offence is normally tried, and probation is

also resorted to. Sentences of imprisonment have normally been passed

where aggravating circumstances were present.”

Whilst the fact that the appellant was the guest and cousin of the declarant’s mother was an

aggravating circumstance which could justify a custodial sentence, other factors favourable to the appellant

had to be weighed in the balance.

Considering that (1) the victim was aged 14 years and some eight months, and

looked much older (as can be gathered not only from a photo taken by the police and

produced in court but also from the report of the police medical officer who noted:

“physical state: appeared much older than stated age of 14 years”), (2) the young age of

the appellant who was, at the time the information was sworn in August 1995, described as

being 23 years old, and (3) the fact that sexual relations took place in the context of a love

relationship, we are of the view that, upon these factors being made to weigh in the

balance, the sentence of two years imprisonment passed is manifestly excessive and reduce

it to 6 months. The appeal is otherwise dismissed. The appellant shall pay half the costs of

the appeal.
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Y.K.J. Yeung Sik Yuen

Senior Puisne Judge

E. Balancy
Judge
31 May 2000

Judgment delivered by Hon. E. Balancy, Judge

For Appellant : Mr. Attorney, P. Rangasamy

Mr. J. Panglose, of Counsel

For Respondent: P.S.A.

Mrs. M. Naidoo, State Counsel