LACLOCHE J.C.B.

v THE STATE

2019 SCJ 93

Record No. 244

THE SUPREME COURT OF MAURITIUS

(COURT OF CRIMINAL APPEAL)

In the matter of:-

Jean Christophe Bryan LACLOCHE

Appellant
v

The State
Respondent

----------

JUDGMENT

The appellant was prosecuted before a Judge and a Jury for having on or about
7 December 2012 at Ruisseau des Creoles, Port Louis, committed the offence of
manslaughter on the person of Ameerchand Rughooa in breach of sections 215 and
223(3) of the Criminal Code.

At the sitting of 22 May 2017, the appellant, duly assisted by Counsel, pleaded not
guilty to the charge. On 27 May 2017, he was found guilty as charged by a Jury by a
majority verdict of 7 to 2. He was sentenced by the learned Presiding Judge to undergo
23 years’ penal servitude.

The evidence adduced by the prosecution consisted of the testimony of the

deceased’s wife, Mrs Bacsou, the medical evidence of Dr M. Sajjid Aungraheeta,
the Surgical House Officer, who examined Ameerchand Rughooa upon his admission at
Dr Jeetoo Hospital around midnight on 6 December 2012 following injuries sustained,
the medical evidence of Dr Gungadin who had performed a post-mortem examination on
the deceased, the medico-legal report, photographs of the post-mortem examination,
photographs and plan of the scene where the offence took place, the various exhibits
secured by the police during the enquiry, the evidence of the Forensic Scientist on his
examination of the exhibits and the statements given to the police by the appellant.
 2

The cause of death according to Dr Gungadin was shock due to ruptured spleen.
Bruising of the left chest wall muscles, fracture of the left 3rd to 7th ribs, rupture of the left
kidney and haematoma over the left thyro-hyoid ligament with fracture tip of the left side
of the hyoid bone were amongst the other injuries he noted on the deceased’s body.
Dr Gungadin attributed the ruptured spleen, fracture of the left 3rd to 7th ribs and rupture of
the left kidney to blunt force having been applied to the left side of the deceased’s chest and
abdomen. As regards the fracture tip of the left side of the hyoid bone, he stated that this
was due to pressure having been applied to the throat and left side of the neck.

Mrs Bacsou gave a detailed account of the event of the 6th December 2012.
She related that she was married to Ameerchand Rughooa, the deceased, and was living
with him in a rented room in a house situated at Ruisseau des Creoles, Port Louis. In the
rented house lived four other families, amongst whom were the appellant, his father,
his sister Doris and another sister. The four families, including the deceased and herself,
were sharing a single toilet and a bathroom. There was also a single water meter and
at the end of each month the water bill would be divided equally amongst all the tenants.
Doris was responsible for collecting money from the tenants and for settling the bills.

At the beginning, the deceased’s relationship with the other tenants, including the
appellant and his family, was civilised. However, gradually, relationship with the appellant
became tense due to housekeeping matters, non-payment of water bills by Doris and cuts in
their water supply. There were also complaints by Doris that the deceased’s consumption of
water was excessive.

On 6 December 2012, at about 10 p.m., the deceased went to buy cigarettes in a

nearby shop. Mrs Bacsou accompanied the deceased to the front door of the house and
from there watched him going towards the main road. She saw the appellant in company of
one Yanish and Papou. They were on the pavement of the main road at the end of the
bridge. Yanish and Papou are brothers and lived opposite her rented house. The three
were talking and swearing loudly. The deceased gazed at them, turned towards her and
stated: “Gate amene mo sabre.” She asked the deceased for what purpose and the latter
retorted “mais mo laisse sa trois couillon la batte moi kuma lot fois la?”

She went inside the house and picked up a box in which was a sabre. The deceased
snatched the box from her hands and made his way towards the appellant and the two
others. She followed the deceased and saw the appellant and his two friends also walking
towards the deceased. There were an exchange of swear words which culminated in an
 3

argument on the bridge between the deceased and the appellant, Yanish and Papou in
the course of which the deceased brandished the sabre. The appellant sprung on the
deceased, pulled him by his T-shirt and tried to snatch the sabre from him whilst slapping
and punching him in the face. She tried to intervene but the appellant pushed her, swore at
her and threatened to do her bodily harm. The sabre fell on the bridge and upon the
appellant’s instructions, Papou put his foot on the sabre and prevented her from picking it
up.

Yanish and Papou held the deceased by his arms whilst the appellant continued
to give him blows on his face and body and hitting him several times on the head with the
handle of a knife given to him by Yanish. The deceased fell and whilst he was down on the
road in a weakened state, the appellant knocked his head repeatedly on the tarred road and
kicked him on his abdomen and sides of the body. The deceased was injured at his head
and was bleeding. His dentures also fell on the road. The appellant paid no heed to Papou
who was asking him to stop and retorted that he would kill the deceased. A police vehicle
which was passing by stopped and conveyed the deceased, who was still alive, to the
hospital. Her husband passed away in the early hours of 7 December 2012.

The appellant gave sworn evidence. He confirmed that in 2012 he was living
together with his father and two sisters in a rented house at Ruisseau des Creoles,
Port Louis wherein also lived the deceased, Mrs Bacsou and other tenants. Yanish and
Papou were his friends and were living opposite that rented house. His relationship with the
deceased was in the beginning trouble-free but one evening whilst he was coming back
from the place of Yanish, the deceased suddenly hit him with a bicycle chain (royar).
He went to the police station accompanied by Yanish and reported the matter and the police
thereafter gave the deceased a warning.

He added that the deceased was a quarrelsome person and would always get
into arguments with the other tenants. The deceased was also a freak of cleanliness and
had an unusual habit of over cleaning and washing which resulted in rises in the water bills.
This was the subject of frequent and aggressive verbal clashes between the deceased,
Doris and Mrs Bacsou. He, however, did not interfere and kept away from their squabbles.

The appellant went on to explain that on 6 December 2012, between 7 and

7.45 p.m., after he came back from work, he went to see his best friend Hans Jhingoor,
also known as Yanish. They were on the bridge chatting when the deceased came near
them, removed a long object in the form of a spoon from his bag, looked at Yanish in a
 4

strange manner and then left. He too left after a while and went to his place. Later in the
evening at about 9.40 p.m., he was on his way to buy cigarettes when he heard the
deceased verbally abusing him. He ignored the deceased and continued on his way to the
place of Yanish as they were going to the shop together. Yanish and himself were on the
bridge on their way to the shop when Yanish told him “Guette malin (meaning the deceased)
pe vini avec aine sabre.” He then saw the deceased running towards them with a sabre in
his hands. He pushed Yanish behind him to protect the latter. The deceased flung the
sabre at him. He lifted his right foot high enough to protect his face and in so doing got
injured near his third and fourth toes as he was barefoot. The sabre fell on the road.
On seeing the deceased trying to pick up the sabre, he punched him in his face and
kicked him twice in his stomach and the side of his body in self-defence and to protect
Yanish. The deceased fell down and his head hit against the tarred road with a thud.

At the same moment, he saw a police vehicle passing by. He stopped the vehicle
and informed the police that the deceased had assaulted him with a sabre. He then saw his
sister Magdala coming followed by Mrs Bacsou at the rear. Magdala stopped Mrs Bacsou
from picking up the sabre. He went to the police station to report a case of assault against
the deceased and the police conveyed him to the hospital as his foot was bleeding.
Thereafter, he went back home. In the early hours of the morning of 7 December 2012,
the police informed him that Ameerchand Rughooa had passed away and brought him to
the police station.

The appellant denied: (i) the presence of Akshay Jhingoor (Papou) during the fight;
(ii) that Papou and Yanish held the deceased by his arms whilst he repeatedly hit the latter
until he was in a state of weakness and could not defend himself; (iii) that Yanish gave him a
knife; and (iv) that after he gave the first blow to the deceased and the latter fell down,
he (the deceased) was no longer a threat to him. The appellant did not admit that the
degree of violence used to assault the deceased was such that the latter had his spleen and
kidney ruptured.

The appellant maintained that Papou came on the scene after the fight was over.
He also maintained that he never intended killing Ameerchand Rughooa. He showed regret
and remorse for the death of Ameerchand Rughooa and stated that whatever he did was in
self-defence and to protect Yanish.
 5

Other witnesses called on behalf of the defence were Dr Jeehanna, PC Veerasamy,

Akshay Jhingoor, Mukesh Jhingoor, Magdala Lacloche, Doris Lacloche and Hans Jhingoor
(Yanish). Dr Jeehanna’s evidence was that, on 7 December at about twenty past midnight,
he treated the appellant for a superficial laceration on his right third and fourth toes.
PC Veerasamy was made to produce the certificate of previous convictions of the deceased.

Akshay Jhingoor’s evidence was to the effect that on 6 December 2012 he was back
home from work at about 9.30 p.m. As he was getting ready to take a shower, he heard
Anais, the appellant’s niece, shouting. He came out on his veranda. He did not see Anais
but saw the deceased standing in front of his (the deceased) door and then suddenly coming
out with a sabre in his hand. The deceased started running in the direction of the bridge.
He went back inside his house, put on his shirt and went out. He was about 100 metres
from the bridge and saw the appellant and his brother walking on the bridge.

What happened next unfolded very fast. He saw the appellant and the deceased
struggling with each other. The deceased tried to hit the appellant with the sabre but
the appellant caught hold of the sabre and both continued to struggle. The appellant
punched the deceased and the latter fell down. When he reached the bridge, everything
was over. The appellant was standing with Yanish slightly behind him and the deceased
was sitting on the road. At the same moment Mrs Bacsou came and started looking for the
sabre. The appellant was barefoot and put his foot on the sabre to stop her from picking it
up. Neighbours started to gather and a police van which was passing by stopped. Together
with Yanish they accompanied the appellant to the police station to report the matter to the
police who then conveyed the appellant to the hospital for treatment to his injured foot.
Later, his father fetched them from the hospital and dropped the appellant to his place.
He denied the version of Mrs Bacsou that he was at the scene of the fight and had
participated by holding the arm of the deceased whilst he was being assaulted by the
appellant.

Mukesh Jhingoor was called to testify as to the whereabouts of his sons Akshay
and Hans on 6 December 2012. According to his evidence, Akshay reached home at
about 9.15 p.m. At that moment Hans was not at home and had gone to the shop.
About 20 to 25 minutes later he heard Akshay saying that people were fighting on the
road and Akshay went out. In the middle of the night, he noticed that both sons were not
in their room. He phoned them and came to know that they were at the hospital. He went
to fetch them and the appellant.
 6

Magdala Lacloche confirmed that in 2012 she was living in a rented house at
Ruisseau des Creoles, Port Louis together with her family, her father, her sister Doris,
latter’s four children and the appellant. She also confirmed that the house was also being
rented by four other families including the deceased and his wife. According to her, there
were frequent disputes between the deceased and the other tenants over excessive use of
water by the deceased and latter’s refusal to contribute to his share of the water charges.

She added that on 6 December 2012, the appellant left home at about 5 p.m. and
went to the place of Hans, came back between 6 and 7 p.m. and left again at about
9.45 p.m. to buy cigarettes. At that time Doris and latter’s daughter Anais were sleeping.
She looked outside and saw the appellant and Hans walking towards the bridge. At the
same instant, she heard the deceased calling his wife telling her: “Gater Gater donne moi
mo sabre mo pou touye sa liki sor ma la.” She then saw the deceased running out of the
house with a bag in his hand which he threw to the side of the road. Her view was then
blocked by the presence of a big machine. A few moments later, she saw the deceased on
the side of the road where the appellant and Hans were and the deceased was about
to strike the appellant with a sabre. In cross-examination, however, she admitted she did not
witness the deceased striking the appellant. She shouted for Doris and started running in
the direction of the appellant and the deceased. In cross-examination, she stated that she
knocked on the door of the room of Doris and told her to come out as the deceased was
assaulting the appellant.

When she reached the bridge, she saw blood on the ground. The deceased was
sitting on the road and a sabre was lying near him. Hans was in a state of shock and the
appellant told her that the deceased had assaulted him with the sabre. When the appellant
left home, he was wearing a pair of thongs but when she saw him on the bridge he had only
one thong and his foot was bleeding. Mrs Bacsou, Doris and Akshay then came on the spot.
Mrs Bacsou wanted to pick up the sabre but she stopped her. She also added that Doris
did not witness the incident.

It can be gathered from the evidence of Doris Lacloche that she did not witness the
incident of 6 December 2012 between the appellant and the deceased. What can also be
gathered from her examination-in-chief is that she was called to give evidence of the good
character of the appellant, the bad character of the deceased and Mrs Bacsou, and the
strained relationship between these two and herself and the other tenants over domestic
matters and mainly due to the deceased’s alleged excessive use of water and his non-
contribution to the water charges. She was made to confirm Magdala’s evidence that on
 7

6 December 2012, she was sleeping when Magdala knocked on her door and told her that
the appellant was having problems with the deceased and that the latter was armed with a
sabre. According to her, when she reached the bridge, she noted the presence of the police
and saw the appellant’s right foot bleeding whereas the deceased was sitting on the road.

Hans Jhingoor was called to confirm the appellant’s version as regards the events
of the night of 6 December 2012. He explained that at about 8 p.m. on that night,
the appellant and himself had a beer together at his place. Thereafter, the appellant told him
that he needed to buy cigarettes and he agreed to walk with the appellant to the shop.
Appellant went back to his place to fetch his money and when he came back they made
their way to the shop. They had barely started walking when he heard someone swearing.
He turned around and saw the deceased looking in their direction and swearing at the
appellant. His wife was beside him.

They ignored the deceased and continued their way. Reaching near the main road,
they met Akshay. After having told Akshay where they were going, they proceeded onto the
main road and turned right on the bridge. They had nearly reached the end of the bridge
when he heard someone running behind. He looked and saw the deceased running in their
direction and coming straight at the appellant. The deceased removed a sabre which he
was holding behind his back and dealt the appellant a blow with it. The appellant parried the
blow with his right foot and dealt the deceased a fisticuff blow in his face. The sabre fell
down and the appellant kicked the deceased in his stomach in self-defence. The deceased
was in a state of shock and fell on the road in a sitting position. The appellant gave him
another kick as if he was kicking a ball to stop him from getting up. The deceased fell on his
back. He conceded that when the deceased fell down a first time, he was no longer a threat
to the appellant.

Whilst he was trying to call the police, a passing police vehicle stopped and picked
up the deceased and the sabre. The appellant and himself walked to Line Barracks and
from there the police conveyed the appellant to the hospital as latter’s foot was bleeding.
He added that at the material time there were only the three of them on the bridge.
Mrs Bacsou, the appellant’s two sisters and Akshay came after the fight was over. He also
added that at the material time he was only 16 and was traumatised by the events.
He explained that neither during the fight nor whilst they were walking to Line Barracks
did he notice any injury on the appellant’s right foot and did so only at the police station.
He denied that Akshay and himself had participated in the fight between the appellant and
the deceased.
 8

There were originally nineteen grounds of appeal. At the hearing of the appeal,
grounds 3, 4, 5, 13, 15, 16 and 18 were dropped. We reproduce verbatim the remaining
grounds:-

“Ground 1

The Learned Judge was wrong to ask Learned Counsel appearing for the
State to answer back to the closing speech of Counsel appearing for the
Appellant whilst at the same time refusing Counsel for the Appellant to reply
to same.

Ground 2

The Learned Judge was wrong not to explain to the members of the Jury
what the elements of Provocation are.

Ground 6

The Learned Judge did not refer at all to the case of the Defence in a
balanced way thus poisoning the mind of the members of the Jury.

Ground 7

The Jury’s decision was perverse as no reasonable Jury with the evidence
adduced could have come to the conclusion that the Appellant had the
intention to commit manslaughter.

Ground 8

The Learned Judge was wrong not to refer the members of the Jury the
forensic results on the sabre and the DNA of the Appellant found on the
clothes of the deceased, thus not directed (non direction of the Judge) the
Jury on an important component.

Ground 9

The Learned Judge failed in his summing up to refer that the sabre was
contaminated by Police Officers as per the evidence adduced.

Ground 10

No reasonable Jury could have come to the decision that there is no

Self Defence in the teeth of evidence adduced, thus making the finding of
the jury perverse.
 9

Ground 11

The Learned Judge failed to refer to the physical impossibility of the

evidence adduced by witness Mrs Bacsou, as described in the medical report
of Dr Gungadin and as per the Doctor’s testimony.

Ground 12

The Learned Judge did not refer at all to the fact that witness Bacsou was
found lying on the issue of false teeth (fausse dents) as borne out by the
evidence of Dr Gungadin and the photos of the deceased at the mortuary.

Ground 14

That the Learned Judge was wrong in not giving the “Lucas Direction” to the
jury in relation to the potential lies, if any, found by the jury in statements
given to police by the Appellant.

Ground 17

That in view of the evidence adduced, no reasonable jury could have come
to the conclusion that there is manslaughter in the absence of any
evidence to support the elements of manslaughter as per section 223 of
the Criminal Code.

Ground 19

Sentencing

That in all the circumstances of the case to sentence is against the principle
of proportionality.”

Ground 1

The court record shows that at the close of the case for the defence, after Counsel
for the prosecution and Mr Valayden had addressed the Jury, the learned Presiding Judge
stated the following to Counsel for the prosecution: “Yes, Mr Ah Sen. Re re-mark in law.”
The court record then reads as follows:

“Mr T Ah Sen remarks: My Lord, my learned friend submitted and you will
note that there are many issues that go outside to the gist of this case. I will
ask members of the jury not to be swayed by those remarks. That’s what
I wanted to highlight.

Court: Okay, thank you.

 10

Mr R Valayden: Let me answer back, My Lord, because my friend has

answered on that issue. Let me answer.

Court: You don’t wish me to .. , Mr Valayden by giving your friend the

opportunity to make any remark in law following what you have said in your
submissions. That is all. I don’t think there is a need for you to make any
reply, at this stage.

Mr R Valayden: Okay, then it’s okay. It’s gone on record.

Court: Yes, it’s gone on record. Yes.

Mr R Valayden: Yes, because this is very clear.

Court: I know what I’m saying, yes.

Mr R Valayden: Yes, because it is not according to law. It’s not according to

Archbold to have a second chance, a second bite of the cherry. I’m sorry.
Thank you.”

We have purposely reproduced verbatim the exchange between the learned

Presiding Judge and both Counsel as it is this exchange that has given rise to ground 1
of the grounds of appeal. The exchange between the learned Presiding Judge and
Counsel for the prosecution can hardly be qualified as an invitation by the learned Presiding
Judge to Counsel for the prosecution to reply to the closing speech of Counsel for the
defence. Counsel for the prosecution was merely asked for any remarks in law he wished
to make. On a close perusal of the statement made by Counsel for the prosecution, nothing
significant or of substance was said which would have warranted the learned Presiding
Judge to accede to Mr Valayden’s motion to reply to the statement of Counsel for the
prosecution. In fact the remark of Counsel for the prosecution that “…there are many issues
that go outside to the gist of this case. I will ask members of the jury not to be swayed by
those remarks...” is so vague and made generally that Counsel for the defence would have
been justified in not responding to that statement.

We are unable to accept the arguments of Mr Valayden that the remarks of

Counsel for the prosecution were of such a nature as to have put into doubt and adversely
undermined his closing speech. We also find untenable Mr Valayden’s argument that such
remarks would have negatively impacted on the mind of the Jury. The submissions that the
appellant did not have a fair opportunity to answer the case against him; that the course of
action taken by the learned Presiding Judge was tainted with the perception of bias; that the
 11

learned Presiding Judge ought to have specifically addressed the Jury on this issue in his
summing-up; and that the exchange which took place in presence of the Jury was prejudicial
to the appellant and has resulted in a miscarriage of justice are also without substance.
In any event, as rightly pointed out by Counsel for the respondent, at paragraph 15 of his
summing-up to the Jury, the learned Presiding Judge reminded the Jury that the facts of the
case were their responsibility. Whilst they were entitled to take into account the speech and
arguments advanced before them by both Counsel, they [the Jury] were not bound to accept
them. Ground 1 is, accordingly, devoid of merit and is set aside.

Ground 2

Under this ground, it was submitted on behalf of the appellant that despite
provocation being made a live issue, the learned Presiding Judge failed to direct the Jury on
the elements of provocation. This was a serious irregularity and rendered the appellant’s
conviction unsafe.

We do not agree with the submission of the appellant. As rightly pointed out by
learned Counsel for the respondent, provocation was not made a live issue before the Jury.
The case for the appellant rested solely on self-defence. In fact, as already stated above,
the Jury was faced with 2 versions: the prosecution version which, if accepted by the Jury,
would prove the guilt of the appellant and the defence version which, if accepted by the Jury,
would amount to a complete defence, namely self-defence. Provocation was a non-issue in
the present case. Tellingly, learned Counsel for the appellant failed to point out what
evidence on record could, in his view, amount to provocation. Ground 2 is, accordingly,
dismissed.

Grounds 6, 8, 9, 11 and 12

In support of the above grounds, which were argued together, Mr Valayden referred,
on the one hand, to the evidence of Mrs Bacsou who was adamant that the deceased’s front
false teeth fell from his mouth whilst he was being assaulted by the appellant and, on the
other hand, to Dr Gungadin’s report and testimony to the effect that, on examining the
deceased’s mouth during the autopsy, no dentures were found and that the deceased had
natural teeth which were in a fair condition. It was the submission of learned Counsel for
the appellant that in view of the evidence of Dr Gungadin, Mrs Bacsou’s whole evidence
and her credibility regarding the events of the night of 6 December 2012 had been seriously
undermined.
 12

Learned Counsel also referred to the evidence of Mrs Bacsou that the appellant
had hit the deceased on his head with a knife known as “couteau Rogers” and to the
medico-legal report which according to him does not mention any injuries to the head of the
deceased.

Learned Counsel contended that the only inference that could be drawn from these
inconsistencies in her evidence is that Mrs Bacsou was lying about the events of that night
and the learned Presiding Judge ought to have directed the Jury on the inconsistencies in
the evidence of the prosecution.

We have perused the summing-up of the learned Presiding Judge and his direction
to the Jury on the evidence of Mrs Bacsou. His directions are to be found at paragraphs 66,
70, 76, 77, 78, 79 and 81 and may be reproduced as follows:

“[66] As pointed out to you and as you must have probably noted, of the
evidence adduced by the prosecution, the only evidence which the defence
hotly contested is the evidence of Mrs Bacsou as to the circumstances of the
incident. She was lengthily and thoroughly cross-examined and the defence
called the accused, Hans Jhingoor and Mrs Magdala to rebut her version as
to the circumstances the deceased proceeded to the bridge armed with a
sabre and the accused inflicted violence upon him and the nature and extent
of such violence.

[70] In assessing the evidence of Mrs Bacsou, the accused and his
witnesses the Jhingoor brothers and his sisters, you will take into account
i. their respective demeanour in the witness box;
ii. the inconsistencies, contradictions, weaknesses and unfairness on
their part; if any;
iii. the effects of the such inconsistencies, contradictions,
weaknesses and unfairness on their part which you may have
noted on the credibility, plausibility of their respective version; and
iv. the weight to be attached to their respective evidence after the
assessment you would have made.

[76] Ladies and gentlemen, Mrs Bacsou, the accused, the Jhingoor
brothers and the accused sisters were all cross-examined. When you assess
their evidence you will have to give due consideration to what they have said
and particularly whatever discrepancies or shortcomings on their part in the
form of inconsistencies, contradictions, weaknesses and unfairness you’re
you would have noted. You will have to decide to what extent such
discrepancies and shortcomings undermine their credibility or render their
evidence unworthy of belief or unsafe to be relied upon.
 13

[77] Learned counsel on both sides have in their respective submissions

commented and elaborated on what they considered as inconsistencies,
contradictions, weaknesses and unfairness and their effects on the credibility,
plausibility of the version of the witnesses they don’t want you to believe as
well as the weight to be attached to them have also been stressed. They
have also given you the reasons why, despite certain of these discrepancies
on the part of the witnesses, they want you to believe and accept the
evidence of the latter. I need not go into the details of this exercise.

[78] However, remember that as the sole Judges of fact you are not bound
by what counsel have suggested and submitted to you. It is for you to decide
whether or not to accept the submissions and whether or not any shortcoming
highlighted is of no material importance as to negatively affect the credibility
of a witness or the plausibility of his version.

[79] And you will do so as pointed out to you earlier after due consideration
of the whole of the evidence before you and using your reasoning, common
sense and experience as men and women of the world and drawing
reasonable inferences.

[81] Whether you accept the evidence of Mrs Bacsou for the prosecution
or whether you accept that of the accused and his witnesses, you must be
satisfied at the end of the day the facts stemming from any such evidence
disclose a willful and unlawful attack by the accused and a response to an
attack by the deceased that draw the accused into retaliation to defend
himself before you can conclude that the first two elements of the offence
have been proved.”

The learned Presiding Judge was not expected to highlight and rehearse to the Jury
each and every inconsistency and contradiction in the evidence of a witness, be it for the
prosecution or the defence, as they were canvassed in the submissions made by Counsel
for the prosecution and the defence. It is, however, clear from the above-reproduced
paragraphs that directions were given to members of the Jury on how they were to deal and
treat the evidence of the witnesses who deposed before them. They were told and reminded
that in their deliberation as to whether to accept or reject the version of the witnesses for the
prosecution and the defence, they had to bear in mind any inconsistencies, contradictions or
discrepancies, if they found any, in the evidence of these witnesses, and then decide on the
weight to be attached to their version and their credibility. It is, therefore, incorrect to say
that the learned Presiding Judge has failed to direct the Jury on the inconsistencies in the
case for the prosecution and has failed to present the case for the defence in a balanced
and fair manner.
 14

In any event, the inconsistency on the issue of false teeth was not fatal to the
case for the prosecution or the defence in view of the appellant’s admission that he gave a
fisticuff blow to the deceased in his face. It would also be recalled that Hans Jhingoor,
the appellant’s own witness, also confirmed the prosecution version that the appellant
dealt the deceased blows in his face.

The further submission of Mr Valayden that there was discrepancy in the evidence
of Mrs Bacsou that the appellant had also hit the deceased on his head with the handle of
a knife known as Rogers is baseless. We have reviewed the evidence of Dr Gungadin.
We note from his examination-in-chief that he was questioned on the medico-legal report
he had drawn up in the light of the post-mortem he carried out on the deceased’s body.
In his report under the heading: “Internal Examination Head,” the following appears:
“Scalp: Bruise left frontal and right parietal regions. Bruising of left temporalis muscle.
Brain: Subarachnoid haemorrhage right side of frontal lobe.” The doctor explained that the
haemorrhage was a bleeding on the frontal region of the brain, the cause of which could be
attributed to a blunt force having been applied to the head, a fall or the head hitting a hard
surface. Not a single question regarding the head injuries sustained by the deceased was
put to the doctor in his cross-examination by Counsel for the defence. The fact that the
police was unable to trace out the knife does not render the testimony of Mrs Bacsou
unworthy of belief.

It was also reproached of the learned Presiding Judge that he did not direct the
Jury regarding the evidence of the prosecution that the sabre was contaminated. In his
submissions, Mr Valayden referred to the reply of Police Inspector Ramkalawon, the main
Enquiring Officer, that the sabre was contaminated in answer to a question put to him by the
Jury as to the reason the sabre was not examined for fingerprints.

The issue of fingerprints was indeed a non-issue, as it was not disputed that the
deceased had a sabre in his hands during the altercation with the appellant. The presence
or absence of fingerprints would not have added anything to the case for the prosecution or
the defence. It was therefore not necessary for the learned Presiding Judge to address this
issue to the Jury.

The learned Presiding Judge was further criticised for not having specifically directed
the Jury on the forensic examination of the clothes of the deceased and those of the
appellant. The submission that “Blood on the clothes of Appellant and the Jhingoor Brothers
would have given much weight to the credibility of witness Bacsou. The moreso that
 15

Mrs Bacsou described during the incident the two Jhingoor brothers held the arms of
deceased while appellant was assaulting him” is without substance. In any case, the
appellant did not deny that he assaulted the deceased. He pleaded self-defence in
justification of his acts. The complaint regarding the alleged non-direction by the learned
Presiding Judge to the Jury specifically on the forensic examination of the clothes of the
deceased, the appellant and the Jhingoor brothers is thus devoid of substance.

We are, therefore, unable to find any justification in the appellant’s complaints and
criticisms levelled against the learned Presiding Judge under grounds 6, 8, 9, 11 and 12.
They are, accordingly, set aside.

Grounds 7, 10 and 17

The above grounds were argued together and in support thereof, it was submitted
that on the evidence adduced, the Jury’s decision finding the appellant guilty of the offence
of manslaughter was perverse. Learned Counsel for the appellant referred to the evidence
of Mrs Bacsou, the evidence of Dr Gungadin and the appellant’s version and submitted that
the Jury was wrong not to accept the appellant’s version that he acted in self-defence and
did not have the requisite intention to kill the deceased.

The fact that there was an incident between the deceased and the appellant in the
evening of 6 December 2012 in the course of which the appellant assaulted the deceased
causing serious fatal injuries to him is beyond dispute.

What the Jury had to decide, in the light of the direction in law of the learned
Presiding Judge on self-defence and intention to kill, was whether to accept the appellant’s
version that he acted in self-defence and had no intention of killing the deceased when he
inflicted the injuries on the latter. The learned Presiding Judge, after having summarised the
evidence of the prosecution and the defence and given appropriate directions as to how
to approach and assess the evidence of the witnesses who deposed on behalf of the
prosecution and the defence, gave comprehensive directions to the Jury on the subject of
self-defence and intention to kill.
 16

They are to be found at paragraphs 67, 80, 81, 82, 83, 84, 85, 88, 89, 90, 94, 95, and
96 of the summing-up and read as follows:

“[67] Ladies and gentlemen as the whole circumstances of the violence

and injuries inflicted by the deceased (sic) on the deceased are of prime
importance in determining whether or not there was a willful attack on the
deceased or the accused only retaliated in self-defence, you will have in the
first place to choose between the contradictory versions put before you in
evidence by the prosecution and the defence.

[80] Ladies and gentlemen, let me remind you that at this stage I am
focusing on the first two essential elements of the offence that need to be
proved by the prosecution, namely,
(i) a willful and unlawful act of violence inflicted by the accused on
the deceased, which caused injury/injuries to the latter; and
(ii) the fact that the injury/injuries so sustained have caused the
death of the deceased.
And, in that respect as already pointed out to you in view of the admitted
facts, the issues for you to thrash out are
I. whether the violence and injuries inflicted by the accused on the
deceased were willful and unlawful; and
II. whether the prosecution has disproved or negatived the existence
of self-defence.

[81] Whether you accept the evidence of Mrs Bacsou for the prosecution
or whether you accept that of the accused and his witnesses, you must be
satisfied at the end of the day the facts stemming from any such evidence
disclose a willful and unlawful attack by the accused and a response to an
attack by the deceased that draw the accused into retaliation to defend
himself before you can conclude that the first two elements of the offence
have been proved.

[82] Therefore, if you find the first two elements of the offence proved,
you must be satisfied that whatever the version you would accept that at
the material time despite being armed with a sabre the deceased had not
embarked on an enterprise to attack the accused and his friend Jhingoor and
that the accused in attacking him was not responding to any form of violence
or impending attack on his person.

[83] If you find after due consideration of the evidence that it has been
established beyond reasonable doubt the first two elements of the offence
proved the next step for you is to decide whether the evidence establishes
beyond reasonable doubt that the accused in inflicting injuries to the
deceased had the intention to kill him.
 17

[84] Members of the Jury, let me therefore indicate to you the position in
law in respect of this element of the offence and what you should look for to
find such element proved. The intention to kill is a subjective element which
must be gauged at the time of the inflicting of the willful and unlawful act of
violence. It is a decision which you have to make on a consideration of the
circumstances surrounding the commission of the offence. The question is
whether, at the material time, the accused intended that death should ensue,
and this, by reference to all the evidence and by drawing such inferences
from the evidence as would appear proper to you in the circumstances of the
present case.

[85] For that purpose, factors which you may consider are indeed the
nature of the weapon used, the degree of violence, the part of the body at
which the blow was aimed and the nature of the wound or injury which proved
to be fatal. You would not (sic) that in this case it is not alleged that the
accused used any particular weapon to inflict the injuries on the deceased.
The decision is yours to be made on a consideration of the whole of the
evidence adduced in this matter as to the relevant facts and circumstances of
the present case.

[88] You would remember in that respect that learned counsel for the
prosecution stressed that the seriousness of the injuries inflicted, the part of
the body at which the violence was aimed at, the kind of violence inflicted as
per the medical evidence caused the fatal injuries and the evidence as to the
behavior of the accused all indicate an intention to kill on the part of the
accused.

[89] Learned counsel for defence, replied in his submissions at length that
the submissions of his learned friend cannot stand. He in that respect laid
stress on the accused version that if he had the intention to kill, he would
have used the sabre instead of dealing the deceased with fisticuff and kicks.
He further stressed on the fact that it was deceased who had come armed
with a sabre and provoked the incident.

[90] It is for you to decide which arguments of learned counsel hold good,
and this, in the light of your own appreciation of the evidence before you and
the arguments of learned defence counsel to the contrary which you are
likewise entitled to accept or reject if you decide to agree or disagree with
him.

[94] In law, therefore, the defence of self-defence would succeed through

the combination of three conditions. They are:
i. Une defense de soi-meme ou d’autrui;
ii. La necesite actuelle de cette defense ;
iii. Une aggression injuste.
 18

The conditions that must be satisfied for the defence of self-defence

to exist, therefore, imply that
i. there had been an unjust assault on the accused and the latter
was defending himself;
ii. such defence was necessary in the face of danger to himself; and
iii. the act of defence was justified and not excessive in the sense of
not being out of proportion compared to the assault he was
subjected to.

[95] I wish to add also two things that have to be taken into account in
finding whether or not the conditions of self-defence are satisfied:
i. the element of danger to a person has to be appreciated
subjectively and not on an objective basis; and
ii. failure to retreat when attacked when it is possible to do so is not
conclusive, but is a factor for consideration in deciding whether or
not it was necessary for the accused to use violence.

[96] So, if you accept the version of the accused that the deceased
attacked him in the manner he alleged and that he acted in self-defence,
you will have to decide whether
 such attack was unjust;
 the accused was in the circumstances in fear of danger to himself,
this is an element which have (sic) you have to appreciate
subjectively;
 in attacking the deceased, the accused only defended himself and
that it was necessary for him to do so despite the possibility for
him, if you find there was any, to run away in order to avoid the
deceased; and
 the assault was not excessive or disproportionate compared to the
attack of the deceased (in the present case the attack with a
sabre).”

We must at the very outset point out that the appellant has no complaint against the
direction of the learned Presiding Judge to the Jury on the issue of self-defence and
intention to kill. There is also no complaint against the direction of the learned Presiding
Judge to the Jury that they were entitled to find proved that the appellant inflicted on the
deceased violence and injuries that caused his death.

In the light of the above unchallenged directions of the learned Presiding Judge,
the only issue that the Jury had to decide, as we have earlier stated, was whether to accept
the appellant’s version that he had acted in self-defence and had no intention of killing the
 19

deceased at the time of perpetrating the assault. As rightly pointed out to the Jury by the
learned Presiding Judge in his summing-up, the circumstances in which the injuries were
inflicted were of utmost and material importance in deciding these two issues. On this
aspect, there were two conflicting versions as to the manner in which the assault was
perpetrated on the deceased. We have already set out the salient aspects of the case for
the prosecution and the defence. The Jury was also in presence of the evidence of
Dr Gungadin and the medico-legal report.

The evidence of Mrs Bacsou shows that the appellant successfully neutralized the
deceased by punching him in the face causing the deceased to fall to the ground. Her
evidence also shows that the sabre also fell to the ground. She gave a detailed account of
how the appellant assaulted the deceased whilst the latter was helpless on the ground.
She added:

“…avec so li pied line bien pil pil lorli sa même sa. Mo rode tire li mais avec
so poid le corps mo pas pou capave, sa poids ki li ete la, pou pousse li même
mo pas pe capave, avec enn la main couma mo pou pousse li. Sa la main la
mo pas capave servi sa.”

It is also to be noted that Mrs Bacsou whose version was accepted by the Jury,
stated the following:

“…So camarade (Akshay) même pe dire, so camarade pe dire avoy ferfoute

aster laisse li, li dire non mo pou touye li avec so betise tout. Li pe dire, Papou
pe dire assez aster avoy ferfoute, correct aster, li dire non, li pas pe d’accord
li…”

As regards the appellant, he admitted that the deceased and the sabre fell down on
his first fisticuff blow to the face of the deceased. He also admitted that he kicked the
deceased twice in his stomach whilst the latter was down on the ground. In justification of
the two kicks he gave to the deceased, he stated that the deceased was trying to pick up the
sabre to assault him.

There was also the evidence of defence witness Hans Jhingoor to the effect that
after the appellant had punched the deceased in his face and the sabre had fallen down,
the appellant continued to assault the deceased by kicking him in the stomach.
Hans Jhingoor even added that the deceased was in a state of shock and fell in a sitting
position on the road but the appellant kept on kicking him. The witness admitted having
stated in his statement to the police the following:
 20

“Quand missié la fine tombé, Brian fine tappe li coup de pied lors so
l’estomac avec so li pied. …missié la fine tombe lors so le dos... De suite
quand missié la ti lors so le dos, Brian fine tappe li enn coup de pied lors so
cott couma dire li pe tappe enn boule...”

Hans Jhingoor admitted that when the deceased fell to the ground, after having been
punched by the appellant in the face, the sabre too fell to the ground and that at that
particular moment the deceased did not represent a threat to the appellant.

Dr Gungadin attributed the deceased’s cause of death due to shock due to ruptured
spleen. The evidence of the doctor was not confined to explaining the possible causes for
the ruptured spleen which, in the present case, he explained was due to considerable
amount of blunt force having been applied to the left side of the chest and the abdomen.
His evidence also showed that other parts of the deceased’s body had suffered injuries,
namely bruising of the deceased’s left chest wall muscles from the 3rd to the 5th ribs and
fractures of the 3rd to the 7th ribs thereby indicating blunt force having been applied to this
area. The deceased’s left kidney was also ruptured, indicative of a blunt force having been
applied to the chest and left side of the abdomen. He also pointed out that the haematoma
he observed over the left thyro-hyoid ligament with fracture tip of left side of hyoid bone was
indicative that pressure had been applied to the throat of the deceased.

There was also evidence that the appellant was well built as opposed to the thinly
built deceased.

In a trial before the Assizes, the Jury is the body to which the all-important decisions
on the guilt of an accused party are entrusted. A Jury’s verdict of guilty based on a proper
direction in law on the defences raised at his trial by an accused is not to be lightly interfered
with. It is clear from their verdict that the Jury must have rejected the appellant’s evidence
that he honestly believed that he was in immediate danger of serious bodily harm and that a
violent assault on the deceased was the only reasonable means of protection. It necessarily
follows that the Jury must have concluded from the evidence of Mrs Bacsou, Dr Gungadin
and Hans Jhingoor that the appellant could not have acted in self-defence and that evidence
of the intention to kill was manifest by the extreme violence with which the injuries were
inflicted on the deceased whilst he was lying helpless and in a weakened state on the
ground, and this even after the sabre had fallen out of the deceased’s hands.
 21

The prosecution having satisfied the Jury that the appellant could not have acted in
necessary self-defence, the Jury cannot be faulted for having rejected the appellant’s
defence of self-defence and his contention that he did not have the requisite intention to kill.

The arguments of Counsel in support of the criticisms levelled against the verdict of
the Jury are unfounded and devoid of merit. Grounds 7, 10 and 17 must equally fail.

Ground 14

It is the appellant’s contention that the learned Presiding Judge was wrong in not
giving the “Lucas direction” to the Jury in relation to potential lies, if any, found by the Jury in
statements given to the police by the appellant.

In R v Goodway 98 Cr. App. R. 11, it was held that “whenever lies are relied on by
the prosecution, or might be used by the jury, to support evidence of guilt as opposed to
merely reflecting on the defendant’s credibility, a judge should give a full direction in
accordance with R v Lucas (R.) [1981] Q.B. 720, 73 Cr. App. R. 159, CA, to the effect
that a lie told by a defendant can only strengthen or support evidence against that
defendant if the jury are satisfied that (a) the lie was deliberate, (b) it relates to a material
issue, and (c) there is no innocent explanation for it. The jury should be reminded that
people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame,
or out of wish to conceal disgraceful behaviour”.

There is absolutely no merit in this ground of appeal. One cannot help noting the
vague and loose manner in which this ground of appeal was drafted inasmuch as the
appellant’s complaint relates to a lack of direction regarding “potential lies, if any” to be found
in his written statements. We agree with learned Counsel for the respondent that there was
no need for the learned Presiding Judge to give a “Lucas direction” to the Jury as it is clear
that the prosecution never relied on any lie of the appellant to support evidence of his guilt.

The only “potential lies” which learned Counsel for the appellant was able to refer to
were whether the appellant was wearing thongs at the material time and whether he had
made a declaration to the police regarding a previous incident. These were clearly not
material issues going to the appellant’s guilt and were never relied upon by the prosecution
as evidence of his guilt. At best, they went merely to the appellant’s credibility.

For the above reasons, ground 14 is dismissed.

 22

Ground 19

Under this ground, it is the appellant’s contention that the sentence of 23 years’
penal servitude passed on him was disproportionate in view of the particular and exceptional
circumstances of the present case. In this respect, the appellant relied on his version that
he acted in self-defence and to protect his friend and that he did not use the sabre of the
deceased which was snatched from him to inflict any injury. The short answer is that the
Jury did not accept the appellant’s version of events and, on the contrary, accepted the
prosecution version that the appellant continued to trample the head and body of the
deceased after causing the latter to fall on the ground by using violence.

The appellant also relied on the bad blood between the parties and the fact that
he co-operated with the police. We fail to see in what way these constitute particular and
exceptional circumstances.

As a matter of fact, the learned Presiding Judge, in passing sentence, took into
account the mitigating circumstances in the appellant’s favour, namely his collaboration
with the investigating authorities, his expression of remorse, his family commitments and
his young age at the time of the incident and the fact that the deceased was in an
aggressive mood and armed with a sabre.

The learned Presiding Judge, however, also bore in mind that the appellant had
indeed committed a serious crime involving the taking of life, punishable by a heavy penalty
of penal servitude for a term not exceeding 45 years. The learned Presiding Judge pointed
out the need to view homicides with serious concern, especially when such offences were
prevalent, and the need to impose exemplary sentences which would send the proper signal
to society and discourage potential offenders. He also noted that the appellant had easily
disarmed the deceased but had gone on to use excessive violence by inflicting violent
fisticuff blows and kicks to the deceased even when the latter was lying on the ground
defenceless and vulnerable. The learned Presiding Judge then passed sentence on the
appellant taking into consideration the sentencing trend for similar offences.

In Garburrun v The State [2018 SCJ 418], the Court found that the recent
sentences passed for the offence of manslaughter ranged from 25 to 30 years’ penal
servitude in cases where the accused had pleaded guilty. We are unable to find any fault
with the approach adopted by the learned Presiding Judge. We find that the sentence
passed was appropriate and individualised and was proportionate to the seriousness of
 23

the offence committed by the appellant. The present sentence is certainly not one where
a reasonable man would go away with a burning and justified sense of grievance. It was in
fact on the low side. We are of the view that there are no such particular and exceptional
circumstances as contended by the appellant which would justify a lesser sentence.
We find no reason to interfere with the sentence passed on the appellant. We, accordingly,
find no merit in ground 19.

For the reasons given above, we find no merit in any of the grounds of appeal.
This appeal is, accordingly, dismissed.

K.P. Matadeen
Chief Justice

N. Devat
Judge

D. Chan Kan Cheong

Judge

25 March 2019

Judgment delivered by Hon. N. Devat, Judge

For Appellant : Mr K. Bokhoree, Attorney-at-Law

Mr R. Valayden, of Counsel together with Mr S. Veeramundar,
of Counsel and Mr A. Bhinda, of Counsel

For Respondent : Mr M. Lallah, Chief State Attorney

Mrs J. Moutou-Leckning, Senior Assistant Director of Public
Prosecutions together with Mr D. Bissessur, State Counsel and
Mrs S. Dawreeawoo, State Counsel