Soodhun trouvé coupable d’avoir tenu un rassemblement illégal

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Transcript of Soodhun trouvé coupable d’avoir tenu un rassemblement illégal

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    Police v Soodhun & Ors

    2015 INT 5

    IN THE INTERMEDIATE COURT OF MAURITIUS

    (Criminal Division)

    In the matter of : C!No!""#"$%&"&

    'olie v "! Sho*+tall, SOODHUN

    %! -ee.a,e SOMAI

    /! Mahesarsin0h 1HEM2O2I3A

    4 U D 5 M E N T

    The abovenamed Accused parties are variously and severally charged on

    an information containing three counts as below. The offences are alleged to

    have taken place on 2 May 2009 at about 2.00 pm at Brown !"uard treet# $ort

    %ouis# more especially in front of the office of &%'()press*# a daily newspaper

    published in Mauritius +hereinafter referred to as LExpress, and -adio ne# a

    radio station broadcasted in Mauritius +hereinafter referred to as R1,# with both

    offices found at %a entinelle Building.

    Co+nt "/ A+se6 No!"$Soo6h+n is charged with having heldapublic

    gathering# namely apublic meetingwithout having given written notice to

    the ommissioner of $olice not less than 1 clear days before the gathering

    was to be held# in breach of sections 345#365 and 47 $ublic 8atherings Act

    +hereinafter referred to as & $8A*,#

    Co+nt % A+se6 No!"$Soo6h+n is charged with using threatening

    wordsat a public gathering, namely a public meeting,amongst others# the

    following * : to na pas fane caca to pas grate le dos malheur mo dire lina pas grate le dos malheur zordi cest uste ene r!clame, film la pu

    ou! plutard mo pou donne zotte dernier "arning aordi enough is

    enough # in breach of sections 40 ; 47 $8A#

    Co+nt / / A+se6 No!%$Somai an6 A+se6 No!/$1hemloliva are

    charged with ta#ing part in an unla"ful assembly and that "hilst being

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    assembled, they conducted themsel$es in such manner as "as li#ely to

    pro$o#e a breach of the peace in breach of section 493453253b5 riminal

    ode +hereinafter referred to as %%,.

    Accused parties have pleaded Not 5+ilt,to their respective charges. Mr

    8.8lover . appears for Accused erigadoo and Mrs

    -.?adoo appear for Accused

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    Mr (tienette deposed that he saw a crowd of 400/42C people. According to

    him# the signs and banners commented upon %'()press crowd/estimate of the 4

    May political rally. Ie then took several photos from various angles and remitted

    92 photos to the police H see &hotos*1(+.

    $ Mosaye of the Fivisional upport Jnit who had been present at the

    locus is said to have reported the incident to the police.

    After viewing the FGF and photos remitted to the police# FK

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    Lor ease of reference# the gist of their respective unsworn defence

    statements are reproduced below/

    A+se6 No!"$Soo6h+n7s main 6efene statement 6ate6 8 Ma, %&&9 Doc C1 is as follows /

    t the material time, he "as the &resident of 2.2 and he and party

    officials had organized the 1 2ay Labour *ays rally, "hich "as reported in the

    press on the next day3 the day of the incident0 4n the next day, .aturday 2ay

    55+ at about 1016 pm, he "as at his 7rand 8aie bungalo" "hen he recei$ed a

    call that there "as a cro"d in front of .un 9rust building $oicing out their

    discontent at LExpress estimate of the cro"d that had attended the 2.2s

    Labour *ay rally0

    :e felt that it "as his duty to go and see "hat "as going on and dro$e to

    &ort Louis "here at .un 9rust 8uilding he sa" a cro"d "ith their flags and other

    political figures of the party0 :e then came to #no" that another group had

    already left for 8ro"n .!;uard .treet0 :e "al#ed there in order to pre$ent

    anything going "rong "hich "ould in turn bring disrepute to the party0 t R1

    building "hich also housed the LExpress 4ffices, he came across acti$ists

    chanting slogans such as rr

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    he e$er led a marching group from 8ro"n .!;uard $enue to La

    .entinelle building?

    that there "as approximately a group of 165 people "ith 2.2 flags

    and signs printed "ith negati$e slogans against LExpress such as

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    the charge of disorderly conduct and use of threatening "ords, he stated that it

    "as a false charge and that he had already explained the matter in his pre$ious

    statement0

    And as per Doc C2# Accused

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    :e did not see anyone smashing the glass pane of LExpress entrance

    door or conducting themsel$es in a disorderly manner0 :e stated that he did not

    form part of any illegal gathering and had only "atched out of curiosity from afar0

    Gpon being informed that the police "as in possession of photographs of

    him holding a sign, he conceded that he indeed "as in possession of a sign at a

    certain point in time as explained abo$e0 :e formally declined to loo# at the

    photos, reiterated that he had not participated in any illegal manifestation and

    opted for a face(to(face identification exercise should the need arise0

    Kn A+se6 No!%$Somai7s %n6statement6ate6 %% 4+ne %&&9$Doc A2he

    was not formally identified by police officers as being part of the crowd on that

    day.

    Iis /r66efene statement 6ate6 "9 4+l, %&"&$Doc A3 is in denial of

    having participated in an illegal gathering in front of %a entinelle building at

    Brown !"uard t# $ort %ouis and that he had therein conducted himself in a

    manner likely to cause a breach of the peace. And he added that he had

    e)plained what had occurred in his previous statement.

    The salient points of A+se6 No!/7s main 6efene statement6ate6 "/

    Ma, %&&9$Doc Bare as follow /

    Gpon being informed of the illegal gathering of 165 people "ith signs on

    2ay 55+, at about pm, in front of la .entinelle 8uilding, "here there "as use

    of a portable loud(spea#er, an attempt to burn a banner of Radio 1 and to force a

    "ay through the LExpress 4ffice thereby smashing a glass pane, ccused -o0H

    denied same and explained that at the material time he "as at home +at uatre/

    Bornes, andthat he ne$er came to &ort Louis that day0

    4n H 2ay 55+, he learnt that partisans of 2ou$ement 2ilitant 2auricien

    IsicJ had protested in front of R1 and "as una"are "hy and "hich 2.2

    partisans had done so0 s member of the %entral %ommittee of 2.2, he "as

    not a"are of such illegal gathering0

    Gpon it being put to him that the police had reason to belie$e that he "as

    the person dressed in orange, "earing dar# glasses and bearing a sign

    LExpress ar

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    did not #no" "hen same had been ta#en0 :e ac;uiesced to a face(to(face

    confrontation should the need arise and ga$e his mothers name as "itness0

    s per Docs B1 & B2, ccused -o0H3Khemloli$a "as not formally

    identified by police officers0 nd in Doc B3, he formally denies e$er conducting

    himself in such manner as "as li#ely to cause a breach of the peace0

    T h e L a w

    Lor ease of reference# the ourt reproduces sections 345# 40# the

    definitions of Epublic gathering'# Epublic meeting'# Epublic place' within the $8A#

    section 49 and the definition section of &unlawful assembly* under the /

    public gathering> means a public meetingor a public procession,

    public meeting>

    aF means a meeting held or to be held in a public place?

    bF includes a meeting of school children, a sports meeting and a meeting

    for public entertainment, but

    cF does not include a meeting held exclusi$ely for a religious purpose0

    public placemeans any place in "hich the public has or is entitled orpermitted to ha$e access, "hether on payment or other"ise0

    3 !otice o" public gatherings

    345ny person "ishing to hold or organize a public gathering shall

    gi$e "ritten notice to the %ommissioner not less than C clear

    days before the day the gathering is to be held or organized0

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    1# $isbeha%ing at public gatherings

    ny person "ho, at a public gathering uses threatening, obscene,

    abusi$e or insulting "ords or beha$ior, "hether or not directed against anyperson, body or group of persons, shall commit an offence0

    ection 13' Criminal Code

    13' Ta(ing part in unlaw"ul assembl)

    (1) Any person who takes part in an unlawful assembly shall commit an offence (2) In this section and in the following sections unlawful assembly means 12 or more

    persons who (a) are assembled with intent to commit an offence! or(b) being assembled e"en for a lawful purpose# conduct themsel"es in such amanner as is likely to lead to or pro"oke a breach of the peace$

    u b m * s s * o n s

    $r Ah en submitted on behal" o" the +rosecutionthat the elements as

    regards %ount 1$is(($isccused -o013.oodhunhad been proved.

    Kn support of the elements of to hold and public gathering# reference

    was made to the case of D++ % ,undoosing ;"9 and the +-A

    respectively.

    Kt is the case for the $rosecution that as regards Accused

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    -eference was made to the )ford Fictionary meaning of Bthreatas being

    &: a statement of intention to inflict inury, damage or other hostile action as

    retribution and the meaning of &threatenas ma#e or express a threat to

    someoneF or to do somethingF, and that same was consistent with the

    testimonies of Knspector which reaffirms the dicta in

    ,andoosingh+supra,.

    The Fefence for Accused

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    kept going / to such e)tent that Accused the latter being a criminal code case# but

    nevertheless informative.

    Kn the absence of a definition for the term threat within the $8A#

    reference ought to be made to the word's ordinary dictionary meaning as per the

    ollins Fictionary# and compared with the words as per information taken in

    conte)t with the testimony of $ oobhug# who conceded that the transcription

    was not done properly in as much as there were certain words which were not

    clear. The point made by the Fefence is# which part of the words as per ount 2

    amount to threat orwas it the case that all those words# taken out of conte)t of

    the transcript# amount to threat.

    (mphasis was laid on certainty, clarity and contextand it was submitted

    that in the absence of the first two items# the ourt could not obDectively rely on

    the incomplete transcript in order to conclude that the words were threateningas

    per their ordinary dictionary meaning# all the more so since the purport of the

    words used may have different meanings if taken in=out of conte)t and=or within

    the use of common Mauritian parlance. And that the words did not necessarily

    imply that there was imminent danger of harm=pain=misery being inflicted.

    $r errigadoo submitted on behal" o" Accused !o2.omai &

    !o3.hemloli%athat the ourt could not safely rely on the edited FGF or on the

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    http://supremecourt.govmu.org/scourt/doc/showDoc.do?dk=1976%20MR%20137&dt=Jhttp://supremecourt.govmu.org/scourt/doc/showDoc.do?dk=2012%20SCJ%20411&dt=Jhttp://supremecourt.govmu.org/scourt/doc/showDoc.do?dk=1976%20MR%20137&dt=Jhttp://supremecourt.govmu.org/scourt/doc/showDoc.do?dk=2012%20SCJ%20411&dt=J
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    photos produced in order to conclude that they had taken part in a +spontaneous,

    unlawful assembly H reference was made to the case of tate % Bacha ;"99

    MR>and to the parameters of the admissibility of such evidence as per a0ala %

    !oble 41'52 67 Cr App 8 19':

    Ie further submitted that the $rosecution must establish that Accused

    parties

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    The ourt considers that although the

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    public gathering=public meeting and same was held without having given 1 days

    prior written notice to the ommissioner of $olice.

    The ourt is entitled to take the contents of the

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    As per the observations of the defence# the ourt deems it proper to

    restrain itself to the sentence=s reproduced as per ount 2Isee page 1J0

    Jpon cross/reference with the

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    The ourt considers that the sentence=s uttered by Accused

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    Accused

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    Iowever whether the $rosecution has been able to negative the alibi

    depends on the strength of the evidence adduced by the prosecution. Kt has also

    been decided by the upreme ourt that in order to negative the alibi raised by

    an accused party the $rosecution may rely solely on the evidence of a

    declarant=witness and need not call the witness named by the accused in his

    defence H see Le%antard % The tate ;"99= SC4 %/8>!

    Kt is open to the trial ourt to accept the version of a witness and thereby

    indirectly reDect the version of the Accused / which in the present case is to the

    effect that at the material time he was at home / see Babeea % The tate ;"99=

    SC4 %/9>! There is no obligation on the $rosecution to show that the Accusedcould not have been at the place he alleged he was and it is sufficient for the

    $rosecution to establish that the Accused was at the locus at the material time H

    see$ooniaruch % tate ;%&"& SC4 %">

    Kn the present case# this ourt is entirely satisfied on its own observation

    and on the basis of FK

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    3c5 their active participation# acts and doings as per FGF and photos# were

    such that it is not difficult for the ourt to conclude that

    3d5 they conducted themselves in such a manner as is likely to lead to or

    provoke a breach of the peace# whereby harm was and could have

    been further caused.

    Kndeed# actively taking part in a heated unlawful protest meeting# where

    there was a crowd of more than 400 persons# shattering of glass and fire used to

    burn copies of the vilified %'()press in front of its offices can hardly be interpreted

    otherwise.

    E%idence "rom the Accused parties in support o" their de"ence

    This ourt notes that all three Accused parties chose not to depose under

    oath in the teeth of the materially unchallenged evidence against them and which

    constitutes aprima faciecase $is a $istheir person.

    The time/honoured principles of Andoo % 8 ;"9

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    Kn;oollee % The tate ;%&&8 SC4 %#"> it was held that the $rosecution

    had sufficiently negatived the Accused's alibi through the testimony of the

    declarant=witness# as follows/

    Nhilst the burden of proof is al"ays on the prosecution, it is clear that

    "hen e$idence capable of pro$ing the case against the accused and of

    dispro$ing his defence is adduced by the prosecution, there is a #ind of

    tactical burden "hich is borne by the accused in the sense that if he does

    not adduce e$idence in rebuttal he may "ell find the case pro$ed against

    himO in other "ords, the e$idential burden shifts to the accused 0

    Kn the present case# it has been established through the testimonies of the

    prosecution witnesses# the FGF and photos# that at the material time Accused

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    :::::::::::::..

    ::::::::::::::::.

    -0Ramsoondar, N0P0Rangan,

    g0P0&resident, 2agistrate0

    =ntermediate %ourt %rimF =ntermediate %ourt

    %rimF

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