Gun RULING Gay ad O.L is charged with the offence (Counts Ito VI) in breach of section 7(1) of ‘Accused no.2 is charged withthe offence of t0 IX) in breach of section 38(3) of the Crimit Accused no.2 has pleaded not guilty to Counts and Y. Bhadain, counsel. Messrs R. Ahmine, j-M Ah Sen, and R. Hardo The Trial has started. Mr Ahmine has ae informed that the Magistrate in Rotterdam h Goede (W/4) give evidence via video link from Mr Toorbuth insisted that the Court proceie vomingue bas onset Me cou Court can receive ‘evidence outside a iiase ee rm ea ca er a ve ‘Mutual Assistance tn Criminal and Related Matter er nee torr 6 and which followed the ratification OF oe for prosecution: witnesses + Convention Against coc)’. The MLA is sive evidence bY 2 Wet (CA), not mandatory for the ant in a sexual ase, gathering of virtue of the ML n satisfies the reaul ded and it cannot Be ‘ation (unc nos. 3 and 4 6 ake reference to the Col cA tw ments made ( seans of technology Like the Ball Act (BA) whieh CA to be ament ‘witness in relation to am ‘Act (PMVA)) that any amendment must aw is not unconstitutional or ultra vires LA is different Il be before a of section 1611 of the deducted from the offence unde! necessarily be under P the powers of the Court. Thi procedure plain acy and Maritime Violence » long that the nt region part V of the CA, are two diffe has to be followed \d the nature of the MI and the witnesses will from domestic cases: 1 Magistrate to give evidence. Submissions of the defence ‘The submissions of Mr Toorbuth are that the legislator deemed it fit to amend the CA as and emed it fit not to include that, itis to prevent abuses. There is when needed and if the legislator d * Sections 128 and 129 of the Courts Act 2 Section 130 of the Courts Act 2 Section 20 ofthe Bal Act Seen 618 of Cours ht Sections 4 and 7 of The Mutval Aststance In Criminal and Related Matters Act 2003, Article 18 UNCTOCPrinciple ot intern ane ae in the form contemplated under section 4(2)(B) of the ta a8 aon make consequential amendment to the CA, whieh Is neither and the Secretary of State has been authorised to extend area position to be altered in any way. The MLA does: not alter the | CA. and fort to be altered there is need for primary legislatans Reply ofthe prosecution Mr Ahmine replied that reference may be made to a convenlon s relevant enactment. The procedure to be followed is the presence of the discretion in section 1618 Is Constitution: the only consideration is whether the video! fair trial. Section 4(3) ofthe MLA does not in any way deal pele arid 19090) d Sige cr ene Meri Reva erly 8 i Nae Pot & Or (1977) RV 16 1 Section 32 ofthe Criminal Justice Act 1988 ‘Crime (International Co-operation Ack 2008faa cae eee s ad through the BA 1995 gas in reapect OF of ee ‘a venual case or ® wi rere or decainee, and It more bel deposing applying ofbail do During Pat amended t the indignt don 1618 of the procedure was first or through the CA ora case under te PMYA 2 the CA might appear ing a video or television li through video or television for bail either before the ti not fr sliamentary debates in fo enable ty and humiliating experi REET ace Wher any person cna ter ila pediant and r appears the oa rested pares. proced 10 (dence upon oath ‘Mose Debate No3¥ of 30 November 1999 Wt Sctn TLD ours Act: Notwithstanding 27 foience Ae 2011 to appear awa complanat na seal ofr efoe i and depone, tou sorting bythe Chie sce. Incest discretion under subsection (1) 1h ‘see Debate No. Sof 12 August 2003, 200315 it was deemed crucial that seetlon a vitim ina sexual cas ence of hy wns hard nay rose dimaccordanc withthe vr respect ofa compainant wo section 20 ofthe BA but the 8 similar wve complainal cn the one hand we ha n the other defe tink during tia and 08 al or during the tial but the proceeding rm part ofthe tril ise n 16 eto testify through video or televish raving to confront the offender in Cour ig bore court sal bo bear WP rerdence wat appea eto the ltr ere necesary 1th ret lace examine that =O oer enactment, the Court may ins diction eee or any witness i relation to an offen und ah sh ve video or We television tink syst 2 Court shal ensure that th ants and de jon hs perso the obtention 11 of the CA be jon tink "to avold say court ehrough ness 2 yremey.on ae ‘uve hie ‘on motlon made by the the Piracy and Martie may be approved In far Wearing nthe matteroe a ” a fee tee ideo tink ound oi through live television lnk n 29 he Criene (insrnat Ie is also provided at section wae vat sion 32 of 2 exlanato Secretary of State may by order prov Sec gs or oh oc 7 (International Co-operation) Act ‘2003, concerning the ‘nearing of xe position O° er cntins oT change Te ings ace wes Ug | tp seotands television links, at note 88, je used to import eM me econ oa inte tare the eypes of case when video 1aks ca stehough the section makes proan fr MS Sooreta 0 cone ; ational ©" scish Ministers) extn any provision smi 10 BS! sn ux crime Inter ia necessarily have forse a orortne CA psivstat Jevision ink toany of video and in the absence of In Mauritius, ment woul operation) Act 2003, Pal to be amended to include video and vretion 1618 of te cA provides SF YE voce evidence tt Tr gow ebots No.6 113 Deceit 00 ser Denson nace PP criminal isin of nse pe ae ces nH a ane em, ns tage A 1395s (0 eal Appeal Act 1995 2 cmngsoeterences we ‘Be ccs nee A epector weet retin . he etl ae pal assistance aed oe Mauritius and the ee nich bot the UNCTOG i re bas been “aomestieatet ving Mauris 206 ens pr wd rail eS oeinds ae eens cto & sumac 1 wih cope 2 sere, ance contemplated in th maa! legs! 28 ape | e riot proceedings” ae oudes -aciiat ot contrary to the Bea aren FF augue ree of estrance ee rooms inthe request aw ft requested Sate PO i 8 pal logs asistance win oh UNTOE reso exes mal ts ofthe tate making the treaties, agreements and arrangement the parameters ofrlevant WS, | ace 38 ar proces request and included jd then Attorney General said that the snd also “modern in 203% the prosecution of erime.” a ing of evidence. At clause 7 ofthe Bill fe by making use of modern viiamentary debates on the MLA i During Pa to the investigation and ‘assstance will relate both technology suchas vide ink can be resorted 9 inthe gat the possibilty of @ witness to give evidence provision is made for reste, for nance, Ave video lnk which permis che viral presence ofthe witness in the terior over which the foreign Sate has juradctor, or before the International Criminal ren Chambers has issued an order to that effect. Tribunal. No evidence wil be taken unless the Juda L— ] Serpe caecin pee midene etter tert [falter al gees he pst Fy Sect pron mye aes src oven ape 00 to te fast etek psle under relevant Las, tentes. agreements and pect vests, resco nd jal proceedings in eaon tothe (Ge ft Canreton nt requesting Sate Party 6however subjce mer ete of comply with the order ised bythe ud” The above se ove le elected in evn 7 of te MLA anda 6 401,20) provide as ows _ (1) The Contra Ahoy ay make 9 request suthoriy fa foreign State, or 0 a In assistance in ay procedings commenced Ia aftence (2) Acequest under subsection (1) may equte the the international criminal tribunal, to provide sua the request and, in particular to (}) have evidence taken by means of technology (ofthe person in Mauritius: Section 4(1) of the MLA speaks of ‘any proceedings MLA as follows: (@) includes -0 smyiat (a9 pretininaryo fia del denied that the present til would quail 28 renalty she maximum Ps for which the ae jod of (2) means— (0 an offence against 2 law of Maurits e mprisonment or other deprivation of Uber fr & PS not imum penalty 15 (an an cltece spans «lar of 3 foeigs Ste Se WHI ino Penal S rivation of ber For 2 pried of 0% Ise than’ Imprisonment o other der (b) includes an international criminal tribunal offence, 7(2) ofthe Prevention of Corruption er section present case ‘The penalty provided by law for an offence tn so that the offences in the ‘Act Is penal servitude fora term not exceeding 10 years, qualify as ‘serious offence’ as defined in the MLA. -the term ‘means of technology that permits the virtual presence ofthe person’ section 4{2)(8) ofthe MLA would include video or television link. “The issue is therefore whether the Court can allow viva voce evidence from witnesses nos. 3 and. 44 under section 4(2)(b) of the MLA. The MLA has been enacted to provide for mutwal legalenacted Fc folowing Mri ung tn NETO 1 provisions it Be contains and one of them ee permits the virtual presence of the PEts0R ii sence of the person in Mauritius” can only Be © We by video link admissible by the MLA “The most important feature of the English 1aW OF ‘sufficiently relevant to prove or disprove a fac in 18805 and clther by reason of an exclusionary rule of evdsfes Si admissible.” ~The Modern Law of Evidence, A Keane p.19. There are no exclusionary rules: applicable here and Tt discretion to exclude same. Thave perused the judgments of the “Attorney General (The Honourable) ¥ Europea appellant had applied ex parte to the authorising and directing the Master and 1s and persons. one of the grounds of od the Letters of of Request Rt ‘companié find that the MLA supersedes could not be under the Letters said:ere intention of Frorstans of the net eo not sme supreme Court fries sai ening ito 8 tne Aet provides, since Its Sob of lego! requirements wich a cae vination of witnesses flowin © =a coma oo ‘Although the present case does ‘not concern & request f = oe eee circumvented by saying that in the present case as it dOeS LA, which provides for the resorted 10 in Mauri Corruption Act. Since the MI -sehe vietual presence of a witness cit cannot be ignored: itis, exist that permits Mauritius ratifying the UNCTO maxim gener sne) would be of some releva {1300 as follows? Lam of the view that the 4th ed, vol 44(1), Para derogate from a special 0 Halsbury’s Laws of England, enactment is particular, and the later albus non derogant (general SNES do ly a repeal where the earlier ‘as considered all the speci “itis difficult to imp! if Parliament general In such a case the maxim general 5 gate from special things) applies isi the presumption is provision for, J not have been intended Jy general character woul ‘enactment, although inconsistent ication without extending to the rot so extending, The special not der umstances of, and made spec fa purel 1d therefore, if such an ‘ble and sensible appli be construed as circ that a subsequent enactment of to interfere with that provision; an in substance, is capable of reason case in question, it is prima facie to 10see Peer International Corporation & Ors ¥ Te EWCA 1156. : Further, in Purcell v Electricity Reseck v FC (1975) 133 CLR 45 it was said “should only be called in aid ‘where ther reconciled as a matter of ordinary in ‘The MLA and section 161B might inasmuch as they are different Jaws: inconsistency or contrariety, ‘the MLA) purpose of promoting mutual legal sist by means of technology.