JEETAH A K v THE STATE

2014 SCJ 337

Record No. 7858
IN THE SUPREME COURT OF MAURITIUS
In the matter of:
Ashok

Kumar

Jeetah

Appellant
v
The State

Respondent

.
JUDGMENT
This is an appeal against a judgment of the Intermediate Court whereby the appellant
was, upon a plea of not guilty, convicted for the offence of causing a child to be sexually abused
and sentenced to undergo three years penal servitude, under sections 14(1)(a), 2(a) and 18(5)
(b) and (5A) of the Child Protection Act.

Several grounds of appeal were raised in two notices of appeal dated 11 and 30
November 2009 respectively. But at the initial hearing of the appeal, Mr. M. Gobin who then
appeared as Counsel for the appellant indicated, in line with the skeleton arguments filed on
behalf of the appellant, that he would, in relation to the conviction, only press one issue, namely
the receivability of the evidence of witness No. 2, as raised in ground 1 and additional ground 1
of the first notice of appeal which read as follows:
(Ground 1)

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Because the evidence of witness No. 6 () was received in breach of the
law of evidence applicable to competence of child witness.
(Additional ground 1)
Because the learned Magistrate erred in allowing witness No. 6 to give
evidence under solemn affirmation without following the proper procedure
regarding competence of child witness.

He further indicated to us that he would also press the alternative ground to the effect
that the sentence imposed was wrong in principle and manifestly harsh and excessive.

Witness No. 6 was the alleged victim in the case and she was, as per her Act of Birth
produced at the trial as Document A, born on 13 September 1995. She was accordingly ten
years old at the time of the alleged offence and 13 years old at the time when her evidence was
received on solemn affirmation at the trial without any examination being held to test her
competence to depone under solemn affirmation.

The hearing of the present appeal started before two of the Judges on the present bench
and was thereafter argued anew before the present bench of three Judges inasmuch as the
correctness of the dictum in Basenoo v The Queen [1983 MR 89], to the effect that a person
over the age of 9 is always competent to depone as a witness on oath, was being challenged by
the appellant.

Mr. A. Dayal appeared before the present bench, in lieu of Mr. M. Gobin, for the
appellant.

The arguments contained in the skeleton arguments of the appellant and the

submission offered before the Bench which started hearing this appeal, were renewed before
the present Bench in written submissions where additional arguments were also included.

On behalf of the respondent, Mrs. Biefun, State Counsel initially appeared for the
respondent and Mr. D. Moothoo, Assistant Director of Public Prosecutions, took over when the
case was heard before the present bench.

The submissions offered on behalf of the appellant (as modified by Counsel for the latter
following remarks from this Court at the hearing of 20 February 2014) are to the effect that
(1) the dictum in Basenoo v The Queen (supra) to the effect that a person who is over
the age of 9 is always competent to depone as a witness on oath or solemn
affirmation is incorrect;
(2) having regard to the definition of child in various Mauritian enactments, a
competency test should always be held when a witness is under the age of 18.
Accordingly, as witness No. 6 was 13 years old at the time of giving testimony, she
ought to have been subjected to the competency test before her evidence was
received. As this was not done, the conviction of the appellant should be quashed.

On the other hand, the submissions offered on behalf of the respondent, as modified by
Counsel for the latter following the remarks of this Court at the hearing of 20 February 2014, are
to the effect that
(1) it is conceded that the impugned dictum in Basenoo was based on an incorrect
reading of section 109 of the Criminal Procedure Act ;
(2) however, on a correct approach the age below which a child witness should be
subjected to a competency test before deponing on oath or solemn affirmation is still
found to be 10, such that the 13 year old witness in the present case could depone
under solemn affirmation, as she did, without being examined as to her competency
to so depone.

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The questions we have to decide in relation to the grounds against conviction in the
present appeal, are, in the circumstances, the following
(1) Is the impugned dictum in Basenoo (supra) indeed incorrect?
(2) What is the age below which, under our law, a competency test must be held
before a child witness is allowed to depone on oath or solemn affirmation?
(3) Having regard to our answer to the preceding question, was the evidence of
witness No. 6 receivable and, if not, what is the consequence?
(4) If it is found that the conviction cannot stand in the light of our answers to
questions 2 and 3 above, should we, in the exercise of our discretion, order a
fresh trial?
We shall now fully consider the above questions.
(1) Is the impugned dictum in Basenoo (supra) incorrect?
In Basenoo (supra), the Court, after considering sections 106, 109 and 110 of the
Criminal Procedure Act, and passages from Phipson, Twelfth Edition para 1498 and 1500 which
are reproduced in the judgment, formulated three rules, the first of which reads as follows: A
person who is over the age of 9 is always competent to depone as a witness on oath or solemn
affirmation.
Section 106 of the Criminal Procedure Act provides that any witness in a criminal case
must be sworn or solemnly affirmed. Section 109 of that Act then creates an exception to that
rule in the case of children of tender years who are under the age of 9. That section reads as
follows:
In every trial of an offence charged as having been committed, or attempted to be
committed, upon a child of tender years, the child, if under the age of 9, shall be

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admissible as a witness, where the Judge or Magistrate by or before whom the
case is tried, is satisfied that he has sufficient intelligence to make a correct
statement on the subject of the trial, although he may not understand the nature of
an oath or solemn affirmation.

Section 110 then goes on to provide as follows:

A child who is heard as a witness under section 109, shall
(a) not be examined on oath or solemn affirmation;
(b) before giving evidence, make, in presence of the Judge or
Magistrate, a promise to speak the truth in the terms of
the First Schedule.
The first passage from Phipson (supra) quoted by the Court in Basenoo states the rule
that all witnesses who are capable of understanding the nature of an oath and giving rational
testimony are competent and that a witness may therefore be incompetent from defective
intellect, or from infancy.

The second passage then states that the competency of infants

depends not on their age but on their ability to understand an oath and the consequences of
falsehood and that children of even five years have been allowed to testify upon satisfying these
requirements in the course of an examination in open court.

It is clear to us upon a scrutiny of the above materials, that the learned Judges in
Basenoo were wrong to derive therefrom the rule stated above.

The provision, in section 109, to the effect that a child victim of tender years shall if
under the age of nine be admissible as a witness upon satisfying the stated condition, makes it
clear, in our view that a child of tender years includes child victims above the age of nine who
will not however qualify as section 109 witnesses and will have to depone as section 106

6
witnesses upon taking an oath or solemn affirmation. It is also clear that all child witnesses who
are not victims will also have to depone as section 106 witnesses. But this does not mean that
they will just take the oath or solemn affirmation as a matter of course. Their competence to
depone will have to be assessed.

This is in fact recognized in a further passage of the

judgment in Basenoo which reads as follows:

The sole criterion, in the case of a child deponing on oath or on a promise to speak
the truth .. is the understanding of the nature of an oath in the former case and the
possession of enough intelligence to make a correct statement on the subject matter
of the trial in the latter case. It is for the trial Magistrate or Judge to examine the
witness as to his competency in either case and the record of the proceedings must
show that he has carried out the investigation (vide Jugarsingh v R [1952 MR 13].
The test is one which has to be made by the Court in either case and such test
cannot be substituted by a statement from the child that she knows the meaning of
an oath or knows that she must tell the truth.

The first rule in Basenoo the impugned dictum was therefore wrongly formulated
and should be reformulated to convey that any child who does not fall within the ambit of section
109 of the Criminal Procedure Act can only be a competent witness giving evidence under oath
or solemn affirmation under section 106, if such competency is established following the holding
of the appropriate test.

Incidentally, we wish to point out that, in our view, there is nothing in section 109 which
prevents the Court from receiving the sworn evidence of a child victim under 9 if the Court is
satisfied, after carried out the relevant test, that the child is competent to give evidence under
oath or solemn affirmation. In other words, a child victim under 9 may be allowed to give
evidence, after undergoing the appropriate examination, as a normal section 106 witness or, as
a section 109 witness satisfying the less stringent test made applicable by that section to child
victims under that age. Accordingly, the statement made obiter in Mossai v The State [2006

7
MR 115] that when the witness is under the age of 9 () the law provides that the child shall
not be examined on oath or solemn affirmation but that before giving evidence, he or she shall
make in presence of the Judge or Magistrate, a promise to speak the truth appears to us to be
incorrect.

(2)

The age below which a competency test must be held

(a)

The silence of our law

Counsel for the appellant has referred to the definitions of child as provided in various
Mauritian enactments where a child is defined as a person under the age of 18. We however
agree with Counsel for the respondent that those definitions are specific to the enactments
concerned and cannot be adopted in deciding the age below which a competency test must be
held.

On the other hand, Counsel for the respondent submitted that our law may be said not to
be totally silent on the point inasmuch as the age of 10 has been mentioned in Soomoodra v
P.S. Ministry of Gender, Equality Child Development and Family Welfare [2012 SCJ 375] as an
age when a child has attained a certain maturity. But, as we pointed out to Counsel for the
respondent, that case a civil case was concerned with the maturity of a child to give his
views in relation to an issue of custody and in any event the judgment in that case made it clear
that the maturity of such a child has to be assessed by means of an interview. That case can
therefore be of no assistance in determining the question which has arisen. Also, Counsel had
to concede that if we were to adopt the age of ten, mentioned in that case in relation to maturity,
as the age below which a competency test should be held, that would run counter to the
decision of this Court in Ruttun v The State [1999 SCJ 368] where it was held that the
evidence of a 10 year old child (the alleged victim) could not be received without holding the
competency test.

It is clear to us that, in fact, our law is silent on the precise cut-off age below which a
competency test must be held and that, in the circumstances, we have to turn to English law in
accordance with section 162 of the Courts Act which provides that, except where it is otherwise
provided by special laws in Mauritius, the English law of Evidence for the time being shall
prevail and be applied in all Courts in Mauritius.

We pause here to consider the meaning of the expression for the time being in that
enactment. In Jhundoo v Jhurree [1981 MR 111] the Court held that, since the time when
Mauritius attained independence on 12 March 1968, the Mauritian Parliament cannot delegate
its legislative function to a foreign legislator, having regard to the sovereignty of the Mauritian
State under the Constitution. Proceeding on the assumption that the words for the time being
in section 162 of the Courts Act meant at the time of reading, the Court held that a limitation was
set on the applicability of English legislation to Mauritius by our concept of sovereignty
embodied in our Constitution such that rules enacted in England after 1968 would not apply in
Mauritius. In Seetaram v R [1988 MR 251] the Court disagreed with Jhundoo v Jhuree
(supra), being of the view that the words for the time being in section 162 of the Courts Act
meant at the time of coming into operation of the Courts Ordinance, now Courts Act. We are
however of the view that the correct interpretation was that adopted in Jhundoo v Jhuree since
the words for the time being are invariably used, in our legislation, as meaning at the time of
reading. Notably, section 80(3) of our Constitution provides that the Judges of the Court of
Appeal shall be the Judges for the time being of the Supreme Court.

(b)

The applicable law

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In the silence of our law in relation to the question under consideration, we therefore
have to turn to English law whilst making abstraction of any legislation passed in England
subsequent to our independence and any case law based thereon. In R v Hayes [1977] 2 All
ER 288, the Court of Appeal, comprising of two judges, touched upon the

question in a

judgment on an application for leave to appeal, when it said, in relation to one of the issues in
the case:

Counsel for the applicant very frankly concedes that the watershed dividing
children who are normally considered old enough to take the oath and children
normally considered too young to take the oath probably falls between the ages
of eight and ten. (emphasis added)

However, this dictum does not, in our view carry much authority. First, it is couched in
very uncertain terms, having regard to the words concedes and probably. Second, it is
clearly obiter since the issue, in the application for leave to appeal which was under
consideration before the Court of Appeal, was whether the learned Judge had rightly exercised
his discretion following an examination of two boys aged 11 and 12 respectively, to allow them
to give sworn evidence. The Bench of three Judges of the Court of Appeal in R v Lal Khan
[1981 73 Cr. App. R 190], referring to the judgment in Hayes (supra) said: If it is authority for
anything, it is authority for two propositions. One is that the Court upheld the necessity for
investigation in the case of a child of 12 and secondly, that it does not necessarily follow that
ignorance of the Deity or the existence of the Deity is necessarily fatal to the ability of that child
to understand the nature of an oath.

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On the other hand, we find more authority in the pronouncement, in relation to the
question under consideration, in R v Lal Khan (supra). In that case the appellant was charged
with living wholly or in part on the earnings of prostitution of a girl, aged 11. At his trial the girl
was called to give evidence for the prosecution. Without previous inquiry by the trial judge, the
girl, then aged 12, was sworn and gave evidence. It was held that the judge should, in his
discretion, have questioned her as to her understanding of the nature and solemnity of an oath
in the presence and hearing of the jury. In arriving at this conclusion, the Court of Appeal had to
consider the meaning of the expression child of tender years in section 38(1) of the Children
and Young Persons Act 1933 which contains similar provisions to section 109 of our Criminal
Procedure Act but applies to all child witnesses and is not restricted to child victims under the
age of 9. The following passage shows the reasoning and conclusion of the Court of Appeal:
Some argument has been developed as to the meaning of the words <tender
years>. The Court is informed, and has no reason to disagree, that there is no direct
authority upon that question. This is understandable because it seems to this Court
that what is meant by <tender years> may very well differ according to the type of
child who is about to give evidence but, as a general working rule, it is the
experience of all three members of this Court that for a proffered witness who is
under the age of 14 the precaution which has been well established becomes
necessary.

We conclude that under the English law applicable to Mauritius pursuant to section 162
of the Courts Act, the cut-off age below which a child witness whether or not the alleged
victim in the case must, as a general working rule, be subjected to the competency test before
being allowed to take the oath or solemn affirmation under section 106 of the Criminal
Procedure Act is the age of 14. We wish to add that, from a socio-legal stand-point, we find no
reason for a different cut-off age to be considered as more appropriate in the Mauritian context.

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From our collective experience, the age of 14 adopted in R v Khan (supra) as the cut-off age
would also be appropriate in the Mauritian context.

(3)

The fate of the conviction

In the light of our conclusion that a competency test must be held in relation to a child
witness under the age of 14, we must hold that the evidence under solemn affirmation of the 13
year old victim witness No. 6 which was received without holding a competency test was null
and void and that the conviction cannot stand inasmuch as there was no other evidence
establishing the accuseds guilt.
(4) Should a fresh trial be ordered?
This Court has the power under section 96(5) of the District and Intermediate Courts
(Criminal Jurisdiction) Act, to declare the trial to be a nullity as a result of the serious irregularity
which has occurred, and to order a fresh trial

The next question which therefore arises is whether, in the exercise of our discretion, we
should simply quash the conviction and sentence or whether we should exercise our power to
order a fresh trial.

In R v Lal Khan (supra) the Appellate Court in England came to the following
conclusion:
With the utmost reluctance, this Court feels bound to say, applying the
long established law, where you have a young girl aged 12 about to be
called to give evidence it is for the judge to exercise his discretion, after
questioning the girl in the hearing of the jury as to her understanding of
the oath. Unfortunately that was not done in this case and it seems,

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therefore to this Court there is only one answer.

It means that the

conviction must be quashed.

The Court accordingly allowed the appeal and quashed the conviction and did not
consider whether a fresh trial should be ordered.

On the other hand, in Mossai v The State (supra) the Appellate Court in Mauritius, after
holding that a nine year old child victim should not have been allowed to testify upon making a
mere promise to speak the truth a treatment reserved to child victims under 9 under section
109 of the Criminal Procedure Act held that the trial was a nullity and remitted the case for a
fresh hearing by a differently constituted bench of the Intermediate Court on the following
reasoning:
This witness evidence was not of a negligible nature in proof of the case which
the appellant had to meet but, through a lapse which, in our view, was merely
procedural in nature and technical in character, what she came to complain
about amounted to no evidence at all under our procedural law. We are of the
view that it would not serve the ends of justice either to the appellant or the
complainant that, through a lapse of the prosecution and the trial court, both
should be denied a proper hearing as per our law, all the more so when it is an
irregularity that is not in the competence of the appellate court to amend. We
are, accordingly, of the view that the case should be remitted to the Intermediate
Court for a re-hearing.

Whilst we are not aware of the actual reason why in R v Lal Khan (supra) the Court did
not consider ordering a fresh trial, we are not in total agreement with the reasoning offered in
Mossai v The State (supra) to order a fresh trial. We agree that the potential evidence which
the witness could have given upon passing the competency test was a relevant consideration.
We also agree that the Court has to address its mind to what would serve the ends of justice.

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We are otherwise not prepared to endorse the tenor of the reasoning in the above passage, in
particular the reference to the serious irregularity which had occurred as a lapse which .. was
merely procedural in nature and technical in character and which denied what the witness
complained about of the status of evidence.

In our view, we have, in the exercise of our discretion to order or not a fresh trial, to take
into account the interests of justice, bearing in mind the legitimate expectations of the accused,
the alleged victim and society.

After anxious consideration, we have come to the conclusion that

(1) we should order a fresh trial in view of the weight in the balance of the legitimate
interests of the victim and of society having regard to the serious nature of the
offence consisting in a teacher causing his female pupil aged 10 to be sexually
abused;
(2) the D.P.Ps attention should however be drawn to his discretion to proceed with the
new trial or stay further proceedings having regard, moreover, to the following
considerations:
(i)

the sword of Damocles has been hanging over the head of the accused
for some eight years and six months already inasmuch as he gave his
statement to the police on 17 March 2006, five days after the date of the
alleged offence;

(ii)

a new trial may well be unwelcome by the alleged victim who might
consider deponing anew now that she is an adult, on events which took
place when she was ten years old as a real ordeal (such that the propriety

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of ascertaining the alleged victims wishes in that connection should be
considered);
(iii)

in a way, a fresh trial could be viewed as frustrating the whole purpose of

this appeal since the alleged victim, who is presently 19 years old (her
date of birth being 13 September 1995) would now depone without having
to be submitted to a competency test.

We accordingly declare the trial to be a nullity and remit the case for a fresh trial before
another Magistrate of the Intermediate Court.

We also invite the D.P.P. to exercise his

discretion in the light of all relevant considerations, in particular those highlighted by us above.

E. Balancy
Senior Puisne Judge

S. Peeroo
Judge

P. Fekna
Judge
13 October 2014
Judgment delivered by Hon. E. Balancy, Senior Puisne Judge
For Appellant :

Mr. Attorney M.I. Dauhoo

Miss B. Dulthamun, together with Mr. A. Dayal and
Mr. S. Callapen, of Counsel

For Respondent:

State Attorney
State Counsel