Crime, this is a term which any layman is accustomed with.

However from a criminal

law perspective, crime is given a specific definition. Crime is an “act” which is in
violation of the law prohibiting it. Section 4 of the Criminal Code defines crime as
follows:-

“Crimes are offences punishable by –

(a) penal servitude;

(b) a fine exceeding 5,000 rupees.”

Crimes can be distinguished from misdemeanors and contraventions as per the

sentencing each offence carries.

Sections 5 and 6 of the Criminal Code are as follows:

“5. Misdemeanours

(1) Misdemeanours are offences punishable by –

(a) imprisonment for a term exceeding 10 days;

(b) a fine exceeding 5,000 rupees.

(2) Where the punishment of imprisonment is imposed, the Court may inflict that

punishment with or without hard labour.

[Amended 29/90; 5/99]

6. Contraventions

Contraventions are offences punishable by –

(a) imprisonment for a term not exceeding 10 days;

(b) a fine not exceeding 5,000 rupees.”

It is important to note that in the case of a criminal law, it is the government who
prosecute the individual who acted in contrary to the law. Criminal law is the study
whether a behavior or an act is prohibited by law. Thus in addition to the concise
measure of crime as shown above, for an offence to constitute a crime, there are
also other elements to take into consideration in order to fully understand what
crime is in essence. For an act to constitute a crime, it must have some 3
fundamental elements, namely:-

1. The legality principle

2. The material element
3. The mental element

Elements constituting the offence

1. The legality principle
The legality principle also known as "nullum crimen sine lege, nulla poena
sine lege" in Latin means that “no crime nor punishment without law." This
concept means that a person is punishable for an offence only if there has
been a prior act of parliament for prohibition of this conduct with adequate
precision and clarity. Therefore for a person to be condemned for
committing a criminal offence there must have been a law which is
enforceable and it can be invoked by the parties in a court of law to give
sentence and convict the accused.

Exceptions to the rule were debated in the cases of Ahnee vs DPP 1999 MR
208. In this case, there was the issue of a newspaper ‘Le Mauricien’ of
Monday 5th July 1993 scandalizing the court. The applicant, Ahnee raised the
question that to punish someone for the contempt of court there should be
a law. In Mauritius there is no specific Act of parliament that someone should
be punished for contempt of court. However section 18 (c ) provides for a
penalty but does not define the offence.

In the case of Ahnee ,Mr Ahnee the plaintiff was being prosecuted for
contempt of court. In his defense, he claimed whether the supreme court
was competent enough to try this kind of defense. He argued that there
should be a specific Act of Parliament to try this offence, which is clled the
 legality principle. The case of Ahnee confirms that there is no need to have
an Act of Parliament. The Privy Council held that there is no need of an Act
of Parliament to convict the offender.

Another case tried on the same legal basis of Dhoorika vs DPP 2014 of
section 18 ( c) of the Criminal Code and the court confirmed what has been
held in the case of Ahnee that there is no need to have an Act of Parliament
to convict an offender. However the case of Dhoorika differed from that of
Ahnee, because his appeal was granted on the legal basis of unfair trial.
Otherwise there is no need for an Act Of Parliament to convict someone as
per the legality principle as the provision sction 18 ( c) stipulates as the
provision states only ingredients of the offence but does not define it. In our
jurisdiction this principle has been confirmed by the highest court of appeal.

This principle is important because the system wants to avoid arbitrary

punishment.

However it is important to note that this principle does not apply to situations
where there is “etat d`urgence”. This was illustrated in the case of Thomas vs
The Queen 1968 MR 1 where the 2 appellants where the two parties were
charged with unlawful possession of offensive weapons in breach of
Regulation 7 of the Emergency powers. The appellants contested whether the
Regulation proclaimed by the Governor then was enforceable or not. The
publication of the offence in the Gazette was done at 11.25 am and the offence
was committed on the same day before 11.25 am before the regulation was
gazette.

Can a new regulation have retrospective effect? Usually no, but in the case of
Thomas vs The Queen was exceptional circumstance because there was a state
of emergency. The new regulation therefore applied to past offences. It was
therefore held that the 2 parties be sentenced to imprisonment but there was
deduction from their sentence accordingly reduced to 9 weeks imprisonment
with hard labor.

In the case of Chinkan Ali v R 1988 SCJ 189 the appellant challenged his
conviction before Judge Ahnee on a charge of importing heroin contrary to
various provisions of the Dangerous Drugs Act. It is observed that at the stage
of the judgment, the Judge did not consider whether the offence under
Section 18 (1) ( c) with which we are concerned, namely importing heroin
existed when the appellant was apprehended. The judge referred to the
provision of our Interpretations and General Clauses Act which embody the
well known rule regarding fractions of a day which are unknown to the law
with the result that all enactments, whether they are Acts or statutory
instruments, shall come into operation at midnight on the date which they
bear. And the stated that “the Act must be therefore construed as having come
into force after midnight on the 12th September 1986”. The appellant was
sentenced to 20 years penal servitude and the appeal was dismissed.
2. The material element
The material element consists of the “guilty act” or “guilty conduct” by which
the accused has caused some kind of harm. This element is often referred to
the Latin word “Actus Reus”. Therefore this element of the offence is the
means by which the accused commits the offence. For instance in the case
where it is caused by physical harm, the guilty offence may be satisfied by
the affirmative act or commission by the defendant.

Commission in criminal law means the act prohibited by law. Example

murder is a commission as it is speculated in section 215 of the Criminal
Code. In this same way making use of forged private writing is a commission
as it is speculated in section 112 of the Criminal Code.

In the same light, omission under criminal law means “ une obligation de
faire” It is a civil principal which has been inserted in the criminal law. In
other words, it means that the law imposes on the individual a duty to act.
For instance if someone is drowning, the witness has an obligation to bring
assistance to the person in danger as stipulated in section 39 A (1) of the
criminal code as follows :

“Any person who is able to take prompt action, without risk to himself or to
a third party, so as to prevent the commission of a crime, or a misdemeanor
which is an offence against persons, and who willfully fails to do so, shall be
punished by a fine not exceeding 10,000 rupees and by imprisonment for a
term not exceeding 2 years.”

3. Moral Element
In the moral element the focus is on the use of error. Did the offender had
the intention of causing the crime? If the answer is no therefore there has
been a “faute” on the part of the offender. The offender did not had the
intention to cause the crime but it is purely done due to his “faute”.
In criminal law, the crime may have been done unintentionally however it is
still construed as a crime for instance in the case of involuntary homicide and
wounds and blows as stated in section 239 of the Criminal Code.
Exceptions to the rule
So in criminal law for an act to be defined as a crime, it is imperative that it
has been defined as a prohibited act within the sections of the law, it has
been properly mentioned and has the three elements constituting of a crime
as shown above in order not to reduce its gravity.

However this is not entirely true. Even if an act has not been specifically
defined and mentioned in the statute and sections of the law can still be
regarded as a crime and have the same gravity to the crime, as in the case of
an attempt to commit a crime. Section 2 of the General Interpretations of
Courts Act (IGCA) defines attempt as follows:-

An attempt to commit a crime happens when the end result sought out by
the accused has not taken place due to circumstances of the latter. In the
case of attempt to commit a crime it has not been explicitly defined and
mentioned in the law, nevertheless it can be argued that this does not reduce
the gravity of the crime at all.

Section 45 of the General Interpretations of Courts Act (IGCA) refers to the

punishment, penalty that has to be inflicted on the offender who has been
found guilty of an attempt to commit an offence. Section 45 of the IGCA
stipulates as follows” Any person who attempts to commit an offence shall
commit an offence and shall on conviction be liable to a penalty”.

In our law several attempts of crime constitute essentially the full offence
itself. For example for such crimes there is no attempt but it is regarded as
the crime itself are section 230 of the Criminal Code which mentions about
simple assault, section 301 of the Criminal Code which is about larceny or
section 330 of the Criminal Code which mentions about swindling.
In the case of Goburdhun 1990 MR 75 It was held that an attempt to do an
abortion was a crime, even if the end result was not obtained. The appellant
Vernonique Volfrin pleaded not guilty but it was later discovered after she
did attempted to do a miscarriage at one point though the child was born
and did shortly after. The appeal was dismissed with costs.

In light of the above, giving a concise and clear definition to an act of crime
and mentioned it with due precision is a way of ensuring its gravity is not
minimized. The citizens of the country are more aware of the Acts prohibited
by the way and in case of a crime and misdemeanor is done, the law will
punish the accused if he is convinced. The punishment and sentence inflicted
by law show that the gravity of the act remains intact.