In the recent weeks, two judgments have been delivered in relation to the offence of insult. The first judgment is a dismissed appeal by the Supreme Court of Mauritius for a conviction dating back to 2017. The accused, Gopalsamy, was charged after having insulted a woman, who was complaining to the accused’s mother about an altercation that happened between her husband and the accused. The second judgment was delivered by the District Court of Flacq where the accused was found guilty. The complainant alleged that he was in a shop when the accused, on a motorcycle on the other side of the road, stopped and insulted him.
Unbeknown to many Mauritians, ‘Insult’ is an offence under our Criminal Code. It is important to understand the definition of ‘insult’ within the offence as insults can be considered as part of our everyday conversations, sometimes used in a joking manner and other times used with the intention to hurt or humiliate a person. So what type of statement may cause a person to be guilty of the offence?
For starters, the definition of an insult is as follows:
“Any injurious expression or any term of contempt or invective, or other abusive language, not carrying with it the imputation of a fact, is an insult (‘injure’).”
There is a presumption that injurious words are meant as insults and it is for the accused to rebut that presumption by proving that he had no malicious intent (Carpen v The State; Morel v Couve). Therefore, upon uttering injurious statements, it is assumed that a person had the malicious intent to insult another unless he can demonstrate that he intended otherwise.
Close attention should also be given to the words “not carrying an imputation of fact” as found in the Criminal Code. If the injurious statements carry such an imputation, then it cannot amount to an offence of insult but may, depending on whether the imputation is true or not, constitute an offence of defamation.
The implication of the above is that certain injurious statements are not insults due to their nature of being specific or precise (Bundhoo v the State). For instance, if someone is called ‘an incompetent’, the statement contains an imputation of fact (i.e. the incompetency of the person) and therefore, will not be considered as an insult (but may still give cause for a civil suit in defamation).
One should keep in mind that this area of law is often conflicting and complex. There is a thin line differentiating the offence of insult and defamation. To determine whether the offence of insult had been committed, it is only a matter of evidence and interpretation. In other words, the context matters when it comes to the interpretation and meaning of statements. For instance, depending on the context, words uttered may amount to an ‘insult’ in a particular situation but not in another. Therefore, it is not possible to provide specific and clear definitions and guidelines in relation to this offence.
Perhaps, the understanding given in the case of Coonjan v the Queen is the best approach to determine whether one is committing the offence:
“An ordinary sensible man knows an insult when he sees or hears it.”
