“A conspiracy requires an agreement between two or more people to commit an offence

Qs & As

Soopramanien Kistnen & Judicial Inquiry Report

How will the Attorney General prove that two or more persons conspired to leak the report?”

By LEX

The public airing last Friday of a report purporting to be that of the judicial inquiry into the suspicious death of MSM activist Soopramanien Kistnen has generated a threatening communique from the Attorney General about such a “leakage” to which the DPP has given a stern rejoinder about his constitutional prerogatives. While government ministers are questioning that aspect, the detailed findings included in the document risk being side-stepped, namely the “abhorrent” conduct of the criminal investigations by the police and the latter’s ignorance of either the Magistrate’s or the DPP’s urgings to complete various aspects of their investigations into the murder and its possible political motivations. Lex shares his legal views on the questions and the absence of any recourse should the police ignore those urgings.

* Attorney General Maneesh Gobin, the “principal legal adviser to the Government of Mauritius”, condemned during a press conference, last Saturday (15th Oct), the leakage of the report of the judicial inquiry presided by the Magistrate Vidya Mungroo-Jugurnauth into the death in suspicious circumstances of former MSM activist Soopramanien Kistnen – a first in our history, he said. This would suggest that the report referred to by the media and excerpts of which have been published is indeed the real one – not any fake report as hinted by one of his colleague ministers?

If it was fake, the Attorney General would have said so. The report contains so many scientific details and observations by Magistrate Vidya Mungroo-Jugurnauth that it cannot be fake. If it had been fake, the Attorney General would not have reacted violently in the media and through his communique as he has done.

* Minister Gobin himself hinted that the leakage could have been orchestrated at the level of either the District Court or the Office of the Director of Public Prosecutions (ODPP). That’s totally unacceptable, he said, given that the report of a judicial inquiry is not a public document. If the AG is right about the confidentiality of the magistrate’s report, does it make of the leakage an offence?

The Attorney General should bring proof that the leakage was indeed orchestrated either by the Office of the DPP or by the District Court. It is not sufficient to make wild statements that smack of demagoguery. The leakage of a confidential document without any justification or authorisation would be an offence. But an accused party could invoke the public interest motive provided for in the Constitution as a defence.

* AG Gobin issued a communique on Sunday 16 Oct to say that in view of the “seriousness” of the leakage of the “purported report” the Commissioner of Police will be advised to initiate an enquiry as to… “whether a potential offence of conspiracy to do an unlawful act wrongful to another person is warranted”. He will also have consultations with the Chief Justice about this matter to ascertain through the Judicial and Legal Service Commission whether “officers within its purview have maintained the highest ethical and professional conduct or not”. How do you react to that?

A conspiracy requires an agreement between two or more people to commit an offence. How will the Attorney General prove that two or more persons conspired to leak the report? This is nonsensical. He wants to drag the judiciary into the political arena by having consultations with the Chief Justice. The latter will surely react as her office demands. He wants to show that he can control or threaten the DPP. The latter has reacted very firmly, something that the attorney General might not have anticipated. What will the AG do now in the light of the scathing reaction of DPP Satyajit Boolell?

* What does Magistrate Vidya Mungroo-Jugurnauth’s report itself inform us about the state of governance in the country?

It seems that the rot is everywhere – not only at the level of the government. The report has opened a pandora’s box by exposing how the Police Medical Unit and the Forensic Science Laboratory would have misled the court on the cause of death of Kistnen.

As for the police, it is best to quote what the Magistrate says: “I consider the conduct of the police in this case to be abhorrent. The manner in which the inquiry was conducted fell so below what may be considered reasonable that it marks new level of incompetence. I consider it my duty to remark on same so that no other case is dealt with in the same manner as the present case in future.”

* The District Magistrate has pointed the finger of suspicion at a number of individuals who were involved directly or otherwise in the different alleged fraudulous activities and dealings leading to the murder of S.Kistnen. At this stage, however, in the eyes of the law every man is presumed innocent until proven guilty, isn’t it?

In the eyes of the law any individual is indeed presumed innocent until proven guilty. This however does not apply to those who are not in the good books of the present regime.

Presumption of innocence does not mean that an investigation cannot be started if an offence is alleged to have been committed. But the investigation must be carried out in a fair, objective, independent manner.

If an investigator starts an investigation on the premise that he should protect somebody close to the government or a friend, what would be the result of the inquiry?

* According to press reports published early this year, following the submission of the magistrate’s report, the DPP had instructed the police to probe further into this murder case. It would seem that the police investigations are still ongoing. Given that the police is not answerable to the DPP, what else can or should the DPP do to bring this case to a closure?

Once the DPP obtains the report, he may request the police to investigate any possible offences that the inquiring magistrate would have mentioned. As a rule, the police should follow the directives of the DPP. What happens if they do not? There is nothing the DPP can do about it.

In an article written by a former DPP in the seventies, the late Cyrille d’Arifat explained that that the DPP cannot be held responsible for the mistakes of investigations. What he can do is to ask for clarifications after the conclusions of an inquiry have been submitted to him. But there may be irreparable mistakes, and the DPP cannot remedy any injustice that would have been done to a victim by an uninformed, negligent or dishonest investigator. Read More… Become a Subscriber

Mauritius Times ePaper Friday 21 October 2022