“To have a criminal case determined after 12 years is rather outrageous”

By LEX

* ‘A public officer is protected as long as his acts are related to his duties. But if it is established that he used violence on a suspect, then he will not benefit from the protection of the POPA’

 

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Many people who come into conflict with the Law are heard to say that they have faith in the Justice System of the country. But at times the wheels of Justice turn so slowly that some can be driven to lose patience if not hope. How slow is too slow? If, at the end of an unusually long wait that may include severe deprivations of one’s basic rights, an accused does obtain justice to his satisfaction, can he be properly compensated for the injustices he may have suffered in the meantime? Not everybody has the grit and determination and the resources to fight injustice over long periods of time. Is it then only a case of justice for the strong?

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* A 12-year struggle led by Jean Marie Richard, PR professional and radio commentator, has finally resulted in the verdict of imprisonment, pronounced in November 2017 by the Intermediate Court, quashed by the Supreme Court. Justices Nirmala Devat and Denis Mootoo found that “the quality of the evidence in the present case is poor and incongruous and justified granting the benefit of doubt to the appellant (JM Richard). What does your reading of the Supreme Court judgement tell you about law enforcement and the judicial processes in the country?

The judicial process functions reasonably well. It is not because a decision of a lower court has been quashed that we should conclude that the judicial process is crumbling. Every day in countries with a free and independent judiciary, judgments of lower courts are quashed because of errors of law and wrong appreciation of facts. The two judges in the Richard case found, after a full analysis of the facts, the evidence poor and incongruous and quashed the conviction. There must be valid reasons behind that sweeping conclusion.

* Gathering and preserving evidence is said to be critical for any legal issue. Evidence and determination of facts are what will eventually lead to a conviction or acquittal of the defendant. how are we doing on both counts?

Evidence is recorded in a court file and kept securely. The judge or magistrate will analyse the evidence by judging the demeanour of the witnesses and rely on documentary evidence, if any. The appreciation of evidence depends on a number of factors. For instance, one of the expressions used when addressing a jury is that they are persons of the world and they accordingly should use their intelligence and life experiences to evaluate evidence. There is no magic formula for this exercise.

* The system however is working although it has taken 12 long years to obtain justice. Mr Richard himself acknowledges this fact when he states that “in this specific case, our judicial system has certainly taken its time, but it should also be recognized that it works,” but he does qualify that view by adding that “it is still necessary, however, to have the resources, the will and the humility to face up to injustice”. What’s your reading of that latter comment?

An accused party who has been convicted will invariably feel he has been the victim of an injustice particularly when and if the police have made an abuse of their powers and have used illegal methods to investigate or to extract a confession.

However, to have a criminal case determined after 12 years is, to my mind, rather outrageous. But there have been such precedents. Unfortunately, in cases of delay the Privy Council has ruled that the remedy is not to quash the conviction on account of inordinate delay but to give damages to the convicted person even though he has to pay a fine or spend time in jail.

* The other fact of the matter is that Mr Richard, probably like so many other ‘justiciables’, will have been placed during those long years under police control, with restrictions on travelling abroad, and with the obligation to report to a police station every week. He was also briefly imprisoned for contempt of court “pour avoir osé répliquer aux propos d’une magistrate”. The first questions that come up are: What exactly is contempt of court? And what happens when you are in contempt of court?

Unfortunately, this is the system. The law is such that an accused party should not be allowed to escape justice irrespective of the outcome. This is why in many cases an accused will be kept on remand in jail pending trial if there is a serious risk that he may abscond. In other cases where the accused is released, conditions may be imposed on him. However, an accused who feels that the conditions are too harsh can always petition the court to ease the restrictions.

As for the second part of the question, a contempt of court may be committed in the face of the court by insulting a judge or magistrate or by unruly behaviour. A contempt of court may also be committed in other ways.

* Besides such behaviour as “yelling at a judge, disrupting the court proceedings, or becoming violent in the courtroom”, are there other examples relating to comments made in print or on audiovisual and social media platforms that may constitute contempt of court?

Commenting on pending cases or criticising a judge or magistrate who is hearing a case before judgment is delivered or commenting on a case by suggesting solutions before judgment would amount to contempt. Undermining the trust in the judicial system would be contempt. But criticisms made in good faith without imputing motives would be permissible.

* Mr Richard was initially found guilty by the Intermediate Court of the offences of obstructing public officers in the performance of their duty (in breach of sections 3(i)(a) of the Public Officers Protection Act), and larceny with violence (in breach of sections 301(1) and 305(1)(c) of the Criminal Code). Let’s consider the Public Officers Protection Act: who is a public officer under Mauritian law? Does it include local government and parastatal employees?

Under section 2 of the Public Officers Protection Act, “public officer” means a Government servant and an officer of a Municipal City Council, Municipal Town Council or District Council. The Act creates the offence of molesting a public officer by force or violence or without violence. If no violence is resorted to, the penalty is a fine and where violence is sued the penalty may go up to two years’ imprisonment.

* When you hear the term ‘public servant’, you might also think of an elected official such as a mayor or minister. Is an elected official a public officer?

The Public Officers Protection Act says nothing about ministers. But under the Prevention of Corruption Act, a public official is defined as:

‘a Minister, a member of the National Assembly, a public officer, a local government officer, an employee or member of a local authority, a member of a Commission set up under the Constitution, an employee or member of a statutory corporation, or an employee or director of any Government company’.
It also includes ‘a Judge, an arbitrator, an assessor or a member of a jury’, ‘an official of the International Criminal Court referred to in the International Criminal Court Act 2011’.

This applies in the context of corruption and related offences.

* What is the raison-d’être of the Public Officers Protection Act (POPA)?

To protect public officers so that they are not unduly hampered in the performance of their duties by having cases filed against them.

* If the POPA seeks to protect public officers’ actions in the course of their public duties, does it also cover their inactions or failure to take what would reasonably amount to necessary action in a given situation? Isn’t it also possible that abuses can be made by a public officer in the exercise of his/her duties?

A public officer is protected as long as his acts are related to his duties. If for example a police officer proceeds to what is a lawful arrest and if he reasonably suspects that a person has committed an offence, he is protected. But if it is established that he used violence on a suspect, then he will not benefit from the protection of the POPA… because assaulting suspects do not form part of his duties. This means that if his acts are not within the purview of his duties, he loses the protection.

* Mr Jean Marie Richard has published a book – ‘Cachotteries – Propos d’outre geôle’ – which relates the circumstances of his arrest and imprisonment, and his 12-year struggle to obtain justice. He says that ‘de par son effet cathartique, ce livre marque une chance pour un nouveau départ au croisement de mon existence’. Beyond catharsis, does our system provide for those who have wronged him or any ‘justiciable’ accountable?

The magistrate of the Intermediate Court found the case against Mr Richard proved but the Court of Appeal with Judges Devat and Mootoo found the evidence poor and incongruous and quashed the conviction.

Though as a general rule an appellate court would rarely quash the findings of facts of a trial court, yet the evidence in this case was really poor. One can therefore understand the frustration and anger of Mr Richard who had to wait 12 long years to be cleared.

Why did the case take so long? There may be many reasons, but given the charges it should not have taken that long.

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* Published in print edition on 11 February 2022

Tags:Cachotteries - Propos d’outre geôle, Constitution, Criminal Code, District Council, Government Servant, Intermediate Court, International Criminal Court, International Criminal Court Act 2011, Jean Marie Richard, Justices Nirmala Devat and Denis Mootoo, LEX, Local Government, Municipal City Council, Municipal Town Council, National Assembly, Parastatal Employees, Prevention of Corruption Act, Privy Council, Public Officers’ Protection Act, State Law Office, Supreme Court