“One wrongful acquittal or conviction is one too many”

Interview: Satyajit Boolell – Director of Public Prosecutions

“We have to ensure that our criminal justice process produces a trial that is fair to the accused, to the State and to the Community”

The extensive exposure to the legislative and judicial systems of the Director of Public Prosecutions, Satyajit Boolell, makes him eminently qualified to enlighten us on issues which have recently cropped up, notably with the recent introduction of the Criminal Appeal (Amendment) Bill and the controversy it raised in the legal profession as well as among members of the legislature. His replies, in this interview, though curt on occasion, on some of the other issues currently the subject of public attention, deserve to be properly digested to get a clearer understanding of what is at stake. The pursuit of justice remains the main consideration, abstracting from all other personal and non-objective considerations.

Mauritius Times: Few voices have been heard in support of the Criminal Appeal (Amendment) Bill, which was slapped with a certificate of urgency for consideration, initially up to the Third Reading stage, by Parliament, last Tuesday. The proposed Bill has met with opposition, both in its form and substance, by most of the jurists who have been approached by the media for their comments. The latter can’t be all wrong, and the Attorney General right. Or are they?

Satyajit Boolell: It would be extremely rash to make such an assumption. My understanding of the appreciation of the Bill is different. I attended a very positive meeting of the Bar Council last Tuesday and also spoke to several of my colleagues at the Bar. Those who have devoted enough time to study the Bill understand its rationale, its underlying legal principles and the need to reform and update the Criminal Appeal Act. There are of course legitimate questions about the sufficiency of safeguards against the risk of abuses by convicted parties but there is a broad consensus as to the need to have the proposed amendments to the Criminal Appeal Act.

In fact the provisions which the Bill introduces already exist in many advanced democracies and in most Caribbean countries which have a written Constitution similar to ours.

In those countries where provisions have been introduced to allow retrials in specific circumstances, the government benefited from wide public support simply because there was a public revulsion against tainted acquittals or the lack of redress when there was discovery of compelling evidence which can establish the innocence of a wrongly convicted person.

* Tell us: why does the Criminal Appeal Act need to be amended, and is there any particular reason why these amendments should have been rushed through now?

I can tell you why the Criminal Appeal Act needs to be amended but I cannot comment on the workload of the National Assembly.

The Bill does two things: first, it removes a major lacuna in the law by restoring the right of Appeal to the DPP in relation to cases heard by the Criminal Division of the Supreme Court.

Second, it provides exceptions to the rule against double jeopardy in compliance with Section 10(5) of the Mauritian Constitution. The exceptions arise in specific instances where “fresh and compelling” evidence has surfaced to establish a wrongful conviction or acquittal.

Let me elaborate.

On the first point. The Criminal Division of the Supreme Court hears assizes cases (jury trials for instance murder) and summary trials in serious drug cases and gang rape cases. The DPP has no right of appeal in a drug case before the Supreme Court but if a less serious drug case is heard before the Intermediate Court, the DPP would have a right of appeal under section 92 of the District and Intermediate Court (Criminal Jurisdiction) Act against an acquittal. How can that be?

Does it mean that if a drug trafficker is acquitted and the judgment is wrong in law or untenable on facts, the Prosecution which represents the interest of justice in court should abandon the case?

Similarly in cases where there is a jury trial, we have seen that there can be perverse verdicts as a result of a misdirection in law or a flawed evidentiary ruling or situations where the verdict cannot be supported by the evidence. In these cases, the DPP must be able to appeal in the interest of justice. The irony is that I can appeal in a case of wounds and blows causing death without intention to kill before the Intermediate Court but not in a more serious case of murder before the Supreme Court.

On the second point, let me quote from the Irish judgment DPP v O’Shea to explain the rationale:

“It would be totally abhorrent, if a conviction which had been obtained by improper means such as corruption or coercion of a jury, should be allowed to stand; it would be equally abhorrent if an acquittal obtained by the same methods should be allowed to stand. If attempts to sway the verdicts of jurors by intimidation or other corrupt means were allowed to go unchecked, they could eventually bring about the destruction of the jury system of trial.”

Today it is possible that scientific breakthrough might generate new evidence, notably with DNA. CCTV footage and electronic devices are shedding new light in the manner evidence is being used to bring criminals to justice.

Why should we stagnate?

The objective of any criminal justice process is that after a trial there should be a true verdict. So far as humanly possible there should be no wrongful conviction or acquittals, and where these occur there should be a mechanism for redress. One wrongful acquittal or conviction is one too many. This is why the amendments that are being proposed are important to enhance public confidence in our criminal justice system.

* You would perhaps know better as to whether the presentation of the proposed amendments to the Criminal Appeal Act are inspired by the way the Michaela Harte murder trial unfolded with the acquittal of the two defendants by a nine-member jury, or from the L’Amicale case – it looks very much like that’s indeed the case, anyway –, but tell us: would the Director of Public Prosecutions need such a bolstered up Criminal Appeal Act, to seek a retrial of both these cases?

I refuse to associate the Criminal Appeal (Amendment) Bill with a particular case. We are here talking about principles to ensure that our criminal justice process, in line with the Constitution and international law, produces a trial that is fair to the accused, to the State and to the Community. It is only in this manner that the balance between fulfilling society’s legitimate interest in criminal justice and ensuring that accused persons are treated fairly can be obtained.

Should there be new evidence to establish the guilt of a person acquitted of a crime and a full bench of the Court of Criminal Appeal is satisfied that the evidence is compelling, the law if passed will allow for a retrial. Otherwise guilty parties will, literally speaking, “get away with murder”.

* Regarding the L’Amicale case, there has come up the report of Me Valayden and his legal team who contend that the defendants in that case have been “wrongfully convicted” and they are therefore pressing for a retrial. For having led the prosecution team in that case years back and being fully conversant with the details thereof, would you say that the Valayden report contains compelling new evidence that would warrant a retrial of the case, or does it merely amount to a reinterpretation of the evidence which was then adduced before the Court?

I am not going to and I cannot comment on the Amicale case now that the Commission of Prerogative of Mercy is in presence of a petition for Mercy. Suffice for me to say that the judgment of the full bench of the Supreme Court in the case of Sumodhee v The State 2004 SCJ 149, which I have referred to recently in the Office of the Director of Public Prosecutions Newsletter No 26, provides answers to many of the issues raised in the petition.

* One could argue that the Criminal Appeal (Amendment) Bill, in its present form and as tabled in Parliament last Tuesday, contains the potential for abuse by aggrieved or convicted parties to delay or even defeat the delivery of justice, given that the proposed amendments will also empower, besides the DPP, “a convicted person… to apply to the Court of Criminal Appeal…” Will we not need a system, a foolproof mechanism to filter out frivolous appeals by aggrieved parties and/or their publicity-hungry lawyers?

I am also of the view that we need to foresee the likelihood of abuses. There is no such thing as a foolproof mechanism, but my position since November 2012 when the Law Reform Commission produced its Report, has been that there should be in place a mechanism to review wrongful convictions to prevent the courts from being flooded with cases. As to whether we need a Criminal Cases Review Commission (CCRC) or some other mechanism, this is a matter for our legislators to decide. I must point out that, in its Report, the Law Reform Commission contemplated that the CCRC model might not be the sole mechanism for the review of wrongful convictions.

* One could also argue that a Criminal Appeal Act reinforced by the amendments as proposed, might also be perceived and indeed be susceptible to be employed even by the Public Prosecution as an instrument of redemption to hound defendants who have been tried and acquitted by the Assizes. Nothing personal here, but it looks like the Michaela Harte murder trial has left a bone stuck in the Prosecution’s throat, even if Me Valayden, referring to that same case, says he has no problem with the proposed amendments to the Criminal Appeal Act?

Let me reassert the point made earlier. No case can be subject of a retrial unless it has gone through a review by a full bench of the Court of Criminal Appeal and the Court has acceded to an application for review. The threshold is very high and the quashing of a decision very exceptional and not available on a mere request.

Let me correct one misapprehension on the role of the Prosecution.

The role of the prosecutor excludes any notion of winning or losing, his function is a matter of public duty and of great responsibility. He has to see to it that all available legal proof of the facts of a case is presented firmly but fairly. It is to be performed at all times with an ingrained sense of the dignity and fairness of the judicial proceedings.

* This issue of review of proceedings and retrial of cases brings up the question of the protection against double jeopardy. It appears that the Mackay Commission recommended that appeals should not be open in an Assize case from a jury’s verdict of acquittal. What are today the arguments and instances that lean in favour of relaxing the established rule against double jeopardy?

The rule against double jeopardy is not absolute. The international human rights instruments and section 10(5) of the Mauritian Constitution permit the reopening of an acquittal where new evidence of a defendant’s guilt has become available.

* Barrister Raouf Gulbul has come out publicly against the fact that the DPP would “retain the power to ask for a review of an acquittal on the basis of fresh and compelling evidence in relation to the offence or the lesser offence without imposing any time limit within which he should make such applications”. Is there any rationale as to why the Bill remains silent on the time limit for application?

This is a non-issue and I have imparted my views to my friend Raouf. I say so simply because of constitutional right guarantees to an accused under section 10(1) of the Mauritian Constitution. Moreover Clause 8 of the Bill makes provision for the Court to address its mind to the length of time since the offence was committed, as a factor in determining whether a retrial would be fair.

In the case of R v Dunlop 2007 ALLER 593, there was a delay of 17 years between the application by the prosecution for the retrial of Dunlop and the original offence. Dunlop’s counsel had invoked the delay in an attempt to bar the retrial. The Court rejected his submissions and granted the retrial by holding that:

“So far as the quality of delay is concerned, we can see little difference between the delay in charging a sex offender, who may have been lulled into a sense of false security by the absence of any charge over many years, and the delay in retrying a defendant who has been lulled into a sense of false security by the existence of a rule against double jeopardy. If a case of unfairness lies in relation to the retrial of the latter, we do not consider that it can be founded on any special quality of the delay between acquittal and retrial.”

* This question of time limit reminds us of the Azor Adelaide case which was opened up with the coming into the picture of a witness who had his version of the story to tell – though some people alleged that that witness had been ‘fabricated’ — many years after the case had been heard and a verdict delivered by the Court. What’s your take on that?

The risk of “fabrication of evidence” would always exist, as is the case in all jurisdictions. However, the application for a review of a case (be it in a case of wrongful acquittal or a wrongful conviction) would have to satisfy strict legal requirements. A review would not be granted as of right or upon the mere asking. It would be the result of a due process.

* There is a growing feeling on both sides of the House that certain cases of arrest by the Police smack of arbitrariness and that the powers of arrest need to be curtailed to give greater scope to the concept of freedom for the citizen. Do you share the sentiment that restrictions need to be introduced to limit the powers of arrest?

The powers of arrest of the Police are regulated by Section 5 of the Constitution and by law. Any person who effects an unlawful arrest is liable to be prosecuted. Furthermore the victim of an unlawful arrest will be entitled to compensation. We must remember that an arrest is subjected to judicial scrutiny and the person deprived of his liberty must be brought without undue delay before a court of law.

* What should be the foundations for restraining the Police from exercising too liberally, some would say selectively, the power of arrest vested in them? Can they be made accountable when it can be shown that they have crossed certain boundaries when proceeding with some arrests?

They are accountable to the Courts, which are guardians of individual liberty.

* On the other hand, there is a feeling that Police have not acted with the same promptness to proceed with arrest in certain cases when such an action would have been justified? Alternatively, they may have proceeded with the arrest of some protagonists, say, in the Varma/Jeannot case relying on merely one side of the story which put up as ‘victims’ those who would have asked for money? Do the Police have to get all the facts together before having recourse to the arrest of individuals?

I cannot comment on pending cases and have just answered your question dealing with the parameters within which the police operate.

* In the Boskalis case, we’ve been told that while individuals can be sentenced to jail, offending companies having acted corruptly cannot be so sentenced. How does this dilemma get sorted out in practice? What does established jurisprudence say in such cases?

I would once again abstain from answering a matter that is sub-judice.

* We have seen you coming out publicly to furnish explanations regarding the decisions you have taken in a number of high-profile cases. How far can a DPP go in that direction?

There is no legal obligation on the DPP to give reasons for his decisions. However, I believe in appropriate cases it is important for the public to understand the decision making process and this transparent approach can only help to enhance public confidence in the Office of the DPP. This is a matter for the judgment of the DPP in the light of all relevant circumstances as was highlighted by the Judicial Committee of the Privy Council in the case of Mohit v DPP [2006] UKPC 20.

The approach that my office has adopted so far is in line with international best practices and my personal feedback is that the public welcomes this approach of explaining decisions when the public interest so requires. It would be impractical and counter-productive to apply this approach in all cases dealt with by my office bearing in mind that weekly around 600 new files are processed by the office.

* Do you think that in order to enhance accountability and transparency in the decisions made by the DPP, legislation should be reviewed to ensure that reasons for entering, for instance, a nolle prosequi are made public?

I doubt the need of such legislation. In my view, the decision to give reasons or not should remain a discretionary feature in our system. This should not be seen as a lack of transparency but only as a necessary measure so as not to clog the system.

Legislating in that field may render the system unworkable as the Office might end up spending more time explaining decisions than making them. Furthermore the availability of Judicial Review against the DPP’s decision fills the legislative gap. As held in the case of Mohit (supra): “But it is for the DPP to decide whether reasons should be given and, if reasons are given, how full those reasons should be.”

* Published in print edition on 19 July  2013

An Appeal

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