Criminal Law: A wind of change

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Section 10(5) of the Constitution provides that no person who shows that he has been tried by a competent Court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial of that offence except upon the order of a superior Court in the course of appeal or review proceedings relating to the conviction or acquittal. The law against double jeopardy, better known as autrefois acquit and autrefois convict, does not allow a person who has been acquitted or convicted of an offence to be retried for the same offence. The rationale is simple to understand. Once the criminal justice process has come to an end, including the hearing of an appeal, there can be no retrial. Had there been no finality to a criminal case, the Supreme Court would be inundated with applications from detainees of Beau Bassin prison to have their cases reopened. And the prosecution would do the same for cases where there have been acquittals.

Are there exceptions?

Not in Mauritius but in UK for instance the law has been amended to provide exceptionally for the possibility of a retrial. In Mauritius the law offers to an appellant the possibility to adduce fresh evidence during the course of an appeal under section 11 of the Criminal Appeal Act (CAA) in the interests of justice especially where highly probative evidence was not available at the time of trial. This provision of the CAA basically armed the appellate court with “powers to rectify miscarriages of justice” as the overriding interest to see that justice prevails.

In 2004 before the Supreme Court, the accused parties in the Amicale case made an ancillary application under section 11 of the CAA, to adduce further evidence which included a tape and its transcript of the recording of a phone conversation between M.A. Thupsee and Fazil Sumodhee which they alleged may buttress their appeal and establish their innocence. The full bench of the Supreme Court constituted of the then Chief Justice Pillay, JJ Matadeen and Caunhye, considered the scope of section 11 referring to the relevant paragraph in the English case of R v Parks and endorsed the views expressed by Parker CJ:

“It is only rarely that this court allows further evidence to be called, and it is quite clear that the principles upon which this court acts must be kept within narrow confines, otherwise in every case this court would be in effect asked to effect a new trial. As the court understands it, the power under section 9 of the Criminal Appeal Act, 1907, is wide. It is left entirely to the discretion of the court, but the court in the course of years has decided the principles upon which it will act in the exercise of that discretion. Those principles can be summarised in this way:

First, the evidence that it is sought to call must be evidence which was not available at the trial.

Secondly, and this goes without saying, it must be evidence relevant to the issues.

Thirdly, it must be evidence which is credible evidence in the sense that it is well capable of belief; it is not for this court to decide whether it is to be believed or not, but evidence which is capable of belief.

Fourthly, the court will, after considering that evidence, go on to consider whether there might have been a reasonable doubt in the minds of the jury as to the guilt of the appellant if that evidence had been given together with the other evidence at the trial”.

These principles are today recognized as “the guiding principles” for courts when deciding whether to adduce fresh evidence on appeal.

Applying those principles the court reached the conclusion that they could not see how the contents of the original tape and transcript of the recording of the phone conversation were both relevant and credible under the second and third principles enunciated in Parks.

Turning down the application, the court observed that “M.A. Thupsee had already deposed as a witness at the trial of the applicants, had been lengthily crossexamined before the jury as to the various versions he had given to the Police and at the preliminary enquiry and at the end of the day the jury came to a verdict after considering his evidence.

To make matters worse for the applicants, from our reading of the transcript of the alleged phone conversation between M.A. Thupsee and Fazil Sumodhee who, it must be underlined (a) is the brother of the applicants, (b) is not by any means a disinterested person but one with a purpose of his own to serve, (c) had been prosecuted for sequestrating M.A.Thupsee on three counts together with another brother and (d) had been accused by the Police, together with other members of his family, of interfering with M.A.Thupsee when the latter was a witness both at the preliminary enquiry and at the Assizes, it would appear that M.A.Thupsee and Fazil Sumodhee were negotiating so that M.A.Thupsee could yet again change his version and clear the applicants on payment of an appropriate sum of money ranging from

Rs 500,000 to Rs 200,000.”

The effect of the judgment of full bench of the Supreme Court meant that the convicted parties in the Amicale Case had exercised all means of legal redress available to them and the process had come to its finality.

As the law stands at present it is not possible for either the DPP or a convicted person to apply for review or retrial. However, in some jurisdictions for instance UK, the law has been amended to cater for situations where “fresh and compelling evidence” not available at time of trial tend to show that an acquittal was tainted or a conviction was unsafe. In countries where the law has already been amended a retrial in a case where a person has been wrongly acquitted or convicted in court, is however rare and exceptional.

What is fresh and compelling evidence?

The legislator in UK defines fresh evidence as “evidence that was not adduced in the proceedings in which the person was acquitted or convicted” and should be understood to mean that it was not available at the time of trial and could not with reasonable diligence have been obtained. It will depend on the facts and circumstance of each case obviously. Examples include evidence obtained as a result of development in forensic science for instance contact DNA. Evidence is compelling on the other hand if it is substantial and highly reliable. If in a murder case the issue was one of identity and subsequently after acquittal the new evidence establishes the identity of the suspect, then it can be said that the evidence is compelling.

I am of the considered view that we should go down this route eventually to remedy any miscarriage of justice. It can only buttress the public confidence in our criminal law system. But it would be wise in order to prevent any abuse that a Criminal Law Review Commission be instituted to act as a screening body in all cases where convicted parties or victims’ families alleged any miscarriage of justice.

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