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POLICE v KHODABACCUS AHMAD NOORADEEN AND ANOR

2007 MBG 215 Cause Number 1144/02 In the District Court of Grand Port In the matter of: Police v. Ahmad Nooradeen Khodabaccus Mohammed Aslam Khodabaccus Ruling Both accused parties stand charged with having on or about 12 April 2001 at LEscalier in the District of Grand Port, wilfully and unlawfully inflicted wounds and blows in and upon the person of one Ahmad Parvez Bulaty and accused no.2 for on the same day and at the same place wilfully and unlawfully inflicted wounds and blows in and upon the person of one Mrs. Beebee Shakilah Bulaty born Mahadooa. The information is laid in the generic sense under the heading Assault and under section 230(1) of the Criminal Code as amended by Act 5/99. Both accused parties pleaded not guilty to count 1 and accused no.2 also pleaded not guilty to count 2. They both retained the services of Counsel at their trial. At the very outset, learned Counsel for the defence has objected to the production of the statement given by accused no.2 on the ground that the recording officer/ PC Padaruth will not be made available to the defence for cross-examination inasmuch as he is abroad. This might infringe his constitutional right to remain silent.

Learned Counsel appearing for the prosecution contended that the statement of that accused party was only the evidence he gave to the police. His right will not be infringed as he can depose under oath. There are also examples, for instance, in a Voire Dire where statements are inadmissible and yet the trial is being proceeded with without the production of the defence statements. At any rate, he said that it was only a case of assault, the version of one against the other. Learned Counsel for the defence stated in reply that following the testimonies of the main prosecution witnesses, accused no.2 will be compelled to rebut and thus, will infringe his right to remain silent the more so as he will not be able to cross-examine that witness. The matter for this Court to thrash out is whether the evidential disadvantage of the accused no.2 by his inability to crossexamine the recording officer will infringe his right to cross-examine that witness and his right to silence so that a stay of proceedings on the ground of abuse of process would be the appropriate remedy. I deem it significant to consider the point of law raised by learned Counsel for the defence in the right legal background and not in isolation.

Concept of separation of powers in the context of democracy as per section 1 of our Constitution.
Mauritius has been bestowed with a Westminster model written Constitution which consecrates the concept of separation of powers which means that the three branches of government, the Legislature, Executive and the Judiciary should be independent from each other (Hinds v The Queen [1977] AC 195, 212B-H; Duport Steels Ltd v Sirs [1980] 1 WLR 142,157.). The concept of separation of powers is fully operational with regard to the control the Judiciary exercises over the Executive.(vide the recent Supreme Court case whereby the mandatory sentence of 45 years was declared as a usurpation of the powers of the legislature by denying the judiciary any discretion in the sentencing process). For instance, in Mukhtar Ali & Anor v R [P.C.A. 4&5 of 1989], [1989 PRV 4] [1989 PRV 5] the Privy Council unhesitatingly struck down a provision of the Dangerous Drugs Act 1986 which gave

the D.P.P., an officer of the Executive, power not only to choose the jurisdiction before which the drug trafficker should be prosecuted but also vested the D.P.P, with the choice of jurisdiction, with the power to choose the sentence. In Mauritius the Supreme Court is vested with the power to pronounce itself on the constitutionality of laws (sections 84, 17, 83(1),76 of the Constitution). Section 1 of our Constitution states that Mauritius shall be a sovereign democratic State. In the present case we are concerned with democracy and the locus classicus is the case of Vallet v Ramgoolam [1973 MR 29] where the learned judges had this to say: () rightly or wrongly the framers of our Constitution have placed upon the judges of the Court the individuous task of determining in particular instances the norms of a democratic society. The reason why they said this is the following:Chapter 2 of the Constitution contains a Bill of Rights for our Constitution and any law which is passed by parliament must in view of the Bill of Rights be reasonably justifiable in a democratic society. Therefore, when a citizen alleges that one particular law that has been passed infringes his rights, he is bound to address himself to the Supreme Court by virtue of section 17 of the Constitution in order to get redress if at all. Therefore, it would be for the Supreme Court to decide whether any particular law or action taken by the Executive is reasonably justifiable in a democratic society. Once the Court had decided what meaning to attach to democratic society, it was entitled to make any pronouncement on any law the validity of which is being impugned and the court will test the validity of this law or action by what it thinks are the standards of democracy applicable to Mauritius . In this duty however, the Court should exercise restraint: (1) (2) the Court should ever be alive to the necessity of keeping distinct the judicial and political fields; the Court should confine its pronouncements strictly to the matter in dispute and refrain from making any statement that might give the impression that the Court is legislating.

The Court therefore should not formulate rules that are wider in their application than required by the facts under review. In so far as the concept of democracy in our Constitution is concerned the Court in Vallet came to the following conclusion: What then is this species of democracy to which we are plighted. There can be no doubt that our Constitution makers by embodying in it much of the constitution practice and principles of U.K., aimed at giving Mauritius a democratic form of government akin to that enjoyed by the British people. There can equally be no doubt that by incorporating most of the fundamental rights and freedoms of the individual( on the lines of the Universal Declaration of Human Rights) as an integral part of It, constitution makers have introduced into the constitution itself the undertaking given by the signatory States to the Universal Declaration to respect the fundamental principles of democracy,

Concept of separation of powers being reconciled with the notion of staying proceedings on the ground of abuse of process
The Director of Public Prosecutions is the only person who is empowered to initiate or discontinue proceedings against an accused party by virtue of section 72 of the Constitution. Indeed, this explains why in line with the concept of separation of powers forming an integral part of a democratic society, no such power has been prescribed by parliament empowering the District Courts in section 72 of the District and Intermediate Courts Criminal Jurisdiction Act to stay proceedings on the ground of abuse of process where it would offend the fundamental rights namely right to silence and the right to cross-examine witnesses. Therefore, in order to stay proceedings on the ground of abuse of process, the present court will have to travel outside the bounds of section 72.

The right to silence invoked in the circumstances described by learned Counsel for the defence is subject to the fundamental rights and freedoms of others so that the Constitution itself contains provisions which cater for a system of checks and balances for the upkeep of the public interest. The case of Andoo v The Queen [1989 SCJ 257] has illustrated this point to show that the right to silence is not absolute in relation to a situation which is directly in point, an extract of which reads as follows:This Court has repeatedly stressed that the unsworn statement of an accused is only evidence of what he told the police. Where the evidence for the prosecution establishes a strong and unshaken prima facie case and the accused chooses not to swear to his statement and expose him to cross-examination, the trial court is perfectly entitled to conclude that the prosecution evidence remains unrebutted. It is of course true that the burden of proving the guilt of an accused squarely lies on the Prosecution and that the accused is entitled to remain silent. His right to silence, however, is exercised at his risk and peril when, at the close of the case for the prosecution, a prima facie case has been clearly established since the burden then shifts on him to satisfy the court that it should not act on the evidence adduced by the prosecution. (the underlining is mine). In that context the said court referred to the case of Ramkalawon v R [1914 MR 242] whereby it meant in substance that imperfect proofs do not become perfect ones by the simple exercise of the accuseds right to silence. Therefore, had there been a trial with all available witnesses, and a strong case being made out as in Andoo(supra) and the accused no.2 would have been expected to rebut that evidence rather than remaining silent in order to prove his innocence. I fail to see how this matter of course would be repugnant to the fair trial principle in the context of the Constitution. Further, it was held in R v Becford[1996] 1Cr. App.R.94 that the non-availability of evidence will not affect the fairness of the trial and would not de facto lead to a stay. In R v Horseferry Road Magistrates Court, exp Bennett [1994] 1 A.C. 42, HL, Lord Griffiths said that the court had the power to interfere with the prosecution because the judiciary accepted a responsibility for the maintenance of the rule of law that embraced a willingness to oversee executive action and to refuse to countenance behaviour that threatened either basic human rights or the rule of law. It was the function of the High Court to ensure that executive action was

exercised responsibly and as parliament intended. Therefore, it is amply clear that the power to stay proceedings on the blanket ground of abuse of process is more confined to the Supreme Court. It is worthy to note that the cardinal principle in relation to both limbs pressed so that the accused is being deprived the right to cross-examine him the recording officer has been spelt out in R (on the application of Hereford District Council) v Amanda Jane Wiles [2005] E.W.H.C. 306 Admin. This case which concerned the power of magistrates to stay criminal proceedings, the court ruled that in order to impose a stay the magistrates had to find that owing to the abuse, a defendant had suffered serious prejudice to the extent that no fair trial could be held. In the same breath, the principle that a stay would not be granted where the trial process itself was equipped to deal with the matters of complaint was reaffirmed in the case of Alaf v The Crown Prosecution Service, West Midlands [2007] E.W.C.A.Crim.691. The concept of separation of powers in the perspective of a stay of proceedings was stressed in the case of R v Crown Court at Norwich, exp. Belsham Cr.App.R.382,DC namely that a stay should not be ordered simply as a form of disciplinary disapproval of the Crown Prosecution Service. The issues of right to silence and right to cross-examine witnesses are two Constitutional guarantees embedded in the fair trial principle as enshrined in section 10 of the Constitution. Only the Supreme Court is vested with the powers of safeguarding that these fundamental guarantees are not being oppressively curtailed by the executive so that the fundamental rights incorporating basic human rights and the rule of law are being observed. In that endeavour, the Supreme Court can only exercise a posteriori control. In view of the concept of separation of powers no disciplinary action can be taken by the Courts for any malpractice of the executive but, the trial Court is fully equipped despite the alleged abuse in some way or the other to ensure a fair trial. Thus, it would be premature at this stage for the present court to exercise a priori control by ordering a stay of proceedings prior to the trial proper. For instance, a statement can be declared inadmissible by the court should the judges rules have not been complied with, so that the statement of the accused had not been voluntarily given. The ultimate duty of the court is to restore public confidence in the criminal justice system and motions for stay should be sparingly used meaning in very exceptional circumstances where serious prejudice is likely to be caused to the Accused so as to render a fair trial impossible. Although the accused has to establish an abuse of process on a balance of probabilities, a

further balance has to be struck between the countervailing interests of prosecuting criminals and discouraging abuse of power( vide R v Mac Donald [1998] Crim. L.R.808, CA). As reiterated in Boolell(supra) a hearing can be stayed only if the hearing was unfair or it was unfair to try the defendant at all. There will be an abuse inasmuch as the accused no.2 will be put into an evidential disadvantage in the course of the trial as regards the inability of the learned Counsel for the defence to cross-examine the enquiring officer who recorded the defence and the more so as it was not witnessed by anybody else. It is true that the accused will not be able to crossexamine that witness nor call him as his witness. It appears that the judges rules had not been complied with given that the statement was not witnessed by another officer if we take it at face value. So, would that mean that should a statement be declared inadmissible following the procedure of Voire Dire, the proceedings should be stayed? In the present case the enquiring officer is not the only witness for the prosecution and it is still premature to pre-empt that the case would have been proved by him only. In the case in hand, there are five other witnesses for the prosecution as per the information. The fertile grounds that the court will have to consider at the trial stage are, for example, (a) the constitutive elements of assault (b) the medical evidence (c) (d) probative value of their testimonies, Further, the Learned Counsel appearing for the defence would obviously already have a copy of the statement of the accused and can always brief him accordingly prior to the trial date. After having carried out a balancing exercise between the public interest to stand trial for the said offence and the evidential disadvantage of the accused party, I find that the present Court who has judicial control of the trial process is fully equipped to ensure a fair trial and thus will not offend any fair play and public confidence in the criminal justice system. The said accused has not established on a balance of probabilities that a fair trial would be impossible nor

that he is likely to suffer serious prejudice should the trial be allowed to proceed. I find that there are other alternative remedies that can be catered for in the trial process itself, for example, a lesser sentence if the need arises. Clearly, section 10 of the Constitution could not have been provided for in a vacuum but within the economic, social and cultural set up of Mauritius to which the Privy Council in Mungroo v R( PCA no.22 of 1990)[1990 PRV 22] referred to as harsh economic realities and local conditions. Section 3 of our Constitution reads as follows:It is hereby recognized and declared that in Mauritius there have existed and shall continue to exist without discrimination by reason of race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, each and all of the following human rights and fundamental freedoms: (a) (b) (c) the right of the individual to life,liberty, security of the person and the protection of the law;

and the provisions of this chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of those rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest(all underlining is mine) Therefore, one can see clearly that when fundamental rights and freedoms are being invoked by an accused party, derogations are provided for within the Constitution itself for the upkeep of the public interest which is overriding. For the reasons given above, the motion of learned Counsel for the defence is set aside.

S. Bonomally District Magistrate 25.10.07