THE FRUIT OF THE POISON TREE – OR THE EFFECT OF AN UNFAIR ENQIRY ON
A FAIR TRIAL
Your Lordship, the Chief Justice of Mauritius,
All protocol respected, distinguished guests visiting us from broad
Their Lordships and Ladyships, Judges of the Supreme Court
Honourable Magistrates of the Intermediate, Industrial and District Courts of Mauritius
Members of the Bar Council and of the Law Society
Ladies and Gentlemen
Let me first of all say what an honour and a privilege it is for me to address this illustrious
assembly today. Our main focus during this conference is on human rights; yet, ironically
enough, I have chosen to entitle the paper that I am going to present “The fruit of the
poison tree”. I readily agree that this sounds a bit pompous and, to some of us, may
even appear to be out of place. Indeed it led several of my colleagues to smile, while
others raised an inquisitive eyebrow when I proposed this title to them. However, I will
leave it to you to decide on the appropriateness or otherwise of the title after I have
recounted to you a short story by way of an anecdote.
Recently, a friend of mine went to a neighbouring country which is not very far from
Mauritius. As he walked into a market, he found a lot of beautifully ripened fruits which
were displayed for sale. This immediately wet his appetite and he wanted to purchase a
few as he could not wait to sink his teeth into them. He was being accompanied by an
acquaintance of his who worked as a nursing officer at the hospital of the city. The nurse
stopped him and said quite emphatically:
‘Don’t purchase these fruits’
‘Why’ enquired my friend who was quite taken aback by this intrusion ‘These fruits look
perfectly alright. They are not rotten, they are not damaged. Why should I not purchase
them? Is the seller trying to con me by asking too high a price?”
The nurse immediately burst into a long-winded medical explanation:
“You see, he said, the trees which bear these fruits grow near a river. The water of that
river carries several deadly viruses. The trees take up the water of that river by the roots,
up the trunk and ultimately into the fruits which have a high water content. Through this
process, a few of the viruses find their way into the fruits. The local people eat the fruits
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because they are immune to these viruses. But believe me, if you eat these fruits you
are going to get very sick. Don’t go by the looks my friend, he said. I know that the fruits
look perfectly alright to the naked eye. But unbeknown to you contamination has crept
into them. For all intents and purposes these are poison fruits for you”
My friend was relieved upon realizing that he just had a close shave. After all, your
health is not something that you take risks with, especially when you are in a foreign
country.
Having said the above, let us turn to the subject which is of immediate concern to us.
Section 10 of the constitution provides that every accused has the right to a fair trial
within a reasonable time. I need not go into the huge body of case-law which has over
and over again emphasized the importance, or shall I even say, the quasi-sanctity of this
section of our constitution which is the very epitome of the guaranteed respect for
human rights in our country.
However, once we start thinking about it, it is clear that a trial in the set-up of an open
court room presided over by a member of the judiciary is only the tip of the iceberg, or
what appears as the ripened fruit to the naked eye. Ninety percent of an iceberg is
hidden away under the surface of the water and that is the part that holds the tip afloat.
A ripened fruit does not suddenly appear out of nothing; it is the end product of a long
process which involves the workings of the water, the tree trunk and the branches.
Similarly, before the trial of an accused even starts in a court room, there has been a
long process involving the arrest of the accused, the compilation of documents and
exhibits, statements recorded from the accused and from witnesses, the preparation of a
file which has been sent to the DPP’s office for legal advice; all this is ultimately crowned
by the lodging of an information. Then and only then is the court seized of the matter
with the duty to secure a fair trial to the accused. The judiciary is in effect asked to chew
on a fruit which has already been prepared for it. However, unlike my friend to whom I
referred earlier, Magistrates and Judges alike find themselves in duty-bound to sink their
teeth in this fruit which is presented to them. The question which I wish to address today
is two fold:
[1]. Have any viruses crept into the fruit unbeknown to us
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[2]. And secondly, what practical solutions, if any, can we find to inoculate ourselves, as
members of the judiciary, against these viruses
I must say that, for a while, I struggled with the approach that I should take in order to
deal with the issues that have been raised above. One alternative that presented itself to
me was to make extensive reference to the case-law on the subject and to try to analyze
same. However, I believe, Honourable members of the profession, that it is well within
our reach to consult Archbold, Blackstone and the works of other learned authors
relating to the subject. Thus, I decided to share some of the practical experiences that I,
as a Magistrate, and my follow colleagues have faced on the issue with some reference
to the case-law as and when same is relevant. I hope that this becomes an opportunity
for each one of us to think about our own experiences in or out of court with a view to
doing an introspection of the practices within this noble profession that we have all come
to love and respect.
I intend to address the issue of the effect of an unfair enquiry on a fair trial from 4 points
of view:
[1]. Methods of enquiry by the authorities
[2]. The right to counsel at enquiry stage
[4]. Bias as opposed to a balanced approach during an enquiry
[3]. The issue of delay before and during the trial
Methods of enquiry by the authorities
Whenever, a complaint is made or a crime is detected, the police and recently officers of
the ICAC step in to start an enquiry. The Commissioner of police and his officers derive
their powers from the Constitution and from the Police Act, whereas officers of the ICAC
act pursuant to the POCA. The main method of enquiry is to gather documents and
exhibits, to interview accused parties and witnesses and to record written statements
from them.
It is in the course of the initial stages of the enquiry that the first difficulties arise. We
have on the one hand the accused and on the other hand the enquiring officers. Except
for the cases where an accused is very wiling to voluntarily confess his crimes to the
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enquiring officer, (and I believe that these are the exceptions rather than the rule) we
have, right at the start, a psychological opposition between these two parties. How does
an officer deal with an accused who is not co-orperative or who is even hostile? From
the large number of cases and ‘voir-dires’ Magistrates have dealt with in court, I believe
that the irresistible conclusion is that enquiring officers resort to putting pressure on the
accused. This can take various forms, a few of the most commonly known ones being:
[1]. Intimidation and verbal threats
[2]. Long questioning without a break or refreshment given to the accused
[3]. Advantages offered in the disguised form of blackmail – the ones most often heard of
are that the accused will be released on bail if he confesses or that other members of his
family will be arrested if he does not confess
[4] Ultimately, ill-treatment and physical violence are resorted to
Even though these methods are questionable, there is always the counter-argument to
the effect that these methods work and bear good results. Notwithstanding the means
used, when the accused ultimately breaks down and confesses, he speaks the truth and
what matters is that the case is solved. We can refer in this respect to certain very
mediatized police officers who notwithstanding their questionable methods were very
popular in the eyes of the public because they were perceived as those who brought
results in solving major crimes
I believe that it is most commendable that, in Mauritius, the judiciary has over the years
insisted on the proper respect of procedures and in particular of the Judges’ Rules at the
level of the enquiry. However, I wish to attract attention to a few aspects:
[1]. According to established jurisprudence, the court has the discretion to admit illegally
obtained evidence, inter alia, on the ground that the probative value of the evidence
outweighs its prejudicial effect. I must say, from my experience, that this is a discretion
which, in practice, is used less and less in Mauritian Courts. Nevertheless, the possibility
still remains open.
[2]. All too often enquiring officers make very good witnesses in court. With experience
they have learnt what answers to give in court in order to convince the court that
procedures have been followed. They also play on their credibility as police officers as
opposed to someone who is charged of having dealt in illegality or of having committed a
crime.
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[3]. Very often accused parties are poor witnesses who, overwhelmed by the process of
a trial and ignorant of procedures, fail to convince the court to believe in their version of
the facts even though they may be genuine
The end result is that the evidence that is recorded in court may be tainted, in the same
way that our famous fruit gets to carry disease-causing viruses. When writing his or her
judgment, the Magistrate of Judge is unfortunately bound by what is in the court record.
Now, the question is whether there a way out of this situation? I will venture to put
forward a couple of suggestions which I believe may provoke some thought.
Formation of enquiring officers
Before stating to develop my next idea, I wish to point out that what I have said earlier or
what I will say from now onwards should not be seen as an umpteenth condemnation of
the police or of other enquiring authorities. It is perhaps apposite to place on record the
good work that the police force and other enquiring authorities are doing in spite of the
limited means put at their disposal.
Yet, I wish to invite thought on the background and the formation of enquiring officers.
Often they join the police at the lower rung of the force after having left secondary school
with a School Certificate or a Higher School Certificate. They do some internal studies
and get promoted to the level of Sergeant or Inspector where they are required to start
handling enquiries. It is undeniable that they do gather some practical experience on the
field.
However, nowadays there are so many innovations that are coming out and new
methods which are being developed as to how enquiries can be conducted more
efficiently. For examples:
[1]. Since police officers deal with human beings in moments of crisis, the advantages of
a basic understanding of human psychology is not to be neglected.
[2]. Techniques of questioning have progressed in leaps and bounds. Questioning is
considered more as a battle of the minds where the examiner is confronted with the
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explanations of an accused party and finds the loopholes in them in order to bring out
what, in all likelihood, is the truth.
[3]. In many countries, the police employs or hires the services of experts in certain fields
to help crack a case where technical matters are involved – for example where frauds of
a highly technical nature are committed.
[4]. Moreover, referring to the psychological aspect and the techniques of questioning
mentioned above, experts called profilers help to brush a psychological and emotional
picture of an accused, all of which become part of the information that can be aptly used
by an enquiring officer whilst dealing with an accused.
I do not wish to go any further into the matter because this is a subject on which we can
talk almost endlessly. However, the basic idea which I have highlighted is that enquiring
officers are in need of more formation into modern methods of enquiry. As crimes
become more complicated and as the exigencies of our modern society geared towards
the respect of human rights grow higher, it is about time that the authorities in charge of
enquiries adapt, adjust and invest into reaching higher levels of professionalism in
preparing the fruit which will ultimately be presented to the judiciary.
Forensic science
The second point to which I wish to draw attention is the chasm which presently exists
between, on the one hand our present methods of enquiry and, on the other hand, the
enormous developments that are occurring in the scientific world and which are being
used in solving crimes in many other countries. If I may be excused for the sarcasm, one
may say that our methods of enquiry are still those established by Scotland Yard almost
two centuries ago whereas the scientific world has been proposing methods which have
been fictionalized and glamorized in famous TV series on Crime Scene Investigations
such as NCSI, CSI Miami or CSI New York. Of course it is unrealistic to expect
glamorous experts and forensic scientists to come and give evidence in our courts to
help us reach exact conclusions in full respect of the basic human rights of an accused
party.
Yet, from a more realistic point of view, the fact remains that forensic science has
covered enormous grounds in helping to solve crimes. I must admit that I am amazed
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every time I watch documentaries such as ‘The Cold Case Files’ where science is
helping to solve crimes which had remained in the drawer for decades.
True it is that we have a Forensic Science Lab and the SOCO team which has been set
up recently. Once again, I do not wish to be taxed of being unfair towards our Forensic
Science Team. But I believe that I speak on behalf of many of my colleague Magistrates
who feel frustrated when faced with forensic reports which contain only very basic or
unhelpful findings such as clothes which are simply found to be ‘dirty’ or that no
evidence of forensic value has been found.
I will allude to a case which I dealt with recently to illustrate what I have been trying to
put through. The accused in that case actually stood charged with the offence of attempt
upon chastity on a young girl. The version of the prosecution was that the accused
rubbed his private part against the private parts of the girl and ejaculated. Then he used
a towel to wipe himself. The accused denied that the incident ever took place. The towel
in question was secured and traces of sperm were found on it. A battle ensued in court
about the issue. I then suggested, and both counsel agreed with me, that the issue could
be solved simply by carrying out a DNA test. The accused was willing to give a sample
for cross-matching. The matter was then referred to the FSL. The case was called in
court on at least three occasions and the stand which was being awaited was not ready.
Other difficulties arose because the officer who was dealing with the case was on leave.
In the meantime almost six months had gone by. Ultimately I issued a summons for the
officer to come and depose in court. To our great surprise the officer came and told us
that the machine which was supposed to be used to obtain the results of the DNA test
had broken down and the results are not available. It was then confirmed that the
machine would not be repaired for another six months. Ultimately, we had no other
choice than to hear the case and we have had to determine the issue based on very
flimsy grounds such as the ‘demeanour’ of the witnesses and so called ‘contradictions’ in
their testimony.
Let us remind ourselves that we are still dealing with the issue of human rights and the
concept of fair trial. The matter could have been dealt with so easily at enquiry level had
our methods and facilities been up to date, with the possibility of a very fair result at the
trial in that case.
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I can see the reactions of our friends of the Police Force, the ICAC and the Forensic
Science Department. It is all a question of means they will say. Further education costs;
and the latest machinery to carry out tests costs even more. While remaining very
pragmatic and realistic on the issue of financial constraints, I believe that when it comes
to human right issues we are called upon to make an extra effort; indeed what price tag
can we attach to something which is priceless. Basic human rights cannot and ought not
to be tallied on any monetary scales. History will back us on this. Objection was taken to
the abolition of slavery on the ground that it would cause the financial ruin of many
merchants and land owners. Yet when the right time came, financial considerations had
to give way to the most basic of all human rights: the right to be free.
As I conclude on this issue, I am not in any way suggesting that we will end up with an
unimpeachable system if the solutions I have referred to above are implemented. I am
sure there will be other hurdles which will arise. All I am saying is that we may step one
little rung up in the ladder that will take us closer to our dream of a criminal justice
system which functions well within the parameters of basic human rights.
[2]. The right to counsel at enquiry stage
Let us now move to the second point. The right of an accused party to be assisted by
counsel of his choice is enshrined in Section 10 of our Constitution. While no-one puts
into question this basic right, the debate in our courts for the last 15 years or so has
centered on the right of an accused to be informed of his right to be assisted by counsel.
There are several approaches which have been taken to this subject; whereas some
believe that it is a constitutional right, others have taken the milder approach of saying
that it is a right promulgated in the Judges’ Rules but which has to be read in conjunction
with the basic constitutional right. Whatever be the approach that is taken, this is not the
subject of interest today. What is of interest for us today is the time at which and the
manner in which the right to counsel comes into operation.
Thus, a distinction has to be drawn between what happens at the trial stage and what
happens at the enquiry stage:
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[1]. At the trial stage, an accused party can ask for and is allowed to be assisted by
counsel of his choice. The most important part, however, is this: should he not have the
means to retain counsel, he is entitled to legal aid. In other words, a counsel is
appointed ‘d’office’ to assist the accused in the conduct of his case in court
[2]. However, at the enquiry stage, the accused only has the right to be informed that he
may be assisted by counsel of his choice. From there onwards two things may happen:
{a} The accused does retain counsel of his choice and the enquiry proceeds with the
accused being advised legally at every stage of the enquiry; or
{b} The accused does not retain counsel.
The question which we wish to address today concerns the reason why an accused
does not retain counsel at the enquiry stage. All too often we assume that the accused
has, of his own volition, chosen not to do so. However, experience has shown that in
many cases, accused parties do not retain counsel at the enquiry stages for the simple
reason that they do not have the means to do so, bearing in mind the fees that counsel
require before acting on behalf of an accused party. I do not wish to address the issue of
the quantum of fees here. For the present purposes, I am only concerned with the end
result that many a time an accused has to face the enquiring officers and the whole
process of the enquiry without the assistance of a legally trained person.
The basic principle that everybody is presumed to know the law is not open to challenge.
However, with the complex body of laws and procedure in our statute books, it cannot be
denied that an accused party finds himself at a major disadvantage at the initial stages
of an enquiry.
I wish to open a parenthesis here to relate something which has come to my attention
lately. Previously, accused parties often perceived enquiring officers as being hostile and
used to fear aggression from them. However, with the number of pronouncements on
the subject from our courts, there seems to have been a shift in the way certain police
officers now approach accused parties. (This does not apply to the whole police force
but to a few of them). Enquiring officers present themselves as the friends of the
accused who are doing their best to help him. The accused is led to believe that he has
found an ally and speaks out rather carelessly or even negligently in the belief that the
enquiry is being fixed in his advantage and that he will get away with a minimal sanction,
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if at all. In the meantime, the police is exploiting what may be termed his ‘naiveté’ to
build a strong case against him. Later, when the case is lodged before the court the
accused learns with much dismay that he has been taken for a ride. Any attempt to
retain counsel at that stage becomes a rather futile attempt to redress a situation which
has been misled at the very core.
I used the above example to stir us to think about the rather thorny issue of an accused
being given access to a legally trained person at the very outset of the enquiry where he
cannot afford one. I can immediately anticipate the objection that may be taken on this
issue and which may be summarized as follows: Imagine that all accused parties who
are brought in for enquiry are informed that they will be given a lawyer ‘d’office’ to assist
them in their enquiry, it is obvious that they would all want to be so assisted – three
issues come to mind [1].There would have to be an enquiry into the means of the
accused [2]. Where do we get that many lawyers to assists accused parties pursuant to
the legal aid system – lawyer would be spending more of their time assisting accused
parties in their enquiry rather than appearing in court [3]. Who appoints the counsel, the
police or a Magistrate?
These objections are so powerful that they seem to sound the death toll of the idea of
assistance given to accused parties by counsel at enquiry stage. This is why I wish to
suggest an idea which may provoke some thought.
[1]. Bearing in mind that there is a rather small number of police stations in Mauritius, we
may think in terms of having three or four legally trained persons attached to each police
station.
[2]. In terms of qualifications, they may not necessarily be Barristers practicing before
our courts. However, they would be persons holding a law degree and having practical
training in the area of criminal law, procedure and evidence.
[3]. They would not be recruited by the police so that they do not owe any allegiance to
the police force. Rather they would be recruited by the Attorney General’s Office or, may
be, by the office of the Human Rights Commissioner.
[4]. They would not have to be called in respect of contraventions or misdemeanors but
in relation to crimes and such other serious offences which may be worked out in a
schedule
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[5]. Their role would be to assist suspects who are unable to retain counsel because of
lack of means by giving them basic legal advice from a independent point of view.
[6]. They will obviously not appear for the suspect in the rest of the proceedings before
court. Once the case of the suspect is lodged before court, he can, as an accused
appeal to the already well established legal aid system.
May I be allowed to draw a parallel with anther system which appears to be working
quite well in our country. The philosophy of our labour laws is to protect the rights of
employees who are dismissed by their employers, and who find themselves in a
disadvantageous position in relation to the employer. The Ministry of Labour has
recruited a number of Labour Officers who are trained in the field of Labour Laws to
assist the employees.
The suggestion that I am putting forward may work with the same philosophy, the aim
being to assist suspects who are not in a position to retain counsel for lack of means.
Our point today is the respect of basic human rights. One of the ways of doing that is to
ensure that the ignorance of the law or the lack of means of a person does not become
an excuse for an enquiry to be conducted in such a way that it proves prejudicial to a
suspect.
[3]. BIAS AS OPPOSED TO A BALANCED APPROACH IN AN ENQUIRY
Issues such as violence or the denial of rights are matters which are quite obvious and
which attract attention. However, there are more subtle ways in which the fundamental
rights of a suspect may be tampered with and whose effect may be as serious as, if not
more damaging, than the more well-known breaches of human rights such as violence,
oppression or inducement.
We must bear in mind that in many, if not most cases where a suspect is arrested in
connection with the alleged commission of a crime, he has his own version or his own
story to tell in that connection. I readily admit that many a time these are quite lame
attempts to explain away the obvious in a desperate bid to get away from criminal
proceedings with which they are faced.
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But at times the story of the suspect does carry some substance. Allow me to give a few
examples based on real cases with which I have dealt with personally:
[1]. An accused is charged of embezzlement of funds of his employer. He states to the
police that this is a false charge which has been laid against him because he is suing his
employer before the Industrial Court for unfair dismissal
[2]. An accused is charged with rape. He explains that he has been going out with the
complainant and this is well known in the village. For certain reasons he refused to
marry the girl and the complaint of rape was made out of vengeance
[3]. An accused stands charged with the offence of rape and he states that the
complainant had been having consensual sex with him. However, when the family of the
complainant found out about the matter, she made a declaration of rape.
[4]. An accused party in a case of importation of drugs states that he was not aware that
the drugs was in his suitcase which were handed over to him by somebody else. There
is evidence in the form of the handwriting on the suitcase tags which may confirm that
the accused did not actually write on those tags. This would have gone a along way to
disprove knowledge on the part of the accused
[5]. An accused stands charged of larceny. The fingerprints at the locus would show
whether he actually entered the house
The surprising thing is that the police in each of those cases did not deem it fit to check
the version of the accused
[1]. There was no attempt to find out whether there was in fact a case lodged before the
Industrial Court,
[2]. There was no attempt to find out from the villagers about the well known love story
between he accused and the complainant,
[3]. There was no attempt to find out whether the declaration of rape was connected with
a family scandal that arose in the house of the complainant and
[4] There was no attempt to have the handwriting examined by an expert.
[5] There was no attempt to get fingerprints at the locus of the larceny
Once again, I can anticipate the objection that may be formulated from certain quarters:
well, they would say, let the accused prove his part of the case; after all the police
cannot work to destroy its own case. I humbly beg to differ from this point of view. Let us
not forget the time-honored principle which was laid down in the case of Woolmington
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to the effect that the burden is on the prosecution throughout to prove the guilt of the
accused who is deemed to be innocent, and any attempt to whittle down this rule cannot
be entertained. The duty on the prosecution includes the duty to disprove any
reasonable defence raised by the accused and which has been made a live issue.
The above rule is certainly respected in the course of the trial. But I have alluded to the
fruit of the poison tree in these circumstances because enquiries may often be carried
out with the view of getting enough supporting evidence in favour of the version of the
complaint so as to sustain a prosecution. I must here open a parenthesis to say that an
enquiry conducted in a biased way may affect the decision taken at the office of the DPP
to prosecute in the first place.
The court is then, unfortunately, bound only by the
evidence which is placed before it and which forms part of the court record. The case
which is placed before the Magistrate or the Judge is the result of a biased enquiry. One
may say that it is always open to the Magistrate or the Judge to dismiss the case if he
has doubts. That may indeed be so. But I want to go one step further. What if the
evidence on record warrants a conviction; but evidence which was available in favour of
the accused was not enquired into and was not placed before court. I will not go any
further than to say that, in such circumstances, the danger of a miscarriage of justice
stares at us in the face.
Since we are on the issue of human rights, I wish for all of us to try to place ourselves in
the shoes of a citizen who is prosecuted on the basis of a one-sided enquiry and who
find himself wrongly convicted and even if the case is dismissed he has had to undergo
the trauma of a lengthy and burdensome trial. Let us bear in mind that our criminal
justice system does not provide for monetary compensation for the citizen who is so
prejudiced.
You may ask me what is the solution? Unfortunately, I have no magic suggestions to
make here. My sincere belief is that one ounce of education is worth ten tons of imposed
law and procedure. I remember that when I joined the State Law Office as a freshman, a
learned senior who happens to be in the hall today told me the following words which I
have never forgotten: Raj, he said to me, you are not here to secure a conviction at all
costs. We do not persecute people; we prosecute them based on the letter and the spirit
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of the law. Your ultimate aim is to serve the interest of justice. And when justice triumphs
you can go home and sleep on both ears.
I believe that when it comes to the respect of human rights, educating enquiring officers
into how an enquiry should be conducted fairly is the way to go.
[4]. THE ISSUE OF DELAY BEFORE AND DURING THE TRIAL
The last item which I intend to address is the issue of delay before and during the trial. I
do not wish to address the issue of pre-trial delay today. Since this seminar concerns the
Judiciary, I wish to address the issue of delays after the trial has started. Our system is
presently such that when a charge sheet has been lodged, the accused is warned to
attend court. We then go through the process of formal maters. The first time round, the
accused is asked whether he wishes to retain the services of counsel. This is in keeping
with his basic right to be represented by counsel of his choice. If he chooses to retain the
services of counsel, the case is postponed to allow him to come back with a letter
suggesting dates. There may be further delays, at this stage, if the accused states that
he needs more time because for one reason or another he could not retain counsel. If
and when he does come with a letter from counsel, the case is fixed upon the date
suggested by counsel. Magistrates know that often counsel suggests dates which are
very far off and the trial is fixed at that suggested date. Then, there are further
postponements when counsel is either laid up, or had to go abroad on mission or has to
attend another court. These are very common grounds for postponements.
The end result is that, to a large extent, the court does not and cannot manage its diary.
The court has to work with the bar and this infelicitous marriage often leads to a very
fragile balancing exercise with the rights of the baby, who in this case happens to be the
accused, left out of the equation.
It is not disputed that unwarranted delays are certainly not in keeping with the respect of
the basic rights of an accused party. There is first of all the trauma that goes with his
having to await the outcome of a long trial. But there is also the issue of the loss of
memory by witnesses who depose in the course of the trial. The need to refresh the
memory of witnesses has unfortunately become a very common feature in the course of
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trials. I am sure that my fellow Brother and Sister Magistrates will agree with me that
motions to refresh the memory of witnesses are made almost as a matter of routine in
our courts. When a witness deposes from a very approximate or a faltering memory, the
risk that what he says may not actually reflect the truth is very real. But, he may hide the
doubts that he is having very well with the result that he is mistaken but is nevertheless a
very convincing witness. The court then has to deal with this aspect of the fruit of the
poison tree. We may eat of the fruit but not realizing that there is an insidious
contamination which has found its way into the fruit.
I am fully aware that the issue of the relationship of the bar and the court had been
discussed may times. However, my paper would be incomplete if I do not place on
record the thoughts which have continuously crossed my mind concerning this issue. I
believe that the source of the problem is the fact that our local bar is organized in such a
way that most counsel work individually. Thus, the court works with the counsel whose
services have been retained by the accused in the exercise of his choice.
His Lordship, the Honorable Chief Justice has expressed his unreserved commitment to
bring the appropriate reforms to make the Mauritian Judiciary more efficient while
bearing in mind the requirements of fully respecting the rights of persons who come to
the courts for justice. May I suggest that some serious thought be given by Barristers to
shifting the workings of our bar to a properly organized chambers system.
The advantages may be summarized as follows:
[1]. When an accused is summoned to come to court for the first time, the summons
should have a written requirement that he should contact counsel ad seek legal advice
before coming to court
[2]. If he wishes to do so, he contacts a Chambers of his choice and not an individual
counsel.
[3]. On the first day the case is called in court, the plea of the accused is recorded and
the court fixes the case according to dates available in its diary and not dates which are
suggested by counsel although some concessions may be made here.
[4]. The accused then informs the chambers of the trial date and the chambers deputes
one of its counsel to come and handle the trial.
[5]. If ever the case is postponed, the court once again fixes the continuation on dates
available to it depending on how old the case is. If the counsel who appeared in the case
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on the first occasion is not available on that date, then another counsel can be deputed
by the chambers to appear in court on that day. There are surely going to be some
objections to this. But it is a system that works with the State Law office. When one SLO
cannot appear, the file is handed over to another SLO with instructions and the
prosecution proceeds quite smoothly in court.
This would have the effect of reducing delays during the trial with the resulting
advantages for the respect of the rights of accused parties. I am fully aware that certain
laws will have to be changed and there will be a need for the bar and for the judiciary to
adjust their approach to this noble profession which we have all come to honour and
respect
Conclusions
Your Lordships, distinguished guests, and friends of the Magistracy, I wish to thank you
all for your kind attention and hope that my intervention has helped to provoke some
thoughts on human right issues which are of extreme importance to us.
Mr P. Fecknah,
Ag. President Industrial Court
June 2008
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