Faceless character v/s « some faceless bureaucrat »

[Rafic Soormally]

In his article « THE JUSTICE GAME – Deals behind closed doors that corrupt the justice system », le Mauricien 19 February 2008, an unidentified author (regarded here as a he) who writes under the initials R.A.J. clearly points his finger at the Director of Public Prosecutions when he states that « some faceless bureaucrat is reducing charges of murder to manslaughter » if the accused pleads guilty to the lesser charge. But he does not make a clear distinction between the two charges which he says is « almost impossible to answer », nor does he demonstrate an understanding of the burden of proof in murder cases, nor does he show the complexities involved in the granting of bail. For his information, the DPP who is very much involved in decisions affecting murder and manslaughter cases cannot be regarded as a « faceless bureaucrat ». This is most insulting and defamatory as it attempts to lower his estimation, as well as that of the other Civil Servants working with him, in the eyes of the public. On the contrary, R.A.J. is the one who is faceless as he is hiding behind anonymity while insulting and defaming others, and misinforming and misleading people in the process.

Malice aforethought
To prove murder beyond a shadow of a doubt, the prosecution must prove two things – actus reus (the act) and mens rea (the guilty mind). This is a very arduous task for the prosecution; even where the accused has admitted the act, proving the guilty mind is not so easy as the circumstances of each case vary tremendously. Moreover, in the case of mens rea, the prosecution must prove malice aforethought, the intent to kill or cause grievous bodily harm (GBH), which is the area where the complexities of murder cases tend to lie simply because the mind is unfathomable. The slightest doubt in this area could lead to an acquittal or a mitigation of the charge. Even where malice aforethought has been proven, the charge of murder may be reduced to voluntary manslaughter (homicide volontaire) on the ground of diminished responsibility, provocation or acting in pursuance of a suicide pact [Ref. Archbold].
Involuntary manslaughter (homicide involontaire) is « killing withoutthe intent to kill or cause GBH », but all the elements of the offence are the same as in the case of murder. Involuntary manslaughter is caused either by the accused gross negligence or by his unlawful act (not omission unless there is a duty of care). Self-defence is a defence to both murder and manslaughter.

In R.A.J.’s referred case, « Cannibale raped and beat to death his 10 year old niece » and was « aided and abetted » by two other persons known as « Loup garou and Puce », and they were all found guilty (presumably of murder). But, strangely, according to R.A.J.’s representation (or ‘misrepresentation’) of facts, Loup garou and Puce were the ones who were sentenced to 45 years each for murder while the charge of the principal offender Cannibale was reduced to manslaughter in a (corrupt) deal with the prosecution and sentenced to only 10 years with remission.


Habeas corpus
As it stands, a person accused of any criminal offence is assumed innocent until proven guilty whether or not the accused has confessed to the crime. Unless the police have reason to believe that the accused, whose offence carries a custodial sentence if found guilty, would abscond or re-offend if released on bail, the accused is normally freed under certain conditions. Otherwise, he (or she) has the right to apply to a higher court for habeas corpus. However, a person charged with murder, manslaughter or attempted murder is not generally granted bail if previously convicted of any such offence. And, if the court decides to grant bail to a person charged with murder (for the first time), it can only do so on specific conditions, such as, that the accused undergoes medical examination

Again, in R.A.J.’s above stated case, as Cannibale has re-offended by committing murder with another of his friend known as Mangouste, the chances are that he will not be granted bail while Mangouste may be allowed bail under specific conditions if it is his first ‘offence’. This has to do with the way the justice system works, and nothing to do with R.A.J.’s gratuitous allegation of « criminal abuse of the bail system by the very people [meaning the Civil Servants] making a handsome living from the law and order industry ». Also, he is not in any position to know, through his own reflection or otherwise, whether the DPP’s office is labouring under any form of « gross misapprehension » as he alleges.

Hence, he is making a very poor case against the Bail Act. He does not appear to be aware that any presumption against bail is rebuttable. Moreover, someone cannot be deprived of liberty for an inordinate length of time without being brought to justice. For example, Mr Cehl Meeah (suspected of giving instructions to commit murder) was never tried but was kept in custody for around three years based on the allegations of a self-confessed criminal. It is very strange that R.A.J. did not mention such an important and widely reported case in the very context he is writing. Or, does he believe that the refusal of bail to Meeah was the result of corruption in the justice system or political interference? Although Meeah never confessed to any crime, ‘confessions’ in police custody nearly always tend to be viewed suspiciously in deciding bail unless there is compelling corroborating evidence.

Conclusion
R.A.J. has given an improper and misleading treatment of the matters of murder, manslaughter and the granting of bail under the Bail Act. It appears that he is merely using those topics as excuses to attack the DPP and other Civil Servants involved in such important decisions without an understanding of the compromises which sometimes have to be made with alleged criminals in the interests of justice, having regard to the onerous burden of proof that bears on the prosecution.

R.A.J. further makes as if he is so concerned with the victims but makes absolutely no case in their favour, for example, how the government can help the families in coping with the trauma, and what financial assistance can be provided for them. After all, the government is responsible for law and order. The character’s main concern is with the « handsome living » of Civil Servants in the Office of the DPP and his usual rant and obsession with their salaries and other benefits.

If R.A.J. is a Civil Servant privy to confidential information, he is clearly abusing his position and he should be investigated. In alleging that deals made by « some faceless bureaucrat » « behind closed doors that corrupt the justice system », he unmistakably identified the DPP and the class of « handsome living » Civil Servants involved in what he believes are corrupt decisions made behind closed doors which « corrupt the justice system ». In so doing, R.A.J. is lowering the estimation of this class of people in the eyes of the public in a clear attempt to defame those people, perhaps in the belief that this would boost his estimation of himself.


M Rafic Soormally
London
27 May 2008

cc. : The Director of Public Prosecutions & The Prime Minister Dr N Ramgoolam