THE PRELIMINARY INQUIRY (MISCELLANEOUS PROVISIONS) BILL (NO. XII OF 2011)

Order for Second Reading read

The Attorney General (Mr Y. Varma): Mr Speaker, Sir, I move that the Preliminary Inquiry (Miscellaneous Provisions) Bill (No. XII of 2011) be read a second time.

Mr Speaker, Sir, one of the strongest commitments taken by this Government has been to modernise the legal and judicial system in Mauritius. The recent enactment of a number of pieces of legislation bears testimony to this reality, namely –

– the Divorce and Judicial Separation (Miscellaneous Provisions) Act, providing for divorce by mutual consent;

– the Courts (Amendment) Act, dealing with vexatious litigants;

– the Asset Recovery Act, dealing with recovery of proceeds of crime;

– the Court Ushers (Amendment) Act, providing for the liberalisation of the profession of usher;

– the Revision of Laws (Amendment) Bill, aiming at keeping our laws officially updated.

The Institute for Judicial and Legal Studies Bill, providing for the establishment of an Institute for Judicial and Legal Studies to promote proficiency and maintain standards in the legal and judicial professions, and the Law Practitioners (Amendment) Bill, providing for a number of measures to increase the standard of the legal and judicial professions, have already been introduced in the National Assembly.

Moreover, I wish to inform the House that the Constitution (Amendment) Bill and the Judicial…

Mr Speaker: This is a Bill restricted to three amendments. I think we have to focus on the amendments.

Mr Varma: I was just referring to the measures taken to modernise.

Mr Speaker: No.

Mr Varma: Mr Speaker, Sir, this Government does not intend to stop here. The Preliminary Inquiry (Miscellaneous Provisions) Bill, presently before this House, is yet another piece of legislation showing the Government’s determination to strive forward to fulfil the commitment given to the people of this nation.

Preliminary inquiries have, for a very long time, been deeply rooted within our criminal justice system. As far back as 1852, District Magistrates in Mauritius have, at the request of the Procureur and Advocate General, been conducting preliminary inquiries in respect of crimes which are not within their jurisdiction. This practice, Mr Speaker, Sir, was inspired from committal proceedings in England. For years, our law has provided, in criminal matters, for preliminary inquiries before District Courts, especially in cases of murder and manslaughter which are only triable before the Supreme Court (judge and jury).

As at today, and as has always been the case, a preliminary enquiry is held at the request of the Director of Public Prosecutions (“DPP”). The holding of all preliminary inquiries is advised by the DPP after the Police have conducted the enquiry and submitted same for the benefit of advice. No court of law can proceed to hold a preliminary inquiry if the DPP does not advise that it should take place.

Mr Speaker, Sir, following the completion of a preliminary inquiry, the Magistrate sends his or her findings to the DPP who finally decides whether a case is to be lodged, if at all. I wish to lay stress on the fact that even if the Magistrate commits the accused to the Assizes, the DPP is not bound to lodge a prosecution before the Supreme Court. For instance, the latter may well decide to lodge the case before the Intermediate Court on a lesser charge or not to prosecute the person on any charge.

Mr Speaker, Sir, the nature and purpose of a preliminary inquiry was considered in the case of Sir Gaëtan Duval v District Magistrate of Flacq [1990 MR 125] where the Court held as follows –

“A preliminary inquiry, therefore, is only a step in a process which may or may not lead to a trial even where the Magistrate decides to commit for trial. In practice, it amounts to a committal in custody or on bail (which we understand is the case here) with a view to enable the Director of Public Prosecutions to decide whether or not to proceed to trial on the basis of the evidence heard on oath at the enquiry instead of deciding, as he does in other cases, on the basis of unsworn and extra-judicial enquiries conducted by the Police.

We have already noted where a Magistrate discharges an accused is no bar to a new charge. Preliminary inquiries, therefore, must be distinguished from trial and administrative proceedings. Unlike decisions as a result of a trial or administrative proceedings, the interests of the individual are not finally affected and all procedural guarantees still remain available to him, if and when he is tried. …”

Therefore, Mr Speaker, Sir, the object of a preliminary inquiry is to screen and filter weak, unjustified and unmeritorious charges and to ensure that a person be committed to stand trial where a prima facie case has been made out against him.

However, it has been observed that, in Mauritius, preliminary inquiries serve a useful purpose in relatively few cases. One of the main criticisms which have been levelled against preliminary inquiries is that they often take too long. The duration of a preliminary inquiry, from the time it is lodged before a District Court until the Magistrate submits his or her findings, depends on several factors, including the level of complexity of the case, the attendance of witnesses, the availability of Defence Counsel, as well as the number of objections raised during the inquiry.

Mr Speaker, Sir, the duration of a preliminary inquiry, therefore, varies from case to case. There have been cases, especially high profile cases, and those complex in nature, where the preliminary inquiry has lasted about two years or more.

Moreover, after the inquiry is heard, if the case proceeds to trial before the Judge and Jury at the Assizes, the same evidence is normally repeated, perhaps with some variations. The whole process involves a considerable length of time. As far as witnesses are concerned, they have to go through the trauma of repeating their evidence twice. For these reasons and for those I have indicated previously, the need to cut down delay is imperative.

Mr Speaker, Sir, from my own experience at the Bar, in one particular murder case, I had to attend court 36 times for a preliminary inquiry which lasted more than two years. I also recall, Mr Speaker, Sir, appearing for accused parties in murder cases where they wanted to plead guilty from the very start but had to go through preliminary inquiries to ultimately plead guilty before the Assizes. I am mentioning this to bring home the realisation that, even where an accused party intends to plead guilty to a murder or manslaughter charge, he currently still has to go through a lengthy preliminary inquiry before he can expect to be tried.

Mr Speaker, Sir, by way of current example, the recent case of a little girl, aged 7, who was sexually assaulted and burnt alive by her maternal uncle calls for attention. The gruesome and inhumane character of the murder has captivated the minds of the whole of our country, and various calls have been made for justice to be done in the matter. The accused has confessed in a straightforward account of the incident to the Police. The DPP has had no choice in view of the current state of the law governing preliminary inquiries but to request the District Court of Bambous to hold a preliminary inquiry in the matter. The decision was taken last April in the face of evidence of such quality that there is no need for it to be tested before a trial. This preliminary inquiry is likely to absorb an additional year or two before a trial proper can take place and before justice can be done.

In terms of recent statistics, I am informed that 27 preliminary inquiries were lodged in the year 2009 before District Courts in Mauritius and Rodrigues whilst 46 were lodged in the year 2010. Of the total of these 73 preliminary inquiries, 32 are still being heard before the District Courts whilst, in 30 cases, the accused parties have been committed to the Assizes.

Mr Speaker, Sir, I am also informed that there are already 10 cases going as far back as 2005 which have been lodged before the Supreme Court and are still awaiting trial. Amongst these cases, the case of the baby girl of two and half years who was raped, sodomised and murdered, which has just been heard before the Assizes, and in which the verdict was delivered yesterday after around 6 years. There are 40 cases of murder or manslaughter that will have to be referred to the District Court for preliminary inquiries before a full and final decision is taken. These cases go back 2 or 3 years and, if referred to the District Court for preliminary inquiry, will take another 2 to 3 years before eventual prosecution before the Supreme Court. I am told that, in respect of a large majority of these cases, the accused parties want to plead guilty and have their cases heard within the shortest possible delay.

As far as pleas of guilty are concerned, I am informed that, in a large number of murder or manslaughter cases where preliminary inquiries were held before District Courts and eventually lodged before the Assizes, the accused parties pleaded guilty at the trial. The statistics for the years 2009, 2010 and 2011 are as follows –

(a) in 2009, out of 10 cases lodged before the Assizes, the accused parties pleaded guilty in 8 cases, that is, 80% of the cases;

(b) in 2010, in 8 out of 11 cases, guilty pleas were recorded, that is, 73% of cases, and

These statistics, Mr Speaker, Sir, only serve to buttress my preceding argument that going through a preliminary inquiry unduly protracts matters, especially in cases where an accused party intended to plead guilty from the start.

Mr Speaker, Sir, whilst our committal process has remained unchanged since 1852, jurisdictions in other parts of the Commonwealth, including the United Kingdom, Australia and Canada, have reviewed the usefulness of committal proceedings and either reformed or abolished them. The reasons for this move have been the need to curtail delay and to ensure the cost-effectiveness of dispensing justice.

The object of the Bill, therefore, is to amend the relevant provisions of the Courts Act, the Criminal Procedure Act and the District and Intermediate Courts (Criminal Jurisdiction) Act to provide that the DPP may, at his discretion, decide whether or not a preliminary inquiry shall be held before a person charged with an offence is made to stand trial before a Judge and a jury.

Mr Speaker, Sir, it is recognised that the procedure for preliminary inquiry may be useful in some cases where the evidence is otherwise doubtful or unclear, and will for this reason be maintained. The Bill does not aim at the abolition of this procedure. It only aims at ensuring that the procedure is only resorted to when necessary. There is no purpose served by perpetuating delays. In practice, the DPP may decide that a case may be tried directly without the need for a preliminary inquiry, based on the quality of the evidence.

As matters stand, a preliminary inquiry, in a large number of cases, only adds an additional layer for the prosecution, the defence and the accused parties alike, and leads to some two years, on average, being devoted to it. Even then the final decision as to whether to prosecute or not comes back within the DPP’s province.

Mr Speaker, Sir, let me now deal with the specific provisions of the Bill.

Under clause 2 of the Bill, two sections of the Courts Act are sought to be amended, namely –

(a) section 115 of the Courts Act is amended to give a discretionary power to the DPP to decide whether or not to require the holding of a preliminary inquiry where a Magistrate hears an offence within his jurisdiction but is of the opinion that the offence deserves a punishment that is beyond his jurisdiction or that the evidence discloses another offence which is not within his jurisdiction;

(b) section 134 of the Courts Act is also amended to vest a similar power upon the DPP where an offence is committed on the high seas or on board a ship or aircraft registered in Mauritius and is not triable before the Intermediate Court or the District Court.

Mr Speaker, Sir, under clause 3, important amendments are brought to relevant provisions of the Criminal Procedure Act and under section 3, by inserting a new subclause (1A) which, as presently drafted, provides that where a person is charged with an offence referred to in section 116 of the Courts Act, the DPP may, “at his sole discretion” but subject to any other enactment, decide whether or not a preliminary inquiry shall be held before the person is made to stand trial and prosecute the case –

(a) before a Judge and a jury, without holding a preliminary inquiry;

(b) before a Judge without a jury;

(d) before the appropriate District Court for the Magistrate to inquire into the charge and commit the person for trial.

Mr Speaker, Sir, I am aware that some unease has been expressed about the DPP having the “sole discretion” in deciding whether or not a preliminary inquiry shall be held before a person is made to stand trial before a Judge and jury. Let me say outright that I do not consider there is any legal or constitutional problem in having such a provision in view of the powers already vested upon the DPP under section 72 of the Constitution. Nonetheless, I have given due consideration to representations received from various quarters, especially the Bar Council.

I shall, therefore, be moving at Committee Stage for the deletion of the word “sole” wherever it appears in the Bill. It follows from the proposed amendments that the word “sole” will also be deleted from the Explanatory Memorandum. I wish to stress that this is being done in a spirit of fairness although, as I have previously stated, I do not foresee any legal or constitutional problem with the expression used. I must say that the DPP has no objection to the amendment. In fact, in a letter addressed to me, the DPP has informed me of his intention to issue guidelines to explain how he proposes to exercise his discretion. Whilst it is natural that each case will be decided on its own merits, it is felt that the issue of guidelines will, to a large extent, alleviate the fears and concerns that have been expressed.

Mr Speaker, Sir, clause 3(d), as presently drafted, provides for section 65 of the Criminal Procedure Act to be repealed and replaced by a new section 65 which provides that every person charged with an offence before a Judge and a jury where the trial has not been preceded by a preliminary inquiry, before a Judge without a jury or before the Intermediate Court, shall be entitled to have, on demand, copies of the statements recorded from the witnesses for the prosecution and of any documentary evidence to be produced at the trial.

I have recently received representations from the Bar Council to include “unused material” among the documents which the accused shall be entitled to under the proposed new section 65 of the Criminal Procedure Act. I have decided to take on board this representation since I am of the view that it endorses the spirit of fairness through full disclosure. I shall, therefore, be moving at committee stage for minor amendments to be brought to clause 3(d) to include “unused material”.

In the case of a trial that has been preceded by a preliminary inquiry, the accused will, in addition, be entitled to copies of the depositions taken against him by the committing Magistrate.

Mr Speaker, Sir, clause 4 of the Bill amends section 44 of the District and Intermediate Courts (Criminal Jurisdiction) Act to provide for the discretionary power vested upon the DPP as to the holding of a preliminary inquiry.

Finally, under clause 5, transitional provisions are provided in respect of offences committed before the date of commencement of the Act and preliminary inquiries which are already being conducted before a District Magistrate.

I have, Mr Speaker, Sir, covered, in essence, the provisions of the Bill.

It is considered that the proposed amendments do not present any constitutional impediment. In the case of Sir Gaëtan Duval to which I have made reference, Justices Lallah and Pillay provide us with the answer by distinguishing a preliminary inquiry from the trial and conclude that the interests of the individual are not affected and all procedural guarantees still remain available to him, if and when he is tried.

Mr Speaker, Sir, by vesting the discretionary power upon the DPP to decide whether or not a preliminary inquiry shall be held before a person is made to stand trial before a Judge and a jury, the proposed amendments will have the effect of providing speedier and fairer justice to accused parties.

I wish to inform the House that the DPP has, in the course of the preparation of this Bill, been consulted. The latter has confirmed that the Bill meets the requirements of his office. Moreover, the Bar Council has endorsed the spirit of the Bill. However, one member has expressed reservations with regard to the proposed provisions.

In any event, Mr Speaker, Sir, the present reform is long overdue. Let me inform the House that, as far back as March 2008, the former DPP had written an official letter to the Attorney General’s office to suggest that amendments be brought to the statutory provisions dealing with preliminary inquiries. The view was expressed that, in many cases, they constitute a waste of time, money and effort and unnecessarily protract criminal proceedings against accused parties, especially in straightforward cases. Since I assumed office, I have done all that is necessary to take on board the suggestion made to ensure that justice is fair and speedy.

The reform being brought by this Bill will work for the benefit of the parties and Counsel and the whole criminal justice system alike, and the rights to a fair trial as provided for in section 10 of our Constitution will continue to be guaranteed.

Mr Speaker, Sir, the winds of change are blowing. At the same time, we need to modernise our laws and adapt them to current realities. How many times have we witnessed or heard complaints of protracted preliminary inquiries? The time has now come to reform the system and to follow the footsteps of countries which have brought similar reforms. We all know that it takes a lot of courage to bring reforms which are as important as this. This Government has the courage and, in my capacity as Attorney General, I can give the reassurance that it will not stop in its endeavour and commitment to modernise the legal and judicial systems.

With these words, Mr Speaker, Sir, I commend the Bill to the House.

Dr. Bunwaree rose and seconded.

Mr Varma: Mr Speaker, Sir, I would like to thank the hon. Minister of Agro-Industry and Food Security for this brilliant exposé and intervention. Actually, it is quite sad, Mr Speaker, Sir, that the Opposition has decided to walkout. Indeed, I should inform the House that hon. Members of the Opposition had consulted me on a number of occasions to suggest certain amendments, and only this morning I spoke to some hon. Members to tell them to suggest something.

I was under the impression, Mr Speaker, Sir, after going through the list of orators – they had a very long list of orators – that they would come forward with a concrete suggestion. They made a suggestion and, of course, when a suggestion is made, we have to look at the legal implications. I went back to the office and spoke to my officers. We even consulted the DPP to see whether the proposed amendment stands good in law. But unfortunately, Mr Speaker, Sir, the amendment which was proposed, that is, the DPP taking the decision in concurrence or with the consent of the defence, does not stand good in law. We all know the powers of the DPP as per section 72 of the Constitution. He is the only one who is entitled to prosecute in a case. His discretion is unfettered, Mr Speaker, Sir. I would have thought that the hon. Members would come forward with a suggestion during the course of the debates. Of course, Mr Speaker, Sir, we have brought certain amendments, and if something good had come out of the debates, we would have considered. It is not good just to walkout. I don’t know by which stretch of imagination Parliament can inform the Privy Council that the Opposition was not present during the course of the debates. This fails my imagination, Mr Speaker, Sir.

Mr Speaker, Sir, the hon. Leader of the Opposition had two points to make. He stated that powers are being removed from the Judiciary to reinforce the powers of the Executive. Mr Speaker, Sir, this is not correct. I stated, during the course of my intervention, that the ultimate decision is for the DPP. When the Police complete its inquiry, the file is sent to the Office of the DPP. The DPP sends the matter before a district magistrate for a preliminary inquiry to be held. The findings are then transmitted to the DPP, who ultimately decides whether the case should be lodged or not. How are we removing a judicial function to confer it to the Executive? I fail to understand, Mr Speaker, Sir.

The second point is that this Bill, as it is, brings prejudice to the rights of the accused. Mr Speaker, Sir, I made reference to the case of Sir Gaëtan Duval, in which two former Chief Justices, namely Lallah and Pillay, have stated in no uncertain terms that the interests of the individual are not finally affected and all procedural guarantees still remain available to him if and when he is tried. We are basing ourselves on what has been decided by our courts of law. This has been decided before the Supreme Court. To come and say that the DPP is part of the Executive – well, he hasn’t said it in so many words, but rather that the independence cannot be questioned; as far as the independence of the DPP is concerned, I would like to quote from the case of Edahtally and Glover. I quote –

“A distinguished feature of our Constitution like that of some of the new Commonwealth countries is the splitting of Executive functions between what one might call the political Executive, which remains answerable to Parliament, and an independent non-political Executive in specific matters consisting of, among others, the Director of Public Prosecutions, the Service Commissions, the Electoral Supervisory Commission, which are not answerable to Parliament.”

Mr Speaker, Sir, we are basing ourselves on cases which have been decided by the Supreme Court. It is not correct to say that the Government as a whole has not paid notice to the debates which have been ongoing for this present Bill. Mr Speaker, Sir, the Bar Council, as I clearly stated in my speech, has endorsed the spirit of the Bill. Of course, there is one Member who has expressed some reservations but, on the whole, we had consultations with the President of the Bar Council. The provision to make available the unused material was made by the President of Bar Council, and this has been retained by Government.

As regards the other amendments, of course, we have removed the ‘sole’ discretion, because we have also been hearing from several legal quarters to see whether this word can be deleted. We have done it, Mr Speaker, Sir. The hon. Minister Agro-Industry and Food Security has stated earlier on that the Judiciary has not expressed any concern about the Bill. I would like to add, Mr Speaker, Sir, that the Judiciary has been contacted, though informally. They have endorsed the Bill. There is no letter which has been sent to Government from the Judiciary to endorse the Bill, but we have had informal talks.

Mr Speaker, Sir, again, I would like to conclude by saying that this Bill is yet another step in the long way to modernise our judicial system, and it is by all means constitutionally and legally correct, contrary to what the Opposition has said. With these words, I would like to commend the Bill to the House.

Question put and agreed to.

Bill read a second time and committed.

COMMITTEE STAGE

(Mr Speaker in the Chair)

THE PRELIMINARY INQUIRY (MISCELLANEOUS PROVISIONS) BILL

(NO. XII OF 2011)

Clause 1 ordered to stand part of the Bill.

Clause 2 (Courts Act amended)

Motion made and question proposed: “that the clause stands part of the Bill”

Mr Varma: Sir, I move for the following amendment –

(a) in clause 2, in paragraphs (a) and (b), by deleting the word “sole”;

Amendment agreed to.

Clause 2, as amended, ordered to stand part of the Bill.

Clause 3 (Criminal Procedural Act amended)

Mr Varma: Sir, I move for the following amendment –

(b) in clause 3 –

(i) in paragraph (a), in the proposed new subsection (1A), by deleting the word “sole”;

(ii) in paragraph (d), in the proposed new section 65 of the Criminal Procedure Act –

(A) in subsection (1), by deleting the words “ and of any documentary evidence to be produced at the trial” and replacing them by the words “, of any documentary evidence to be produced at the trial and of any unused material”;

(B) in subsection (2), by deleting the words “and documentary evidence” and replacing them by the words “, documentary evidence and unused material”.

Amendment agreed to.

Clause 3, as amended, ordered to stand part of the Bill

Clauses 4 and 5 ordered to stand part of the Bill.

Title

Motion made and question proposed: “that the title stands part of the Bill”

Mr Varma: Mr Chairperson, I move as per amendment circulated –

Amendment agreed to.

The title, as amended, ordered to stand part of the Bill.

The enacting clause was agreed to.

The Bill, as amended, was agreed to.

On the Assembly resuming with Mr Speaker in the Chair, Mr Speaker reported accordingly.