Open Letter to Honourable Members

It is not too late to enact legislation which will defeat once for all the despicable manoeuvres of drug barons 

Dear Honourable Members

In reply to Parliamentary Question B/8, as to whether an enquiry is being conducted following the refusal of Cindy Legallant to testify in the case of conspiracy against Sada Curpen, the Prime Minister reacted swiftly, and promised to introduce a Bill amending the Courts Act this coming Tuesday.

The Bill will provide harsher punishments where a material witness declines to give evidence at a trial. Whilst I do not contest the urgency of the matter, there is a risk though that when legislation is prepared in such haste to satisfy political expediency, the real purpose of the Bill may be defeated.  

On 3 November 2009, Sada Curpen and Paul Curtis Villars were prosecuted for conspiracy to import Subutex unlawfully in Mauritius contrary to section 109(1) of the Criminal Code coupled with sections 12 and 29(1)(a) of the Dangerous Drugs Act. The case depended essentially on the testimony of Cindy Legallant who had given no less than ten statements explaining in detail the involvement of the two accused. As expected, Cindy Legallant was called by the prosecution to give evidence to support the charges against the accused.

In reply to the questions that were put to her by the prosecution, she simply stated “je n’ai rien à dire”. The case against the two accused had to be abandoned as a result, prompting the Magistrate to describe the conduct of the witness “a mockery of justice”. In a situation where a material witness refuses to testify, it is almost a certainty that the witness will be declared unfavourable and the prosecution will want to cross examine the witness and remind him or her of the previous statements he/she has given implicating the accused.

In the Sada Curpen case, Cindy Legallant was declared an unfavorable witness with the leave of the court and when confronted with her statements came up with the same mantra “je n’ai rien à dire”. She was given a fine of Rs 2000 by the Magistrate. It is arguable that she could have been given a fine of Rs 2000 every time she states “je n’ai rien à dire” but the Magistrate declined to adopt this course of action. In effect she got away with a fine of Rs 2000.

The proposal to increase the penalty by providing for imprisonment and much harsher fine may constitute a valid deterrent to deal with turncoat witnesses but in the end, an accused can still walk free from the court if the material witness declines to testify. Our law does not deal adequately with witnesses who refuse to testify. The emphasis is more on those who give false evidence and even then the law is, in short, a mess.

Section 276 of the Criminal Code provides for penal servitude for a term of 20 years in a situation where a witness has given false evidence. Cindy Legallant was alive to that section and hence in order not to fall foul of section 276 intentionally repeated ad nauseam “je n’ai rien à dire”.

Similarly, under section 126 of the District and Intermediate Court (criminal jurisdiction), a repeat of section 276 of the Criminal Code, the section provides that a person who as a witness gives false evidence shall commit an offence and shall be liable on conviction to imprisonment for a term not exceeding 2 years. That is not all. Section 42 of the Dangerous Drugs Act also provides that a witness who gives false evidence in relation to a drug offence shall, on conviction, be liable to a fine of not less than 10,000 rupees and not more than 100,000 rupees together with a term of imprisonment not less than 2 years and not more than 10 years.

Our statutes therefore provide in respect of the same offence of giving false evidence four different sets of punishment under section 128(2) of the Courts Act, under section 42 of the Dangerous Act, under section 126 the District and Intermediate Act and finally under section 276 of the Criminal Code!

By simply voting for a harsher punishment under the Courts Act, you will not have achieved a great deal. I would invite you to take a closer look at what has taken place in other common law jurisdictions and I can think of Australia and the Republic of Ireland.

Section 16 of the Criminal Justice Act of the Republic of Ireland addresses the situation where a witness refuses to give evidence due to intimidation or simply to sabotage the case of the prosecution, or has denied making the statement or has given evidence which is materially inconsistent with the statement. In such a case the statement given by the witness may be admitted as evidence if it is confirmed that it has been made by the witness and the court is satisfied that the statement was made voluntarily and it was reliable.

The court must also be satisfied that the statement was made under oath or affirmation to the effect that the contents of the statement are true. The statement becomes therefore admissible and the court can act thereupon to convict the accused. The witness should of course be made available for cross examination by the defence. But notice that the statement ought to be made under oath or affirmation, so that failure to testify by the witness when called upon by the prosecution, does not make the statement redundant.

My appeal to you therefore is to take time to consider the Evidence Act of Australia and the Criminal Justice Act of Ireland. It is not too late to enact legislation which will defeat once for all the despicable manoeuvres of drug barons and their accomplices.

Yours sincerely

R.V.