Supreme Court of Mauritius, 9 juin 2023, 2023 UPW 155 – Pce v M. A. P. Samcooaree

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Pce v M. A. P. Samcooaree

2023 UPW 155

PCN 2390/20

THE DISTRICT COURT OF UPPER PLAINES WILHEMS (MAURITIUS)

In the matter of: –

Police

v/s

Muhammad Aktar Parwez SAMCOOAREE

RULING

1. Accused stands provisionally charged for an offence of attempt upon chastity in breach of section 249(2) of the Criminal Code. He was arrested on 22 December 2020 and was provisionally charged on 23 December 2020. Counsel for the defence moved that the provisional charge be struck out on the ground of undue delay and prejudice caused to the accused.

2. The enquiry officer explained that a number of officers enquired into the matter and have been transferred. He could therefore not explain the reason why the enquiry took three years to be completed as his only involvement in the present matter was

as from the drafting of the PF 100. He confirmed that the accused already gave his statement to police upon arrest but could not confirm whether any further statement was recorded from him. He nevertheless stated that the enquiry was of a complex nature and was depending upon the availability of the medico-legal report to progress.

3. He further explained that as at May 2023, the file was sent to the police prosecution unit for the drafting of the information. He estimated the timeframe to complete this exercise to two to three weeks. However, he was not in a position to give an indication of the time needed for the main case to be lodged. For the purpose of the argument, the accused gave evidence and explained that ever since he was provisionally charged, he has been subject to a lot of stress and had to change job more than once since he had to seek permission to attend Court on a number of occasions.

4. The present motion to have the provisional charge against the accused struck out is based on the fundamental principles enshrine in section 10(1) of the Constitution, that an accused party should be brought before a Court of law within a reasonable time. On this aspect, the Supreme Court considered in the case of State v/s Bissessur & Ors (2001 SCJ 50), whilst applying the reasoning in the case of Barker v/s Wingo (US Supreme Court 1972), that it would be important to assess: (i) the length of the delay; (ii) the reasons given by the prosecution to justify the delay; (iii) the responsibility of the accused for asserting his rights; (iv) the prejudice to the accused. It further goes by affirming that the “Court ought to carry out a balancing exercise which requires an examination of the length of the delay in the light of other factors, namely: (1) the seriousness of the offence; (2) limits on our institutional resources; (3) reasons for the delay and (4) trial-related prejudice, in order to determine where the attainment of justice lies.”

5. Applying the above principles, I shall now consider whether in the present matter there has been inordinate delay in the conduct of the enquiry. It is noted from the enquiry officer’s evidence that the enquiry has been completed after a period of three years and that the formal charge is yet to be lodged. True is it that the charge contemplated against the accused is a serious one when considering the economic, social and cultural background of our country. However, the only reason

put forward to explain the passage of time as from the date of arrest, was the change of enquiry officer and the delay in obtaining the medico-legal report. Yet, the enquiry officer could not explain in clear terms when same was made available and the reasons for the time taken for such report to be made available. Despite referring to the complexity of the enquiry, the enquiry officer failed to give details of such complexity. I fail to see how the delay in obtaining the medico-legal report would be enough to explain the complexity in the conduct of an enquiry.

6. I also note that there is nothing on record to suggest that the delay in the conduct of the enquiry has, in any aspect, been caused by the accused’s attitude. Has the accused suffered from any trial related prejudice? When assessing the prejudice caused to the accused, I note that the accused has explained under oath that he has always tried his level best to comply with Court appearances and has even sacrificed his job more than once. He exposed in clear terms how the delay in the lodging of the formal charge has negatively impacted on his professional as well as his personal life.

7. It was highlighted in the case of Mungroo v Queen (1990 PRV 22) that “The right to a trial ‘within a reasonable time’ secures, first, that the accused is not prejudiced in his defence by delay and, secondly, that the period which an innocent person is under suspicion and any accused suffers from unnecessary and anxiety, is kept to a minimum.” Based on the principles of Mungroo, I consider that the prejudice mentioned by the accused in his testimony to be pre-trial related one.

8. For the reasons mentioned above, I consider that the delay caused in the lodging the formal charge against the accused since his arrest, has not been sufficiently substantiated before me by the enquiry officer and cannot justify that the present provisional charge be maintained against the accused. In order to preserve the accused’s constitutional right to be afforded a fair trial within a reasonable time and to preserve the proper administration of justice, I struck out the provisional charge against the accused.

Delivered this 09 June 2023

M. Lambert-Henry (Mrs) Senior District Magistrate