PREFACE
The much respected English Historian C.V Wedgwood once wrote "it has been
said that without passion there might be no errors, but without passion there
would certainly be no history".
We are writing history with the present report on a miscarriage of justice which will
sorely enlighten each and every one of us on all the weaknesses of our system. But
to succeed in our immense task, we need that the Republic itself accepts the
principle that we can go wrong. And when we have wronged any human being, we,
as citizens of the Republic, will fail in our duties if we do not stand up to right the
wrongs that we have done. "We"... yes, as justice is delivered by the State in the
name of each and every one of us.
In the past centuries, justice was done in the name of the Monarch on the grounds
that he/she is the representative of God on Earth and therefore cannot do anything
wrong.
Today, we must never fall into the trap of self-complacency when it comes to the
search for the truth.
Truth will remain elusive if we choose to close our eyes. And the choice is here for
each and every one of us to make, without any sort of frontier. We will only make
history when we humbly, yet boldly decide to expose and confront the flaws
crippling our system, thus letting the whole truth flourish of its own strength and
light. No compromise or concession can exist in a Republic pointing towards
exposure of the bare truth.
While venturing in the alleys of justice to correct its eventual shortcomings, we
may certainly come to err. However, each and every one of us may also come to
the point of reaping the fruits of a job well done.
History itself will judge if we were keeping doing wrong or attempting with the
drive of passion to mend what was within our reach to mend.
Rama Valayden27th June 2013
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This report is dedicated to all those who abhor Miscarriage of Justice and
all forms of Injustice.
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DISCLAIMER This report contains information obtained from as far as possible within the Republic of Mauritius where there is no Freedom of Information Act. Reasonable efforts have been made to publish reliable data and information. This report or any part may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, microfilming, and recording, or by any information storage or retrieval system, provided necessary references are made. Direct all inquiries or acknowledgements to Me. Rama Valayden, Teeluck Court, Port- Louis 2013 Printed in the Republic of Mauritius by Graphic & Prints Ltd
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Contents
Acknowledgements vi Methodology vii Foreward Chapter 1: Introduction 1
Part 1 Wrongful Convictions
Chapter 2: Safety of convictions and Miscarriage of Justice 5 Chapter 3: Are we immune to a Miscarriage of Justice? 8 Chapter 4: A Tunnel vision 11 Chapter 5: Victims of Miscarriage of Justice 21 Chapter 6: Miscarriage of Justice around the world 28
Part 2 Criminal (In)justice System Chapter 7: The Police Enquiry 34 Chapter 8: Preliminary Enquiry 71 Chapter 9: Assizes 82 Chapter 10: The ‘Thupsee Brothers’ saga 91 Chapter 11: Witness Li Tung 104 Chapter 12: Time is of the essence! 121 Part 3 Mysteries Chapter 13: The mutilated body 125 Chapter 14: The red wire 134 Chapter 15: An Empty safe 136 Chapter 16: Convenient disappearance 139
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Part 4 Disconcerting facts
Chapter 17: Impartiality of Trial Judge 155 Chapter 18: Exclusion of a potential member of the Jury 157 Chapter 19: The expert from Scotland Yard 159 Chapter 20: Threatening letters 161 Chapter 21: Raymond Zamir 162 Chapter 22: Mrs. Latour 165 Chapter 23: Police misleading the Prime Minister 173 Chapter 24: Fire Services 175 Part 5 Exculpatory evidence Chapter 25: The tape 179
Chapter 26: Confessions 182 Chapter 27: CCTV cameras 185 Chapter 28: Sequestration case 188 Chapter 29: Iron pole 190 Part 6 Escadron de la Mort Chapter 30: Who were they? 191 Part 7 An analysis Chapter 31: The bigger picture 195 Part 8 Post 27th June 2013 Chapter 32: What’s next? 199 Part 9 Recommendations Chapter 33: Our recommendations 212 Part 10 Annexures
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‘To the living we owe respect To the dead we owe only the truth’
Voltaire
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Acknowledgment This Report was made possible thanks to the support and advice of many individuals and organisations. The team of lawyers who conducted this enquiry would like to thank everyone who contributed to this endeavour. Special thanks go to those who have lost their eternal loved ones in the Amicale arson but who had the courage to go through the ordeal once again to help us in our quest for truth. We are also especially grateful to those who have been working within the different governmental services, such as the Police and Fire Services who have jeopardized, hope not, their careers in providing to us invaluable information and pointers. We would also like to acknowledge all the lawyers who have encouraged us throughout our enquiry. A number of experts generously gave their time for the cause. We are grateful to them. We acknowledge the support of our dearest families that had to bear with us, the burden of our tantrums, worries and absences. We deeply acknowledge the moral support of the general public in Mauritius and abroad which has boosted our morale.
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Methodology
The idea behind the enquiry conducted by myself and a group of
lawyers, on a pro-bono basis, was to shed the light on the arson
which occurred at L’Amicale de Port Louis, a game house, in
Mauritius, on the 23rd May 1999.
The objective of the report is to publish the findings of our enquiry
together with our conclusions and critics as regards to the manner in
which the Police enquiry was conducted.
A number of disturbing facts have also come to light in respect of the
Preliminary Enquiry and the Assizes. These will also be addressed in
the report.
The first step was to gather all the files containing court transcripts,
depositions and all other documents produced in court. Thereafter,
requests were made to the general public for those who had
information to come forward and share it with us.
We have also painstakingly attempted to get in touch with all the
persons who we thought could provide help to us including police
officers, retired police officers, members and ex members of the SSU,
the SMF and the firemen who attended L’Amicale de Port Louis on
that fateful night, bouncers and other employees of the game house,
people residing in the neighbourhood of L’Amicale de Port Louis
and many more individuals whom we believe could help us in our
quest for justice.
viii
We have interviewed more than 115 persons, many of whom had
never been interviewed by the police regarding the events of the 23rd
May 1999.
Some of those persons, whilst voluntarily giving information to us,
have asked us not to reveal their identities. Others chose to remain
anonymous for now but have promised to come forward if there is a
Commission of Enquiry or other enquiry by the police.
Finally, some witnesses have not only agreed to impart information
to us but have also sworn affidavits to that effect, which are annexed
to this report.
We have also retained the services of experts including British
forensic experts to assist us in certain areas of our enquiry.
1
ON MONDAY 20 NOVEMBER 2000 – AFTER RECESS
Before Honourable P. Lam Shang Leen, Judge
Criminal Session:- State v. Sumodhee & Ors.
All accused present
Parties represented as above
COURT:- Well, let us have the jurors, please. Yes, Mr. Foreman, have you
reached a verdict?
MR. FOREMAN:- Yes, My Lord. After deliberations, we have found Accused
No. 1 guilty as charged by a majority of 8:1, Accused No. 2, guilty as charged
by a majority of 8:1, Accused No. 3, guilty as charged by a majority of 8:1 and
Accused No. 4, guilty as charged by a majority of 8:1. Thank you, My Lord.
COURT :- Thank you, Mr Foreman.
Inform the Accused that the Jury has found them guilty as charged.
MR INTERPRETER:- The have been informed accordingly, My Lord
(…)
COURT:- Accusés Nos. 1, 2, 3 et 4, bannes Jurés fine trouve zotte
coupables 8 contre 1, zotte ine tender. D’apres la loi, avant mo passe
sentence, zotte énan quitechose pou dire, ou bien pénan narien pou dire ?
2
ACCUSED NO. 1 :- Mo innocent dans ca case la
COURT: D’accord, ok.
ACCUSED NO. 2 :- Mo innocent Missié, mo maintenir mo innocence.
Mo donne avis d’appel.
COURT :- Oui. Laisse mo fini passe sentence, après ou va dire.
ACCUSED NO. 3 :- Mo innocent depuis lor la terre, depuis cotte Bon
Dieu aussi mo pou innocent
ACCUSED NO. 4 :- Mo ene innocent, malgré ca mo rode l’appel.
COURT :- OK. Bon d’apres la loi ene seul sentence qui enan: “penal
servitude for life for all of them”
1. This guilty verdict represents multiple failures at all levels of our Criminal Justice
system.
2. A double injustice was caused:
- Firstly, to those who had lost their lives on that fateful evening of the 23rd May
1999, to their respective families and close ones
- Secondly, to the four convicts who have now spent more than 14 years behind
bars for a crime they did not commit.
3. At that time, the convictions appeased public pressure. Our justice system, had in the
mind of the average citizen, delivered justice and a dark page of the Country’s history
could be turned.
3
4. The assizes lasted for 11 days. Several witnesses deponed including defence witnesses.
5. It took the jury a little under two hours to deliberate and reach a verdict.
6. Prior to the Assizes case, the four accused faced a Preliminary Enquiry together with
five other persons. The preliminary enquiry spanned over a period of several months
during which 59 witnesses deponed.
7. At the Assizes:
Sheik Imran Sumodhee, hereinafter referred to as Mounou, then Accused No. 1,
Khaleeloudeen Sumodhee, hereinafter referred to as Bébé, then Accused No. 2,
Abdool Naseeb Keeramuth, hereinafter referred to as Zulu, then Accused No. 3,
And
Muhammad Shafiq Nawoor, hereinafter referred to as Fico, then Accused No. 4
Were accused to have on the 23rd May 1999 set fire to a game house known as
‘L’Amicale’, situated in the capital city of Port Louis, which fire caused the death of
seven persons.
8. The victims included a pregnant woman and two children who all died of an
unspeakable horror. The horrendous crime did, quite understandably, spark public
outrage.
9. The police enquiry immediately focused on the fans of a local football team, the Scouts
Club and for cause, the 23rd May 1999 was also the final day of the local football
season whereby the Scouts Club, traditionally the standard-bearers of the Muslim
community, were playing against Fire Brigade, a football team, customarily drawing its
support from the Creole community in a match that would decide the Mauritian football
league title.
10. The match was being played at Anjalay Coopen Stadium, Belle Vue, in the north of the
island.
4
11. Scouts Club needed a draw to retain the championship. Their opponent, Fire Brigade,
required victory to snatch the title.
12. Midway through the second half, Scouts Club scored but the goal was disallowed. In
the 89th minute Fire Brigade scored, Scouts Club subsequently had another goal ruled
out and the former were proclaimed champion. Sensing injustice, the Scouts fans
rioted, assaulted the referee and destroyed some 345 seats, numerous washbasins,
toilets, windows and other facilities at the stadium.
13. More seriously, the incidents continued outside the stadium where some football fans,
turned hooligans, set fire to sugar cane fields around Anjalay stadium. The incidents
eventually spilled over in Port Louis.
14. The next morning, Mauritius woke up and learned about the tragedy whereby 7 people
had lost their lives during the incidents of the night before.
15. The four convicts have claimed their innocence from Day 1. Fourteen years
later, it is with the same vigour that they say, all they want is to die with their names
cleared.
16. This report which is the result of an extensive enquiry conducted into the
horrific events of the 23rd May 1999 will shed the light on all aspects of the
Amicale Case in an unprecedented manner.
17. It will be demonstrated in no uncertain terms that the Amicale Case is a gross
Miscarriage of justice whereby the factually innocent ones have been
convicted.
18. The end result of that gross miscarriage of justice derives from several root
causes.
19. Before going into the core of the report, it is useful at this juncture to
understand the terms ‘wrongful conviction’ and ‘miscarriage of justice’; and to see
how Countries, around the world, have recognised their existence and have
5
Part 1: Wrongful Conviction Chapter 2 Safety of conviction and Miscarriage of Justice
20. Unlike the natural sciences, where the proof of a theory must satisfy the strict tests of
falsification, the guilt or non guilt, in Criminal Law, is a tested to the standard of
‘beyond reasonable doubt’.
21. Sadly, the following quotation extracted from the House of Lords’ ruling in the case of
Director of Public Prosecutions v. Shannon [1974] 59 Cr.App.R.250 clearly illustrates
that the criminal justice system is fallible and innocent victims can be, and are, wrongly
convicted:
‘The law in action is not concerned with absolute truth, but with
proof before a fallible human tribunal to a requisite standard of
probability in accordance with formal rules of evidence.’
22. The history of successful appeals against criminal conviction in this country and
worldwide highlights the practical limitations of criminal trials, showing that
‘probabilities’ are not certainties; and that there are a whole host of different ways that
people can be wrongly convicted.
23. As a matter of fact, people do get wrongfully convicted and after exhausting all their
avenues, they usually find themselves sitting powerlessly behind bars devoid of any
hope whatsoever. They just wait for their sentence to pass by as they gradually lose
their family ties, their loved ones and finally become institutionalised.
24. The question which begs to be answered is: What do we do about them?
25. The first sensible thing is to shoulder our responsibilities and acknowledge the
undisputed fact that system can go wrong sometimes.
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26. In 2000, UK’s then Prime Minister Tony Blair apologized to the Guildford Four1
convicts for their wrongful conviction. In a letter personally signed by him, Mr. Blair
acknowledged the “miscarriage of justice” which they suffered as a result of their
wrongful convictions.
27. Hon. Tony Blair said:
“I believe that it is an indictment of our system of justice and a matter for the greatest
regret when anyone suffers punishment as a result of a miscarriage of justice. There
were miscarriages of justice in your husband’s case, and the cases of those convicted
with him. I am very sorry indeed that this should have happened.”
28. Criminal law is informed by the principles of due process as to what constitutes a fair
trial. A major concern of the courts is with the integrity of that process, with what
might be called the ‘safety of convictions’.
29. It is in this context that a distinction should be made between the terms ‘miscarriage of
justice’ and ‘wrongful conviction’ of an innocent person.
30. Whilst ‘miscarriage of justice’ is a term that is frequently and notoriously invoked, very
little has been done by way of decisions clarifying the term.
31. A 'miscarriage' means literally a failure to reach an intended destination or goal. A
miscarriage of justice is therefore, mutatis mutandis, a failure to attain the desired
end result of 'justice'.
32. In a judgment delivered on the 11th May 2011 by the Supreme Court of the United
Kingdom, Britain’s most senior judges formulated a test in determining whether a
miscarriage of justice has occurred. The Court said that there would be a miscarriage of
justice:
‘when a new or newly discovered fact shows conclusively that the evidence against a
defendant has been so undermined that no conviction could possibly be based upon it.’ 1 See Chapter 6
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33. According to Dr Michael Naughton (Reader in Sociology and Law at the University of
Bristol, UK), a miscarriage of justice occurs whenever a conviction is found to be
unsafe.
34. That is, while actual innocence may not be established, it is shown that the conviction
was attained on grounds that give serious cause for anxiety about its safety.
35. The term miscarriage of justice can therefore be contrasted with a case of ‘wrongful
conviction’ of an innocent person in which case an accused party is convicted a crime
they did not commit or put in another way, the conviction of the factually innocent.
36. It is possible of course, for the two notions to coexist in a single case: An accused party
being accused of a crime they did not commit and being found guilty on grounds that
are subsequently found to be unsafe.
37. This report demonstrates with certainty that the convictions of Mounou, Bébé, Zulu and
Fico at the Assizes caused the greatest miscarriage of justice in the history of Mauritius.
38. It will also be demonstrated that their conviction is, without the shadow of a doubt, a
case of wrongful conviction.
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Chapter 3:
Are we Immune to a Miscarriage of Justice? 39. With the total absence of any mechanism to recognise and deal with wrongful
convictions in this country, one could be forgiven to think that we are immune from
any form of miscarriage of justice.
40. In fact, our judicial system, unlike those of countries like Canada, India, Singapore,
Australia, United States of America or New Zealand, has never come under public
scrutiny for reasons of miscarriage of justice.
41. Does that mean we are immune? Has there been no wrongful conviction in the
Mauritian history?
42. It is fair to say that Anglo-based criminal justice systems, like the one we have in
Mauritius, are arguably less prone to wrongful convictions than any other justice
systems in the world.
43. This is because of the number of safeguards that exist, for example:
a. An accused person is presumed innocent throughout.
b. The prosecution must prove its case beyond reasonable doubt.
c. The Accused has the right to counsel and to present evidence.
d. Accused persons have the right to be tried by a jury of their peers, at least in the
most serious of cases.
e. A labyrinth of evidentiary rules exclude irrelevant or prejudicial information
f. The Constitution guarantees a significant number of rights to accused persons.
44. Furthermore, in the event of a conviction after trial, appeals may be made to a Court of
Appeal and ultimately to the Judicial Committee of the Privy Council.
45. Despite these safeguards, other countries having a similar criminal justice system, like
the ones mentioned above, have come to terms with the fact that wrongful convictions
do exist.
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46. Acknowledging that the system, despite all the safeguards, sometimes fails, was a giant
step for these countries since the number of exonerations following wrongful
convictions are now counted in their thousands; and with the advent of the DNA testing
technology, countless wrongly convicted persons have been saved from several years of
imprisonment and in more serious cases, life imprisonment or even death penalties.2
47. In the United States, a national registry of exonerated persons was recently set up and it
has emerged than more than a staggering 2000 people were wrongly convicted of
crimes they did not commit and served a number of years in prison before being
exonerated.
48. In the United Kingdom convictions in cases like the Birmingham Six, the Guildford
Four or the Maguire Seven have been declared ‘unsafe and unsatisfactory’ and were
quashed after those wrongly convicted had each spent more than a dozen years in
prison for crimes they did not commit.
49. Public confidence in the criminal justice systems in these countries has been shaken
because wrongful convictions represented a triple failure of justice:
‘an innocent person has been convicted and imprisoned;
the truly guilty person was allowed to go free and, potentially, commit
further crimes; and finally,
the victim’s family, who had a sense of closure with the conviction, have
been re-victimised by opening an emotional wound, which, with an
increasingly cold evidentiary trail, may never be healed.’3
2 Several reviews have been conducted in Canada (The Marshall inquiry, The Sophonow Inquiry, The Morin Inquiry) and in the United Kindom (Birmingham Six, Guildford Four). 3 Wrongful Convictions: The Effect of Tunnel Vision and Predisposing Circumstances in the Criminal Justice System by Bruce A. Macfarlane Q.C
10
50. However the silver lining was that these countries, having come to terms that the
system failed and acknowledging the existence of wrongful convictions did the right
thing in finally offering justice to those wrongfully convicted persons.
51. In addition, Commissions were set up, not only to exonerate those who have been
wrongfully convicted, but also to examine what exactly went wrong in the system to try
and prevent such injustices from occurring again.
52. In fact, the impact of wrongful convictions in Canada has reached through to the
Supreme Court of Canada which in various judgments has noted:
‘that both substantive criminal law and the law of evidence must take into account the
reality of wrongful convictions when courts are called upon to shape (or reshape)
Canadian law.’4
53. It would have been all too easy to deny any system failure, dismiss the claim and turn
the page, but that would mean that the countries would have failed to face up with their
responsibilities towards their citizens and would also leave the door open to more cases
of wrongful convictions.
54. The various commissions that have been set up in the above named countries all came
with their different recommendations on the root causes of miscarriages of justice and
wrongful convictions as well as recommendations on their prevention.
55. One issue which was common to all the countries and which has been identified as a
leading cause of miscarriage of justice and/or wrongful conviction, was the existence of
‘tunnel vision’ at the enquiry stage.
4 Supra – also U.S. v. Burns, (2001) 1 S.C.R. 283; R v. Trochym, 200 SCC 6; Hill v. Hamilton-Wentworth Regional Police, 2007 SCC 41
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Chapter 4:
A Tunnel vision
56. Tunnel vision, which has been identified as a leading cause of wrongful convictions
worldwide, has been defined as:
“the single minded and overly narrow focus on an investigation or prosecutorial
theory so as to unreasonably colour the evaluation of information received and one’s
conduct in response to the information”5
57. The role of the prosecuting authorities has received considerable judicial comment,
with frequent emphasis upon the inherent fairness that is integral to its role.
58. The following is a passage from the judgment of Boucher v. The Queen, where Rand J
said:
‘It cannot be over-emphasized that the purpose of a criminal prosecution is not
to obtain a conviction, it is to lay before a jury what the Crown considers to be
credible evidence relevant to what is alleged to be a crime. Counsel have a
duty to see that all available legal proof of the facts is represented; it should be
done firmly and pressed to its legitimate strength but it must also be done
fairly. The role of the prosecutor excludes any notion of winning or losing; his
function is a matter of public duty than which in civil life there can be none
charged with greater personal responsibility. It is to be efficiently performed
with an ingrained sense of the dignity, the seriousness and the justness of
judicial proceedings.’
5 Morin Inquiry (Recommendation 74) and quoted in the FPT Heads of Prosecutions Committee report of the working group on the prevention of miscarriages of Justice (Canada)
12
59. Within the context of tunnel vision, Prosecutors and State Counsels ought to
consistently strive to independently assess the police investigation and the evidence
against an accused.
60. In a report on the prevention of miscarriages of justice which is published on the
website of the Department of Justice of Canada (www.justice.gr.ca), the following
factors were identified as potential contributors to the State’s tunnel vision, that is,
impairing the proper role of the State Counsel:
a. Close identification with police and / or victim
b. Pressure by the media and/or special interest groups ; and
c. Isolation from other perspectives
61. There have been three Commissions of Inquiry into wrongful convictions in Canada so
far and all three have commented on the perils of tunnel vision and have made
recommendations for police and Crown education on the topic.
I.The Royal Commission into the Donald Marshall, Jr.,
Prosecution.
The Marshall Inquiry emphasised the need for a separation between
police and Crown functions:
‘We recognize that cooperative and effective consultation between
the police and the Crown is also essential to the proper administration
of justice. But under our system, the policing function – that of
investigation and law enforcement – is distinct from the prosecuting
function. We believe the maintenance of a distinct line between these
two functions is essential to the proper administration of justice.’
It must be noted that our Mauritian legal system is very similar to the
Canadian legal system in that both have their foundations in the
British common law system
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II.The Inquiry regarding Thomas Sophonow
The Sophonow Inquiry recommended regular, mandatory training for
police officers on tunnel vision:
- Tunnel vision is insidious. It can affect an officer or, indeed, anyone
involved in the administration of justice with sometimes tragic results. It
results in the officer becoming so focussed upon an individual or incident
that no other person or incident registers in the officer’s thoughts. Thus,
tunnel vision can result in the elimination of other suspects who should
be investigated. Equally, events that could lead to other suspects are
eliminated from the officer’s thinking. Anyone, police officer, counsel, or
judge can become infected by this virus.
- I recommend that attendance annually at a lecture or a course on this
subject be mandatory for all officers. The lecture or course should be
updated annually and an officer should be required to attend before or
during the first year that the officer works as a detective.
- Courses or lectures that illustrate with examples and discuss this
problem should be compulsory for police officers and they would
undoubtedly be helpful for counsel and judges as well.
III. The Commission on Proceedings involving Guy Paul Morin
The Morin Inquiry extended the above recommendations to include
Crown Attorneys:
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Recommendation 74 – Education respecting tunnel vision
One component of educational programming for police and Crown
counsel should be the identification and avoidance of tunnel vision. In
this context, tunnel vision means the single minded and overly narrow
focus on a particular investigative or prosecutorial theory, so as to
unreasonably colour the evaluation of information received and one’s
conduct in response to that information.
Recommendation 92 – Structure of police investigation
Investigating officers should not attain an elevated standing in an
investigation through acquiring or pursuing the “best” suspect or lead.
This promotes competition between investigative teams for the best lead,
results in tunnel vision and isolates teams of officers from each other.
62. Unfortunately Mauritius is not immune from tunnel vision and as things stand there are
no practices currently in place to prevent tunnel vision.
63. Unless the various stakeholders, including defence counsel, are not warned and guided
there are bound to be cases where innocents will unfortunately be jailed while the real
culprits let on the loose.
Recommendations on Tunnel Vision:
The MacFarlane Paper
64. In a paper entitled ‘Wrongful Convictions: The Effect of Tunnel Vision and
Predisposing Circumstances in the Criminal Justice System’, Bruce A. MacFarlane Q.C
discussed two critical factors that have arisen in the cases of wrongful convictions in
jurisdictions such as Canada, the United States and other Commonwealth counties.
15
65. He stated that despite the diversity in the legal, political and social environments of
these jurisdictions ‘the similarity in causal patterns and trends is at the same time both
chilling and disconcerting.’
66. Firstly, he analysed the existence of environmental factors or “predisposing
circumstances” that foster wrongful convictions to occur in the first place, including so
called “noble cause corruption”, an ends-based police and prosecutorial culture that
masks misconduct as legitimate on the basis that the guilty must be brought
successfully to justice.
67. Secondly, he examined “tunnel vision” which he said leads to justice system
participants to focus prematurely on a single suspect.
68. Of the “Predisposing Circumstances” in the Criminal Justice System, MacFarlane Q.C
noted that:
‘Criminal investigations and trials take place in the context of the social,
political and economic conditions of the time. In theory, criminal
investigations and trials involve an objective pursuit of the truth, but in
practice there are many subjective factors that influence the course of
events. “Justice” may be blind, but in reality the various players making
up the justice system are very human and they bring their own
perspective, experiences, biases, aspirations and fears to the decisions
they make.’
69. Scholars have focussed on reforms concerning “immediate” causes at the front end of
the system – such as eyewitness identification, lack of Crown disclosure, police or
prosecutorial misconduct and the inducement of false confessions.
70. These causes have singly or in combination been the cases of wrongful convictions in a
significant number of cases throughout the Commonwealth.
16
71. The MacFarlane paper instead focuses on several much more fundamental – and less
visible – environmental or “predisposing circumstances” that foster wrongful
convictions:
‘These predisposing circumstances are often below the criminal justice
system’s radar screen, and for that reason they are much more difficult to
deal with. Typically, they can be found within one or more of the
following institutional or social contexts, or a combination of them:
a) public and media pressure on law enforcement agencies to solve a crime
and successfully prosecute the perpetrator, especially in cases of horrific
violence where the public has been outraged by its commission;
b) cases where the public reacts to the background or circumstances
surrounding the alleged offender, especially when he or she is perceived
as being an “outsider” or a person originating from an unpopular,
disadvantaged or minority group linked to criminal activity generally;
c) so-called “noble case corruption”, which for our purposes may be
described as an ends based culture that encourages investigators to blind
themselves to their own inappropriate conduct, and to perceive that
conduct as legitimate in the belief that they are pursing an important
public interest; and
d) an investigative environment that allows if not encourages the provision
and acceptance of pre-analysis and pre-decision-making information that
may be irrelevant, speculative, incomplete, out of context or simply
wrong.
17
There are at least two principal themes that underlie these
predisposing circumstances. The first concerns the reaction of the public
to a case, particularly where it involves horrific violence directed toward
a child or woman, or the death of a child in tragic circumstances. The
second involves the reaction of justice system participants to public and
media perceptions of the case, with resulting feelings of pressure to solve
the case and provide assurances of public safety, and with speed
becoming the overarching objective.’
72. Bruce A. MacFarlane Q.C. noted that public outrage in high profile cases can translate
into intense pressure on the police to arrest and on prosecutors to convict with speed
becoming the overriding factor:
‘High-profile criminal cases, particularly those involving gruesome facts,
tend to inflame community passions and create intense, almost hydraulic,
pressure on investigators to solve what happened and arrest those
responsible, and on prosecuting authorities to successfully convict those
charged. Public and media pressure probably forms the most intense
predisposing circumstance, and poses the greatest risk for distorting
normal decision making in the criminal justice system.’
73. In a 1932 United States study on wrongful convictions entitled ‘Convicting the
Innocent’, Professor Edwin Borchard of Yale University described several
environmental factors that allowed wrongful convictions to occur.
74. The first involved public pressure to solve horrific crimes:
‘(I)t is common knowledge that the prosecuting technique in the United
States is to regard a conviction as a personal victory calculated to
enhance the prestige of the prosecutor. Except in the very few cases
where evidence is consciously suppressed or manufactured, bad faith is
not necessarily attributable to the police or prosecution; it is the
environment in which they live, with an undiscriminating public clamor
for them to stamp out crime and make short shrift of suspects, which
often serves to induce them to pin a crime upon a person accused.’
18
‘Public opinion is often much to blame as the prosecutor or other
circumstances for miscarriages of justice. Criminal trials take place
under conditions with respect to which public interest and passions are
easily aroused. In 14 of the cases in this collection in which the frightful
mistake committed might have been avoidable, public opinion was
excited by the crime and moved by revenge to demand its sacrifice, a
demand to which prosecutors and juries are not impervious. This can by
no means be deemed an argument for the abolition of the jury, for judges
alone might be equally susceptible to community opinion. But it is a fact
not to be overlooked.’
75. He explained how this can contribute to tunnel vision:
‘Tunnel vision sometimes sets in. The investigative team focuses
prematurely, resulting in the arrest and prosecution of a suspect against
whom there is some evidence, while other leads and potential lines of
investigation go unexplored. It is now clear that that is precisely what
occurred in the cases of Morin and Sophonow.’
THE BIRMINGHAM SIX
76. The Birmingham Six case provides an illustration of how tunnel vision inevitably led to
a miscarriage of justice:
The pressure caused by public opinion, media and political
commentaries to charge swiftly and then secure a conviction, arises in
all jurisdictions
19
During the 1970s bombing campaign waged by the Irish Republican
Army (IRA) in the United Kingdom, the public saw the IRA as a “public
enemy number one”, and anyone of Irish descent was a potential
suspect.
The resulting public pressure generated an atmosphere in which state’s
authorities sought to convict despite the existence of ambiguous or
contradictory evidence.
It also caused scientists working in government operated laboratories
to feel aligned with the prosecution, resulting in a perception that their
function was to support the theory of the police rather than to provide
an impartial, scientifically based analysis.
They had, as was later found by the courts, become partisan.
Six Irish Catholic men, usually referred to as the ‘Birmingham Six’, were
charged with 21 counts of murder, convicted by a jury, and spent 16
years in jail before being freed by the Court of Appeal in 1991
The Court concluded that several of the police investigators “were at
least guilty of deceiving the court”
It is now clear that distortion in normal investigative and prosecutorial
decision making processes in the cases of the Guildford Four,
Birmingham Six, Maguire Seven and Judith Ward led to terrible and
notorious miscarriages of justice. While all of the defendants were
ultimately released from jail, and, in the case of the Guildford Four and
Maguire Seven, the Prime Minister issued a formal apology, emotional
scarring was deep for all of them.
20
77. MacFarlane emphasised that raising awareness of the existence of tunnel vision is
essential. He recommended that seminars for police and prosecutors should be
held, allowing frank discussion of tunnel vision and stated that police should
continue to pursue all reasonable lines of enquiry even where a viable suspect has
been identified.
21
Chapter 5:
Victims of Miscarriage of Justice
78. Having come to terms with the fact that miscarriages of justice and wrongful
convictions do occur and that this country just like any other is prone to the danger of
convicting innocent persons, we have seen what should be done in order to reduce those
risks.
79. But how about those who have already been wrongfully convicted and are powerlessly
behind bars serving a sentence for crimes they did not commit? What should be done?
Are there any remedies available to them?
Prerogative of Mercy
80. The prerogative of mercy is regarded as the only means to remedy an injustice. It is
most often used to ameliorate the harshness of sentences imposed by our courts of law.
81. Before looking at the operation of prerogative of mercy in this country, it is helpful to
look at the situation in England, for after all, this is where we inherited this concept
from.
82. For centuries in England, the royal prerogative of mercy was the sole means to remedy
an injustice. It was most often used to ameliorate the harshness of sentences imposed by
the courts.
83. Later, through the early 19th century, when there were over 200 offences carrying the
death penalty in the statute books, it provided a means of affording clemency to those
convicted of relatively minor capital offences.
84. However, it was not just an exercise of mercy: It also operated to temper the
inadequacies of substantive law before the development of common law or statutory
defences, such as insanity and self-defence.
22
85. Finally, it also came to provide a safety net when judicial appeals had been exhausted.
86. In a sense therefore, the coming to existence of the prerogative of mercy was an
acknowledgment of the fallibility of the judicial process; that the rules of evidence did
not always lead to the correct outcome so far as guilt or innocence was concerned.
87. In Queen Victoria’s time, the responsibility for determining petitions for the exercise of
the prerogative passed from the Sovereign to the Home Secretary.
88. The responsibility was also delegated to the governors of colonies and, later, to the
governors-general of the dominions.
89. In Mauritius, the exercise of the prerogative of mercy is grounded in our constitution.
Section 75 provides as follows:
75. Prerogative of mercy
(1)The President may –
(a) grant to any person convicted of any offence a pardon, either free or subjectto
lawful conditions;
(b) grant to any person a respite, either indefinite or for a specified period, of
the execution of any punishment imposed on that person for any offence;
(c) substitute a less severe form of punishment for any punishment imposed on
any person for any offence; or
(d) remit the whole or part of any punishment imposed on any person for an
offence or of any penalty or forfeiture otherwise due to the State on account
of any offence.
23
(2) There shall be a Commission on the Prerogative of Mercy (referred to in this
section as "the Commission") consisting of a chairman and not less that 2 other
members appointed by the President, acting in his own deliberate judgment.
(3) A member of the Commission shall vacate his seat on the Commission-
(a) at the expiration of any term of appointment specified in the instrument of his
appointment; or
(b) where his appointment is revoked by the President, acting in his own
deliberate judgment.
(4)(a)In the exercise of the powers conferred upon him by subsection (1), the President
shall act in accordance with the advice of the Commission.
(b) The President may request the Commission to reconsider any advice tendered by it
and shall act in accordance with such advice as may be tendered by the Commission
after such reconsideration.
(5) The validity of the transaction of business by the Commission shall not be affected
by the fact that some person who was not entitled to do so took part in the proceedings.
(6) Where any person has been sentenced to death (otherwise than by a court martial)
for an offence, a report on the case by the judge who presided at the trial (or, where
http://www.gov.mu/scourt/doc/showDoc.do?dk=Act No. 48 of
1991&dt=Ahttp://www.gov.mu/scourt/doc/showDoc.do?dk=Act No. 28 of
2003&dt=Aa report cannot be obtained from that judge, a report on the case by the
Chief Justice), together with such other information derived from the record of the
case or elsewhere as may be required by or furnished to the Commission shall be taken
into consideration at a meeting of the Commission which shall then advise the
President whether or not to exercise his powers under subsection (1) in that case.
24
(7) This section shall not apply in relation to any conviction by a court established under
the law of a country other than Mauritius that has jurisdiction in Mauritius in pursuance
of arrangements made between the Government of Mauritius and another government or
an international organisation relating to the presence in Mauritius of members of the
armed forces of that other country or in relation to any punishment imposed in respect of
any such conviction or any penalty or forfeiture resulting from any such conviction
90. It needs to be pointed out that additionally, akin to the powers of the Home Secretary in
the United Kingdom, the President has the power, under Section 21 of the Criminal
Appeal Act 1955 to refer a case back to the Supreme Court to be heard and determined
by the Court as in the case of an appeal by a person convicted.
91. The fact that section 21 of the Criminal Appeal Act 1955 has never been put into
operation goes a long way to tell the story of the wrongfully convicted in Mauritius.
92. There remains the Prerogative of Mercy. Is this though a viable option for those who
claim having been victims of wrongful convictions? For after all, it does not innocent
the prisoners, it merely mercies them.
93. In England, amid claims of miscarriages of justice and wrongful convictions, concerns
grew over the effectiveness of the available options as a remedy to cure such travesties.
94. That factor coupled with the growing awareness of the constitutional tension inherent in
the pardoning process led to a re-evaluation of the way in which the prerogative of
mercy was being exercised.
25
The Criminal Cases Review Commission
95. On 14th March 1991 Paddy Hill, Hugh Callaghan, Richard McIlkenny, Gerry Hunter,
Billy Power and Johnny Walker with Chris Mullin MP stood outside the Old Bailey
free after 16 years having had their convictions overturned for the murder of 21 people
in two pubs in Birmingham.
96. It was that scandalous miscarriage of justice that ultimately shook public confidence in
the justice system.
97. As an immediate response, a Royal Commission on Criminal Justice (RCCJ) was set
‘to examine the effectiveness of the criminal justice system in England and Wales in
securing the conviction of those guilty of criminal offences and the acquittal of those
who are innocent(…)’.
98. It was also, among other terms of reference, required to consider whether changes were
needed in ‘the conduct of police investigations.
99. The Royal Commission reported to Parliament in July 1993 and recommended the
establishment of an independent body to consider suspected miscarriages of justice:
The Criminal Cases Review Commission (CCRC).
100. In particular, the RCCJ concluded that successive Home Secretaries under the old
system for investigating alleged miscarriages of justice were not proactive in weeding
them out and were even failing to refer potential miscarriages of justice back to the
Court of Appeal for political as opposed to legal reasons.
101. In brief, the CCRC’s role is to receive, investigate and assess applications received
where there has been a possible miscarriage of justice.
102. It is empowered to refer the case to the Court of Appeal where the Commission is
satisfied that there is a real possibility the conviction would be quashed if the case
were referred to the Court and that possibility arises due to evidence or argument not
being raised in the earlier proceedings.
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103. The CCRC has, as at 31st December 2012, referred 512 cases to the Court of Appeal of
which 328 have been quashed.
104. The achievement is quite remarkable, considering that those 328 victims of
miscarriages of justice or wrongfully convicted persons had prior to their applications
to the CCRC exhausted all their appeal avenues but were still considered guilty.
Case Statistics - Figures to 31 December 2012
Total applications*: 15710
Cases waiting: 404
Cases under review: 733
Completed: 14770 (including ineligible) 512 referrals
Heard by Court of Appeal: 466 (328 quashed, 138 upheld, 0 reserved)
*Total applications includes 279 cases transferred from the Home Office when the
Commission was set up in 1997.
105. The CCRC was viewed with a great deal of interest from other jurisdictions that see
it as a possible extension to their own criminal justice system to solve their
miscarriage of justice / wrongful conviction problem.
106. For instance, the CCRC spawned the Scottish Criminal Cases Review Commission
(SCCRC), which started its work in April 1999 and the Norwegian Criminal Cases
Review Commission (NCCRC), which came into force on 1st January 2004.
107. We believe that the creation of such a body is a necessity in our Mauritian legal
system for it will greatly enhance public confidence in the criminal justice system, it
will give hope and bring justice to those wrongly convicted and will be able to
contribute to reform and bring improvements in the law.
27
108. This is why a criminal cases review body ought to be established. The British and
Scottish model is a good one. Staffed by experienced lawyers, forensic and police
experts, cases are reviewed to see if there are grounds for arguing a wrongful
conviction. If the case meets the required threshold, it is sent back to the court for an
assessment to be made about guilt; and in some cases, the length of sentence if it is
found that a person committed a crime but a less serious one.
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Chapter 6:
Miscarriage of justice around the world
109. Various commissions of enquiries, inquests and governments around the world have
acknowledged the fact that Courts of Law have, on many occasions, wrongfully
convicted (and sometimes executed) innocent people.
110. Governments, of course, are not too keen on wrongful conviction inquiries and there
are many prisoners in this nation who are serving sentences for crimes they did not
commit. Wrongful conviction inquiries can reveal police or prosecutorial misconduct,
or poor forensic practices. Governments are morally compelled to compensate
victims of wrongful convictions. In summary, relying on the political process to grant
a person their right to have new evidence tested is unfair because the urge to resist the
establishment of such inquiries outweighs the imperative to ensure justice is done.
111. However, Governments, and particularly the Attorney-General as first law officer,
ought to be taking the lead on ensuring that justice is done and that if there are real
doubts about a person's conviction for a serious criminal offence that has resulted in
his loss of liberty for a lengthy period, move to establish an inquiry immediately.
112. The following aims to bring to the attention of the reader the situation in various
countries worldwide.
113. Around the world people are tried everyday, before various courts of law. Evidence
is gathered, witnesses are summoned, lawyers use all their available tools provided
under the law to fight for the cause of justice and the court of law has the final say
when it comes to serving justice. Despite all the legal mechanisms present, one can
yet be wrongly convicted.
29
114. As shocking and distressful as it may be, courts of law, around the world, have on
many occasions found that they have wrongfully convicted, despite the presence of
expert evidence and the jury’s verdict. Whilst exoneration remains a cure to a
wrongful conviction, those who have been wrongfully convicted have a very slim
chance of being exonerated.
115. Unfortunately, most of the times our criminal legal systems do not contemplate
beyond evidence adduced at trial and appeal; they do not question potential failures
occurring throughout an enquiry and the possibility that a jury could have been
misled about the truth.
A FEW EXAMPLES: AUSTRALIA In 1984, Richard Doney was wrongly convicted for the offence of
importation of cannabis resin. The Prosecution’s case rested heavily on
the testimony of an alleged accomplice and an expert witness confirming
the handwriting of Richard Doney. He was sentenced to a term of 20
years imprisonment. Subsequently the Court found that the testimony of
the alleged accomplice was unreliable and that an eyewitness gave
evidence contrary to the expert witness. Following two trials and three
appeals he was released on parole in 1995 after having served over six
and a half years in jail. In 2001 he was acquitted when the NSW Court of
Criminal Appeal ruled unanimously that new evidence had established
reasonable doubt and that a miscarriage of justice had occurred.
116. In Australia, a pro-bono project run by Griffith University brings together lawyers,
academics and law students to work together to free innocent persons who have been
wrongly convicted. Students work under the guidance of academics and instruction of
lawyers. This group actively works on wrongful conviction and other types of
injustice within the criminal justice system.
30
USA In 1994, Damien Echols was sentenced to death, Jessie Misskelley, Jr.
was sentenced to life imprisonment plus two 20-year sentences, and
Jason Baldwin was sentenced to life imprisonment after being found
guilty by a jury for the murder of 3 eight year old boys. Poor Police
inquiry, inadequate forensic evidence, coerced confessions, jury
misconduct and fabricated evidence led to their conviction. In 2011, 17
years later, crucial new DNA evidence of their innocence has been
uncovered including crime scene DNA that absolves the three young men
and points to others. Some of the country's leading pathologists found
that much of the forensic evidence presented to the jury, which helped to
convict the young men, was false and not consistent with the cause of
death nor wounds found on the bodies. In 2011, the prosecutors and the
defense talked and an agreement was reached for the three convicts to
proclaim their innocence even if they pleaded guilty, and, minutes later,
walked out as free men.
In 1984, Darryl Hunt was charged with murder due to inconsistencies
occurring during the early phases of the case. The 19-year-old Hunt was
charged with the rape of a local copy editor, Deborah Sykes. No physical
evidence linked Hunt to the crime, but there were claims, later proven to
be false. He was convicted by an all-white jury,and sentenced to life
imprisonment. In 1994, DNA testing cleared Hunt of any sexual assault,
and because sexual assault was at the heart of the murder case, the
murder charges were then in question. In December 2003, Willard E.
Brown confessed to the 1984 rape and stabbing death of Deborah Sykes
after DNA testing linked him to the crime. His confession led to the
release of Darryl Hunt, who had served about 19 years of a life sentence
for a crime he always denied committing.
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117. In the USA, the Innocence Project was set up as a nonprofit legal clinic dedicated to
exonerating wrongfully convicted people through DNA testing and reforming the
criminal justice system to prevent future injustice. The Innocence Project has freed
260 people imprisoned for crimes they did not commit. The project also operates in
the UK and is known as the Innocence Network UK (INUK) which deals with
alleged victims of wrongful conviction. INUK has to date actively assisted in setting
up 34 innocence projects in Universities in England, Scotland and Wales and in a
corporate law firm.
CANADA
In 1959, Steven Murray Truscott, was sentenced to death in for the
murder of 12 year old Lynne Harper. He was only 14 at the time. His
death sentence was commuted to life imprisonment, Truscott was
scheduled to be hanged on 8th December 1959; however, a temporary
reprieve on 20th December 1959 postponed his execution to 16th February
1960 to allow for an appeal. On January 22nd January 1960, his death
sentence was commuted to life imprisonment. In 2001, Truscott sought a
review of his 1959 murder conviction. Hearings in a review of the
Truscott case were heard at the Ontario Court of Appeal. In 2007, after
review of new expert pathology and gastroenterology evidence, as well as
archival documents that relate to the credibility and reliability of the
evidence of the doctor who performed the autopsy on the body of Lynne
Harper, the court concluded that this material, which was not considered
at trial , qualified as fresh evidence which significantly undermined the
medical evidence relied on by the prosecution in the prior proceedings.
The court declared that Truscott's conviction had been a miscarriage of
justice and as such, acquitted Truscott of the murder. On 7th July 2008,
the government of Ontario awarded him $6.5 million in compensation.
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118. In Canada, principally as a result of a consultation paper published by the Department
of Justice in 1998, the Canadian Criminal Code was amended to allow for the
Minister of Justice to delegate to a person of suitable standing the powers of a
Commission under Canada’s Inquiries Act. The Commissioner has all the usual
robust investigative powers of a commission of inquiry and reports to the Minister.
NEW ZEALAND
In 1995, David Cullen Bain was convicted of the murders of his parents
and sibling and was served with a life imprisonment sentence. In 2007,
following new evidence found, Bain was successful in his appeal to the
Privy Council. His conviction was quashed and retrial was ordered. In
2009, 14 years later, Bain was retried and was acquitted on all five
charges in June 2009 after five hours and 50 minutes of deliberations.
UNITED KINGDOM
In 1974 Judith Ward was convicted of murder of several people caused
by a number of IRA bombings in 1973. Judith Ward spent 18 years in
jail before her conviction was quashed in 1992.Her lawyers argued the
trial jury should have been told of her history of mental illness. The
Court of Appeal concluded that Ward's conviction had been "secured by
ambush". They said government forensic scientists had withheld
information that could have changed the course of Ms Ward's trial. She
was finally released in 1992 having served 18 years in prison.
The Birmingham Six’ were six men who were jailed for life in August
1975 after 21 people were killed by bombs in two Birmingham pubs. In
1991 their appeal was allowed in the light of new evidence of police
fabrication and suppression of evidence which successfully dismantled
both the confessions and the 1975 forensic evidence. Their conviction
was quashed by the Court of Appeal. In 2001, a decade after their
release, the six men were awarded compensation ranging from £840,000
to £1.2 million.
34
Part 2: Criminal (In)Justice System Chapter 7: The Police Enquiry
1. This chapter of the report aims to assess the manner in which the police
enquiry was conducted in the Amicale case.
2. However, before looking at that aspect, it is helpful to understand the
morale of the police force at the time and the way in which operations
were being carried out.
Morale within the police force
3. Following the riots of February 1999, members of the Police force were
left feeling dejected. No prompt decisions or measures were taken and
improvement within the police force was not encouraged.
4. The then Commissioner of Police was suspended and there was even a
motion before the National Assembly to destitute him as Commissioner of
Police with some support within the rank and file of the police force. That,
in itself, caused a certain disruption within the police.
5. Messrs. Shattock and Nandy, two non Mauritian citizens, who were
appointed as advisors, were involved in all operational and security
arrangements despite the fact that they were only advisors with no good
knowledge of crowd disorders and the psyche of Mauritians in cases of
riots and disorders. They had no local knowledge and were not fully
aware of the history and peculiarities of certain areas.
6. The amalgam between operational work and advisory work were made
more conspicuous by routine and frequent interventions by the above-‐
named advisors on the day to day running of the police force.
35
7. The morale of the police force was not in any way helped by the presence
of Messieurs Shattock and Nandy who were perceived as being the real
bosses of the police force. They were interfering, or at least perceived to
be interfering, on a daily basis, in the routine affairs of the police.
8. In 1999, after the Amicale arson, in a heated exchange on the “duo” at the
National Assembly, Honourable Paul Berenger even said “that the sooner
these two gentlemen are thanked for their services the better”.
Pre-match
9. Another aspect which needs to be analysed before looking at the police
‘enquiry’ itself is the whole organisational operation prior to the football
match.
10. On the 18th May 1999, Police issued a press communiqué in relation to the
football match of the 23rd May where the supporters of each respective
clubs were informed of the routes which were to be used by them to and
from the stadium.
11. There were also two separate parking lots allocated for each set of
supporters and the parking lots were under close CCTV monitoring.
12. Even the roads leading to the stadium were being monitored by CCTV.
13. The total number of tickets sold were 7, 465. The Fire Brigade and the
Scouts Club were each given a quota of 4000 tickets but an additional 300
tickets were allocated to the Scouts Club at their request.
14. The Mauritius Football Association (MFA) also issued VIP and
complimentary cards totalling around 300.
36
15. Because of the sensitive nature of the match itself coupled with the fact
that there were reports from the National Intelligence Unit warning of
potential disorders on the 23rd May 1999, the following units and officers
were present at the stadium:
i. Around 120 regular police officers
ii. 198 officers from the Special Supporting Unit (SSU)
iii. 59 officers from the Traffic Branch
iv. 9 officers from the Central Crime and Investigation Division (CCID)
v. 3 police photographers
vi. 5 officers from the National Intelligence Service (NIU)
vii. 1 whole company of the Special Mobile Force (SMF)
viii. 1 whole unit of the Groupement d’Intervention de
Police Mauricienne (GIPM)
16. Ninety eight officers of the SSU and sixty officers of the SMF were
stationed at the Line Barracks.
17. There was also, in the stadium, a control room with televisions linked to
38 cameras inside the stadium and 8 cameras outside the stadium.
18. All the police stations throughout the island were on alert but a disturbing
fact which has come to light is that the following key police stations were
undermanned:
a. Abercrombie Police Station b. Trou Fanfaron Police Station c. Plaine Verte Police Station d. Vallee Pitot Police Station e. Pope Henessy Police Station f. Government House Police Post g. Line Barracks Police Station
37
19. Despite the fact that there is a history of incidents at the Police Stations of
Vallee Pitot and Plaine Verte, no SMF or SSU nor additional staff were
posted to these stations.
20. The Information Room then under the supervision of SP Ramen was also
poorly staffed and the NIU desk at the Line Barracks was not fully
operational.
21. Despite the NIU reports, there were no dissuasive patrols by the SMF or
the SSU on the 23rd May 1999 either before or after the after the match.
22. Prior to the match and despite the findings of the Ahnee Commission
(following the Zamalek vs Sunrise FC match 24th March 1996) no
meetings were organised between the force-‐vives of the localities and the
police to encourage dialogue.
23. It is apposite at this stage to quote an extract of the ‘Findings of the
Commission of Inquiry’ chaired by L Robert Ahnee:
REPORT OF THE COMMISSION OF INQUIRY APPOINTED TO INQUIRE INTO THE DISTURBANCES AT ANJALAY STADIUM AND PLAINE VERTE ON 24 AND 25 MARCH, 1996 On the 17 April, 1996 the President of the Republic appointed me as Chairman of a Commission of Inquiry to inquire :-
(a) into the disturbances that occurred before, during and after the football match between Zamalek of Egypt and Sunrise Flacq United at Anjalay Stadium on Sunday 24 March, 1996;
(b) into the riots and disturbances that took place in Plaine Verte on 24 and 25 March, 1996
(c) in particular, into what extent those responsible for the said disturbances and riots at Anjalay Stadium and at Plaine Verte were organised; and
(d) into the causes and circumstances of the disturbances and riots; and to report thereon and to make recommendations as appropriate
38
On the 24 March, 1996 at the Anjalay Stadium, Belle Vue, the local football team Sunrise Flacq United, champion team of Mauritius, had to play a decisive match against Zamalek, one of the best football teams of the African continent, in the context of the “Coupe d’Afrique des Clubs Champions” The hearing of the witnesses started on the 14 May, 1996. 118 persons were heard, the last one on 10 October, 1996, at the 27th sitting of the Commission Extract from para 2.2: ‘They were from all the branches of the Police, namely 163 officers and men from the regular force, one full Unit and three sections from the S.S.U., about 25 men of the Special Mobile Force (S.M. F) and a dozen from the N.I.U. The organisation even provided for photographers as well as two officers whose role was to film on video cassettes whatever could be of importance to the Police. These two artists, however, returned bredouilles as they considered that nothing worth filming had occurred in the spots of the Stadium where they were posted’ ‘Nor is there enough evidence to allow the Commission to conclude that there was any pre-concerted plan to foment disturbances and encourage people to riot in Plaine Verte area on the 24 March. The evidence, on the other hand, shows that experience has taught the Police to be always on their guard in the region whenever the Scouts Club is called upon to play a football match anywhere in Mauritius. For reasons alluded to earlier, that football team has, particularly within Plaine Verte, a group of supporters or fans whose reactions are not always prompted by their enthusiasm for football and whose “chauvinism” and hooligan-like manners are often a source of embarrassment for the said Club. ’ ‘6.6 Statistics prove that the fans of the Scouts Club have, in one way or another, been at the source of most of the disturbances connected with First Division football matches. The M.F.A has, on numerous occasions, even been compelled to take against the Scouts Club sanctions which have penalised it for the bad conduct of its so-called supporters. There is even evidence that some time ago when the M.F.A met at the seat of the Association, at Chancery House in Port Louis, to consider disciplinary action against a player of the Scouts Club, a small crowd of persons believed to be supporters of the said club assembled in the vicinity of Chancery House in what was perceived as an attempt at intimidation.’ ‘6.8 It was therefore not difficult for a few excited and possibly organised hooligans coming back from Anjalay Stadium to succeed, in a few minutes, to arouse the passions of part of the inhabitants of the area by spreading the false news that the Police had not only mishandled Moslem
39
spectators but that they had killed two young men, one of whom was even said to be the son of the apparently popular mufti of a nearby Mosque! In less than no time the rumour gathered momentum and hundreds of determined Moslems were soon in front of the two Police Stations to shout their anger and cry for revenge for those killed.’ ‘7.8 Mr Ramboccus was not the only person to express the view that unless the Authorities soon decide to do something to incite, by persuasive means, the creation of regional or other teams which would attract l’elite d’ou qu’elle vienne and drive our present Clubs carrying with them their “communal” past to disappear from our scene, the “communal hooliganism” already present in our Stadia may become even stronger to explode one of these days, with the possibility of serious consequences for the whole country.’
Police inaction after the match
24. Despite Plaine Verte Police Station, the NIU and the Information Room
being aware of the fact that there was an angry crowd marching riotously
towards the offices of the Mauritius Football Association (MFA), no SSU
nor SMF Units were sent to Chancery House, where the offices of the MFA
are situated.
To note: It would have taken under three minutes for the SMF or the SSU get to Chancery House from the Line Barracks.
The phone calls
25. On the 23rd May 1999, prior to the match, the fire services of Port Louis
received not less than 18 phone calls which were proved to be false alerts.
Nonetheless, the fire services had to react and send their limited
resources to attend.
26. After the match, even more calls were made to the hotlines of the
Government Fire Services so much so that the service which was
equipped with no less than six hot lines (No. 995) was inundated as a
result.
40
27. Our enquiry has revealed that most of these calls were made to act as a
diversion mechanism.
28. An enquiry concerning the answering system of the different phone calls
was not done. Same would have revealed:
a. The provenance of the calls b. The nature of the calls c. The different calls between the Information Room and the Control
Room of the Fire Services.
29. A disconcerting element which has emerged as a result of the enquiry is
the fact that the fire services were asked to stay within their barracks
since there were apprehensions that there could be an impending attack
on key Government buildings.
30. If there was such an apprehension why were the SMF not informed of
same immediately? Alternatively, had the SMF been informed but no
response ensued?
31. The end result was that the Fire Services did not respond as promptly as
it should have.
The ‘Investigation’
32. Various aspects of the investigation shall be looked at under two broader
sub categories:
a. The initial enquiry at the scene of crime leading into an arson
investigation.
b. The subsequent part of the enquiry which will look at the
development of the enquiry and the arrests made.
The Arson Investigation
33. It needs to be pointed out from the outset that no scientific evidence
whatsoever links any of the four convicts to the arson at Amicale.
41
34. The decisions made and the actions taken at the outset of an investigation
at a crime scene play a pivotal role in the resolution of a case; and the
importance of careful, methodological and meticulous approach of the
investigators to the crime scene is all the more important considering that
this is usually the unique opportunity to preserve and recover physical
clues..
35. While all crime scenes are unique, experts worldwide seem to agree that
there are fundamental principles of investigating a crime scene and
preserving evidence that should be practiced in every case.
36. When it comes to an arson investigation, the task gets even more arduous
for the investigator who will often take a very subjective approach to
understanding the fire.
37. Let alone the fact that the investigators involved in the Amicale case had
no training whatsoever when it came to an arson investigation of that
magnitude, even theories concerning fire investigations which were then
considered as acceptable worldwide have since been found to be
unreliable and unfounded.
38. Leading US fire expert John Lentini who wrote a paper on the mythology
of arson investigation said the following as regards to misconceptions in
fire investigations:
‘Fire investigation involves the comparison of the investigator’s
“expectations” with his perception of the behavior of the fire. If
those expectations are not properly “calibrated,” the result will
be numerous errors. In the 17th century, when the scientific
community was first getting organized, it was understandable
that misconceptions about fire, such as the phlogiston and
caloric theories, should exist. What is surprising is that after
three centuries of scientific examination of fire, myths have
been added rather than dispelled. ‘1
1 The Mythology of Arson Investigation by John J. Lentini, CFEI, F-ABC Scientific Fire Analysis, LLC
42
39. Be that as it may, the level of amateurism with which the enquiry was
conducted is shocking. It was most disrespectful towards the seven
people who had lost their lives and the four others were about to
have their lives shattered.
40. Our enquiry has revealed that the miscarriage of justice in the Amicale
case can largely be attributed to the acts, doings and omissions of the
investigators.
41. The scene of crime itself was only secured hours after the first police
officers arrived on the spot. Members of the public were free to roam the
scene of crime thus dramatically increasing the risk that crucial pieces of
evidence be tampered with or at least contaminated.
To note: The police case theory and the evidence adduced by the
prosecution was, inter alia, that:
i. Molotov cocktails were hurled at the Amicale building both
from Royal Street and Emmanuel Anquetil Street.
ii. Three cars were set on fire. One of them, which was parked
along Royal Street right in front of the entrance of the
Amicale building caused the Amicale signboards to catch
fire.
iii. The Amicale building itself caught fire as a result of the two
aforementioned causes.
iv. Projectiles including petrol bombs which were hurled at the
entrance found on Emmanuel Anquetil Street bounced off
the ‘accordeon’ door, which was caused to be shut, onto the
street.
v. An iron rod which was allegedly used to lift and turn over a
car which was then set alight was left on the scene of crime
43
42. The amount of vital pieces of evidence left behind at the scene of crime
was therefore considerable. Yet, before any photographs were taken of
the scene of crime or any documentation made in relation to the position
of every piece of evidence which littered the streets on the corner of Royal
Street and Emanuel Anquetil Street, a pay loader from the SMF was
brought on spot to clear the road of all these crucial pieces of evidence.
44
Note: At the time when the scene of crime was cleared of
debris and key pieces of evidence, the police had no clue as to
the authors of the arson. This begs the question, why was
the scene of crime cleared up so quickly? IGNORANCE
AND AMATEURISM?
43. No subsequent analysis was carried out in respect of any of these physical
pieces of evidence such as: broken bottles (as there should have been if
the prosecution version is to be given any credence), burnt motorcycles,
the iron rod and other projectiles allegedly hurled at the building.
44. Not even an inventory of the items found on the streets around the
building was carried out.
45. The initial inspection of the building, exercise which is of crucial
importance, was carried out by Dr. B H Surnam, Police Medical Officer, in
the presence of Mr. Rene and CI Fullee.
46. From the findings of that inspection2, which is just over a page long, it can
be gathered that the inspection was most superficial and that no exhibits
were collected at that time and no photographs were taken apart from the
photographs of the bodies of the victims.
47. The following table puts into perspective on the one hand the standards
and procedures that ought to be followed in the normal course of an
enquiry3; and on the other hand what was actually done in the Amicale
case.
2 Annexe 1 3 Crime Scene Investigation: A guide for law enforcement. U.S. Department of Justice
45
THE PRINCIPLE
WHAT WAS ACTUALLY DONE
Careful, thorough investigation to
ensure that potential physical evidence
is not tainted or destroyed or potential
witnesses overlooked.
It will be demonstrated in this Part of
the report that there was no thorough
investigation, how evidence had not
been collected and how witnesses were
ignored.
Physical evidence has the potential to
play a critical role in the overall
investigation and resolution of a
suspected criminal act and the
realisation of this potential depends on
actions taken early on in the criminal
investigation at the crime scene.
No actions were done to preserve any
kind of physical evidence at the scene.
On the contrary, the scene of crime
(Corner Royal Emmanuel Anquetil
Street) were cleared of potentially
crucial pieces of evidence only hours
after the attack, while it was known to
the police that some people who were
inside the building had lost their lives.
An important factor influencing the
ultimate legal significance of scientific
evidence is that investigators follow an
objective, thorough and thoughtful
approach.
The police case theory in the Amicale
arson was most simplistic and naïve.
Many factors such as immense public
and political pressure combined with a
certain degree of noble cause
corruption led to a serious case of
tunnel vision by the investigating team.
Need to recognise and preserve
physical evidence that will yield
reliable information to aid in the
investigation.
Crucial pieces of evidence that did not
match the police case theory were cast
aside and not given any consideration.
(Eg. Safe, The red wire, Debris inside
46
Amicale, CCTV footage inside and
outside Amicale, the debris on the
street outside the casino etc.)
Since investigations may change course
a number of times during an enquiry, it
is important that investigators
consider all the evidence including
statements from witnesses or suspects
carefully in their objective assessment
of the scene since part of the evidence,
initially thought irrelevant, may
become crucial to a successful
resolution of the case.
There was no objective assessment of
evidence in the Amicale case.
Statements had not been recorded
from some witnesses who were on the
locus or who were working inside
Amicale.
One of the most important aspects of
securing the crime scene is to preserve
the scene with minimal contamination
and disturbance of physical evidence.
This principle of the investigation has
been blatantly overlooked. Members of
the public were allowed on the crime
scene after the police arrived on the
locus and the payloader of the SMF was
used to clear the streets of physical
evidence.
The initial response to an incident
ought to be expeditious and methodical
and the principle is that the initial
responding officer(s) ought to
promptly, yet cautiously, approach and
enter crime scenes, remaining
observant of any persons, vehicles,
events and potential evidence.
There was no prompt intervention
from either of the emergency
authorities. No systematic observation
was carried out by the initial
responding officers.
47
The initial responding officers ought to
be aware of any persons or vehicles
leaving the crime scene and whilst
approaching the crime scene
cautiously should scan the entire area
to thoroughly assess the scene. The
initial responsing officers ought to also
be aware of any persons or vicinity
that can be related to the crime.
The present enquiry has revealed that
no record was made of persons and /
or vehicles leaving the crime scene.
The immediate vicinity of the game
house was not subjected to any search
and residents living in the surrounding
streets were not questioned. This
would have undoubtedly helped the
authorities.
It is yet another fundamental principle
of crime scene investigation that the
investigators should remain alert and
attentive and assume that the crime is
still ongoing until determined to be
otherwise.
In the present case, as it will be
illustrated in the chapter entitled ‘The
red wire’, there is a strong likelihood
that the police unknowingly helped
suspects to escape from the scene of
crime or which was used by the
getaway gang.
The controlling, identifying and
removing of persons who enter the
crime scene and the movement of such
persons is an important function of the
initial responding officer(s) in
protecting the crime scene.
The crime scene was not only the
Amicale building itself but also the
street along corner Emmanuel Anquetil
and Royal Street. There was no control
whatsoever of the crime scene since
members of the public were allowed on
the scene. Crucial pieces of evidence
such as the ‘Iron Rod’ appears to have
been tampered with.
It is the duty of the initial responding
officers to identify all individuals at the
scene such as:
There has not even been an attempt to
try and identify suspects or witnesses
at the scene of crime. This enquiry has
revealed that witnesses voluntarily
48
Suspect/s: Secure and separate
Witness/es: Secure and separate
came forward but the police did not
even take down basic information such
as a contact address or number.
Further, the initial responding
officer(s) have a duty to define and
control boundaries providing a means
for protecting and securing the crime
scene until the handover is made to the
investigators.
It was not until around midnight, at
least five hours after the crime had
been committed, that control
boundaries were set up. Before that
time the crime scene remained
exposed. It was not only contaminated
as a result but also pieces of evidence
had been tampered with.
The initial responding officer(s) at the
crime scene must produce clear,
concise, documented information
encompassing his or her observation
and actions. This documentation is
vital in providing information to
substantiate investigative
considerations.
The statements put in by the initial
responding officers are brief, vague
and incomplete. As a result of this, the
investigators were deprived of vital
information. Some statements were
put in weeks after.
It is of paramount importance that the
investigator in charge establishes a
path of entry / exit to the scene to be
utilised by authorised personnel and to
evaluate the initial scene boundaries.
There is no evidence that such an
exercise was carried out, resulting in
further contamination of the scene of
crime.
Further, a secure area for temporary
storage of evidence should be
established in accordance with rules of
evidence and chain of custody.
Only a minimal amount of evidence
was collected on the scene of crime on
the night of the 23rd May 1999.
49
Witnesses to the incident need to be
identified by means of a valid ID and
separated. The surrounding area
should be canvassed and the results
documented.
Key witnesses were allowed to leave
the area without being asked to
provide any means of ID or contact
details. Worse some were even allowed
to enter into the Amicale building
without any proof of identity.
The scene assessment is a crucial stage
of the enquiry since it allows for the
development of a plan for the
coordinated identification, collection
and preservation of physical evidence
and identification of witnesses. It also
allows for the exchange of information
among law enforcement personnel and
the development of investigative
strategies.
No such scene assessment was carried
out. It was left to the officer of the FSL
to pick and choose which piece/s of
evidence he thought fit of bringing
back to the laboratory for scientific
examination.
At this stage, written and photographic
documentation provides a permanent
record.
Apart from the pictures of the corpses,
no documentation of any form was
made at this stage of the enquiry.
Pictures of the locus especially in front
of the entrances of Amicale situated on
Royal Street and on Emmanuel
Anquetil Street would have provided
an invaluable insight into the kind of
projectiles which had been thrown at
the building.
An assessment of the scene determines
what kind of documentation is needed.
(e.g. photography, video, sketches,
measurements, notes)
The scene of crime itself was not
photographed on the 23rd May 1999.
Even when done afterwards,
photographs had been taken sparingly
and in black and white! (In arson cases,
50
The whole scene should be
photographed using overall, medium
and close-‐up coverage. Victims,
suspects, witnesses, crowd and vehicle
should also be photographed.
The photographing should also include
additional perspective such as aerial
photographs, witness’ view and the
area under body once body is removed.
Videotape should be used as a
supplement to photos.
colour photographs are very helpful)
Photographs of key areas of the
building (stairs, office, hole in the wall
etc.) had not been taken. Photographs
of key pieces of evidence had not been
taken: safe, shutters on Royal Street.
Photographs had not been taken of
witnesses’ view.
Videotaping which required the most
basic equipment but which would have
provided a permanent record of the
immediate aftermath of the arson was
not carried out.
As regards collection of evidence, the
principle is that the collection of
evidence should be prioritised to
prevent loss, destruction or
contamination of evidence.
Evidence that could be collected on the
night of the tragedy include: Debris in
front of the entrances of Amicale,
Debris (if any) on the balcony of
Amicale, the safe, the red wire, all
broken pieces of bottle. In fact not only
had these not been collected on the
night itself, but these vital pieces of
evidence had never been collected.
The investigating team should conduct
a careful and methodological
evaluation considering all physical
evidence possibilities (e.g. biological
fluids, latent prints, trace evidence).
These were not even looked for. Not on
the night of the 23rd May 1999, not
even afterwards.
A progression of processing /
collection methods should be carried
out so that initial techniques do not
The members of the investigation
team, through no fault of their own,
were not aware of even these simple
51
compromise subsequent processing
collection methods.
and logical methods.
As soon as possible, document the
body and the surrounding area in both
detail and wide area context
photographs.
In colour, photograph:
- The body before it is disturbed,
including all exposed body
surfaces. Take detail shots of
any patterns, blast effects and
injuries.
- the removal of the body (after
tracing the outline of the body
on the floor in chalk, tape, or
string) and any changes in the
body during that process. This
process ought to be videotaped
- The location where the body
was found after the body has
been removed.
- After the body has been
removed to a separate location
for examination, photographs
ought to be taken of any burns,
injuries, and patterns. Close-‐ups
ought to be taken with a scale
indicator (i.e., ruler) in the
photograph.
- Clothing, separately from the
body, front and back, inside and
Only one, black and white, photograph
had been taken of each body. The
photograph was an overall view of the
body and no detailed shots were taken
of the injuries.
The photograph is of such poor quality
that it is almost impossible to even
discern the body.
The actual location where the bodies
were found had not even been marked
at all.
No photographs had been taken of the
location where the body was found.
No photographs were taken of the
clothing of the deceased. This would
have immensely helped in terms of
analysing burn patterns etc.
52
outside.
The scene may contain many other
important items and conditions
besides the body. Physical evidence
such as burn patterns, trace evidence,
or serological evidence may be present
on clothing, furniture, walls, ceilings,
floors and other items. These items
may also provide clues to the actions of
victims and others before, during, and
after the fire. The investigator should
examine all these items, including their
condition, orientation, and function
and add the observations to his/her
timeline of the incident and analysis of
what happened.
The approach to the investigation was
most simplistic. Scientific involvement
was minimal and the investigation was
carried out based on the hunches of the
investigators rather than sound
investigation techniques.
Conduct a thorough inspection of the
structure to determine if there were
violations, illegal uses, prior violations,
criminal activities, or other
circumstances that may inform the
investigation.
No such inspection had been carried
out. Our enquiry has revealed that the
Amicale building was under CCTV
monitoring both from the inside and
from the outside. However this had
never been brought to light by the
police enquiry. Has this fact escaped
their attention or was it deliberately
hidden? Either way, it shows that there
was no thorough investigation.
48. It may well be that none of the above were of a deliberate nature but the
unfortunate consequence was that innocent lives have been destroyed by
well-‐meaning but naive investigators.
53
49. What comes next however, adds insult to injury. It concerns the fire
report, the backbone of any arson investigation, which was drawn up
following the inspection of the locus by Mr. Beeharry, Scientific Officer
posted at Forensic Science Laboratory (FSL).
50. A typical report4 should usually address, under different headings, the
following:
ix. The circumstances leading to the fire situation
This will include a summary of how the fire brigade were
alerted to the fire and eye witness accounts
x. The fire itself
This will include the details of the extent of the fire and
what was burning when the fire fighters arrived, their
actions in putting out the fire, including anything they
moved, destroyed, opened/ closed during the process and
relevant extracts from statements made by individual
firefighters.
xi. Details of the premises
This will usually include the plans, the type of property, its
dimensions, the number of floors, the materials of
construction and typical contents.
xii. The fire investigation
Outlining the membership and coordination of the fire
investigation team.
xiii. The survey of the exterior of the property
Outlining the process which is always carried out of
surveying the outside of the property involved to establish
if there were any indications of unusual circumstances. 4 Annexe 2
54
xiv. Survey of the interior of the property
This will detail the process of entering the property and
systematically examining each room to assess the damage
and the possible cause, establishing areas of most damage
and examining such areas in detail and taking samples as
required.
xv. Origin of fire
This will outline the conclusions reached as a result of the
surveys, allowing the observations to be assessed to give an
agreed indication of where the fire started and how it
spread.
xvi. Examination and excavation of fire scene
Outlining the detailed search undertaken in the area
identified as the most probable point of origin and
investigations as regards to the ignition sources,
accelerants and burn patterns.
xvii. Fire loading in area of origin
Explaining how the fire would be expected to develop if the
materials typically present in the area had been involved in
the fire: If the fire damage was more than would be
typically expected it would be indicative of the introduction
of flammable material / accelerant etc.
xviii. Possible causes of ignition
Having regards to the probable area of origin / seat of fire.
xix. Fire development and spread
Analysing whether the damage caused throughout the
property is consistent with the suspected area of origin.
55
xx. Cause of fire
A statement of the most credible explanation of the fire and
conclusions
51. The fire report in the Amicale case does not make any mention
whatsoever of: The circumstances leading to the fire situation, the fire
itself, the investigation, the survey of the exterior of the property, the
origin of the fire, the examination and excavation of the fire scene, the fire
loading in the area of origin, the fire development and spread and the
cause of fire. The survey of the interior of the property was only briefly
dealt with no plans annexed or dimensions given.
52. Upon request to provide us with a report of an arson case where several
people have died as a result, Bericon, a firm of English experts in forensic
science has communicated to us with an outline of an investigation into a
case of house fire arson.
53. Therein, it was stated that the fire report in a case where six people had
died as a result was fifty four pages long including plans and photographs.
54. In the Amicale case, the fire report drawn up by Mr. Beeharry was
contained on two singles pages of A4 paper.5 It was most simplistic and
contained no plans and no photographs.
55. Before coming to the contents of the fire report itself, it is interesting to
note that in England, the report is drawn up by the fire service
investigator supported by the forensic scientists. The investigation is led
by the fire service investigator but is multi-‐agency involving the fire
brigade investigator, the fire brigade incident commander (i.e in charge of
the fire fighting operation), the police, the scene of crime officers and two
independent forensic scientists.
56. One would expect that in Mauritius as well, officers from the fire fighting
service are called to participate in the drawing up of the report since, after
all, they fought the fire. However, shockingly, in the Amicale case, not a 5 Annexe 3
56
single officer from the fire fighting service was involved in the writing of
the report.
57. Instead, in the Amicale case, the report6 was a one-‐man job. There is no
indication as to who collected the few exhibits or under whose
instructions they were collected or even why they were collected. In
Court, Mr. Beeharry stated that he merely smelled some rubble in the
building and decided not to send them for further examination since he
did not detect the smell of petrol!!
58. In the report, Mr. Beeharry gave his own very subjective and limited
explanation about the fire. There is no indication as to the relevant
experience or qualifications of the said D Beeharry mentioned in the
report.
59. This is where it really started to go wrong for the four convicts: A proper
investigation at that stage and an elaborate report drawn up by
competent and experimented team would have subsequently
demonstrated that the prosecution case theory as presented at the
Assizes could not stand.
60. Instead, there had been a casual investigation which was itself littered
with omissions by the investigators and which investigation led to an
appallingly brief and intellectually limited fire report.
61. The English experts have also been commissioned to provide us with a
review of the fire science evidence concerning the Amicale arson which
was presented at the Assizes.
62. The review, in its entirety, is annexed to this report and marked Annexe
4.7
63. Numerous shortcomings have been highlighted by the experts:
7 Annexe 4
57
a. The fact that there was no indication of how the vehicles (the
three cars, including one in front of the Royal Street entrance
of Amicale and the motorcycles) were ignited or whether
they were burning prior to the fire in the building.
In regards to the forensic site examination
b. No indication as to the occupancy or use of the ground floor
of the building which housed the casino.
c. No detailed description of the materials of construction, their
mass or volume or details of their distribution or orientation
throughout the building.
d. No indication as to the number and position of stairways, or
lifts, between the two floors, whether they were open plan, or
if there were fire doors between them.
e. No supporting evidence within the report to indicate why it
was assumed that anything was thrown at the windows.
f. No mention in the report of attempts to detect the presence
of volatile liquids or fire accelerants other by smelling
specific items.
g. No indication of the evidence used to conclude the presence
of multiple seats of fire.
h. Difficulty in understanding how the conclusion that an
accelerant was used and that there were multiple seats of fire
was reached.
58
Examination of Exhibit
i. Report of exhibit is limited to a superficial description of the
item and the fact that no evidence of fire accelerant was
detected on it.
j. No indication as to what technique was used to establish that
there was no accelerant present.
k. No indication as to where the exhibit came from within the
building, how it was taken, stored and transported and why
it was collected.
l. Impossible to determine, from the report, whether an
accelerant was found or not on the exhibit.
m. No indication in the forensic site examination of systematic
attempts to determine the presence of accelerants, although
the conclusion is that they were used.
Examination In Chief and Cross Examination of the Report
Author
n. The confusing answer given by Mr. Beeharry when
questioned about the reason for his conclusion that there
were multiple seats of fire.
Other shortcomings:
o. The report of the site examination is not detailed enough to
indicate what factors were considered during the
investigations.
p. Several aspects expected to be considered are not commented
on.
59
q. The report should have included a detailed examination of
the property with notes on the layout and construction of the
rooms
r. Consideration ought to have been given as to the precise seat
of fire, the possible ignition sources, the properties of the
materials present and their fire behaviour.
s. Procedures ought to have been followed to determine the
possible presence of accelerant.
t. Although there is indication that the fire in the Amicale
building was not uniform, which suggests a possible area
where the fire could have started, the theory is not developed
further in the report.
u. No indication that any accelerant was used.
v. No indication in the fire report that the distribution of
materials inside the building (such as false ceilings, panelled
walls, wooden furniture and draperies) was established or
their fire properties investigated.
w. No indication as to how the conclusion that there was
multiple seats of fire is reached.
64. It is also the view of the forensic experts that there appears to ‘no
scientific evidence to indicate that an external fire source, such as a
Molotov cocktail, was thrown into the building from the street’.
65. The review concludes by stating that ‘there appears to be no scientific
evidence adduced from the report, the examination of evidence or
the subsequent court exchanges, to indicate conclusively how the
fire at L’Amicale started’.
60
66. It is to be noted that the review also makes mention of the fact that the
fire report is ‘very short both in length and detail’, that it is of ‘limited
value’ and that the lack of exhibits collected from the scene for
subsequent laboratory examination is surprising
67. Some specific questions have also been put by us to the experts as regards
to:
a. The likelihood of finding evidence of Molotov cocktail in
the rubble at L’Amicale.
It is stated in the review that evidence of any bottle glass on
the balcony floor would have been detected if the debris was
examined in detail.
b. The probative value of using only a smelling technique
(as was the case in Amicale) to detect petrol vapour.
The answer was that the use of the human nose as the only
detection method should not be relied upon and offers only a
cursory and not very sensitive examination.
c. What ought to have been done to find out what the
building looked like before the fire and the significance
of this
It is stated that all information concerning the building prior
to the fire would be relevant towards understanding the
development and the spread of the fire.
It is also mentioned that the building owners, occupiers and
maintainers should have been approached to provide details
of the materials used, construction techniques, the position of
doors and lifts etc. and the distribution of furniture within
the various rooms. Further, furniture and fabric
61
manufacturers should have been approached to obtain
details of their products’ fire performance. Similarly, fire
fighters should have been asked if they noted any specific
pattern of burning whilst they attended the fire. It is
mentioned that all of this would help to inform the
investigator when he was trying to reconstruct (in theory or
practically) the development of the fire and would also have
helped determine the seat of the fire.
d. The manner in which the report is incomplete
- No details of qualification, experience and accreditation of
the author of the report.
- No details as to the information which he has relied upon in
making the report.
- No detailing of the substance of the facts given to the author
which are material to the opinions expressed.
- No mention of who carried out any examination,
measurement, test or experiment on behalf of the author, let
alone their qualifications and experience.
- No statement on behalf of the author to the effect that he
understands his duty to the court and to declare that the
report is true and accurate to the best of his knowledge.
- The fact that the report is brief with limited detail about the
building, the damage done by the fire and the subsequent
investigation.
- Too little information to explain or justify the conclusions
drawn from it.
- No details as to how the conclusion that there was an intense
fire was reached.
- No indication as to the suspected mode of fire spread (flame
spread, radiation, component failure)
- No mention is made of the fire properties of the furnishings
or draperies which could account for rapid fire spread.
62
How the enquiry unfolded?
68. If the examination of the scene of crime and the scientific part of the
investigation had been catastrophic, the way in which the enquiry
unfolded was just as bad.
69. Whether it was as a result of the huge public and political pressure, the
lack of adequate training and equipment, bad faith on behalf of certain
police officers, just plain incompetence or the combined effect of all these
elements, tragic consequences ensued.
70. Arrests had to be made and had to be made quickly and the police force in
general had to be seen as being proactive even if it meant arresting
individuals and building up a case around them.
71. The firsts arrests were days after the 23rd May 1999. Initially 9 persons
were charged with the offence of arson on the building of Amicale, they
were all subsequently released. There has been no explanation why these
people were arrested in the first place and why they had been released.
72. Many more arrests were made.8 Some of these people arrested made
allegations and gave names to the police. This in turn led to their release
and arrests of other persons.
73. Initially, it emerged that a distinction had to be made between
hooliganism of the Scouts Club supporters and the act of terrorism carried
out at L’Amicale de Port Louis.
74. Nonetheless nearly all persons arrested in connection with the Amicale
arson were fans of Scouts Club.
75. Some of these persons who were called by the police made the first
allegations against the four convicts.
8 Annexe 5
63
76. In fact, at that stage, all there was against the four convicts were
allegations made by people who had themselves been arrested or
called by the police. No witness had come forward voluntarily by his
own free will and incriminated any of the four convicts.
77. As the enquiry progressed, the police case theory took a dramatic turn.
Contrary to what was stated to the effect that a distinction had to be made
between the acts of hooliganism and the act of terrorism, the police was
now of the opinion that it was the supporters of the Scouts Club who had
set fire to Amicale.
78. A tangent has to be made here to focus on the situation of one of the
convicts: Abdool Naseeb Keeramuth also known as Zulu.
79. Zulu who was arrested on 29th May 1999 was admitted to hospital on a
few days later. (Hospital file number: 764014)
80. The latter had to be hospitalised as he had savagely been beaten up by the
police. He narrates in detail in his affidavit9 the terrifying ordeal he had to
go through:
‘I was taken from Albercrombie police station to Baie du
Tombeau police station. Over there, an officer told me that I
was now at the slaughter house and that I could shout and
cry all I wanted and that I would get no help. He told me that
I could get beaten up and they could even kill me and that
nobody would care. Those were the words he used:
‘La tone vine dans l’abbatoire la. To capave crier, plorer
personne pas pou gagne to compte.
La nou capave batte toi, touye toi tout personne pas pou
gagne to compte meme’
9 Annexe 6
64
I was in fact severely beaten up. I was handcuffed and made
to sit on a chair and received slaps, punches and kicks. I was
also beaten up with a thick ruler and a big book.
I remember in particular an officer named Inspector Callee
who pulled my hair and sideburns really hard.
Afterwards, chunks of my hair fell out when I ran my fingers
through my hair. I was also vomiting blood.’
81. His wife who visited him at the hospital confirms in her witness statement
given to us10 and did confirm to the press at the time that her husband
spoke of police brutality when she visited him.
82. She explained how the latter was vomiting blood on his hospital bed.
83. However, after being hospitalised, Zulu who was very young at the time,
was told by a senior officer in charge of the enquiry that if he did not
make allegations of police brutality, he would be bailed out soon.
84. Zulu naively believed that officer.
85. Another innocent convict deserves particular attention at this stage is
Muhammad Shafique Nawoor, alias Fico.
86. An alleged witness, who in Court stated how he was forced to implicate
Fico, was brought to Albercrombie Police station by the enquiring team
for a confrontation exercise. However, he stated upon being confronted to
Fico that he never saw him at L’Amicale.
87. That witness was brought back to Line Barracks then brought again to
Albercrombie Police station and confronted one more time to Fico and
identified him on that occasion.
10 Annexe 7
65
88. That in itself was a most serious irregularity. How could a witness who
negatively identified an accused party be brought back minutes later and
made to participate in another identification exercise with that same
party?
89. Meanwhile, the police enquiry was drawing to a close. Most of those who
had made allegations against the four accused were being detained and,
interestingly, were all released once they had implicated the four convicts.
Accused No. 1 was formally charged on 26th July 1999 Accused No. 2 was formally charged on 26th July 1999 Accused No. 3 was formally charged on 9th August 1999 Accused No. 4 was formally charged on 27th July 1999
90. Two months after the incident, the enquiry was complete. Nine persons
were provisionally charged and were to face a preliminary enquiry.
91. There had been only one line of enquiry and it was about Scouts Club
fans. No other line of enquiry had been explored. What if those who
perpetrated the attack used the fans as a cover to commit the
despicable act? The police enquiry did at no point in time envisage
that as a possibility.11
92. During the enquiry, no independent witnesses had come forward by their
own free will to implicate any of the four convicts. No statements had
been recorded from the fire people and the immediate neighbours of
Amicale and surroundings had not been contacted.
93. Other disturbing facts about the police enquiry include the fact that:
a. The alibis of the Amicale Four (Mounou, Bébé, Zulu and
Fico) have remained unverified
11 See Chapter entitled ‘The bigger picture’
66
b. Despite the innocent convicts stating that they had no
objection that the police collect the clothes they had worn
on the 23rd May 1999, these clothes were never collected
and sent to the FSL.
c. No statements were taken from officers of the SSU who
came on the spot at around 19:05hrs. For instance,
Superintendent Joganah who was among the first to attend
the locus was not requested to give a statement to that
effect nor interviewed as to what he saw when he first
attended the site.
d. The owner and staff of Shamping Restaurant, located on
Emmanuel Anquetil road next to Amicale and which was
operational as from 17 00 hrs were not requested to give
statements nor even interviewed by the police.
e. Neighbours (i.e. workers, staff of Onu restaurant) were also
never interviewed nor were they requested to furnish any
details to the police despite the fact that the police could
have potentially collected vital pieces of information with a
view to elucidate the time of the incidents and ultimately
arrest the real perpetrators.
f. Staff of Lai Min restaurant located on Royal Street where
more than 15 persons made an eruption to steal money and
alcoholic drinks were not even questioned by the police as
to whom they saw, whom they could recognize, how the
perpetrators were dressed or the time of the incident and
the duration of the operation.
g. A crucial piece of information revealed by our enquiry is to
the effect that Lai Min restaurant was fully operational as
from 18 00 hrs and that clients of Lai Min would park their
cars in front of the restaurant.
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h. However, the police officers investigating the incident did
not find it useful to question these clients with a view to
obtain vital pieces of information as to what they could
have seen.
i. Note there that the red car parked in front of Lai Min, which
Thupsee believed was the car of the Sumodhee, could have
been the car of a client attending the restaurant at the time.
It had never been confirmed that this red car was
effectively the car in which the Sumodhee brothers had
travelled. The number plate of that red car had never been
identified.
j. No taxi drivers whose base of operation were at Royal
street and Joseph Riviere street were questioned by the
police as to their whereabouts on the day/time of the
incident and as to what they had seen if they were at their
base of operation.
k. The ‘marchand boulette’ who was working at the material
time and people residing on top of the building opposite
L’Amicale including some expats were not questioned nor
interviewed. Yet our inquiry has revealed that those people
had a clear view of the incident as they were seen watching
the fire from their balconies.
l. The police did not deem it fit to inquire from the
businesses, and other neighbours of Amicale as to whether
they phoned the police to report any incident and if they
did, which police station they called. The timings revealed
by these calls would have been essential to give to the
investigators a clear picture as to the timings of the
incidents.
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m. CCTV cameras were existent in 1999 and were introduced
for instance, by the State Bank in the early 1990’s and soon
after, other banks followed suit. The crowd which left from
Chancery House to L’Amicale would have passed in front of
a few of those banks. However none of these CCTV cameras
had been examined by the police, including that of the Bank
of Mauritius.
n. Banks providing ATM (Automated Teller Machine) facilities
were all equipped with CCTV cameras which covered a
certain perimeter around the machine. Our investigation
has revealed that the ATM of the HSBC branch located
metres from L’Amicale was damaged during the incident.
An interesting point to note is that once damaged, the ATM
would generate an information sheet (known as journal)
with the time it ceased operation. This sheet could have
helped in establishing the time of the incident. This was not
investigated by the police. .
o. Our enquiry has revealed that the car of witness Li Tung12
was not set on fire in the way that the said witness stated at
the assizes. Our enquiry has revealed that there was a
Liverpool FC towel on the backseat of the car of witness Li
Tung and that the radio cassette of the car was abstracted
by some looters who then put it in the towel and carried it
away. It is only after that incident that some motorcyclists
with pillion riders wearing green scarves on their faces
stopped by the car and set it on fire. The burnt car was not
properly examined since a thorough examination would
have revealed the absence of the audio cassette which
would have helped the investigators understand what
really happened to the car of that witness.
12 See Chapter entitled ‘Witness Li Tung’
69
To note: Who could have known about the Liverpool FC
towel incident unless they had really witnessed or
participated in the larceny?
94. One last issue which needs to be addressed in regards to the police
enquiry was the absence of investigation in relation to the observations
made by Chief Inspector Fullee:
a. CI Fullee was the most senior police officer who was working in
the vicinity of L’Amicale on the 23rd May 1999. He was the
responsible officer as regards to the operation of Trou Fanfaron
Police Station.
b. Senior officers at Plaine Verte Police Station liaised with him to
make the necessary road traffic diversions on that day.
c. He was quite reactive when he saw the first signs of fire. At an
early stage, CI Fullee became aware that an SMF van has been
overturned at Belle Vue round about.
d. It was under his instructions that Police Officer Padaruth was
placed on a fixed point at the corner of Royal and Emanuel
Anquetil Street just in front of L’Amicale. When the van in which he
was travelling dropped officer Padaruth at the fixed point, he
noticed that there was a group of motorcycles roaming the area
with the apparent intention to create disorder. That was at about
18 00 – 18 05.
e. One of his officers also noticed a rather strange fact: A person
dressed in burqa who was standing right in front of L’Amicale.13
f. CI Fullee was patrolling in a police van to supervise the area.
Through the police radio and mobile phone, he was appraised of:
13 Our enquiry has revealed that it was customary for Bahim Coco to wear a burqa on some of his missions. Was it therefore just a strange coincidence that a person wearing a burqa was in front of a gamehouse at that particular time.
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- A crowd gathering at Khadafi square - The presence of a mob in front of Vallee Pitot Police
Station - An attempt to set fire at a Petrol Station in Plaine verte - The attack on a bus going to the North along Military road - The arson of Bus at Royal Street - The assault of Police Officer Padaruth - The crowd of alleged Scouts Club fans present at la gare
du nord.
g. Sensing that the situation could take a turn for the worse, he tried
to contact the Information Room to ask for assistance but to no
avail. He went back to Trou Fanfaron Police Station to arm himself.
95. If the observations of CI Fullee had been given the consideration it deserved, it
would have become clear for the investigators that there was a bigger plot
going on.
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Chapter 8: Preliminary Enquiry
96. At the preliminary enquiry, nine persons answered charges of murder.
97. They were:
Accused No.1 Sheik Imran Sumodhee, alias Mounou Age at the time 38 Profession at the time Self employed Address at the time 18, Crimea Street Vallee Pitot
Accused No.2 Khaleeloudeen Sumodhee, alias Bébé Age at the time 37 Profession at the time Owner of bakery Address at the time 18, Crimea Street
Vallee Pitot
Accused No 3 Abdool Naseeb Keeramuth, alias Zulu Age at the time 20 Profession at the time Dholl puri seller Address at the time 36, Impasse Lenepveu
Vallee Pitot
Accused No 4 Muhammad Shafiq Nawoor, alias Fico Age at the time 19 Profession at the time Unemployed Address at the time Mamadekhan lane Pamplemousses
Accused No 5 Salim Gounjaria, alias Salim Gaetan Age at the time 29 Profession at the time Hawker Address at the time 17 Corps de Garde Street Plaine Verte Accused No 6 Nazeem Lauloo Age at the time 34 Profession at the time Cake seller Address at the time 18 Louis Xavier Street Port Louis
72
Accused No 7 Abdullah Ismaelkhan Neeyamuthkhan Age at the time 35 Profession at the time Hawker Address at the time 4 Boulevard Hugon Vallee Pitot Accused No 8 Mohammad Rumjaun, alias Mamade Age at the time 42 Profession Lorry Driver Address at the time 20 Crimea Street Vallee Pitot
Accused No 9 Asraf Ally Boodhoo, alias Asraf Age at the time 38 Profession Hawker Address at the time No. 4 Hungarian Street Vallee Pitot
98. There were 74 witnesses who were on the list of witnesses for the
prosecution. 59 witnesses deponed in the preliminary enquiry which
spanned over a period of nearly nine months. (between 25th October 1999
up to 14th July 2000)
99. Out of the 59 witnesses who deponed, 8 witnesses deserve a
particular attention since they were the only witnesses who had in
their statements given to the police, incriminated the accused
parties.
100. Those eight witnesses were: Mr. M. A. Thupsee
Mr. M. I. Oozeer Mr. H. M. Janee Mr. A. Z. Soyfoo Mr. M. R. Thupsee Mr. M. R. Jannoo
Mr. M.B. Emambacus Mrs. M. Latour
73
101. The following are the extracts of their depositions in Court, reproduced
verbatim:
Deposition of Mohammad Iqbal Oozeer, alias Mio: ‘When the police arrested me on 10.6.99 they told me they had to check my motor cycle, to get the horsepower at my place. In fact they did not take me to my place. They took me to Abercrombie Police Station in a room at the back. There the police told me if I had set fire to Amicale. When I told them no, they got angry and started to shout at me, they told me that now where you are you have come on board the vessel Titanic they told me that it is a sank ship. They told me if you want to come out when the ship is sank I must “coule les autres pour to sorti”. Either this of you have to sink in their place (…) The police even told me that there is no one to get me out. They will decide who will be released on bail and who will not. (…) They asked me what I own, a house, they will make me sell my Cite house (…) In the meantime they had beaten me up and they told me to see who will rescue me. I told them I have my mother who is an old person. They asked me to co-‐operate with them and they will “range l’enquete la.”(…) They asked me my age, I told them I am 28 years old. One of the police officers told me that he is 55 years old and he is not sure to be 100 years old to see me being released from prison after 45 years. When I asked them to have a counsel the police asked me who I was.’ (sic) (Emphasis added)
‘The statetement as it is, the police had already signed and then they asked me to sign. One police officer was writing and then he signed the statement and then he told another police officer “faire li signe sa” I had no choice than to sign as I was being beaten up and I was traumatised. The statement is not mine but that of the police.’ ‘I did not give the statement voluntarily but it was through “chantage la police”. Because the police said they will lock me up’
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‘And you saw Salim Gaetan, Mounou, Bebe, Fico et Zoulou throw cocktail Molotov? A: No it is the police which asked me to say so.’ (…) ‘Q: On 16.6.99 the police took you to Beau Bassin
Prisons? A: Yes Q: For what reasons? A: They told me that I was going to go to Prisons. They
took me from Terre Rouge Police Station, they took me to Abercombie Police Station and at Albercombie they told me that they are taking me to the prisons. In the yard of the Beau Bassin Prisons when we stop there were another car in which were other police officers they told me “guette” to reste la meme’. They told me they are going to make me see two Sumodhee Brothers; I only have to nod.’
(…) Q: Have you ever complained concerning the pressure
put by the police on you and the beating you have received?
A: I have not made any complaint but I waited to be given the opportunity of explaining myself under oath.
Q: Is the fact that you were very scared the main reason why you signed the statement?
A: Pas juste sa. Si la police pas ti faire chantage caution are moi, si zotte pas ti batte moi et si zotte pas ti dire qui zotte pou attaché case avec moi mo pas ti pour signer.
(...)
Q: The other reason is that you were beaten up. Did you see the doctor?
A: Yes. I do not know the date. If you say it is 15.6.99 it may be so. I do not know the doctor. The doctor ask me if I am well. I did not answer him. The doctor was in a hurry to go. I did not talk to the doctor and he did not examine me. Concerning the beating up on 10.6.99 in the evening at Terre Rouge Station in the diary book when I (??) been locked up I had footache and I was feeling pain at my leg, I was screaming, asking the police to open, they took time to come. When they were opening the door I told the police officer I had pain at my foot and I wanted to be taken to the hospital.
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The police officer took me to his Superior. The latter asked me where I had pain I removed my jean trousers and showed him. The police chief told me that he would not take me to hospital. On the contrary he told me “qui to croire la case mama ici”. The police did not write what I said that I was beaten up by the police and I got injured but it was written “Mone sape depi lili dans cellule et mo fine gagne du mal”. It was written in English “falling from bed, bruises at Left knee”. It was written on 10.6.99. It is written in the diary book. I did not fall from bed. (…)’
Deposition of Hussain Mohamade Janee
‘Q: Did you give the statement to the police? A: This is my statement with my signature but the
words are not mine. ‘The police told me “sa ki zotte pour dire to dire pareille coumme sa et si to pas dire coumme sa nous pour metre sa case la lors to la tete et si jamais to devire l’enquete pas croire qui to pour saper are nous. Et aussi zotte ine dire moi to content travaille Securicor, to content veille l’hotel, to pour alle veille Prison la haut.’’ ‘Q : When you said « «la police fine dire ou dire bannes
zaffaires sinon zotte pour mettre sa case la lors ou la tete , what do you mean ?
A : La police fine dire moi si to pas accuse sa bannes dimloune qui la police fine montrer moi c’est a dire Fico et Zoulou’
‘The statement which I gave to the police, the police did not write it down. I listened to what they told me to say. Either I listened to what they are saying or they will lock me up.’ ‘The CID did not write my statement. They told me “to pe cause menti to banne camarade zotte tous pe cause vrai. Zote tous pou sorti, toi to pour fermer parcequi to pe cause menti et zotte dire moi deux noms si pas mo conne zotte parmi sa nom la in dire moi Fico eck Zoulou.’ ‘I implicated someone by pressure from the police and among the ones I implicated was Fico and Zoulou’ ‘Ti dire moi coumme sa si mo pas ecoute zotte pas blier qui mo pas pour saper ar zotte’
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Deposition of Abdool Ziyaad Soyfoo
‘I know the police ask me a question concerning a boy who had come with me and had asked me for money to buy petrol. But I did not see. I told them yes because there was too much pressure on me and being given that I never entered a CID office I could not bear the pressure. The police told me “pas amene role malin sinon nous faire ferme toi”
Yes I said so to the police because «d’apres qui zotte fine pose moi sa question la zotte ti demande moi si aine garcon nommer Fico ti demande toi casse pou acheter l’essence mo finne dire zotte non et zotte ti dire moi to aine menteur et zotte pe fatigue mo latete et zotte pe dire moi qui mo conne li et zotte ti dire moi qui tant qui to amene role malin nous pas pour largue toi et seule solutionj qui ti aina mo fine reponde zotte oui pour qui zotte capave laisse moi aller et arrete fatigue mo la tete. Et mo pa absent l’ecole parcequi mo aina pour compose Form V.
Deposition of Mohamed Bilall Emambacus
‘Q. When you told the police all these things at Baie du Tombeau what happened then. The police asked me if I noticed anything?
A. I told them no because mo pas ti alle guette dimoune dans zotte figure moi. Then they started to revolt. By they I mean the CID Officer. There was about 10 of them at the back of the station in a room. They were not in uniform
Q. What do you mean by ‘revolter’? A. They told me I am lying and I replied that I am not
lying. They told me “pas tode vine faire malin ici nous meme nous ene grand malin.” There was a table in the room. I do not know of what they were talking among themselves, one of them went out and after 2 minutes he returned and brought a pair of handcuffs and a piece of wood and a (??) One CID Officer told me “to bisin coze tout la verite” Seulement to pas pour alle la cage.” He continues “mo connais to ene bon garcon to ene sel garcon pour to papa to ena responsibilite, to enan ene la boutique pour controller to envie alle la cage ou soit to envie rester.”
Then they started to encircle me i.e the 10 CID Officers, then one of them “risse mo carabis cote droite” He told me “toi to pas pou comprend toi”. He made me remove my shirt. I did not want to remove my shirt. They got hold of me and they removed my shirt. In fact I had a T Shirt on me.
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I remained bare chest. They started to beat me with the piece of wood at my back. I received several blows. They were hard blows. Then they beat me on the “plat lipied”. After removing my T shirt I was made to rest on the table by my belly. It is then that they beat me at my back and “plat lipied” (footpalm). The one who pull my side burns again. On several occasions they told me “to pou dire to pas pour dire” I told them I do not know anything. Then after some 15 minutes they lifted me and made me sit on a chair. They handcuffed me with my hands at the back because when they were pulling my side burns. I had pains and I tried to prevent them with my hands that is why they placed my hands at the back. I was still at Baie Du Tomeabu. It was then 12.00 or 13.00. They continued asking me what I had seen. I told them I did not remark anything. Then they gave me three names of people. The names were Moonoo, Zoulou and Fico. They asked me whether I saw the 3 persons at the Stadium I told them no. Then they asked me if I saw them at Plaine Verte. Then I told them no. I told them it is the first time I am hearing those names and I don’t know them. They placed Reza Thupsee in front of me. Then Reza Thupsee told me “Nous pas ti alle Amicale” in front of all the police officers. I told him yes. He told me “to pas conne Moonoo li travaille dans Boulanger li enan ene van blanc” I told him no Q: Then? A: He told me “to pas conne Fico qui virer la rue Paul et
Virginie. I told him no. The he told me “to pas conne Zoulou ki vende Dholl pourri” I told him no.
Then the CID Officers asked me a question. They told me “Missie Emambaccus la cote ou ete la ou au milieu su ou porte cote droite ou pou alle la cage si ou vire cote gauche ena 25 banane prison ladans” Q : On which side did you decide to ‘vire’? A: Tellement ti ena pression lors moi avec la peur
monne dire zotte oui mo conne zottes Q. Who are ‘zotte’? A: Moonoo, Zoulou et Fico”
Deposition of Mohammad Riaz Jannoo
‘Q. When you gave the statement you spoke the truth? A. The police told me to say it is the very car which I
saw.
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Q. “Sa meme l’auto qui tous dimoune qui ti dans Khadafi Square fine suivre li partout et sa lheure la ti capave cers six heures tanto.” Did you say this to the police
A. I said so under pressure.
Q. And you add “Mo sure et certain mo pas pe faire aukene erreur lors sa l’auto la” Did you say so ?
A. Yes under pressure They asked me if I will retain a Counsel before giving a statement. I was thinking about it when they told me “ene ti z’affaire sa”’
102. The above extracts, reproduced as they appear in the court
proceedings make for a very distressful, disturbing and alarming
reading.
103. Seven of the key witnesses for the prosecution, out of eight, who had
previously levelled accusations against the accused parties narrated
in detail how they had been forced, tortured and even in some cases
brutalised by the police in giving their statements implicating the
accused parties.
104. All seven of these witnesses explained how the statements were not
theirs but rather statements which they were given no choice but to
sign.
105. It was not the aim of the enquiry and it is not the aim of the report to
address in full the issue of police brutality.
106. However, the correlation between police brutality and miscarriages
of justice cannot be underestimated.
107. It needs to be borne in mind though that the above were extracts of
depositions of witnesses for the prosecution who had no motive
whatsoever to lie in court. Yet they all explained how they were
forced to sign statements doctored by the police.
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108. With the exception of Azad Thupsee, none of these witnesses
deponed at the Assizes.
109. There was no subsequent enquiry into the allegations of police
brutality and misconduct.
110. The mere fact that seven witnesses for the prosecution made
allegations that they have been forced and blackmailed by the police
in inculpating the accused did much more than just arousing
suspicion of police misconduct.
111. It tainted the whole investigation and no fair trial could possibly
have ensued following the deposition of those witnesses.
112. Nonetheless, based solely on the extremely flimsy accusation of Reza
Thupsee, the Amicale Four were committed to stand trial the assizes.
Note: Was there a nexus between the Amicale Four?
SUMODHEE BROTHERS The Sumodhee brothers were well known Scouts supporters. The father of the two Sumodhee brothers was a well known fan of the Scouts Club since the days of Muslim Scouts. It is well known by those who were involved in the Club that at the time when his business was flourishing, he helped the Muslim Scouts whenever he was asked to make financial contributions. On the day of the Scouts v/s Fire match, the father was in the official lodge of the MFA. The two brothers were in the ‘premiere’ of the Anjalay stadium. None of them knew or had known Fico or Zulu before their arrest. FICO Fico, young supporter of Scouts Club was 18 at the time. He did not know and had never been in contact with the Sumodhee brothers prior to his arrest. Fico did not share any common friends with the Sumodhee. Fico used to live far away from the Sumodhee brothers. The Sumodhee brothers and Fico are from two different backgrounds.
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KEERAMUTH Keeramuth, supporter of Scouts Club did not form part of the circle of the Sumodhee nor was he a distant friend of them. Keeramuth was a sort of a ‘loner’, who attended matches on his own and used to meet people on his way to the stadium without any pre coordination.
113. There was only the evidence of Reza Thupsee to implicate convicts
1-‐4. Reza Thupsee was NOT called at the Assizes.
114. The Court could not and should not have relied on the evidence of
Reza Thupsee to commit the Amicale Four to the assizes since:
a. Reza Thupsee was a mental patient.
b. After implicating the Amicale Four in his statement, he narrated in
detail how he was forced to implicate those four innocent.
c. He was treated as a hostile witness and then given a perjury
warning and informed about the prison sentence that could ensue
if he failed to depone as per his statement.
d. Even then he maintained that he was forced to implicate the
Amicale Four.
e. He was subsequently arrested and detained for perjury.
f. It is only after his release on bail that he came again at the
Preliminary Enquiry and implicated the Amicale Four.
115. How could the lives of the Amicale Four rest in the palms of such a
person?
116. Another issue arising out of the Preliminary Enquiry and which
deserves particular attention is the fact that a number of witnesses
including those who worked at L’Amicale were never called. In
particular, there was a worker of the game house named Mr. Latour
who was working at the material time and whose name appeared on
the list of witnesses for the prosecution. Mr. Latour was never called to
depone before the Preliminary Enquiry or at the Assizes.
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117. Mr. Latour is adamant that (i) the shutters of L’Amicale were opened
from the inside (ii) there were only two or three police officers present
inside L’Amicale and (iii) The police took a long time to arrive on the
locus after they were made aware of the incidents.
118. Another worker who was at the locus at the material time but who was
not called at the Preliminary Enquiry is one Mr. Hugo, a bouncer. He
was posted at the entrance giving on Emmanuel Anquetil Street. Our
enquiry has revealed how Hugo gave a statement to the police which was in
contradiction with what PC Seeneevassen had stated in his statement. Only
Mr. Seeneevassen was called at the PE and the Assizes. The evidence of
Mr. Hugo would have revealed whether he saw any Molotov cocktail or
other incendiary devices used against L’Amicale. There is also no
indication as to why he did not take part in any reconstruction exercise
especially in view of the fact that he was the person to have shut the
accordeon doors of the entrance on Emmanuel Anquetil Street. Finally, is it
correct that Hugo put the time of the incident at least 30 minutes earlier
than the time stated by PC Seeneevassen?
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Chapter 9: Assizes
119. After a record time of only four months from the end of the
preliminary enquiry, the assizes case started.
120. At the Assizes, the case that the prosecution set out to prove was
that14:
- At about 6 and 6.10 p.m., an angry crowd had gathered at
Khadafi Square. They were mad at the referee and at the
outcome of the match at Anjalay Stadium.
- It was at about that time that Mounou arrived at Khadafi
Square in a red car which he was driving.
- Bébé was seated in the passenger seat next to Mounou and
there were two other passengers seated in the rear of the car.
- As soon as Mounou stopped his car, he addressed the crowd
and urged them, ‘anou alle craze MFA’. MFA meaning the
Mauritius Football Association which office is situated in the
Chancery House.
- Mounou slowly drove his car towards Cathedral Square and
the mob that had gathered at Khadafi Square followed the
car.
- It was at about that time that Fico purchased Rs. 10/- worth
of petrol at a petrol station on Desforges Street.
- Mounou parked his car opposite Cathedral Square next to the
New Court House and pointed to Chancery House and urged
the crowd: ‘crazer’.
14 As per the opening speech for the prosecution.
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- The crowd hurled stones at Chancery House and then came
back on Cathedral Square and on the way they broke window
panes at the New Court House and also damaged lamp posts
on Cathedral Square.
- Mounou then told the crowd to follow him to L’Amicale and
he drove his car at a slow speed leading the mob along.
- At about 7 p.m., Mounou parked his car opposite Lai Min
Restaurant. Mounou again urged the crowd ‘crazer’ and the
crowd threw stones at L’Amicale de Port Louis.
- Mounou, Bébé, Zulu and Fico smashed the cars that were in
the vicinity of L’Amicale de Port Louis and set them on fire.
The flames from the cars spread to the building which housed
L’Amicale de Port Louis
- At about that time there were several motorcyclists who
came on the spot opposite L’Amicale. One of the motorcyclists
stopped next to Mounou and he showed him a rucksack
which contained Molotov cocktails.
- The motorcyclist, following the instructions of Accused No. 1,
lit cocktail Molotovs and threw them on the first floor of
L’Amicale de Port Louis.
- As a result of the fire from the Molotov cocktails and the fire
which had spread to the building from the flames of the car,
several seats of fire merged together and burnt the whole
building.
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121. Mr. S. Boolell ended his opening speech by stating:
‘It is the case for the Prosecution, Ladies and Gentlemen of
the Jury, that the four accused did wilfully set fire to
L’Amicale for a reason that is unknown and this caused the
death of seven persons who were, at the time, inside the
building.’ (sic)
122. The evidence which was adduced by the prosecution to
substantiate their case was as follows:
- An NIU officer deponed to the effect that he saw the red car of
Mounou and Bébé at Khadafi Square at 18 20.
- Azad Thupsee, the main witness for the prosecution who had
previously made allegations of police brutality which forced him
into implicating the Amicale Four and who had changed his version
over and over again deponed, in chief, under oath, to the effect that
he allegedly witnessed ALL of the following:
i. He saw Mounou and Bébé at Khadafi Square at about
6 p.m.
ii. He heard Mounou shouting: ‘qui zotte apé attane, a
nous alle craze MFA’
iii. He saw the car leaving Khadafi Square and proceeding
towards the MFA.
iv. He followed the crowd and on the way to MFA, Fico
asked him for Rs. 10 to buy petrol.
v. He saw Mounou park his car opposite New Court
House.
vi. The crowd went down Lislet Geoffroy Street and
following the orders of Mounou started hurling stones
at the building
vii. He saw Mounou throw a stone at Chancery House.
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viii. At some point in time the crowd came back up Lislet
Geoffroy Street and onto Cathedral Square where he
saw more damage being done.
ix. Mounou then ordered the crowd ‘a nous alle faire ene
letour l’Amicale’ and drove off.
x. He decided to go home but then changed decision and
followed the crowd on foot and upon reaching
L’Amicale de Port Louis, he saw a red car parked in
front of Lai Min restaurant.
xi. He reached L’Amicale at around 18 30 – 18 45.
xii. He saw Mounou, Bébé, Zulu and Fico damage cars.
xiii. He saw Fico pouring petrol onto one of the cars.
xiv. He saw Mounou, Bébé, Zulu and Fico set fire to the car.
xv. He saw a motorcyclist who approached Mounou and
showed the contents of his rucksack to the latter.
xvi. He saw that the rucksack contained Molotov cocktails.
xvii. He heard Mounou ordering the motorcyclist to throw
the Molotov cocktails at L’Amicale.
xviii. He saw the motorcyclist hurling the Molotov cocktails.
Mr. Li Tung, an in extremis and very controversial witness deponed, in chief, to
the effect that he allegedly saw the following:
i. He parked his car in front of the entrance of L’Amicale and
went to have dinner with his relatives in Shamping
Restaurant which is located next to L’Amicale.
ii. At some point in time he heard noise coming from the
corner of Emmanuel Anquetil and Royal Street .
iii. He left the restaurant to go check up on his car.
iv. He stood opposite L’Amicale on Royal Street where he saw
Fico and Zulu damaging and setting fire to his car.
v. He noticed Molotov cocktails being hurled at L’Amicale.
vi. He went back to Shamping Restaurant and then left in the
car of one of his relatives.
To note: Prior to his deposition in Court, Mr. Li Tung had
given a statement to the police on the 24th May 1999
86
whereby he stated that he lost his car in the incidents
which occurred at L’Amicale but that he did not personally
witness any of the incidents.
He never implicated Zulu and Fico until after the Assizes
case had started. No identification procedure had been
carried out but instead he was made to make a dock
identification of Zulu and Fico at the Assizes. In a judgment
delivered by the Court of Criminal Appeal, it was ruled that
the testimony of Mr. Li Tung in respect of the dock
identification ought to be disregarded.
123. Finally, there was also witness Khalill Peerbux who deponed
during examination in chief that Fico allegedly came to buy Rs. 10
worth of petrol at Cadamally petrol station.
124. However, in his first statement given to the police on the 15th July
1999, the said Khalill Peerbux stated15 in respect of those who
came to buy petrol that ‘mo pas conne sa banne dimounes la ni mo
pour capave reconnoitre zotte. Zotte figure meme mo pas ti
remarquer. ’
125. He explained during his deposition at Assizes the circumstances in
which he was made to give the second statement whereby he
implicated Fico. He explained how the police told him ‘enan chance
fermer la dans’ and how he was scared.
126. At the Assizes, witness Peerbux admitted having spoken the truth
in only one of his statement. He was clearly not a trustworthy or
reliable witness.
127. The material evidence for the prosecution rested therefore solely
on the evidence adduced by witnesses Azad Thupsee and Louis Fan
Fong Li Tung. An analysis of their testimony will be made in the
course of the next two chapters. Suffice it to say at this juncture
that, Azad Thupsee cannot by any stretch of imagination be 15 At folios 116512 - 116513
87
believed and that the Criminal Court of Appeal has ruled that the
dock identification of witness Li Tung ought to be discarded.
128. As regards the evidence of the NIU officer, it is not disputed by
Mounou and Bébé that they were at Khadafi Square at about 18 20.
129. Apart from the three above named witnesses (Azad Thupsee, Li
Tung and Khalill Peerbux) there were no other witnesses called by
the prosecution who implicated in one way or another any of the
Amicale Four.
130. The accused parties did not depone at the Assizes.
131. The summing up of the Presiding Judge was the issue of much
controversy so much so that a ground of appeal which was
common to the Amicale Four specifically addressed the issue by
stating that the Learned Judge’s directions, language, inflammatory
tone as could be gathered from the digital recording of the
summing up were a clear invitation to the jury to believe Azad
Thupsee’s evidence and to convict the Amicale Four.
132. Before the appeal was heard, Counsel on behalf of the Amicale
Four16, all moved that a copy of the digital recording of the Learned
Judge’s summing up be made available to them.
133. The court however, set aside the motion and refused that a copy of
the digital recording of the summing be communicated to the
defence.
134. Other matters of concern at the Assizes were, inter alia,:
a. That in view of the complexity of the trial, the jury, by
deliberating and having their lunch at the same time could
not, in under two hours, have carefully sifted and weighed
16 Messrs R. D’Unienville, Q.C, M. Sauzier, Rex Stephen, D. Kwan Tat, B. Desvaux de Marigny, S. Oozeer, B Padiachy, S Bhukory and Miss A. Rambaruth.
88
the evidence presented to them and examined all the
complex issues raised by the prosecution, the defence and
those placed before them by the Learned Judge.
b. That the Learned Judge failed to direct the jury that from
the outset the police did not conduct a fair and impartial
investigation, especially by failing to investigate and verify
at the appropriate time, the alibis of the Amicale Four
mentioned in their respective defence statements to the
police; and that their failure to secure the items of clothing
worn by the Amicale Four on 23rd May 1999 for
examination by the Forensic Science Laboratory with a
view to either assuring their presence at the scene of fire or
eliminating them as suspects, especially as the Amicale Four
were in police custody.
c. That the Learned Judge misdirected the jury when he
stated that, Counsel being present at the recording of the
statements of the Amicale Four, no fault should therefore be
found with the police who did not secure the items of
clothing worn by the Amicale Four on the material date for
further examination by the FSL.
d. That the Learned Judge misdirected the jury by telling
them that there was no need to probe whether the police
had failed to act fairly by not checking the alibis raised by
the Amicale Four and by not collecting their items of
clothing for forensic analysis and that this issue should not
cloud their deliberations.
e. That the Learned Judge misdirected the jury in law when he
conveyed to them that collection by the police and
examination of clothes by the FSL and the verification of
alibis was not important, as according to him, it could only
bolster the prosecution’s case.
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f. That in view of the dubious evidence on record, the
warning of the Learned Judge to the jury about the need for
corroboration was grossly inadequate.
g. That the Learned Judge was wrong to convey to the jury
that witness Azad Thupsee did not have an axe to grind or a
purpose of his own to serve by giving evidence for the
prosecution and implicating the Amicale Four in the offence
charged.
h. That the Learned Judge should have given a clear warning
to the jury about the dangers inherent in the testimony of a
witness such as Azad Thupsee who had so often
contradicted himself, who had previously stated under
solemn affirmation before other Courts and to the Police
and other persons that the Police had beaten him to force
him to implicate the Amicale Four and who had also stated
in Court on a motion for bail in a provisional charge of
perjury against him that he had not lied at Preliminary,
meaning that the Amicale Four were not involved in the
case.
i. That the Learned Judge was wrong to conclude his
summing-‐up to the jury by telling them that the evidence of
Azad Thupsee was “unsatisfactory but not unworthy or
unreliable ”, thus usurping the functions of the jury.
j. That the Learned judge failed to direct the jury to the fact
that the evidence of witness Vinissen Abel – a journalist of
L’Express newspaper – was to the effect that Azad Thupsee
spoke freely to him on 10th June 1999 to denounce police
brutality. On the contrary, the Learned Judge presented a
one-‐sided and incomplete picture of Mr. Vinissen Abel’s
evidence.
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k. In respect of Witness Li Tung, the Learned Judge failed to
give a clear warning to the jury to exercise caution before
acting on the unsupported evidence of Mr. Li Tung,
especially when there was evidential basis to suggest that
the evidence of witness Li Tung may be unreliable.
l. The Learned Judge was not fair in his assessment of the
conditions in which Mr. Li Tung made his observations on
23rd May 1999 and failed to highlight the weaknesses and
contradictions in the identification evidence of Mr. Li Tung.
m. The Learned Judge failed to direct the jury as to the glaring
difference between the version of Mr. Li Tung and that of
Azad Thupsee on the following –
- The length of hair of Fico.
- The number of people before L’Amicale
- The time the motorcyclists allegedly came near
L’Amicale
135. The above are only a few of the numerous issues that drew
concern and that arose at the Assizes.
136. The next two chapters will now address in specific the evidence of
witnesses Azad Thupsee and Li Tung.
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Chapter 10: The Azad Thupsee saga
137. On the 2nd June 1999, Azad Thupsee was arrested for the charge of
Arson causing death at L’Amicale de Port-Louis.
138. He signed various statements in the month of June 1999, which
incriminated the Amicale Four. Azad Thupsee explained that he saw a
small crowd gather around a red Proton Wira, registration 3211 0C 96
at Khadafi square, in which Imran Sumodhee alias Mounou was seated
in the driver seat and his younger brother, Khaleel Sumodhee alias
Bebe was seated next to him in the passenger seat.
139. This witness changed his account of events of several occasions:
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How he changed versions:
This is what Azad Thupsee publicly stated as regards to his visit with Me.
SHAKEEL MOHAMMED on the 10th June 1999
Thupsee stated having gone to see Me. Shakeel Mohammed in the company of his
brother Reza and one Krishnen Darmalinghum, an employee of the Sumodhee to
explain how he was subject to police brutality and was coerced by the police to
implicate the 4 accused parties in the arson of l’Amicale. Me. Mohamed
accompanied Thupsee to Line Barracks but a declaration could not be made.
10th June- VINISSEN ABEL – JOURNALIST
Thupsee repeated to Mr. Abel, journalist at L’Express newspaper, what he had told
to Me. Shakeel Mohammed. Thupsee repeated that he was forced by the police to
implicate the four accused parties. Mr. Abel caused an article to be published on the
following day to that effect.
11th June- Me. RAMA VALAYDEN
Again, Azad Thupsee publicly accepted the fact that he had gone to the office of
Me. Rama Valayden on the 11th June 1999 to seek advise as to the steps to be
followed since he had been subjected to police brutality and forced to implicate the
Amicale Four. Me. Valayden asked him to write it all down and to come and see
him back on Monday 14th June 1999.
3rd June 1999: IMPLICATING the Amicale Four
After being himself arrested in the Amicale case, Thupsee provided details of how
allegedly Mounou was seated on the window sill of the car and shouted “anou alle
craze MFA” in Khadafi Square. This eye witness went on to state that how the
Amicale Four participated in the arson on the 23rd May 1999. Soon after he had
made the allegations, Thupsee was released from police custody.
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12th – 13th June 1999: EXCULPATORY DOCUMENT
In a document, annexed to this report17 , which bears the signatures of both Azad
and Reza Thupsee, they explain how they never saw the Sumodhee brothers at
L’Amicale and how they have been forced to implicate them.
14th June 1999: Me. Manoj Appado
More complaints of police brutality made to Me. Manoj Appado.
01st December 1999: PRELIMINARY ENQUIRY
Azad Thupsee yet gave another version. Thupsee took the prosecution by
surprise when he explained that he cracked under police pressure and was
coerced into signing statements incriminating the four innocent convicts.
17 Annexe 8
14h June 1999: SEQUESTRATION ALLEGATION
Thupsee gave a statement to the police expressing that he had in fact been
sequestrated by two other Sumodhee brothers (who were not implicated in the
Amicale case), one K. Darmalinghum and a fourth person. His version was that he
had been sequestrated and was forced to exculpate the Sumodhee in the aforesaid
document. A sequestration case was eventually lodged against the four persons.
94
140. When confronted with the police statements he signed in June
1999, Thupsee said that he was not aware of the contents of the
statement. Thupsee maintained that he was forced to sign the
statements in June 1999 and that he was not aware of the contents
of same.
141. At that stage, the prosecuting Counsel declared him as a hostile
witness and a perjury warning followed. Despite the perjury
warning Thupsee maintained that he was forced to incriminate the
four accused parties. As he maintained this new version Thupsee
was charged with perjury by the Magistrate.
142. Arrested, hand cuffed and sent to custody on remand, Thupsee was
first detained at Alcatraz, a prison notorious for police brutality
that caused the death of Kaya only 3 months earlier. A week later
Thupsee was transferred to Beau Bassin Prison, then sent to
Grande Riviere North West Prison. This was the first time Thupsee
served time behind bars and it all happened in a short lapse of
time. On the 05th of January 2000 Thupsee was granted bail for the
offence of perjury after having been detained In 3 different
prisons.
143. At the time Azad Thupsee was very young and about to get
married but he was now in a precarious position facing potential
severe legal consequences. Tremendous pressure suddenly rested
on the shoulders of Azad Thupsee. However, when the perjury case
was called, he pleaded Not Guilty.
144.
06/11/99: ASSIZES PROCEEDINGS
Thupsee was again called to depone. This time Azad Thupsee stated that what he
persistently claimed to be the truth during the Preliminary Enquiry was in fact false
and implicated the Amicale Four.
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145. In fact just before Azad Thupsee began to depone, he was offered
immunity from pending and / or future prosecution by the DPP.
146. This man who once succumbed to pressure was faced with a
difficult dilemma, whether to maintain what he has persistently
claimed with numerous persons and on numerous occasions to be
the truth or to simply go back to his original version.
147. He proceeded with deponing under immunity claiming that his
original version was the truth.
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STATEMENTS IMPLICATING ACCUSED
SEQUESTRATION CASE
STATEMENT 02/06/99: “ene peu ti moment après ene groupe dimoune finne entoure ene l’auto qui ti arreter dans coin la rue Pamplemousses et Magon cot robot” “moi et tous mo banne camarade qui mo fine nommer la fine approche cote l’auto la. Ti eina ene l’auto rouge, proton wira so chauffeur ti Imran Sumodhee qui appelle aussi Mounou et so frère khalil qui appelle Bebe ti are li par devant. STATEMENT 03/06/99 “sa l’auto privee No.3211 OC 96 mark Proton Wira Couleur Rouge qui mo fine trouver dans la cour derriere station Abercombrie mo reconnaitre sa l’auto qui mo fine mentioner dans mo l’enquete qui mo finne donne la police hier mercredi le 02 june 99 STATEMENT 03/06/99 “Mounou ti assize lor la porte devant cotte chauffeur et mo fine tende li ape dire qui zote ape attende, nous alle craze MFA” STATEMENT 26/06 99 “ le 02/06/99 dans buro CID PL [n] mo ti donne aine l’enquete dans sa zaffaire la et samedi le 05/06/99 dans Buro CID PL (n) mo fine montrer la police sa trios zommes qui mo ti dire dans mo lenquete la qui mo conne zotte lor nom Mounou, Bebe et Zoulou” “Zoulou et FICO ensembles avek les autres dimoun p crase 2 lauto qui ti devant L’Amicale “ STATEMENT 02/06/99 “Mounou ti assize lors la porte devant cote chauffeur mo tande li ape dire qui zote ape attendre nous alle craze MFA” STATEMENT 53226 “avant qui nous rentre dans la rue tourraine Fico qui mo conne li bien li ti ape reste la rue Gorah Issac vis a vis mosque ti approche moi et ti dimande moi Rs.10 por acheter lessence et li ti dire moi pou alle mette di feu” 02 june 99 “ mo fine tanne Mounou dire nou alle crase L’Amicale”?.
AZAD THUPSEE Conceded that: He was aware that there was a fire at l’Amicale He was not present at l’Amicale during the fire Had sign the statements as a result of physical abuse He did not give the alleged “sequestration” statement to the police on the 14th june 1999 but rather only signed it In relation to the sequestration allegation he stated that in fact he went camping with those persons on several occasions in the past and that in fact there had been no sequestration. He confirmed that, in his statement dated 14 June 1999, the period of time during which he stated that he was allegedly sequestrated he was in fact free.
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PRELIMINARY ENQUIRY
ASSIZES
Q: You signed the statement 02/06/99? A: “yes because I was under pressure from police.” When statements put to THUPSEE, his answers are: “This does not remind me of anything” “I don’t remember this” “mo pas finne donne sa l’enquet la, banla fin force moi signer.” “I did not give a statement. I was forced to sign the papers so as to be free.” “I don’t remember anything, they made me sign those papers” “I did not give such a statement to the police” AZAD THUPSEE DECLARED HOSTILE BY PROSECUTOR Q: in your statement you said you saw Fico throwing petrol on a parked car which was next to L’Amicale entrance…? A: “I did not give any statements to the police.” Q: when we are talking about papers it related to the identification of the car? A: “I was shown the car and asked whether I knew it. I replied in the affirmative.” Q: on the 25/6/99 after you had been released you gave a statement to the police whereby you recognized and identified accused no.1,2,3 in relation to Amicale case? A: “2 CID officers caught hold of me and told me we shall bring you before the person as you passed by you make a sign with your head.” Q: on the 14 June 99 at about 15:30 you identified accused no.4 one called FICO in relation to incident at Amicale? A: “The CID Officer came to fetch me at home, do not Know which day and date. My mother was at home. One Officer CID told my mother “Kala nous prend ou garcon pou amen lie ne ti moment” I boarded the car and went with them.” AZAD THUPSEE GIVEN A PERJURY WARNING “when I alighted the bus at Plaine Verte I went to eat and drink” “CID Officers asked me if I knew FICO if I knew where he lives. I had a friend who was working at the factory with me, he was living in the yard of Fico. I told the CID officer he lives at Gorah Issac Street opposite the mosque. Azad Thupsee never inculpated the Amicale Four at the Preliminary Enquiry and was eventually arrested for Perjury.
To justify his stand in the course of the Preliminary Enquiry Azad Thupsee said: “Mo ti obliger faire sa parski banne fami Sumodhee ti p mette pression lor moi. Zotte ti p dire moi mo bizin faire sa. Meme dailleur li fine déjà fair dimounes sequester moi ek mo frer, mo ti dans zot control en dehors, ceki zot dir moi faire mo bizin faire, zot ene banne dimoun dominair…Moi ek mo bannes camarades mo fine peur, mo fine obliger aller, tension banal pas conner ki kapav fer moi.” Azad Thupsee then stated, in contradiction to his previous statements the following: “mo na pas ti cause menti le temps mo ti deposer dans l’enquete preliminaire” Q: Eski ou ti dire la Police fini montrer, oune alle monter la police l’endroit, eski ou ti dire sa parole la dans ou l’enquete qui la police ine prend qk ou après ou fine montrer la police cotte ou ti ete, le temps ou ti trouve Fico ek Zulu apè craze l’auto avec roches, pousse zotte pou bloque l’entrée l’Amicale, arose l’essence et mette dife et après place divant l’Amicale cotte mo ti trouve Mounou et Bebe ape avoye roches lor l’Amicale? Ou ti dire sa? A:Dans qui l’enquete sa? Q: Le 14 Juin, 1999? A: mo pas rapelle. Q: Vers qui l’heure ou ti arrive cotte l’Amicale? A: Capave vers les 6 heures et demie ou sept heures moins quinze.
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The physical impossibilities of Azad Thupsee
148. The first spot where witness Azad Thupsee allegedly saw the
Sumodhee brothers in Port Louis on the 23rd May 1999 is at
Khadafi Square. The Sumodhee brothers were in a proton wira car.
149. However his testimony as to what he saw and heard at Khadafi
Square cannot stand good because if Azad Thupsee was near the
car or within hearshot of the car, as he claimed to have been, he
would have certainly seen the occupants seated at the back of the
car the more so that the said occupants were known to him as he
was staying at the place of the Sumodhees.
150. A point of concern is that he had allegedly been following a crowd
from Khadafi Square to New Court House but apart from his group
of friends and three of the four convicts, he did not know or
remember any other person who was in the crowd. Surprisingly,
his brother Reza Thupsee who was with him did not notice anyone
either.
151. The second spot from where Azad Thupsee allegedly saw the
Sumodhee brothers was in front of the New Court House. Elements
of concerns as regards to this are:
i. From where he was allegedly standing, it was not
physically possible to observe what was happening in
front of Chancery House because of the topography of
the area.
ii. It was equally physically impossible for witness Azad
Thupsee to hear and recognise, in a rowdy and riotous
crowd of about 200 persons, according to him, the
voice of Mounou even if the latter was shouting.
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iii. If the red proton wira of the Sumodhees was
effectively, as stated by Azad Thupsee, parked
opposite New Court House building, Azad Thupsee
who allegedly stood at that very spot could not
possibly have failed to see the other occupants of the
car when they returned to the car. Azad Thupsee
allegedly saw that car effecting a U-‐turn on Pope
Henessy street and leaving.
iv. It is surprising that Azad Thupsee missed the
incidents (Blanche Birger and New Court House)
which happened across the road from where he was
standing (i.e 4 – 5 metres in front of him) but yet
manages to see what was happening in front of
Chancery House which was at least 25 metres further
down the road from where he was standing and at the
bottom of a steep slope which would not be in his line
of vision. Added to that, it was dark and there was a
crowd of about 200 persons.
152. Yet, another point of concern is the fact that on his way back, when
he turned into Dauphine street and reached the corner of
Dauphine and Sir William Newton street, he allegedly heard ‘banes
vitres p crazer dans batiment Emmanuel Anquetil’ (breaking of
window panes in the Registrar Building) which is on the other side
of the block and completely out of sight from where he allegedly
was. Yet, he knew precisely which building was being attacked.
153. Furthermore, before turning into Dauphine Street, it is
questionable how Azad Thupsee completely missed out on the
most obvious of incidents so far i.e the incident and fire in+ front of
Pope Henessy Police station. Even when Azad Thupsee reached the
corner of Sir Virgil Naz and Sir William Newton street, he fails to
see the incidents in front of Pope Henessy police station (only
metres away from him). In fact, our enquiry has revealed that Azad
Thupsee did in fact witness those incidents but if he had revealed
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in his statement to have witnessed the said incidents he would not
have been in a position to testify that he allegedly saw the start of
the incidents at L’Amicale18.
154. The third and final spot from where Azad Thupsee allegedly saw
the Amicale Four was at the corner of Royal and Emmanuel
Anquetil Street19. Our enquiry has revealed that it was physically
impossible for Thupsee to see and hear, amidst the rowdy and
riotous crowd, the fact that it was dark (to note: the sunset on the
23rd May 1999 was at 17 3920), the noise and the general hurly-‐
burly what he claimed to have seen and heard, inter alia:
- The faces of the Amicale Four.
- What was allegedly being said between the Amicale Four.
- That a motorcyclist allegedly stopped next to Mounou.
- What the motorcyclist allegedly said to Mounou.
- That the motorcyclist had a backpack. It is to be noted
that Azad Thupsee failed to notice the colour of the
backpack but managed somehow to see what was inside
that backpack.
- What was inside the backpack of the motorcyclist. He
stated that he allegedly saw bottles.21
- Details of the contents of the backpack: such as brands of
the different bottles.
- The fact that the bottles were allegedly Molotov cocktails.
- The fact that the said Molotov cocktail contained sand,
petrol and a wick.
- What Mounou allegedly said to the motorcyclist.
18 See chapter entitled ‘Time is of the essence’ 19 See Figure 1 at the end of the chapter. 20http://www.timeanddate.com/worldclock/astronomy.html?n=201&month=5&year=1999&obj=sun&a fl=-11&day=1 21 We have visited the locus and performed tests on several occasions which demonstrated that Thupsee could not possibly have seen what was inside the backpack on the motorcyclist even if he did see the motorcyclist.
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155. Despite seeing all of the above details, Thupsee failed the most
obvious of details: the items of clothing worn by the Amicale Four
and their colour.
156. Our enquiry has also revealed that it was physically impossible for
a person who was seated on a motorcycle or autocycle
immediately in front of the Amicale building to light and
successfully launch a Molotov cocktail into the first floor of the
Amicale building.
157. One very interesting fact which has been revealed upon a scrutiny
of what happened at the reconstruction exercise of the 8th June
1999 is that Azad Thupsee at no point in time inculpates Bébé in
the arson of Amicale.22 He showed the spot from where he was
standing and from where he saw:
(i) Bébé and Mounou allegedly ‘flinging stones at
L’Amicale’
(ii) Fico and Zulu allegedly damaging cars and
setting fire to the cars
(iii) Mounou allegedly giving instructions to a
motorcyclist to throw ‘pints’ at L’Amicale
which the motorcyclist did and as a result of
which L’Amicale caught fire.
158. Even if it is assumed that the flames from the cars which Zulu and
Fico had allegedly set on fire contributed to Amicale catching fire,
Bébé has not been mentioned by Azad Thupsee of having done
anything at all which might have caused Amicale to catch fire.
22 Annexe 9
102
159. Furthermore, another damning proof that Azad Thupsee had been
lying in Court was as regards to the cars which were on fire:
- Azad Thupsee stated that two cars were rolled up
to block the entrances of the Amicale building.
According to Thupsee one car was used to block
the entrance along the Royal street while the other
was used to block the entrance along the Emanuel
Anquetil Street.
- However, a picture produced by Mr. Chetty, press
photographer showed that the two cars were in
fact on fire on Royal street. This is in complete
contradiction with the evidence of witness Li Tung
as well.
- This is the blatant proof that Azad Thupsee had
been lying in Court since it cannot be that after the
cars were placed at the entrances of the Amicale
building, they were returned back to Royal street
for press photographer Mr. Chetty to take the
snaps.
- Furthermore, another picture taken by Mr. Chetty
clearly shows that the distance between the
burning car and the entrance of Amicale was at
least the width of the pavement (about 2 metres at
that particular spot) which again gives Thupsee
the lie when the latter stated that the car in fact
blocked the entrance of Amicale.
- Finally, the evidence adduced by SP Noel and PC
Boodnah is to the effect that two cars were on fire
on Royal Street and one was on fire on the corner
of Emanuel Anquetil Street and Royal Street. This
again demonstrates that Thupsee had been lying in
103
Court when he stated that a car blocked the entry
of the Amicale building on Emanuel Anquetil
Street.
160. Mounou and Bebe were convicted SOLELY on the evidence of Azad
Thupsee.
104
Chapter 11: Witness Li Tung
161. The testimony of Mr Louis Fan Fong Li Tung, Chief Health Inspector
at the Municipality of Beau-‐Bassin/Rose-‐Hill sealed the fate for Fico
and Zoulou (Then Accused Nos. 3 and 4).
162. Their lives and that of their families forever changed as a result of
the testimony of Witness Li Tung. What follows, is a critical
assessment of the circumstances which led to the testimony and the
testimony itself.
163. Witness Li Tung gave a statement to the police on the 25th May 1999.
In that statement he stated that on the 23rd May, he left his car in
front of ‘L’Amicale’, went to have dinner at a restaurant and came
back one hour later to find his car completely burnt.
164. In fact when questioned by the police about whom he suspected
could have burnt his car, he stated that he did not suspect
anybody because when he came back from the restaurant his
car had already been burnt down23 and that he had not seen any
incident.
165. Based on his statement, Witness Li Tung was initially of no probative
value for the prosecution because he did not see anything material.
166. This is why, although his name was on the list of witnesses for the
prosecution, he was not called to depone at the Preliminary Enquiry.
167. At the Assizes his name appeared again on the list of witnesses but
he was treated as an unimportant witness until the 13th November
2000 when he was called to give evidence.
23 ‘mo pas suspecter personne, mais mo sur qui li enan relation avec ce qui ti enan sa nuit la lor l’Amicale’
105
168. A couple of days prior to that, Mr. Li Tung met a high ranking police
officer and stated to him that he had more to say about incidents of
the 23rd May 1999.
169. That was when he gave a statement detailing that he allegedly saw
Zulu and Fico setting fire to his car. That statement came more than
a year and a half after the incident, on the eve of his deposition and
was in complete contradiction with his first statement.
170. The controversy with Mr. Li Tung started with the date at which he
claims to have been to the police station to give his statement. In
court, he persistently maintained that he gave his statement to the
police on the day following the arson at L’Amicale, that is on the 24th
May 1999 after meeting with his legal adviser, Sir Hamid Moollan
Q.C.. However, Sir Hamid Moollan Q.C, who was called as a witness
on behalf of Accused No. 3 stated that in fact witness Li Tung came to
see him between the 26th and 28th May 1999.
171. The only thing in common between the statement that Mr. Li Tung
first gave to the police and his testimony in Court on 13th November
2000 was that:
a. On the fateful night, he went to have dinner in
Chinatown and left his car in front of ‘L’Amicale’.
b. He reached the restaurant at about 18 45 to 19 00 after
leaving his car right in front of the entrance of
‘L’Amicale’ on Royal Street.
c. Prior to coming to the restaurant, he stopped at his
brother’s place at Mare Gravier, some 20 minutes drive
away from Port Louis.
106
172. The second controversy regarding witness Li Tung was as regards to
how he came to the conclusion that he reached L’Amicale around 18
45 – 19 00. He stated that he knew he had left his brother’s place at
Mare Gravier around 18 20 – 18 30 since he heard the 18 30 news
on the radio during which news he learnt about the incidents which
have occurred after the match.24
Contradictions: Now, it is a fact that in May 1999, the
only radio station operating in Mauritius was that of the
Mauritius Broadcasting Cooperation. There were no
private radio stations and our enquiry has revealed
that in 1999, there were no news in either English,
French or Creole at 18 30 on any of the channels of
the MBC. Furthermore, witness Li Tung completely
fails to mention that a police officer was giving
instructions to divert traffic.
173. At the assizes, he explained how allegedly:
a. after parking his car in front of the entrance of L’Amicale,
he then proceeded to Shamping restaurant where he
waited for his relatives to arrive and then went upstairs
where they booked a table near a window overlooking
Emanuel Anquetil Street.
b. Thereafter, before him or his relatives had the time to
order, he heard noises coming from outside and looked
through the window to see what he described as a crowd
which has gathered at the corner of Emanuel Anquetil
and Royal Street which he thought was a procession or
something of the like.
24 ‘J’ai quitté (Mare Gravier) vers les 6.20 heures / 6.30 heures parce que en cours de route j’ai mis la radio. On est en train de donner les informations qui commencent a 6.30. Je ne sais pas quelle epoque, en tout cas j’ai ecouté les informations.’
107
c. He noticed that a majority of the people in the crowd
were wearing green and white tracksuits.
d. He then decided to go see what was going on since his car
was parked in that area but as he was going out, the
owner of the restaurant advised him not to go out since it
was not safe. He went out nonetheless.
e. The first thing that he saw when he came out of the
restaurant was that on his right side, on Royal Street, a
crowd of about 50 people with some of them stoning
‘L’Amicale’.
Contradiction: It is interesting to note at this stage the
enormous difference between the number of people
present outside L’Amicale according to Azad Thupsee and
according to Li Tung.
f. He crossed the road and walked over to Royal Street to
get a better view of where his car was parked. He then
crossed Royal Street, crossed Emanuel Anquetil Street so
that he was now standing opposite ‘L’Amicale’ on the
other side of the road from where his car was parked.
g. He saw a few people taking out their cars from that area
and when he attempted to go and get his car, he noticed
what he described as the leader of the group: a young, tall
guy who was of a light complexion.
h. He asked that person not to damage his car but
immediately afterwards another guy who he described as
short, thin with thick hair used an iron bar to smash his
rear windscreen.
108
i. He made a few steps back and saw the tall guy trying to
unearth a pole. At about the same time, the other guy
broke the driver’s window of his car, took something out
of a bag and threw it in the car. He then made a certain
gesture and flames started to rise from his car.
174. Another major issue which arises here is as regards to the
description of Fico. This is an extract of his cross examination by Me.
I. Mamoojee, Counsel for Fico, on this particular issue:
‘Q. Vous avez dit hier losque l’avocat de la
poursuite vous a posé des questions, que
vous avez vu un grand monsieur qui
ressemble a un «mulatre », est-‐ce que
vous pouvez dire a la Cour comment
etaient ses cheveux ce soir la ?
A. Le cheveux normal
Q. Qu’est ce que vous comprenez par
‘cheveux normal’ ?
A. Il n’a pas de cheveux coupés a la brosse,
c’est pas touffu comme certaines
personnes ont, c’est juste.’
175. He stated that Fico had ‘normal hair’ and when asked what he meant
by normal he said that he had short hair.
176. Our enquiry has revealed that at the time Fico had shoulder length
hair. This is confirmed by the description of Fico entered on his
personal file at the prison when he was incarcerated just weeks after
the 23rd May 1999.
To note: Furthermore, enquiry reveals that Fico was not
in a habit of tying his hair which means that any
movement, even the slightest, will show the hair flowing
in the direction or sometimes in different directions.
109
177. Mr. Li Tung then stated that a group of people together with the tall
guy overturned the car that was next to Paris Studio using the pole
that the tall guy just unearthed.
Contradiction: Thupsee who was allegedly, at that same
time, standing a few metres away from Li Tung did not
notice any of this. Is anyone of them speaking the truth?
178. According to him, shortly afterwards, the other person who set fire
to his car threw something, which he had in his hand, on the balcony
of the first floor of the building:
‘Q. (...) La qu’est ce que vous faites ?
A. ‘(…) A ce moment j’ai vu la personne qui est courte, qui est
maigre, qui a mis le feu dans ma voiture, je vois qu’il lance
une affaire dans sa main. Il lance ca sur le premier etage du
batiment.’ (sic)
Q. Il lance une affaire sur ?
A. Sur le balcon.’
Double Contradiction: Li Tung stated that the Molotov
cocktail hit against the balcony. If that was the case why
were no remnants of Molotov cocktail found on the balcony
or on the road.
Furthermore, according to Azad Thupsee, the Molotov
cocktail was thrown from someone sitting on a motorcycle
and who followed the orders of Mounou.
179. He then decided to go back to the restaurant and went back the
same way that he came. When he was next to ONU restaurant, he
noticed many motorcycles which had been set on fire in front
L’Amicale’s exit on Emanuel Anquetil Street. Note that he does not
see any car as alleged to be there by Azad Thupsee.
110
180. At that point in time, he allegedly turned around and saw a group of
persons pushing a car which was upside down on Royal Street from
the direction of Lai Min restaurant towards L’Amicale. The car was
then pushed in between the car which was in front of Paris Studio
and his car which was in front of the entrance of Amicale on Royal
Street.
‘(…) A ce moment la, je vois un groupe de personnes en
train de pousser une voiture qui sortait du cote de Lai Min
pour emmener devant L’Amicale. Finalement, ils ont pu
pousser la voiture, juste arrivé comme si entre ma
voiture et l’autre voiture qui etait devant Paris
Studio.’
Contradiction: According to Li Tung therefore, there
were two cars which were overturned (the car in front of
Paris Studio on Royal Street and the car which was
pushed from the direction of Lai Min restaurant towards
L’Amicale, on Royal Street). However, according to Azad
Thupsee, one car on fire was blocking the entrance of
L’Amicale on Royal Street while another car was pushed
to block the entrance of L’Amicale on Emanuel Anquetil
building.
181. Furthermore, the testimony of Li Tung does not match what can be
seen from the picture which was taken by a press photographer at
around 19 20. That either means that Mr. Li Tung lied, that the police
tampered with the evidence and pieces of evidence or that press
photographer Mr. Chetty lied.
182. In any case, our enquiry has revealed that he could not possibly have
seen where the car was pushed to from where he was standing.
183. He then proceeded to go back to the restaurant, met his family and
they all went home in the car of the relatives.
111
184. The next morning, he went to ‘L’Amicale’ first to check out if his car
was still there, then he allegedly went to seek legal advice at the
office of a barrister.
Contradiction: Sir Hamid Moollan Q.C gives witness Li
Tung the lie on this and states that in fact Li Tung came to
see him between the 26th and 28th May 1999.
185. He then went to the police station where he stated that he did not
see anybody nor did he suspect anybody regarding the arson of his
car.
Alarming points: His reasons given at the Assizes for
having lied to the police are fear of reprisal and
concerning the insurance of his car. This does not stand
to reason:
- If he feared reprisal, why did he then come depone at the
assizes?
- As regards the insurance, he explained that he thought that
if he were to say he saw the people who set fire to his car, he
would not be able to make an insurance claim since the
incident would count as riot. However the converse is true: In
a case such as the present one, if nobody was identified as
setting fire to Li Tung’s car, the incident would be classed as
riot and he would not get any cover from his insurance.
186. Our enquiry has revealed that in fact, Li Tung became aware of that
fact which is why he came at the assizes and stated that he saw
people setting fire to his car. It was ONLY to be able to make an
insurance claim.
187. Our enquiry has revealed that in fact he was compensated for the
car.
112
188. Mr. Li Tung was therefore a crucial eye witness. However it needs to
be taken into consideration that whatever he claims to have seen
was in a very particular context:
a. It was dark.
b. There were many people around.
c. There was a riotous situation.
Is Mr. Li Tung trustworthy?
189. Taking all of the above into consideration, it cannot, by any stretch of
imagination, be said that the deposition of Mr. Li Tung is capable of
belief.
190. A few more examples of blatant lying by Mr. Li Tung are worthy of
mention:
Lying under oath
‘Q. Lisez a haute voix ce que vous lisez.
A. Le probleme, j’ai pas porté mes verres pour voir.
Q. Vous n’avez pas porté vos verres? Vous portez des
verres ?
A. Non, je ne porte pas.’
Lying in statement
‘Q. Dans votre premiere enquete que vous aviez donné,
datant le 25 Mai 1999, vous aviez dit mo pas fine sorti,
est-ce que c’est vrai ?
A. C ‘est pas vrai votre Seigneurie
Q. Mais vous admettez avoir dit ca a la Police ?
A. Dans l’enquete que j’avais donné – la premiere
enquete ?
Q. Oui
113
A. Oui. Et puis j’ai dit que je suis retourné une heure
temps apres. Apres que je suis rentreé dans Shamping,
une heure temps apres je suis retourné, a ce moment,
je vois ma voiture completement brulée.
Q. Ca aussi, vous avez..... ?
A. C’est pas vrai, parce qui j’ai caché une bonne
partie.’
Lying to the insurance
‘Q. Hier losque vous deposez, lorsque l’avocat de la
Poursuite vous a posé une question, entre autres
raisons, pourquoi vous n’avez pas dit la vérité
pendant tout ce temps la, pendant un an et demie,
vous avez dit que vous avez peur que l’assurance ne
vous rembourse pas pout votre voiture. Est-ce qu’on
peut savoir aujourd’hui, Monsieur Li Tung, lorsque
vous avez fait une declaration a l’assurance, quelle
declaration vous avez dit concernant votre voiture ?
A. Meme declaration que j’ai donné a la Police, premiere
declaration.
Q. C’est a dire ?
A. C’est a dire que je suis retourné une heure temps
apres sur le lieu, ma voiture a completement brulé.
Q. Donc, vous avez menti a l’assurance ?
A. Pas menti.’
191. It is clear that he lied to the insurance company in order to get paid
but he maintained under oath that he did not lie. Which is which? He
was clearly manipulating the facts.
192. Can the lives of two persons (Zulu and Fico) and that of their families
be shattered based on the evidence of a witness who blatantly lied
under oath and admitted hiding the truth from the police?
114
193. Even if it is assumed that Mr. Li Tung has seen what he claimed to
have seen, the following shows why he cannot be believed:
Alarming point: The next morning, he learns from the
radio that people have died in the fire on the previous
night. However, when he goes to the police, he says
nothing about what he saw although the police were
appealing for witnesses to come forward. At that stage
nobody had been arrested yet but the only concern of Li
Tung was that if he were to tell to the police what he saw,
he might not get the insurance money for his car. This is
the kind of person whom we are dealing with here. 7
people have died on the previous night. A day of national
mourning was declared. According to him, he saw
everything. He could have helped the police from day one.
But he only cared about his insurance.
194. Another point of great concern is the dock identification of Zulu and
Fico by Mr. Li Tung. Dock identification, which involves the witness
indetifying the accused for the first time in court has been held by
various decisions of the Court of Appeal in England to be a serious
irregularity.
195. The following is an analysis of the technical aspect of dock
identification:
From Archbold Criminal Pleading, Evidence and
Practice (2008) Paragraph 14-42:
‘The identification of a defendant for the first time in the
dock is both an undesirable practice: see R. v.
Cartwright,10 Cr.App.R. 219, CCA; and a serious
irregularity: see Edwards v. Queen, The(2006) 150 S.J. 570,
PC.
115
Although a trial judge retains a discretion to permit a
dock identification, it is submitted that in practice the
exercise of such discretion should not even be considered
unless:
(a) a defendant has refused to comply with a formal
request to attend an identification parade, and
(b) none of the other identification procedures has been
carried out as a result of the defendant's default.
As the police may adopt a satisfactory identification
procedure in respect of a refractory defendant (see, for
example, the method adopted in R. v. Kennedy (unreported,
March 20, 1992), ante, §14-39), it is now difficult to conceive
of circumstances in which a trial judge would permit a dock
identification. Where a witness volunteers a dock
identification, the summing up should make it plain that
such evidence is undesirable; that the proper practice is
to hold a parade; and that the evidence should be
approached with great care: Williams (Noel) v. Queen,
The[1997] 1 W.L.R. 548, PC. If a jury is not discharged
after such an identification, it is incumbent upon the
judge to direct them to give it little or no weight: Edwards
v. Queen, The ([2006] UKPC 23), ante.
(…)
For an analysis of the dangers of dock identifications, see
Holland (James) v. HM Advocate, The Times, June 1, 2005, PC,
where it was, nevertheless, held that permitting such an
identification was not per se incompatible with the right to a
fair trial.
116
Factors to weigh in the equation of whether an accused
had had a fair trial would include whether he was legally
represented, what directions the judge had given about
identification evidence and the significance of the
contested evidence in the context of the prosecution
evidence as a whole.’25
Decision of the Judicial Committee of the Privy Council
in the case of Goldson and Devon McGlashan v. The
Queen (Jamaica) [2000] UKPC 9 (23rd March, 2000):
15. In England, the obligations of the police to hold
identification parades are contained in a Code of Practice
issued by the Home Secretary pursuant to section 66 of the
Criminal Evidence Act 1984. The language of the Code is not
for present purposes material, because there is no similar
code in Jamaica, but its effect was summed up by
Hobhouse L.J. in Reg. v. Popat [1998] 2 Cr.App.R. 208, 215
by saying "There ought to be an identification parade
where it would serve a useful purpose".
16. Their Lordships will give two English examples of this
principle being applied in cases in which there was, as here,
a dispute over whether the accused was in fact a person
known, or sufficiently known, to the witness. […]
18. Their Lordships consider that the principle stated by
Hobhouse L.J. in Reg. v. Popat [1998] 2 Cr.App.R. 208,
215, that in cases of disputed identification "there ought
to be an identification parade where it would serve a
useful purpose", is one which ought to be followed. It
follows that, at any rate in a capital case such as this, it
would have been good practice for the police to have held an
identification parade unless it was clear that there was no
point in doing so.
25 Archbold Criminal Pleading, Evidence and Practice (2008) Paragraph 14-42
117
This would have been the case if it was accepted, or
incapable of serious dispute, that the accused were known to
the identification witness. At least in the case of McGlashan,
that does not appear to have been the position here.
19. But the question is, as their Lordships have said, whether
the failure to hold a parade has caused a serious miscarriage of
justice. In Reg. v. Conway and Reg. v. Fergus the convictions
convictions were set aside as unsafe and unsatisfactory
because, in the absence of a parade, the evidence of
identification adduced by the prosecution was too weak to
support a conviction. In Conway the previous acquaintanceship
claimed by the witnesses was relatively slight and even its
credibility was impaired by the woman's initial denial that she
knew the man at all. In Fergus the claimed previous knowledge
was very slight indeed. Furthermore, in Conway the accused
had, with the backing of the Code, requested an identification
parade and it had been refused.
196. The Counsel for both Zulu and Fico, rightly objected that Mr. Li Tung
proceeds to a dock identification of the accused parties.
197. Arguments were heard but the objection was set aside by the
Learned Judge. The Learned Judge stated that it was not an
identification exercise but a mere recognition since witness Li Tung
had seen the Amicale Four at the Preliminary Enquiry. The Learned
Judge was plainly wrong.
Was it a recognition or an identification?
198. The Learned Judge based himself on the fact that Mr. Li Tung had
seen Zulu and Fico previously when they were brought at the
Preliminary Enquiry.
118
199. The following is an extract of an authority on this particular issue:
R v Fergus [1992] Crim LR 363:
‘As to the first of those matters, this court of course
recognizes that a distinction is to be drawn between the
case of the complainant who claims to have recognized his
assailant as a person whom before the commission of the
alleged offence he already knew well and that of the
complainant who claims to identify as his assailant a
person whom he has never seen before the incident.
Even in a recognition case there is a danger that an honest
witness may be mistaken. According to the well-known
authority of Turnbull [1977] QB 224 or 65 Cr App Rep 132 at
either pages 228 or 138: ". . . even when the witness is
purporting to recognize someone whom he knows, the jury
should be reminded that mistakes in recognition of close
relatives and friends are sometimes made." Nevertheless the
danger of mistake in such a case is obviously less than in an
identification case: see the judgment of the court in Byrne &
Ors (unreported) decided on 11th April 1990.
Where the complainant claims to recognize a person
whom he does not know well but has only seen
previously once or on a few occasions his evidence may
well require to be treated as evidence of identification
rather than recognition. The better he knows the
defendant the more the jury are entitled to treat his
evidence as that of recognition, but of course the
opposite is also true.’
[…]
In our view one previous sight of Joseph Fergus did not
make this a case of recognition; it remained a case of
identification.
119
It follows that we conclude that the Recorder was wrong to
allow the question, "Do you see in court the person to whom
you have referred as Joseph Fergus" to be asked. The answer
was of course a critical part of the prosecution's case
against this appellant.
It follows that there was a material irregularity in the trial of
this appellant, which renders this conviction unsafe or
unsatisfactory.’
200. Therefore, the fact that Mr. Li Tung had seen the accused parties at
the Preliminary Enquiry did in no way mean, for the purposes of the
law, that it was a recognition exercise. What mattered was whether
Mr. Li Tung had seen the accused parties prior to the 23rd May 1999.
He had never seen them before that.
201. To make matters worse, witness Li Tung stated that he had seen the
pictures of the accused parties in the newspapers.
202. What is of an even greater concern though is the fact that no clear
warning was given to the jury in respect of the dangers of relying on
a dock identification.
203. It transpires from the above authorities that dock identification is a
serious irregularity which, on its own, renders a conviction unsafe or
unsatisfactory.
204. The Court of Appeal which had the opportunity to offer redress in
fact made matters worse.
205. Whilst recognising that the identification of Li Tung ought to be
disregarded, the Court of Appeal, went on to state that the jury still
had the evidence of Azad Thupsee which incriminated the Zulu and
Fico.
120
206. What the Court of Appeal therefore did, was to substitute itself for
the jury; something which cannot and should not have been done.
207. The reason why it should not have been done is simply because the
Court of Appeal could not possibly have known whether the jury did
believe Azad Thupsee as regards Zulu and Fico.
208. It could well have been the case that the members of the jury relied
solely on the evidence of Li Tung to incriminate those two. Therefore
the Court of Appeal, whilst acknowledging that the dock
identification should be disregarded, was clearly wrong in
substituting itself for the jury but unfortunately, for financial
reasons, no appeal was made to the Judicial Committee of the Privy
Council.
121
Chapter 12: Time is of the essence!
209. According to our enquiry, at 18 47 hrs, an entry was made by a
senior officer in the visitors book of Pope Henessy police station. It
read ‘Area quiet’.
210. Thereafter, within a few minutes (approx 18 50 hrs – 18 51 hrs) a
wardress came at the Station to ask permission to make a call.
211. An NIU officer who had earlier left the station to go and enquire
about the situation in front of Chancery House ran back to the
station. (approx 18 52 hrs)
212. Two Fire Brigade FC supporters who were in the parking26 in front
of St Louis Cathedral made obscene gestures at a group of Scouts
Club fans who were coming from Lislet Geoffroy Street onto Pope
Henessy Street. One of the supporters managed to flee and the other
went into the direction of the police station to seek refuge. The latter
was chased by a mob of Scouts Club hooligans.
213. Within a minute (approx 18 53 hrs), the supporter barged in the
station shouting for help. The door of the station was immediately
closed behind him.
214. The mob, feeling that the police was in fact offering protection to
somebody who had insulted them was infuriated.
215. The situation degenerated (approx 18 55 hrs) so much so that an
autocycle was set alight and then ushered towards the door of the
police station and projectiles were hurled at the police station.
216. There was no power supply interruption and the police radio
network was functioning properly.
26 The parking in 1999 was found in front of the Cathedral, along Pope Henessy Street
122
217. The whole situation lasted not more than ten minutes.
218. SP Ramen caused a unit of the SSU to go to the Pope Henessy Police
Station:
To note: According to the version of the police, the Fire
Brigade was delayed in its response to attend the arson at
L’Amicale because allegedly, there was a group of persons
who was blocking the entrance of the Fire Brigade Station.
This cannot be the case since the SSU convoy which reached
Pope Henessy police station passed the Fire Brigade Station.
If there were people who were blocking the entrance of the
Fire Brigade Station, the arrival of the SSU convoy would
have caused them to be dispersed.
219. There is undisputed evidence to the fact that L’Amicale was already
on fire before 19 00.
220. According to the version of the prosecution, Mounou, Bébé and Fico
had all participated in the incidents at Chancery House.
221. Mounou and Bébé have also stated in their respective affidavits that
they were in front of Chancery House at some point and when they
came back up Lislet Geoffroy Street they went down Pope Henessy
Street towards the police station. There reaching they saw that the
situation could potentially get out of hand and they decided to go
home.
123
To note: It takes a minimum of three to four minutes, by car,
to get to L’Amicale from Pope Henessy police station. On foot,
it takes a minimum of fifteen minutes. On that assumption,
even if we were to believe witness Azad Thupsee, Mounou and
Bébé would have reached L’Amicale after 19 00 taking into
consideration the time it would have taken to regroup and
walk back from Pope Henessy police station to New Court
House where allegedly, according to Thupsee, the Sumodhee
parked their car and thereafter drive to Amicale. Fico would
have reached some 11 – 12 minutes later.
222. The timings inserted in the missing documents27 would have
therefore clearly demonstrated that three of the four innocent
convicts who were present at the MFA incidents and the Pope
Henessy Police Station incidents (18 47 hrs onwards) could not have
been at L’Amicale at the time it was set on fire (At latest 19 00 hrs).
223. It is to be noted that witness Azad Thupsee who was present on
Pope Henessy street watching the MFA incidents conveniently
missed the whole Pope Henessy police station episode (which took
place not more than 50 metres down the road). The reason is
because if he admitted being there and stated that he witnessed the
Pope Henessy police station incident (which he did in fact witness),
he could not then state having been at L’Amicale to witness the
arson being committed.
27 See Chapter entitled ‘Convenient Disappearance’
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Part 3: Mysteries
1. Our enquiry has revealed a few mysteries surrounding the arson at
L’Amicale, none of which were given any consideration by the police
investigators.
2. These mysteries, for unknown reasons, were not canvassed before
the trial court either and even after the convictions of the Amicale
Four no explanations were sought from any quarters in an attempt
to elucidate those mysteries.
3. What can be said with certainty though, is that due consideration
needs to be given to these facts since they confirm, together or their
own, the cold hard truth that there is more to the Amicale arson than
just four unhappy football fans or even hooligans for that matter.
4. The mysteries that are directly connected with the Amicale building
itself are:
a. A mutilated body which was found on the second floor
of the building.
b. A red electrical wire which was found tied to the second
floor balcony and according to various testimonies,
some people escaped the building using the said wire.
c. The safe of the game house which was found several
metres away from the place where it was kept and more
importantly, it was forced open and empty.
5. A second issue which will be brought to your attention under that
part concerns the convenient and mysterious disappearance of
various documents which would have disculpated the Amicale Four
as the authors of the arson.
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Chapter 13: The mutilated body
6. Of the seven bodies that were found in the Amicale building, the
body of Mohamed Fawzee Abdool Hakim deserves particular
attention.
7. It was at about 22:40 on the 23rd May 1999, when Dr. B. H. Surnam,
Police Medical Officer, accompanied by Mr. René, Assistant
Superintendant of Police, Chief Inspector Fullee together with other
members of the police force and fire services entered the Amicale
building.
8. Six bodies were found on the first floor of the building. Upon
autopsy, none of the bodies were found to bear any kind of fractures
whatsoever. The only body to be found on the second floor was that
of Mohamed Fawzee Abdool Hakim.
9. In his report1 dated 2nd August 1999 concerning the examination of
the Amicale Building, Dr. Surnam made the following observations
regarding the body of Mr. Hakim:
‘On the 2nd floor:
There was the body of a charred male adult in a supine
position with partial eventration of the abdominal
organs’ (Emphasis added)
10. The single fact that the body of Mr. Hakim presented a ‘partial
eventration’ of the abdominal organs raises serious questions as to
what could have happened to Mr. Hakim prior to his death.
11. No explanations were provided as to what could have caused the
‘partial eventration’ of the abdominal organs.
1 Annexure 1
126
12. However, the autopsy report2 of the body of Mr. Hakim should have
sent alarm bells ringing.
13. That autopsy report, which was never given the attention it
deserves, noted that Mr. Hakim bore the following injuries, among
others:
‘3rd degree burns of front of chest with a large opening over
right flank measuring 30 x 13 cm with exposure of right
diaphragm and liver.
Dislocation of right elbow.
Fracture dislocation of right wrist, right hand being
reduced to a stump.
Dislocation of left elbow.
Fracture dislocation of left wrist, left hand being reduced to
a stump.
Fracture lower end of right femur.
Fracture dislocation of right ankle, right foot being reduced
to a burnt mass.
Fracture lower end of left femur.
Fracture dislocation of left ankle with left foot being
reduced to a burnt mass.’
14. The internal examination of the head of the deceased revealed even
more fractures:
i. ‘Fracture right temporal bone.
ii. Fracture outer table right upper occipital bone.
iii. Fracture right lower occipital bone.
iv. Curved fracture right frontal bone.’
2 Annexure Autopsy report
127
128
15. Could those injuries have been caused prior to the death of Mr.
Hakim? If so, what caused them? Why was Mr. Hakim alone on the
second floor? All these questions have remained unanswered so far.
16. It was of capital importance to investigate further into the injuries
borne by Mr. Hakim for the simple reason that the version of the
prosecution was to the effect that the Amicale building was set on
fire from the outside: at no point in time did any of the convicted
persons go into the building.
17. What then caused could have caused so many fractures? No debris
was found on the body of Mr. Hakim which could have accounted at
least for some of the fractures.
18. Further, the body was found on the second floor therefore excluding
any possibility that the fractures were caused by a fall from the
upper floor.
19. At this juncture, it is interesting to note the level of carbon monoxide
present in each of the different bodies:
Name of Deceased Level of Carbon Monoxide
Catherine LAI YAU TIM 82%
Eugenie LAI YAU TIM 72%
Jean Alain LAW WING 46.8%
Jeannette RAMBORO 50.6%
Yeh Ling LAI YAU TIM 77%
Fawzee Abdool HAKIM 27%
Babooram LUCKOO 36.4%
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20. The level of carbon monoxide present in the body of Mr. Hakim is
considerably lower than the levels found to be present in the six
other bodies.
21. The significance of this is that Mr. Hakim did not breathe in as much
smoke as the other victims.
22. One question begs to be asked:
Could he have been beaten up and left for dead by those who
perpetrated the attack?
23. Why would that be? To get grasp of the possible motive behind such
a barbarous act, it is necessary to understand who Mr. Hakim was
and why he was in the building.
24. Mr. Mohamed Fawzee Abdool Hakim, nicknamed ‘mangouse ’ was 42
years old at the time.
25. Our enquiry has revealed that Mr. Hakim has been working at
l’Amicale for over a number of years prior to the 23rd May 1999.
26. Mr. Hakim was the person who used to open and close the premises.
He knew the building inside out.
27. He was in fact a man of trust for Mr. Jean Noel Lai Yau Tim, the
owner of the game house, so much so that he was even offered
accommodation just a few metres away from the gamehouse by Mr.
Lai Yau Tim.
28. In return, we have been told by those who were close to Mr. Hakim,
that the latter was most devoted in his work and despite his
relatively small built, he would not hesitate to put his life at risk for
that of his boss.
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29. He was also the type of person who would not hesitate to voice out
any suspicious transaction in the casino and bring same to the
attention of Mr. Lai Yau Tim.
30. Mr. Hakim knew all the regulars of the casino.
31. Mr. Hakim also knew most of the notorious criminals of the region.
This included some of the members of the Escadron de la mort.3
32. We know also for a fact that members of the said squadron, and in
particular Bahim Coco, were ruthless killers who would not falter
when it came to taking the life of an innocent witness.
To note: During a hold up which the escadron de la
mort perpetrated at Flic en Flac, Bahim Coco
nearly killed a member of his own team who
had uttered his name in public.
33. Whether Mr. Hakim was savagely beaten up and left for dead
because he tried to protect the interests of his boss or whether it
was simply because whoever perpetrated the attack was known to
Mr. Hakim who spotted them, only an in depth enquiry will
enlighten us.
34. What we do know is that at the time, no explanation were ever
sought or given to account for the mutilated body of Mr. Hakim or
worse, that aspect was not even inquired into.
35. The medico legal report itself failed to address certain key issues:
i. Whether the damage on the items of clothing worn
by the deceased matched the damage to the body.
3 see Chapter entitled 30
131
ii. Assessment of the burn patterns on the clothing
and on the body (What do the burn patterns say
about the victim's actions? About their interaction
with the fire? About the fire dynamics? Do burn
patterns on body and clothing match?)
iii. Whether the body injured prior to the fire? If so,
how might the injuries have happened.
36. Furthermore, the following were not even carried out:
a. Internal tissue tests for drugs, poisons, and volatile
hydrocarbons
b. External tissue burn patterns analysis (including
determination of antemortem and postmortem wounds)
c. External tissue near burns tests for vital chemical or
cellular response to burns
d. Additional x-‐rays in view of the number of fractures.
e. Determination of the mechanism of burn injury (thermal
or chemical; radiant, conducted, or convected)
f. Trace evidence and burn pattern testing of the body,
clothing, and personal effects
g. Ignitable liquid testing as appropriate on the body,
clothing, and/or effects and items found with the body
37. The position of the body should have also aroused suspicion since it
was most unusual for a victim in an arson case to be found lying on
the back, unless there had been foul play prior to the arson.
To note: The following is an extract of the Court proceedings in relation to
the production of the photos of the bodies:
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‘Court: Yes, but the fact that the medical evidence or what
not, it is not disputed either by the Defence that 7
persons died. What is the purpose of putting these
photos?
Mrs. A. Narain Ramloll: Well, it is a practice made before the
Court it would show what exactly the
effect of the … bodies and the position
in which those bodies were found.
Court: Do you mean the Court will have to investigate into
that as well?
Mrs. A. Narain Ramloll: It means that when the Members of
the Jury will have the medical legal
reports in front of them and they look
at the photographs, they will ….
Exactly.
Court: What the Jury is interested to know is that they
died in the fire. That is all.’
38. Had the photographs been given due consideration, the unusual
position of the body would have been noticed straight away. It is a
matter of great regret that the photographs were played down in
such fashion by the Learned Judge.
39. Thereafter, the medico legal report was not given any consideration
whatsoever by the investigators despite the fact that it clearly
aroused suspicion. There was no line of enquiry into the suspicious
death of Mr. Hakim. An enquiry would have revealed:
133
a. Whether the position where the body of Mr. Hakim
was found could be expected given the occupancy of
the structure.
b. If not, how Mr. Hakim got there and why?
c. That there was no relation between the place where
the victim was found and the seat of fire.
40. This enquiry has commissioned a pathologist to review the medico-‐
legal report of all of the victims, their toxicology reports and the
depositions of the doctors in Court and in the light of his review, to
answer certain specific questions put by him.
41. The report of the pathologist is herewith annexed in its entirety.4 Its
conclusion reads as follows:
‘In view of the non specified ante or post mortem burning or charring and the skull fractures which are certainly non-fire related, I am of the opinion that the skull fractures in particular were due to injuries sustained prior to the burning and that, at the time of fire, victim was lying on the floor over the back and was dying or in an unconscious state from his head injuries and/or other undetected body injuries.’
42. We have also retained the services of a British Forensic Pathologist
to provide us with a review of the autopsy report of Mr. Hakim. This
report is due to be communicated to us in three months time. The CV
of Dr. Hamilton of forensic access, is herewith annexed.
4 Annexe 11
134
Chapter 14: The red wire
43. The existence of the red wire is confirmed by Farook Mahadoo, a
worker of L’Amicale who has been interviewed in respect of the
present enquiry.
44. As per the police plan and photographs, the red wire was in fact tied
to the balcony of the second floor of the Amicale Building on Royal
Street.
45. The red wire formed part of a much larger coil of electrical wire.
46. A senior police officer who was among the first police officers to
arrive on the locus explained how persons who were still trapped
inside Amicale upon his arrival were escaping from the building
using the red wire.
47. However, this cannot be correct for the following reasons:
a. Witness Seeneevassen who deponed at the Preliminary
Enquiry and the Assizes made mention of the fact that
he had asked everybody who was on the second floor to
get down.
b. It also does not stand to reason since, if the wire was
really a means of escape for those trapped inside the
building, it was tied to the second floor rather than the
first floor of the building thus, making it a much more
difficult operation.
c. If the wire was really tied by those trapped inside the
building, the person/s who tied the wire is/are heroes
who helped saved many lives. However, it was never
135
known who tied the said wire. Nobody came forward be
it to the police or the press.
d. Nobody who climbed down the building using the wire
came forward either.
e. All those who had used the red wire on that fateful day
have so far remained mysterious and anonymous.
f. Last but not least, our enquiry has revealed from an
undisputable source5 that the coil of electric wire did
not come from within the Casino. It had in fact been
brought in, seemingly, for a specific purpose.
48. What has been confirmed is that there were people who came down
using that red wire. The same people were allowed to leave the
scene immediately and no questions were asked to them, no identity
requested and they were not even asked to wait on the spot until
contact details were taken from them.
Who are these people?
49. The police enquiry ought to have revealed same.
To note: The attention of the police should have been drawn
to the effect that the red wire was tied on the balcony just a
few metres away from the spot where the body of Mr. Hakim
had been found.
50. Our enquiry has led us to conclude that those who used that red wire
did in fact participate in the arson at L’Amicale and used the red
wire to escape from the locus.
5 That person shall come forward when there is a new enquiry or a commission of enquiry in regards to the case.
136
Chapter 15: An empty safe
51. Our enquiry has revealed that:
a. the safe which was located inside the office of the first
floor of the game house had been displaced. No
explanation has ever been forthcoming as regard to
this disturbing fact.
b. According to our enquiry, a bunch of keys, including,
according to our enquiry, the keys of the safe, were
found on the shoulder of the late Mrs. Lai Yau Tim
when in fact they should have been in the drawer of
the table inside the office. Again, no explanation was
given to this rather strange fact.
c. The safe was found opened with all of its contents
missing. No tests were carried out to ascertain
whether there was any debris inside the safe and
whether the debris was what remained of the
contents of the safe.
d. The safe could not have been displaced by water
pressure of the fire fighters.
52. The building remained under police surveillance and there is no
reason to believe that the safe had been displaced by unauthorised
individuals after the police had taken possession of the building.
137
138
53. Our enquiry has revealed that:
a. The safe appeared to have been forced open (as can be
seen from the picture) indicating that a robbery was
carried out.
b. Sustained fire damage in its interior part.
c. Was emptied of all its contents and valuables without
leaving any trace.
54. The investigation did not address this rather troubling issue at all.
No questions were asked to the owner of the game house as regards
to:
a. The location of the safe in the building prior to the
arson.
b. The capacity of the safe to resist fire.
c. The amount of money which was kept in the safe at
the time of the arson.
d. Other valuables which were kept in the safe.
55. If a robbery was carried out at the game house, then the whole case
theory for the prosecution (that convicts 1 – 4 set fire to Amicale
from the outside) does not stand good.
56. Instead, what appears to have been the case is that whoever carried
out the robbery also committed the arson and used Scouts Club fans
as a cover for their horrendous act.
57. Again, the police did not even consider this as a possibility.
58. A proper investigation should in fact have shed the light on this
issue.
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Chapter 16: Convenient disappearance
59. Our enquiry has revealed highly distressing and alarming facts
concerning the unavailability / disappearance or otherwise of
documents, which would have:
Shed a different light on the events of the fateful day of
the 23rd May 1999.
Exculpated the four convicts.
Helped to find the real culprits.
Helped the authorities to draw lessons for the future.
60. The disappearance of documents or evidence in relation to any
highly publicised case is bound to have a negative impact in the
mind of the average citizen since it creates suspicion and loss of
confidence in the judicial system.
61. The following documents containing information pertaining to the
May and June 1999 could not be retraced:
i. Diary Book of Pope Henessy Police Station
ii. Occurrence Book of Pope Henessy Police Station
iii. Visitors Book of Pope Henessy Police Station
iv. Reports of the National Intelligence Unit (NIU).
v. Diary Book of Trou Fanfaron Police Station
140
vi. Books in relation to the movement of the Groupe
d’Intervention de la Police Mauricienne (GIPM) and the
Special Mobile Force (SMF).
vii. Logbook of the Information Room (IR) of the police.
viii. Diary books of Baie du Tombeau Police Station and Baie
du Tombeau CID.
ix. Diary books of Albercrombie Police Station and
Albercrombie CID.
x. Diary book of Plaine Verte Police Station
Diary Book of Pope Henessy Police Station
62. Diary and Occurrence books are documents of major importance
which are kept in any police station. Precise information relating to
all the events happening in the area falling under the jurisdiction of
the police station as well as to events within the police station itself
are recorded in these books.
Facts
63. On the 23rd May 1999, Pope Henessy police station was attacked by a
group of hooligans of the Scouts Club.
64. Pope Henessy police station, like many police stations throughout
the island was on red alert on that day. Our enquiry has revealed
that Pope Henessy Police Station was undermanned on that
particular day despite the fact that this particular station was
responsible for the majority of government buildings of the area as
well as the District and Supreme Courts.
65. On the 24th May 1999, all the police officers who were working on
the previous day were suspended from duty. They were:
141
(i) Sergeant 1077 Gengadoo
(ii) Constable 2466 Soobhug
(iii) Constable 5503 Soodhun
(iv) Constable 6106 Gopaul
66. Entries were made in the Diary Book and Occurrence Book of the
23rd May 1999 concerning the following:
(i) The names of the officers who were on
duty on the 23rd May 1999.
(ii) The numerous calls received from IR and
other Police Station.
(iii) The time at which the station was
contacted by the Fire Brigade requesting
police escort to attend a fire near Mohun
hotel.
(iv) The time at which a police vehicle was
detailed to escort the Fire Brigade to
attend the said fire.
(v) The time at which the police vehicle came
back from its duty and whether the Fire
Brigade did in fact manage to attend the
fire.
(vi) The time at which an officer from the Fire
Brigade inserted an entry in the book of
Pope Henessy police station.
(vii) The time information was received from
IR of potential trouble near or around
Chancery House.
(viii) The exact time at which an NIU officer
came from Chancery House to inform
Pope Henessy Police Station of the
situation.
142
(ix) The exact time at which a wardress called
in at the station and the purpose of her
visit (allegedly to make a phone call).
(x) The time at which a supporter of Fire
Brigade FC with his football team jersey
on him burst into the police station
alleging that a group of Scouts Club
supporters is chasing him.
(xi) The time at which the group of Scouts
Club supporters arrived in front of the
police station.
67. In every police station there is a Visitors Book which is kept for
entries made by senior officers under whose responsibility the
police station falls.
68. According to our enquiry, at 18 47, an entry was made by a senior
officer in the visitors book of Pope Henessy police station. It read
‘Area quiet’.
Comments
69. The above entries would have confirmed our findings that convicts
Mounou and Bébé could not by any stretch of imagination be present
at L’Amicale at the time the arson was committed since they were in
front of the Police station at the time a motorcycle was set on fire at
the said Police station.
70. It is the policy during riots that Fire Brigade units are escorted when
they attend a call. The entries in the Diary Books would have
confirmed the time at which Pope Henessy Police Station received a
call from the Fire Brigade informing them that they needed an escort
to attend an incident whereby a bus was set on fire near Mohun
Hotel.
143
71. In fact, according to our enquiry, that incident occurred before
18:15, thus indicating that there were numerous seats of incidents
which occurred before the arson at L’Amicale.
72. The Visitors book would have mentioned the name of the senior
officer who visited the station and confirm the existence of the entry
made at 18:47.
73. The Diary Book would have confirmed whether in fact the police
station was undermanned.
74. The Diary Book would have revealed the name of the Police
wardress who came in the station.
75. The Diary Book would have given the name, age and address of the
Fire Brigade supporter who came to seek refuge in the police station
since he was escorted back home by the police officers.
76. It would have also revealed the name of the representative of the
Fire Brigade who was made to insert an entry in the diary book of
Pope Henessy police station and the time of that entry.
77. It would have also shown the movement of the police vehicle which
escorted the Fire Brigade.
The reports of the National Intelligence Unit (NIU)
Facts
78. There were 3 NIU reports in relation to the match of the 23rd May
1999: Scouts Club v/s Fire Brigade. They related the apprehension
of the NIU that there might well be incidents on that same day.
144
79. It was even stated in one of the reports that a group could
potentially stir up trouble on that day irrespective of the result in
the football match.
80. The first report caused the police to liaise with the Ministry of
Defence as well as the Ministry of Youth and Sports in an attempt to
avoid any potential mishaps on that day. This report also prompted
the police to do the following:
a. Making use of 36 cameras in the stadium as well as the
other cameras in the car parks of the stadium.
b. Having a very strong police presence at the stadium
including police photographers and members of the
GIPM.
81. In its second report the NIU made a list of potential trouble makers
for the 23rd May 1999. It was proposed in the report that CCID and
other CID officers keep a 24 hour watch on these persons.
82. The third report dated 19th May 1999 related to information that at
least 12 motorcycles which had been stolen had forged registration
plates affixed on them and that these motorcycles were going to be
used for incidents feared and mentioned in the first report.
83. Finally, the NIU was in possession of information to the effect that
players of Scouts Club and Fire Brigade had been contacted by
betting people in an attempt to fix the results. In fact, in the morning
of the 23rd May 1999, Week End newspaper relayed the information.
84. According to the standard practice within the NIU, the NIU officer
posted at a specific place or at a public activity must inform his desk
at Line Barracks (which is located in a separate building) if there is
any information which is going against the normal course of events.
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85. On the said day, the NIU desk was undermanned.
86. All the call logs between the NIU agents and the desk at Line
Barracks in respect for the 23rd May 1999 have remained
untraceable.
Our Comments:
87. These three reports are now missing but at the time, after they had
been prepared, they were sent to the relevant authorities for actions
to be taken accordingly.
88. However, we note with great concern that only the first report was
acted upon.
89. The second report was given only cursory attention in as much as
there was no 24 hr watch but the persons mentioned in the list were
only looked for in the stadium; and when the authorities found out
that those persons were not on the stadium, no further action was
taken in order to ascertain the location of their whereabouts.
90. In relation to the third report, no action whatsoever was taken by
the Authorities. Our enquiry has in fact revealed that some of the
trouble makers responsible for the arson at L’Amicale, Mona Store,
Marcel Store and incidents at MTC were travelling in a group on
motorcycles / autocyles.6
91. As regards to the information received by the NIU and relayed to the
relevant authorities on the eve of the game as to the match fixing, no
actions were taken.
92. It is important to note that there were three NIU agents at Plaine
Verte near Khadafi Square as from 17:00 hrs on the 23rd May 1999.
6 See Chapter entitled ‘The bigger picture’
146
93. The call logs of the NIU would have revealed:
i. The time at which a crowd started to gather at
Khadafi Square
ii. The time at which the crowd left towards
Chancery House.
iii. These calls logs would have also revealed whether
the Information Room was effectively made aware
of this fact and would have shed the light as to who
was responsible for the fact that no prompt actions
were taken.
Diary Book of Fanfaron Police Station
94. The Diary book of Fanfaron police station cannot be retraced. It
would have indicated:
i. The number of police officers who were on duty
on that day.
ii. The number of police officers who were on extra
duty at L’Amicale actually signed in to go to work
at L’Amicale.
iii. The exact time at which the police station
received the news regarding road traffic problems
and the remedial actions which were taken.
iv. The exact time at which police officers were
posted at different corners of Royal Street.
v. The exact time at which they were informed of the
incidents in the area, including the setting of fire
in a bus near Mohun Hotel.
147
vi. The time the assault on one of the police officer
posted on Royal Street was reported.
vii. The time at which CI Fullee came to the station to
arm himself.
viii. The time at which smoke was first seen
emanating from Amicale.
ix. The time at which the information was relayed
from Fanfaron Police Station to the Information
Room of the police.
x. Whether any police vehicle was used to convey a
police officer to hospital before 18 30 hrs.
xi. Whether any weapons from Fanfaron went
missing on the 23rd May 1999.
xii. Whether any bus was stoned on Militaire Road.
Comments:
95. All of the above information would have been obtained (from the
Diary Book of Fanfaron Police Station and would have enabled the
light to be shed on all of these issues had the diary book of the Police
station been found. In fact, our enquiry has revealed that:
148
a) The police station of Fanfaron was undermanned.
b) Out of the 7 – 8 police officers7 who were paid to perform
extra duty at L’Amicale, only two were actually present at
L’Amicale.
c) The police station was made aware of road traffic problems
at around 17 40 and Police Officers were posted at the
corners of Royal Street around 1800.
d) One of these officers, was assaulted minutes after he was
posted.
e) At about the same time, information was received at the
police station to the effect that a bus was set on fire near
Mohun Hotel.
f) CI Fullee came at the station to arm himself before 18 30.
g) The arson at L’Amicale occurred very shortly after a fire
was set near Mohun Hotel and the same group who was
involved in that incident were also involved in the arson at
L’Amicale.
h) A weapon of the police station was reported to have gone
missing on the 23rd May 1999.
Books in relation to movement of the GIPM and the SMF
96. The books showing the movement of the GIPM and the SMF are
untraceable.
Logbook of Information Room
97. The Information Room is the equivalent of the nervous system of the
Police Force.
7 Five of these police officers are Caporal 1686 Dunputh, Constable 2079 Emrith, Constable 3805 Seeneevassen, Constable 1481 Nuckchady, Constable 6317 Pookhun
149
98. The telephone logbook of the Information Room would have shown
all the calls emanating to and from the Information Room thus
indicating the precise timings as the events unfolded.
Comments:
99. Our enquiry has revealed that the Information Room was appraised
of the incidents which broke out as the match was drawing to a
close. Since it was common knowledge that supporters of Scouts
Club gather at Khadaffi Square after football games played at Anjalay
Stadium, was the information that incidents broke out relayed to the
relevant authorities? If this was done, why no actions had been
taken to increase police presence in the area?
100. The logbook would have also shown at what time the incidents
broke out in Port Louis i.e Stoning of a bus along Military Road,
Setting of a bus on fire near Mohun Hotel, Arson at L’Amicale, Arson
at Mona Store, Arson at Marcel Store, Incidents at MTC, Incidents at
MFA.
101. Further, the logbook of the Information Room would have disclosed
at what time the Information Room was made aware of the fact that
a riotous crowd was moving from Khadaffi Square to the offices of
the Mauritius Football Association.
102. The logbook of the Information Room would have also shown at
what time the Information Room requested the support from the
SSU.
150
103. It would also have revealed a host of other information which,
together with the other findings of the report, would have confirmed
amongst other facts:
a. The inaction of the authorities and the consequences
of the inaction.
b. There were two sets of disturbances: One
spontaneous from hooligans and a second one well
prepared and premeditated from terrorists using the
hooligans as cover.
104. That logbook has unfortunately disappeared.
Diary Book of Baie du Tombeau Police Station and CID
105. Yet another convenient disappearance is that of the Diary Book of
Baie du Tombeau Police Station.
106. That Diary Book would have shown the movement of the persons
who had been arrested in connection with the arson at L’Amicale
and who were at some point in time, for no specific reason, brought
to Baie du Tombeau Police Station. Our enquiry has revealed acts of
police brutality on the person of Fico.8
Diary books of Albercrombie Police Station and CID
107. Those diary books would have confirmed amongst other issues:
a. The time at which incidents started in that
area.
b. The way in which the witnesses who
implicated the convicts were treated prior to
incriminating the convicts.
8 Annexe 12
151
c. That the police investigation was flawed in
respect of the way in which identification
procedures were carried out.
Diary book of Plaine Verte Police Station
108. The Diary Book of Plaine Verte police station has also conveniently
gone missing. Our enquiry has revealed that at a first instance, the
page of the Diary Book relating to the 23rd May 1999 had been torn
off from the book. Thereafter, the book itself had disappeared.
109. That Diary Book would have confirmed:
a. The time at which a crowd started to gather at Khadafi
Square.
b. The time when the crowd started to thin out and
regroup at Vallee Pitot.
The records from the Fire Brigade
110. The records from the Fire Brigade station would have revealed
among other facts:
a. The number of officers affected at the station on that
day and the equipment that were at their disposal.
b. The numerous phone calls received even before the
match started and the nature of these phone calls.
c. The time at which a first unit of the Fire Brigade left
the station to attend a request at La Nicoliere.
d. The time at which the Fire Brigade received a request
to attend a fire whereby a bus had been set ablaze
near Mohun Hotel.
e. The time at which the Fire Brigade contacted Pope
Henessy police station to request for police escort.
152
f. The time at which a unit left the station to attend the
request and the time it came back.
g. Whether above request was in fact attended to and if
not, the reasons given why it was not possible to
attend.
To note: Our enquiry has revealed that in fact the Fire
Brigade could not attend the request since a second
police escort requested from Trou Fanfaron police station
did not turn up.
h. The time at which the Fire Brigade was appraised of
the fire at L’Amicale..
i. The time at which the Fire Brigade responded to that
request.
j. Whether there was in fact a riotous crowd which was
blocking the entrance / exit to the barracks.
k. The time at which a unit of the SSU came to the
barracks to escort the Fire Brigade to Amicale.
l. The number officers who were involved in fighting the
fire at L’Amicale.
The diary book of Vallee Pitot Police Station
111. The diary book of Vallee Pitot police station would have revealed the
time at which there were incidents in Vallee Pitot and in front of
Vallee Pitot Police station and why they did not intervene when
Marcel Store was being looted.
153
112. It would also have revealed the name of the officers who were on
duty at that time and the response which ensued following reports
of the incidents at Vallee Pitot.
113. There would also have been entries made following attendance of
police officers to the said incidents. From these entries, the following
would have been known:-‐ the number of persons who were involved
in the incidents, the means of transport which were used and their
modus operandi.
154
Part 4: Disconcerting facts
114. Our enquiry has revealed a number of other disconcerting facts.
Those deserving particular attention are:
a. The fact that the Presiding Judge at the Assizes had attended the
funeral of a few of the victims.
b. The fact that a member of the jury was excluded only by reason of
his religious belief.
c. The exclusion of the conclusions of the expert from Scotland Yard.
d. That there had been numerous threatening letters sent to the
owner of L’Amicale de Port Louis prior to the 23rd May 1999.
e. The situation in relation to witness Raymond Zamir
f. The evidence of Mrs. Raymonde Latour regarding Salim Goonjaria.
g. The Police misleading the Prime Minister.
h. The situation regarding the Fire Services
155
Chapter 17: Impartiality of trial judge?
115. It had been reported that the judge who subsequently presided the
Assizes in the Amicale case, raised a court session in order to attend
the funeral of some of the victims.
116. Senior Counsel Yusuf Mohamed who appeared for convicts Mounou
and Bébé also revealed to us during the course of our enquiry that
when he became aware that the said judge who had attended the
funeral of the victims of the Amicale arson was going to preside the
assizes in the Amicale case, he immediately took steps to inform the
then Chief Justice , Hon. Pillay, of the perception of bias.
117. In fact, Senior Counsel has revealed how he went to seek advice from
one of the most senior barristers in the profession.
118. He was advised to see the Chief Justice and explain the situation so
that another judge be appointed. Mr. Mohamed S.C did in fact meet
the Chief Justice and explained how it was in the interests of justice
that another judge be appointed as to limit any perception of bias.
119. However, the request of Senior Counsel was turned down by the
Chief Justice thus putting the Judge himself in a difficult position.
120. There is no doubt that the perception of bias was a real issue since
by attending the funeral of some of the victims of the arson, the
presiding judge could not subsequently be perceived as being
impartial.
121. Impartiality normally denotes the absence of prejudice or bias. Its
existence or otherwise can be tested in various ways.
156
122. In England, the Courts have distinguished between a subjective
approach, that is, endeavouring to ascertain the personal conviction
or interest of a given judge in a particular case – and an objective
approach – that is determining whether the said judge has offered
sufficient guarantees to exclude legitimate doubt in this respect.9
123. In applying the subjective test, the Court has consistently held that
the personal impartiality of a judge must be presumed until there is
proof of the contrary.
124. The Courts have recognised the difficulty in establishing impartiality
based on the subjective approach and for this reason have, in the
vast majority of cases raising impartiality issues, focussed on the
objective test.
125. However, there is no watertight division between the two notions,
since the conduct of a judge may not only prompt objectively held
misgivings as to impartiality from the point of view of the external
observer (the objective test) but may also go to the issue of his or
her personal convictions (the subjective test).
126. As to the second test, it means determining whether, quite apart
from the personal conduct of any of the members of that body, there
are ascertainable facts which may raise doubts as to its impartiality.
In this respect, even appearances may be of some importance.
127. In the Amicale case, whether viewed from a subjective or objective
approach, it cannot be said that the presiding judge was impartial,
having himself raised a court session in order to be able to attend
the funeral of the victims.
9 Disciplinary and Regulatory Proceedings – 7th Edition – Brian Harris OBE QC
157
Chapter 18: Exclusion of a potential member
of the Jury
128. The following is an extract of the Court proceedings of the assizes
dated 6th November 2000 as regards to the empanelling of the jury:
‘MR. REGISTRAR:- Gokulsing Kamal Prakash Anand
COURT:- No. 36 – Gokulsing Kamal Prakash Anand, Finance
Officer.
MY. Y. MOHAMED SC :- I do not challenge him, My Lord.
COURT :- The State?
MR. S. BOOLELL :- No challenge, My Lord.
COURT :- Anything to say?
MR. GOKULSING KAMAL PRAKASH ANAND:- This is not my real
name
COURT :- This is not your real name? What is your real name,
then?
MR. GOKULSING KAMAL PRAKASH ANAND :- I have changed
my name to Jamaloodeen Mohamed.
COURT :- Pardon!
MR. Y. MOHAMED SC :- Jamaloodeen Mohamed
COURT :- Any document to show that?
158
MR. Y. MOHAMED SC :- This is not a ground for challenge.
COURT :- When was that?
MR. GOKULSING KAMAL PRAKASH ANAND :- (Inaudible)
COURT :- Then you should have informed the Master and
Registrar.
MR. GOKULSING KAMAL PRAKASH ANAND :- (Inaudible)
COURT :- No, it is an ID, in your ID card – well, he is an officer
of the Supreme Court.
MR. Y. MOHAMED SC :- He is an officer of the Supreme Court?
MR. REGISTRAR :- He was working here.
COURT :- He was working here – you don’t want him?
MR. Y. MOHAMED SC :- No, I want him.
MR. BOOLELL :- So, we are challenging.’
129. It is clear from the above extract that this potential member of the
jury was challenged and subsequently excluded from the jury panel
because he had changed his name from Gokulsing Kamal Prakash
Anand to Jamaloodeen Mohamed.
130. Counsel for the prosecution had no objection when that person
stated his name was Gookulsing Kamal Prakash Anand. When that
same person stated he had changed his name, Counsel for the
prosecution challenged him.
131. No reason had to be given by Counsel for the prosecution for the
challenge but it is most evident from a reading of the above why that
particular member of the jury was excluded.
159
Chapter 19: The expert from Scotland Yard
132. The government of Mauritius retained the services of Mr. John
Michael Donohue, Detective Chief Superintendant of Police, of
Scotland Yard in order to investigate into the Amicale arson and also
the Ghorah Issac drive by.
133. Mr. Donohue arrived in Mauritius on 13th September 1999 and
stayed for a period of four and a half weeks.
134. During the period of assignment, Mr. Donohue was provided with
free board and lodging, free return first class ticket from the UK to
Mauritius, logistics support including personal computer, telephone,
mobile phone, fax, chauffeur driven car as well as a team of persons
on whom he could count for support.
135. He was also given Rs. 25, 000 per week and a further Rs. 2000 per
week to cater for out of pocket expenses.
136. Mr. Donohue was therefore, clearly expected to help the local
investigation in a substantive manner in view of the treatment which
was accorded to him.
137. However, the findings of Mr. Donohue were never made public and
the preliminary enquiry had already started before Mr. Donohue
finished his assignment.
138. In fact, our enquiry has revealed that the Detective Chief
Superintendant of Police was puzzled as regards to the manner in
which the investigations in both the L’Amicale and the Ghorah Issac
case were carried out.
160
139. Our enquiry has also revealed that Mr. Donohue in fact subscribed to
the view of the French military officer10 who described the attack on
L’Amicale as a well premeditated crime of a military or terrorist
nature rather than spontaneous actions from hooligans.
140. It has also come to light that the police officers who were requested
to work with Mr. Donohue were not forthcoming to help the latter in
his endeavour to find the truth.
141. Our enquiry has revealed that Mr. Donohue was taken aback by the
fact that the preliminary enquiry had already started when the
investigation itself contained so many flaws, grey areas and
unanswered questions.
142. Mr. Donohue was also puzzled by the fact that, even if witness
Thupsee was to be believed, the police made no effort whatsoever to
try and look for those persons who were responsible for fabricating,
carrying, distributing and hurling the Molotov cocktails.
143. Finally, Mr. Donohue was highly critical of the whole of the scientific
aspect of the investigation.
144. What is a matter of huge concern however, is that the investigators
did not deem it necessary to wait for the conclusions of Mr. Donohue
and started the preliminary enquiry even before Mr. Donohue
completed his mission.
145. What was the point, then, of retaining the services of Mr. Donohue if
no use whatsoever was made of his findings?
10 Annexe 13
161
Chapter 20: Threatening letters
146. Our enquiry has revealed that prior to the 23rd May 1999, the owner
of the casino had on many occasions received letters of threats from
anonymous sources.
147. Those letters urged Mr. Jean Noel Lai Yau Tim to cease the operation
of the casino.
148. Mr. Jean Noel Lai Yau Tim left the matter in the hands of the police.
However, no action whatsoever was taken by the relevant
authorities at the time.
149. Be that as it may, after the arson of the 23rd May, the least that the
investigators ought to have done was to open a line of enquiry as
regards to the anonymous letters previously received. This was
never done or even considered by the police.
150. The fact that threats had been made to the owner of L’Amicale on
many occasions well before the tragic events of the 23rd May 1999
goes to show that there were some people or a group of individuals
who clearly had issues as regards to the operation of that particular
game house.
151. This also reinforces the idea that the arson of L’Amicale was a
premeditated act.
162
Chapter 21: Raymond Zamir
152. Three key workers who were working at the gamehouse at the
material time were not heard by the court at the Preliminary inquiry
nor at the Assizes. By their mere presence at the locus, their
evidence would have undoubtedly been enlightening.
153. The three key workers were: Raymond Zamir, Hugo and Johnny
Latour
154. Among the three witnesses, Raymond Zamir deserves particular
attention.
155. At the Assizes, the representative for the Director of Public
Prosecutions stated that no witness statement had been recorded
from the said Raymond Zamir.
156. Is that statement true? Is it correct to state that Mr. Zamir was not
known to the police or that he did not turn up for police enquiry?
Had Raymond Zamir participated in a reconstruction exercise?11
157. During the course of the enquiry, Raymond Zamir has been retraced.
This is what he stated when interviewed:
i. As from the 24th May 1999, he went at the premises of
L’Amicale everyday for several consecutive days in an
attempt to ascertain what would be his future job
prospects.
ii. He was available and most willing to cooperate with
the police.
iii. He went to Line Barracks ad he was interviewed by
the police.
11 Annexe 14
163
iv. He was photographed by police photographer during
a reconstruction exercise.
v. He was required by police officers to show the spot
where he was standing on the 23rd May 1999.
vi. He was called by the police on numerous occasions.
vii. He was witness no. 5 on the list of witnesses for the
prosecution.
viii. His presence was recorded by the Honourable
Magistrate on a few occasions until he was informed
that he was not required to depone.
ix. He was made to sign certain papers at the Line
Barracks.
Our interview with Raymond Zamir also revealed that:
158. He was the security guard posted at the door of Amicale situated on
Royal street giving access to the ground floor of the game house
where there were slot machines.
159. He watched the said football match on television in the game house
and was aware of the incidents at Anjalay stadium following the
match.
160. After the ceremony whereby Fire Brigade were crowned champions,
he went out on the pavement to take some fresh air when suddenly
he saw what he believed to be a crowd of Scouts Club supporters
mainly dressed in red and green coming from la gare du nord and
taking the road adjacent to Jhummah Mosque and then turning left
i.e. onto Royal Street towards L’Amicale. According to him, it was
around 18 00hrs. The threatening behavior of the crowd was clear
and according to the instructions as to what to do in those type of
situations, he immediately came back inside the building, closed the
shutters and locked it them from inside with a padlock.
164
161. This was the routine procedure to be carried out whenever there
were incidents or that incidents were thought to be imminent. This
had been done on previous occasions pending the arrival of the
police.
162. He was the person who, later, with the help of another worker broke
the padlock12 to allow people to get out of the building.
163. He was surprised to learn that a police officer who was inside
L’Amicale claimed to have broken the padlock.13 He was even more
surprised to learn about the second version of the police to the effect
that the shutters were opened from the outside by the police.
To note: The shutters were not smashed and were in a
usable state even after the fire. If the shutters were opened
from the outside by the police, there would have been some
sort of trace left.
164. At no time did he see any cocktail Molotov being hurled at the
Amicale.
165. The alert to the police was given at an early stage and he was
puzzled as to why the police only came on spot after 19 00 hrs.
166. When the SSU eventually came on the spot, there were a few persons
who were trapped on the first floor of the balcony and they were
helped by the members of the public and SSU to get down.
167. A police officer listened to his version of facts minutes after he got
out.
12 In the chaos, the keys to the padlock had been lost. 13 Witness PC Seeneevassen claimed to have broken the padlock.
165
Chapter 22: Mrs Latour
168. Mrs. Marie Raymonde Latour was the only witness for the
prosecution who by her own free will gave statements to the police
implicating one of the accused parties at the Preliminary Enquiry
(PE).
169. At the PE itself, Mrs. Latour was again, the only material witness
who did not make any allegation of police pressure in order to
implicate that accused party.
170. In fact, Mrs. Latour deponed in a very coherent manner against that
accused party despite the fact that in May 1999, Mrs. Latour was
living with that same accused party.
171. The name of that Accused party is Salim Goonjaria. In her deposition,
Mrs. Latour explained how:
a. She met Salim Goonjaria on the 21st May 1999 and the
latter stayed at her place at Cite Dubreuil.
b. He left on Saturday morning and she did not see him
until Monday the 24th May 1999.
c. She had contact with him by phone on Sunday the 23rd
May 1999. Salim called her from a mobile (No.
2532597) which bill was produced in Court to her
house phone (No. 6655339).
d. A number of calls were made between Salim Goonjaria
and herself.
172. When queried about the tenure of the phone conversations, Mrs.
Latour revealed the following:
166
‘Then I asked him “kifer bannes dimoune fine mette dife
dans L’Amicale. Ene peche sa” He told me “Le mal fine
detruire”
I told him “ene peche sa” because he told me that there
were people inside the L’Amicale.
At the background I could hear noise. I heard him talking
only to MIO whist he was talking to me.
When he was talking to me his voice does not seem to be
normal as usual. By not being normal, it appeared that it is
a person who has problem and he was somewhat nervous.
He was talking aloud. The tone of his voice was “un peu
brutal” (…)
173. During her deposition, Mrs. Latour was referred to the statement she
had given to the police and she agreed as to its contents. The
following are extracts of her statement dated 15th June 1999:
Folio 53329 – 53330:
‘Li fine re telephone moi vers 5 heures, la li fine dire moi,
guette dans television pe passe sa banne boute la, guette sa
banne goal la mo pas ti dire toi fine vende sa. Ti fini vende
sa match la Rs. 300, 000 et li fine coupe telephone.’
‘Salim fine dire moi pre cote faire la priere ena ene maison
de jeu sa meme zot be crasse ca. Ena ene cinquantaine
dimoune derriere moi. Li fine dire moi ena banne familles
beaucoup, banne madame pe souffert parcequi dans la fin
du mois beaucoup banne mari perdi zotte casse dans
L’Amicale et mo papa aussi quand li ti tipti.Le mal pe
detruire’
167
‘Salim dire moi mo bizin reste la pour guetter le mal pe
detruire. Ce qui ena pour arriver pe arriver. Pas bisin to
tracasser.’
‘Salim fine repone moi Raymonde pas bisin tracasse pas
pou arrive moi nanier. Mo pas pou gagne nanier la dans.’
‘Mo la case, travaille qui ti ena pour faire in fini faire. Le
mal fine detruire.’
174. At folio 53333 of her statement dated 15th June 1999, Mrs. Latour
explained what happened when she confronted Salim Goonjaria
about the incidents of the 23rd May 1999:
‘La mo dire Salim qui mo pas pour marier avec li. Li dire
moi bondie fine envoye pour faire travaille la et travaille la
finne faire.’
175. In cross examination, Mrs. Latour stated that the whole duration of
her conversation with Salim Goonjaria over the phone on the night
of the 23rd was 20 – 25 minutes.
176. However, when confronted with the bill that had been produced, the
calls between the cellphone and the house phone of Mrs Latour
totalled only 2.43 seconds.
177. That was a major discrepancy and clouded testimony of Mrs. Latour
who had been consistent so far.
178. Since there was little evidence apart from the deposition of Mrs.
Latour against Salim Goonjaria, the latter was not committed to the
Assizes.
168
179. Our enquiry however has shed new light on that aspect of the case.
180. First of all, our enquiry has revealed that at the time Salim Goonjaria
had two mobile phones. One borrowed from Mrs. Latour, which bill
had been produced in Court and another one for himself which bills
had never been produced or even retraced by the police.
181. The calls between Salim Goonjaria and Mrs. Latour totalling 20 – 25
minutes had in fact and truly occurred and were made from the
other phone Salim Goonjaria had in his possession and which bill
was never produced.
182. Our enquiry has also revealed that Salim Goonjaria was directly
implicated in the arson at L’Amicale. The following is an extract of
the affidavit of Convict No. 1, Mounou14:
‘On the way to the MFA the procession came to a halt and a
person whom I know by the name of Salim Goonjaria
approached the car, leaned over at my window and stated
the following to me:
“Moonou a nous alle brule Amicale mo armee”
Salim Goonjaria told me that he was armed and to go with
him and set fire to l’Amicale’
I ignored him and carried on in the procession. However,
Salim Goonjaria came back and I noticed that he had a
black satchel in his possession which he wanted me to keep
in my car. I refused and carried on with the procession
towards MFA.
(…)
14 Annexe 15
169
In the year 1999 when I was on remand at Beau Bassin
prison on one particular afternoon, I was sitting in a group
of other inmates and the said Salim Gounjaria who I had
mentioned earlier and who was also arrested in connection
with the Amicale case, said the following to me in front of
the others, ‘Mounou mo conne toi, to ene beau frère. To
innocent, zotte tous ki la innocent. Mo pas pe capave
dormi. Alors mo p demande zotte excuse moi. Mo pou
prend tout charges’, meaning Mounou, I know you, you
are my brother in law. You are innocent and so is all of you.
I cannot sleep and I am asking all of you to forgive me. I
will bear all of the consequences.
Upon hearing that statement, Nazim Laulloo who was also
arrested in the Amicale case and was in the group with us,
asked Salim Goonjaria, what would happen if he were to be
released after the preliminary enquiry.
Salim Goonjaria replied that if that is so, then he will go
home and will implicate anyone who makes allegations
against him.
That was witnessed by the following people: my brother
Bébé, Issa Peertum, Nazim Laulloo and Mahmade Ramjane.
On another occasion, Salim Goonjaria stated the following
to me ‘Mounou, si to ti garde mo sacoche la avec toi,
capave Amicale pas ti pou bruler’ meaning Mounou, if
you had kept the satchel I gave you on the 23rd May 1999,
Amicale would not have burnt down.
I asked him what he meant and he replied that the satchel
contained incendiary devices.
170
However, after a few weeks passed by, the said Goonjaria
changed his attitude. He stated that he had found a way out
of the case and that he would implicate anyone who
revealed the truth about what he had stated in prison.
Since I had faith in our justice system, I knew that there
could not possibly be any evidence against me and that the
witnesses would speak the truth, I did not deem it
important to do anything about what Goonjaria stated to
us especially in the light of his threats.
Moreover, in prison I became aware of the existence of a
terrorist group by the name of ‘Escadron de la Mort’ with
whom Salim Goonjaria was apparently associated with and
in the circumstances I did not want to do or say anything
which might endanger the lives of my wife or sons.
183. The following is an extract of the affidavit sworn by Mr. Imran
Muthy15 who met with Salim Goonjaria when he was detained at
GRNW prison:
At some point in 1999, the exact date I cannot remember, one Salim Gounjaria was brought to Grande Riviere North West prison. The said Gounjaria was made to stay in the same yard as myself and with other remand prisoners named Laulloo, Neeyamuthkhan and Boodhoo. I remember an occasion when Mr. Laulloo was crying as he could not bear the fact that he was accused of a crime he did not commit. That happened in front of the said Gounjaria. Shortly after that episode, the said Goujaria approached me and told me that he had something to tell me.
15 Annexe 16
171
We had a private conversation whereby he told me the following: ‘Mo dire ou ene zafer, mo enan respect pou ou. Mo dire ou ene zafer franc. Mo pas pe capave, ca travail la moi kine fer ca.’ When I asked him what ‘job’ he was talking about, he replied: ‘L’Amicale la, moi kine fer ca.’ Our conversation was cut short because it was the end of the break and we had to go back to our cells. Then, in a subsequent conversation, he told me everything about the L’Amicale case: He explained with who he carried out the attack, how was it carried out and why it was carried out. He told me he could not keep it in his chest anymore since he was seeing first hand how innocent people were suffering. I remember asking him why he had carried out the attack and he replied that he used to be a gambler and that he his wife left him for that very reason and that L’Amicale was a nuisance which had to be eliminated. He explained that a new game was recently introduced in L’Amicale which many of his ‘brothers’ were playing and losing their money. He said it was a job which had to be carried out. He also told me that he was ready to assume his responsibility if he were to be convicted for a maximum of ten years. He also explained to me how before setting out on his mission, he went at a place called ‘Montagne ti bassin’ at Vallee Pitot and told me that one of the name of one of the persons who carried out the attack. I have communicated the name to the lawyers currently enquiring into this case and I am ready to give this name to the police or to any Commission of Enquiry. He told me how their mission was to ‘elimine roulette’, since that was the new game which was introduced at L’Amicale. He also explained to me how after setting fire to L’Amicale, they were on their way to set fire to the Mauritius Turf Club
172
when one person whom he referred to as ‘Barahim’ convinced them not to go forward with their plan. He also confessed to me how himself and the person who was accompanying him attacked and rampaged a tavern in Vallee Pitot.
184. The following is an extract of the affidavit of Issac Peertum16:
Whilst I was on remand at Beau Bassin Prison in yard no. 5. I met the nine persons who had been arrested in connection with the L’Amicale case and who were awaiting for the Preliminary Enquiry in that case. During the Preliminary Enquiry into the Amicale arson, I still remember that on one particular afternoon at around 16 15 – 16 30 I was in the company of a few inmates including the one Salim Goonjaria.
We had just performed the prayers. Just after the prayers were over, Salim Goonjaria stood up and addressed all those in the Amicale case He presented his apologies and said words to the effect that those persons who were accused should not have been here since he had committed the Amicale arson and not them.
185. So there we have it, a self confessed criminal who is presently free.
16 Annexe 17
173
Chapter 23:
Police misleading the Prime Minister
186. In a parliamentary session (No. B/480), Mr. D. Jeeha (Second
Member for Grand Baie and Poudre d’Or) asked the Prime Minister
and Minister of Defence and Home Affairs) ‘whether in regard to the
Police officers who were on duty at the L’Amicale de Port Louis on
23rd May last, he will, for the benefit of the House, obtain from the
Acting Commissioner of Police information as to (…) (b) what action
was taken by the Police officers to rescue human lives from the fire
and what help they received from headquarters. ‘
187. In his reply, the Prime Minister stated that he was informed by the
Acting Commissioner of Police:
a. ‘that there were five Police officers on the spot
performing extra duty (…)’
b. ‘Some 250 persons were still blocked inside the building
as the steel roller shutters were locked and could not be
opened. Besides, burning cars and motorcycles were
blocking entrances and all exits.
While efforts were being made from inside, SSU personnel
under the orders of the superior officers helped to clear
the entrance on the Royal Street and force open the steel
roller shutter to enable the trapped persons evacuate the
building. ’
188. Our enquiry has in fact revealed that:
i. There were only two police officers at L’Amicale
when the fire broke out.
174
ii. There were only two exits, both of which had been
locked from the inside.
iii. There were no cars which had been placed with
the specific purpose of blocking the exits.
iv. It was the employees of the casino who forced
open the roller shutter. At the time when the roller
shutter was opened, police assistance had not yet
arrived on the scene.
175
Chapter 24: Fire services
189. On the 1st July 1998, the Municipality of Port Louis Fire Brigade
merged with the Government Fire Services.
190. Before 1st July 1998, the Municipality was responsible for
maintaining a Fire Brigade Service for our capital city.
191. No inspection of Amicale had ever been conducted out prior to 1998
by the Municipality. Furthermore, no inspection had been carried
out by the Fire Services prior to the 23rd May 1999.
192. As no inspection had been carried out, our enquiry has not been able
to say whether there were, in the building:
Fire escape routes
Fire extinguishers
Fire Alarms
Any other fire fighting equipment
193. Until May 1999, the only enactment providing for safety measures in
respect of workplaces is the Occupational, Health and Safety and
Welfare Act 1998.
194. In the absence of record, it can be inferred that both the Municipal
Council and the Government have failed to fullfill their statutory
obligations.
195. Since the Amicale arson, the ministry of Local Government has
advised the local authorities to request new applicants in respect of
any new development to seek and obtain a dire clearance from the
Government Fire Services. (Vide Section 8 of the Building Act 1919)
176
a. Note: According to our inquiry the building of Amicale
did have an internal stair case leading to the rooftop of
the building which in turn gave an easy access to
Shamping restaurant. Police officers performing extra
duty at L’Amicale came to know the existence of that
internal stair case only during the reconstruction
exercise.
196. Our inquiry revealed that :
i. Around 18:20 on the 23rd May 1999 the fire
services of Port-‐Louis were informed by
telephone that a bus had been set on fire at
Royal Road not far from Mohun Store.
ii. The fire services requested the support of Pope
Henessy Police to escort them to the spot as it
was a case of rioting. The police escorted the
fire services but upon reaching near Royal
Street, they stopped escorting them on the
ground that the area where the bus was on fire
was not within the boundaries allocated to
them. In fact, it was under the responsibility of
Trou Fanfaron Police station which the fire
services tried to contact. However, no contact
had been made because the telephone line was
constantly busy. The fire services decided to
return to their barracks. On arriving at the
corner of Desforges Street and Pope Henessy
street they noticed a crowd near St Louis
Cathedral Square.
177
iii. One member of the Fire Services was delegated
to make an entry at the Pope Henessy Police
Station. At the Barracks the officers had dinner.
iv. On the 23rd of May more than 80 acres of sugar
cane plantation were set on fire
v. As from 17:00 on the 23rd May 1999, the Fire
Services at Maillard Street Port-‐Louis were
flooded with calls so much so that they did not
know which request to attend.
vi. Around 17 00 hrs one crew was sent to la
Nicoliere to attend a fire that was set in sugar
cane fields at La Nicoliere.
vii. The fire services were understaffed on the 23rd
May 1999. No heed had been paid to the
previous calls for the recruitment of fire
fighters.
viii. Only one person in the whole team was trained
in the operation of the long ladder.
ix. According to SP Pierre Noel, after he made the
request for the assistance of the fire services,
he was informed that the fire fighters could not
leave their barracks to attend the fire at
L’Amicale since there was a riotous crowd in
front of the barracks.
178
‘I called the Information Room, Headquarters of
the fire Brigade and Fire services of Port-Louis. I
was informed by the fire services of Port-Louis
that they could not leave the line Barracks
because they were blocked by a hostile group of
persons’17
x. The IR on that day was under the supervision
of SP Ramen. If there was effectively a riotous
crowd in front of the barracks, why had SP
Ramen not done the needful to disperse that
crowd prior to the request for assistance? It
cannot be that the IR was not aware of same
since there was no communication problem on
that day and the police radio network was
functioning properly.
xi. Our investigation reveals that at no time there
was a riotous crowd blocking the fire people
from going to Amicale.
xii. Again, no statements were taken from the
police by the fire people.
17 Extract of the deposition of SP Noel at the Preliminary Enquiry
179
Part 5: Exculpatory evidence Chapter 25: The tape
197. At some point in time prior to 19th February 2003, Fazil Sumodhee
gave a tape to his legal advisers which tape was a recording of a
conversation between himself and witness Azad Thupsee after the
convicts were convicted.
198. The gist of the conversation is that is that Azad Thupsee admits lying
at the Assizes and says that he had no choice: “Aster ki mo trouver
prefere mo vine temoin ki moi ki mo pou faire. Penan aucaine choix,
to comprends la? Bon mone calculter comme si dire franchement de
dire hein mone calcule sa to conner magistrate ti beze moi 15 ans
prison lor sa zafer perjure la.”
199. The conversation in effect supports to a large extent the contention
of the Defence at the Assizes and Azad Thupsee repeatedly, in that
conversation that the Sumodhee brothers are innocent and that he
lied at the Assizes.
200. The original of that tape has been made available to us in the course
of our enquiry and it will be produced at any Commission of Enquiry
that eventually will be set up.
201. The tape and its transcript were the subject of a motion to adduce
new evidence but the Court turned down the motion.
202. Since there was no explanation as regards to the circumstances and
the background facts relating to the recording, this enquiry has
investigated further in this specific regards.
203. Our enquiry has revealed:
a. Azad Thupsee, who was then residing in the Police flats of Bell Village, had been calling Fazil Sumodhee, the brother of Convicts 1 and 2, many times before the recording.
180
b. In fact Azad Thupsee was calling Fazil Sumodhee to ask what
could be done as regards to the Amicale case since he was finding it difficult to live with the lies he had previously stated in court.
c. Fazil Sumodhee, who was in the company of his brothers Mounou and Bébé as from 13 30 to 19 00 on Sunday the 23rd May 1999 knew that his brothers were innocent and for him Azad Thupsee is a dangerous liar.
d. Furthermore, Fazil Sumodhee had seen how manipulative Azad Thupsee was since day one.
e. On the day when the conversation was recorded, Azad Thupsee called Fazil Sumodhee asking the latter to call him back on another number because of fears that his calls were being taped.
f. Because of the aforementioned reasons, Fazil Sumodhee decided to record the conversation with Azad Thupsee
g. Before calling back Azad Thupsee, Fazil Sumodhee borrowed a recorder from his close friend of his.
h. Fazil Sumodhee then called Azad Thupsee on the number which the latter had provided to him and recorded the conversation.
204. In our humble opinion, the Supreme Court in refusing to allow the
recording and the transcript to be admitted as new evidence missed
out on important issues and both the tape and the transcript should
have be admitted as new evidence.
205. Investigators involved in the enquiry who had the opportunity of
probing lengthily into Fazil Sumodhee, who in fact is a very sick
person, to be economical with words, have come to the conclusion
that he is telling the truth in relation to:
Where he was on the 23rd May 1999. His non-‐involvement in the alleged sequestration case. The recording and the story leading to the recording.
206. In the light of all the new evidence revealed by this enquiry, we
believe that in the interests of justice:
181
I. That the call logs as regards to phone number from
which the calls were made to and from Fazil
Sumodhee, in relation to the tape, be revealed.
II. That the tape itself, is made the subject of further
investigation.
III. That a voice test is carried out since even if the truth
of the conversation is not true, the mere fact that it
was Thupsee voice will mean the final nail in the
coffin of lies of Thupsee.
182
Chapter 26: Confessions
207. Khadaffi Oozeer was arrested on the 22nd November 2000 by CID (S)
following a search at his house whereby firearms and other weapons
were discovered.
208. The subsequent enquiry led to the dismantling of Escadron de la
Mort.
209. Khadafi Oozeer mentioned in his statement given to the police that
he would wish to make revelations concerning the cases in which
L’escadron de la mort was involved.
210. His barrister, at the request of Khadafi Oozeer himself, stated in
court that he would only make those revelations to Inspector
Raddhoa.
211. In a statement given on the 5th January 200118, 2 months following
the conviction of Amicale Four had been convicted, Khadafi Oozeer
explained in detail how the attack on L’Amicale had been planned
well in advance, who planned the attack, who participated in the
attack and how the attack was perpetrated.
212. The last paragraph of that statement reads as follows:
‘Concernant ca deux frères Sumodhee la, mo sur et certain qui zotte pas fine prend part dans du feu Pope Henessy ni dans L’Amicale parce qui mo ti tout le temps present partout dans tous ca banes evenements la.’
213. Another person who made revelations about the attack on L’Amicale
was one Toorab Bissessur.
18 Annexe 18
183
214. He first made the revelations to an investigator of our police force
who was sent on a mission to Madagascar specifically to record a
statement from him.
215. The latter, apart from what he stated to the police, repeated the
revelations to a group of three journalists who visited him at La
Bastille Prison.
216. During the course of the meeting with the journalists, Toorab
Bissessur narrated in detail how the attack on L’Amicale had been
planned since 1996 and by who it was planned.
217. From the tenor of that conversation, it is clear that the Amicale four
are all innocent.
218. Hatim Oozeer was another member of Escadron de la mort who was
arrested by the Flying Squad in or around December 2000 at
Ambrose Street Rose Hill.
219. The latter in an interview with the arresting team and with members
of the MCIT revealed that Escadron de la mort was implicated in the
arson at L’Amicale.
220. In December 2000, following the arrest of Afzal Chummun, the latter
in absence of his Counsel late Me. Mario Helene, gave indications to
the investigators regarding the arson at L’Amicale.
221. Furthermore, it was revealed during the interview at the MCIT that
he was once working at L’Amicale himself.
184
222. During the interview of the abovenamed, it became to the
knowledge of the MCIT that the foiled attempt at Jumbo Rose Hill,
another game house belonging to the family of Jean Noel Lai Yau
Tim, where a police lost his duty revolver was committed by the
Escadron de la Mort.
223. Despite of clear indications at the time and evidence to back up the
relevations, the MCIT, on the wrong assumption that the matter had
already been dealt with and hence could not be subject to another
enquiry, the latter (MCIT) did not proceed with a full fledged
investigation in the matter.
224. Finally, one Azad Nandoo, also ex member of the Escadron de la
mort, confessed to Salim Khodabaccus19, just before going on run
which ended in him committing suicide, that the Amicale Four are
innocent since it was his team, the Escadron de la mort who planned
and perpetrated the act. Salim Khodabaccus related same to an MP.20
To note: In the case of Azad Nandoo, his van was seen by
various witnesses who have been heard during the
enquiry. It was revealed that the said van was passing by
L’Amicale at the material time on the 23rd May 1999 as
well as leading a group of motorcyclists who set fire to
Ishwarlall store and Mona store.21 Our enquiry further
revealed that on the 23rd May 1999, at around 19 30, he
made a deposition at the Plaine Verte police station
whereby he stated that the rear window of his van was
damaged.
19 We have interviewed the said Salim Khodabaccus who is ready to swear an affidavit as to this. 20 The MP is also willing to swear an affidavit as to this. 21 Annexure Goolfee
185
Chapter 27: CCTV Cameras
225. There were 36 CCTV cameras installed in the stadium as mentioned
earlier. The cameras, excluding those in the parking, totalled 180
hours of footage.
226. The defence was never informed of the existence of the footage nor
had it transpired at the preliminary enquiry or at the assizes that
there was such footage.
227. Our enquiry has revealed that the footage was viewed by the
investigators at Line Barracks. The viewing of the 180 hours of
footage took place in under 2 hours.
228. How the footage could have been of a considerable help for the
defence:
a. In relation to convict No. 4, Fico, the footage would have
shown that he had an altercation with the main
prosecution witness Azad Thupsee on the stands. It
would have also shown the clothes worn by him on that
day.
b. In relation to convict No. 3, Zulu, the footage would have
shown that in the parking of the stadium, main witness
for the prosecution Azad Thupsee indeed remitted
firecrackers to Zulu for the latter to bring same. It would
have also shown that Zulu did bring the firecrackers
inside the stadium but did not remit it back to Azad
Thupsee. It would have further shown Azad Thupsee
asking other fans to pass on the message to Zulu for the
latter to return his firecrackers. Finally, it would have
shown that after the match, Azad Thupsee waited for Zulu
186
to ask him for the firecrackers. It would have also shown
the clothes worn by him on that day.
c. In relation to convicts 1 and 2, it would have confirmed
with whom Mounou and Bébé travelled to the stadium,
who were they seated with in the stadium, with who they
went back to the car; and how they picked up one
Mamade Ramjane on the way back home. The footage
would have also shown the clothes they were wearing as
well as the time they left the stadium.
d. The footage would have also confirmed whether the
persons listed on the NIU list22 were in fact on the
stadium.
e. The footage would have confirmed where Azad Thupsee
was on the stadium and at what time he left the stadium.
CCTV at L’Amicale de Port Louis
229. The CCTV footage comprised of the following :
a. Footage from the cameras inside the game house
b. Footage from a camera which was affixed on a building opposite
L’Amicale and directed at the entrance of the game house on Royal
Street.
230. The footage would have revealed:
a. Whether there was in fact a group of motorcycles which
came in front of the game house.
b. If so, the time at which this group of motorcycles came.
22 Refer to the Chapter entitled to ‘The convenient disappearance’
187
c. At what time fire broke out at L’Amicale and how the
fire broke out.
d. The exact sequence of events as regards to the cars
which were set on fire.
e. The time at which people started to gather around
L’Amicale.
f. Whether there were cocktail molotovs hurled at
L’Amicale and if so by whom.
g. Whether there were other projectiles hurled at
L’Amicale and if so by whom.
h. The number of police officers who were present in
L’Amicale.
i. Whether there were incidents inside the gamehouse
and if so the time at which the first incidents occurred.
j. What really happened to the safe.
188
Chapter 28: Sequestration case
231. During our enquiry, several persons expressed their concerns as
regards to the sequestration case and its outcome; and we therefore
feel the need to address this issue.
232. Witness Azad Thupsee stated at the preliminary enquiry, under oath,
that he was forced by the police to implicate the innocent convicts.
233. Subsequently, he changed his version and stated that he lied at the
preliminary enquiry because he had been sequestrated by two
Sumodhee brothers other than Mounou and Bebe and two other
persons.
234. A charge of sequestration was levelled against those four persons
mentioned by Thupsee.
235. The outcome of that sequestration case was crucial:
a. If the charge of sequestration was proved against the
above mentioned persons, it would mean that Azad
Thupsee was indeed sequestrated and that he was
speaking the truth.
b. Likewise, if no conviction for the sequestration case
ensued, it would mean that Azad Thupsee had been
lying.
236. The sequestration case was heard before the assizes case started
and the court had reserved its judgment.
237. However, on the 18th October 2000, the Court invited Counsel on
both sides to offer arguments as to whether a count of the
information was defective or not.
189
238. The case was fixed for arguments and subsequently the court
reserved its judgment to the 16th November 2000, four days before
the end of the assizes.
239. However, on the 16th November, the prosecution moved to reopen
its case. Defence Counsel objected and the matter was fixed for
arguments on the 28th November.
240. On the 28th November 2000, the DPP filed a nolle prosequi against
the accused parties.
241. In the meantime, on the 20th November 2000, the Amicale Four had
been found guilty at the Assizes.
242. There never was any conviction in the sequestration case.
243. The chronology of the sequestration case can lead one to all sorts of
inferences.
190
Chapter 29: The ‘iron’ pole
244. An ‘iron’ pole which was used to overturn cars had been
fingerprinted by the police. The issues relating to the iron pole are:
i. Was it effectively an ‘iron’ pole?
ii. Why were fingerprints taken from the pole never
presented as evidence at the trial?
iii. Why was the pole not brought at the Preliminary Enquiry
and Assizes?
245. Our enquiry revealed that the poles used by the Municipal Council of
Port Louis in 1999 were wooden poles and not iron poles.
246. Had the fingerprints deliberately been kept aside or was it by
mistake or gross negligence that they were never used?
247. Either way, innocent men cannot be made to pay for mistakes or
negligence with their lives.
191
PART 6 : ESCADRON DE LA MORT
248. Since, during the course of our enquiry, the mention of ‘Escadron de la
Mort’ repeatedly came up, it is necessary for the benefit of the reader to
understand who formed part of the Escadron de la Mort.
249. The term Escadron de la Mort was first used publicly after the Gorah
Issac murders, which took place on the 26th October 1999 at Gorah Issac
Road on the eve of the Municipal elections of 1999.
250. Several months before the Gorah Issac Murders, the NIU, in a report, did
reveal that there was an organisation within the city of Port Louis
militating against drug traffickers. However this organisation had
completely radicalised itself to have recourse to violent means to get rid
of drug traffickers in Port Louis.
Chapter 30: Who were they?
251. The following is a summary of the facts behind each of the main
protagonists of the Escadron de la Mort:
Bahim Coco
• The head of the Escadron de la Mort.
• Former muscle man of ‘Five Stars’ gang.
• Initially an anti-‐drug activist.
• Active within the Black Muslims movement.
• Was the handyman of Hassen Ameer alias Turkie
• Stevedore and gave a hand to Sir Gaetan Duval to stop the dockers
strike.
• Brother of Issop Tole but had publicly denounced and renounced his
brother.
• Committed suicide at Albion on 22nd December 2000.
Khadafi Oozeer: • His involvement in the Escadron was merely that of a courier for Bahim
Coco
192
• Active member of the Mouvement Civique Nationale
• Arrested and his subsequent revelations led to a new enquiry into the
Ghorah Issac case
• His barrister was late Me. Elias Oozeerally who publicly stated that
Khadafi Oozeer will only cooperate with the DI Raddhoa.
Hatim Oozeer: • He was the driver of the Escadron.
• Former drug addict turned into an anti-‐drug activist
• Was the star witness in the Preliminary Enquiry into the triple murder of
the Ghorah Issac.
• Confessed and gave several statements to DI Raddhoa some in presence
of his Bar at Law and some without the assistance of a Counsel.
Toorab Bissessur: • Very close to Bahim Coco and Hizbullah
• Was active up to 1997 when he left for Madagascar.
• Major involvement:
Ghorah Issac triple murder
Hold up of MCB Curepipe
Hold up Pharmacie Pather
Hold up of SCB Curepipe
Liyakhhat Polin Sniper and respected within the hunting community as the best shot.
Very close to Bahim Coco and was also known to be very close to Celh
Meeah.
Major Involvement:
• Ghorah Issac triple murder
• Hold up of MCB Curepipe
• Hold up Pharmacie Pather
• Hold up of SCB Mesnil
• MCB Belle Mare, Attempt against
Riaz Jamaldeen
193
Was the son in law of Bahim Coco and was responsible for the logistics
to carry out the attacks of the Escadron
Major Involvement:
All cases of the Escadron and was the middle man between
Bahim Coco and the other Escadron members when Bahim
Coco was incarcerated for the case of Ghorah Issac.
Committed suicide at Beemanique on 16th December 2000
Azad Nandoo Sniper
Active member of Mouvement Civique Nationale
Major Involvement:
All major cases including Ghorah Issac
Recruiting agent
Committed suicide on 16th December 2000 at Beemanique
Noorani Boodhoo alias Bhai Noor Responsible for intelligence work.
Major Involvement:
All major cases including Ghorah Issac
Committed suicide at Beemanique on 16th December 2000
Afzal Chummun alias Dilait Caillé Responsible for cleaning up of traces after an attack.
Ex police officer.
Linked with firearms found at the place of Khadafi Oozeer
Major Involvement:
MCB Belle Mare
Wiehé case
Jumbo Rose Hill hold up
Islam Mohammedally alias Islam Pakistannais Close with Bahim Coco.
Left the country before the Escadron was dismantled.
194
Initially thought to have gone to Turkey and now believed to be in
Pakistan.
Major Involvement:
On the night of Ghorah Issac triple murder, he was involved in
the stealing of a red van from a Malaysian couple at Flic en
Flac
252. According to our investigation, the following code of conduct was
imposed by Bahim Coco on the members of the group:
(a) never to be seen in public together
(b) never to divulge even to one’s wife their belonging to the
organisation
(c) the money ‘obtained’ from any action were be used for good
causes after excluding expenses
(d) never to call one’s name in public
(e) Not to indulge in any illicit activity so as not to attract any
police attention
(f) To strictly observe all Muslim rituals if arrested to observe the
right of silence and not to divulge.
253. Many of the members of the Escadron were very close to the Hizbullah
political party but our investigation revealed that Bahim Coco had an
agenda of his own.
254. Some members of the Escadron were also very close to the
Mouvement Civique Nationale (MCN) and to Salim Khodabaccus in
particular.
195
Part 7: An analysis Chapter 31: The bigger picture
255. A question which, at all costs, should have been answered was:
‘Were all the events of the 23rd May 1999 linked or isolated?’
256. Irrespective of the answer, another question which begged for an answer
was whether the events were spontaneous or organised?
257. Unfortunately the police did not analyse the events which took place on
the 23rd May 1999 from a wider perspective.
Why did the police fail to look at the wider picture?
258. That may have been because there were no proper briefing or debriefing
meetings and furthermore, the lack of coordination among the different
units have caused widespread concerns as to the way in which the police
force was being managed. The morale within the police force was also at
its lowest point at that time. Punitive transfers were common and the
situation was therefore definitely not conducive for a good and proper
enquiry.
259. Another reason is because the police force promised to the public that
they would find the culprits quickly, hence adding pressure on the
investigators.
260. Furthermore, important and confidential information as to the line of the
enquiry adopted by the police was in the public domain. Thus, giving a
lot of time for the real culprits to reassess the situation.
261. There was an inbuilt tunnel vision culture within our police force due to
sheer amateurism.
196
What were the incidents that occurred on the 23rd May 1999?
262. There was a widespread disorder, as never witnessed before at
Anjalay Coopen stadium, despite the 36 cameras zoomed in on the
spectators which were meant to act as a deterrent.
263. Sugarcane fields were set on fire on an unprecedented scale.
264. Avalanche of phone calls before, during and after the football match
to Port Louis Fire Services.
265. Unusual amount of phone calls to Quatre Bornes and Curepipe Fire
Services.
266. Information Room was jammed with so many phone calls and
incoming calls on 999 were left unattended.
267. Most Police Stations were on alert but were undermanned.
268. An SMF van was attacked by motorcyclists.
269. Buses and other vehicles were being stoned at different areas.
270. Despite being fully aware of blackspots within the outskirts and
inside the capital, those black spots were left unattended.
271. A team of hooded persons were openly stoning buses at the corner
of Military and Pamplemousses roads.
272. Police officer Padaruth who was posted right in front of L’Amicale
was assaulted and had to flee. Thirty minutes later a crowd
assembled in front of L’Amicale.
197
273. A group of five to ten persons stopped a bus along Royal Street and
forced all the passengers to leave the said bus. That bus was then set
on fire in front of ‘La Scierie Goollam’. The intention was to cause a
diversion but this was avoided thanks to the prompt intervention of
neighbours and clients of Mohun Hotel.
274. Gathering of a riotous crowd in front of Vallee Pitot Police Station.
275. There was a group of motorcyclists circulating rapidly and
threatening people and causing various disturbances.
276. Attacks on the following properties:
i. Chancery House ii. Blanche Birger iii. Registrar building iv. Offices of some lawyers v. Street lamps
277. Attempted attacks on petrol stations.
278. Road blocks which had been put up by those creating the disorders.
279. Spontaneous attack on Pope Henessy Police Station triggered by a
Fire Brigade Supporter.
280. Attacks on the Registrar building did not last long since the
motorcyclists, mentioned earlier informed the crowd that ‘Lakaz
Satan’ was on fire.
281. Attacks on Mona Mini Market and Vallee Pitot Store (Opposite Vallee
Pitot Police Station)
282. Lai Min restaurant was attacked and alcoholic drinks stolen.
283. The HSBC’s Automatic Teller Machine was damaged.
198
284. Gathering in front of the stables at Champ de Mars (considered as
another place of sin by some).
285. Attempts to further divert the attention of the police force by
circulating the rumour that the Government House would be burnt
down.
286. The modus operandi was the same:
i. A number of motorcyclists came on the spot prior to each incident.
ii. Incendiary devices had been used. iii. Perpetrators were masked. iv. Places and activities considered within
the Muslim community as being sinful were systematically targeted:
I. Places selling alcohol II. Betting places III. Banks (because of their trade in Interests) IV. Place renowned for prostitution
287. The police completely failed to enquire as to whether all of the
incidents mentioned above were in fact linked.
288. According to the prosecution version, a group of motorcyclists
suddenly came along Royal Street and one of them stopped by Sheik
Imran Sumodhee (Mounou) and showed the latter a bag containing
Molotov cocktails. Thereafter, Mounou asked that motorcyclist to
hurl same at L’Amicale.
289. Why is it then that the police did not find it necessary to enquire as
to whom that motorcyclist was?
290. Finally, why was it that the police did not consider that the Escadron
de la Mort could be involved in a way or another into the attack
when it was well known to the police that the group was active in
Port Louis.
199
Chapter 32: Affidavits and witnesses
statements
291. The gist of the affidavits and witness statements which have not
been referred to so far is as follows:
Name
Gist
Iqbal Auckle
(Affidavit)
Corroborates Mounou’s version
Jihaad Khodabaccus
(Affidavit)
One of the two persons who can confirm that
Mounou and Bebe are factually innocent in the
Amicale case since Jihaad was in the company of
Mounou and Bebe for the whole day on the 23rd
May 1999 until late at night.
Mahmade Ramjane
(Affidavit)
The second person who can confirm the
innocence of Mounou and Bebe since, he also, was
in their company from the moment they left
Anjalay Coopen until they reached home.
Azmat Ally
(Affidavit)
Further proof that Azad Thupsee is a liar
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Mrs. Deenmohamed
(Affidavit)
Corroborates Bébé’s version
Mr. Noordaully
(Affidavit)
Corroborates Bébé’s version
Yusouf Ruhomally
(Statement)
Confirms the version of Amicale worker Mr.
Toorub who heard explosions.
Reaz Auckle
(Affidavit)
Corroborates Mounou’s version
Raffick Goolfee
(Statement)
Confirms the involvement of Azad Nandoo, the
hooded motorcyclists and the bigger picture
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Part 6: Post 27th June 2013
292. Following the symposium of the 27th June 2013, an appeal will be
made to the President of the Republic to exercise his discretion in
accordance with S. 21 of the Criminal Appeal Act 1955.
293. Section 21 of the Criminal Appeal Act 1955 provides as
follows:
Criminal Appeal Act 1955 21 Prerogative of mercy Nothing in this Act shall affect the prerogative of mercy, but the President of the Republic, on the consideration of any petition for the exercise by him of the prerogative of mercy, having reference to the conviction of a person before the Supreme Court or to the sentence (other than sentence of death) passed on a person so convicted may, if he thinks fit, at any time –
(a) refer the whole case to the Court and the case shall then be heard and determined by the Court as in the case of an appeal by a person convicted; or
(b) where he desires the assistance of the Court on any point arising in the case with a view to the determination of the petition, refer that point to the Court for its opinion and the Court shall then consider the point so referred and furnish the President of the Republic with its opinion on the point.
294. Section 2 of the Criminal Appeal Act 1955 defines “Court” as
meaning the Court of Criminal Appeal established under section 3
(1).
295. Section 3 (1) of the Criminal Appeal Act reads as follows: ‘There shall
be a Court of Criminal Appeal, and the Chief Justice and the Puisne
Judges shall be Judges of that Court.’
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296. In 1995, the Abolition of Death Penalty Act was passed with effect
from the 14th of December of that same year. In the same breath, S21
of the Criminal Appeal Act 1995 was amended to reflect the
abolition of death penalty.
297. It is clear from a reading of section 21 of the Criminal Appeal Act
1955 that the President is empowered to refer a whole case to the
Court of Criminal Appeal for the case to be heard as an appeal by a
person convicted.
298. Furthermore, S 16 (2) of the Criminal Appeal Act provides that:
(2) The Court may, if it thinks fit, on the application of an appellant, admit the appellant to bail pending the determination of his appeal in accordance with the Bail Act.
299. It is to be noted that the Criminal Appeal Act 1955 also provides that
the Court of Criminal Appeal has supplementary powers which have
unfortunately sparingly been used.
300. These supplementary powers enables the Court, if it thinks it
necessary or expedient in the interest of justice, to:-‐
i. Order the production of any document, exhibit or other thing connected with the proceedings (whether produced at the trial or not) where the production appears necessary for the determination of the case
ii. Order any witnesses who would have been
compellable witnesses at the trial to attend and be examined before the Court, whether they were or were not called at the trial, or order the examination of any such witnesses to be conducted in the manner provided by rules of court before any judge of the Court or before any officer of that Court or before any Magistrate or other person appointed by the Court for the purpose, and allow the admission of any depositions so taken as evidence before the Court
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iii. Where any question arising on the appeal involves prolonged examination of documents or accounts, or any scientific or local investigation, which cannot in its opinion conveniently be conducted before the Court, order the reference of the question in the manner provided by rules of court for inquiry and report to a special commissioner appointed by them, and act upon the report of any such commissioner so far as it thinks fit to adopt it; and
iv. appoint any person with special expert knowledge to act as assessor to the Court in any case where it appears to it that such special knowledge is required for the proper determination of the case, and exercise in relation to the proceedings of the Court any other powers not inconsistent with this Act which may for the time being be exercised by the Supreme Court on appeals in civil matters, and issue any warrants necessary for enforcing the orders or sentences of the Court.
301. In the case of De Boucherville v Director of Public Prosecutions
(1991 SCJ 279), the former Chief Justice, Sir Victor Glover stated
that the Section 21 remains the only remedy available to anyone
who wishes to challenge his conviction after appeal avenues have
been exhausted.
302. The cases of Muktar Ali & Gulam Rasool v State (1993 SCJ 46) and
Roger France Pardayan de Boucherville v The State of Mauritius &
Ors (1996 SCJ 237) also briefly acknowledged Section 21 of the
Criminal Appeal Act. The barristers involved in those cases were no
lesser than Sir Gaetan Duval Q.C and Guy Ollivry Q.C.
303. However, according to our extensive research and Senior Counsel
well versed in criminal matters, the section has never been put into
application.
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304. Recently in India, a group of 14 former judges of eminence has, in a
petition addressed to the President, sought the latter’s intervention
under Article 72 of the Constitution.
Can the enquiry be re opened? The Michaela Harte case in Mauritius
305. On 10th January 2011, Mrs. Michaella Mcareavey Harte an Irish
national aged 28 was found dead in her hotel room at Legends Hotel
Grand Gaube.
306. Two persons namely Mr Avinash Treebohun and Sandeep Moonea
were arrested and subsequently charged for murder. After a
protracted preliminary enquiry the case was lodged before the
Assizes on 22nd May 2012.
307. After several weeks of trial which was given huge publicity, the jury
returned a resounding unanimity verdict of Not-‐Guilty.
308. Following the verdict, the Honourable DDP stated that there were to
be an independent fact finding committee which would be set up.
309. In an answer to a PNQ from the Leader of the Opposition Hon. Paul
Raymond Berenger, the Honourable Prime Minister replied:
“yes I am aware (of the statement of the DPP) but after
consultation, Mr speaker Sir, we think that the best way
forward is for the institution of a Judicial Inquiry (…)”
310. The Honourable Leader of the Opposition asked: “may I know since
what is being proposed in the Judicial Inquiry? Am I right in
understanding that there will not be a full police inquiry re-‐opened
looking for other possible culprits?”
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311. The Honourable Prime minister replied: “No. no, no, Mr Speaker Sir.
The police inquiry will be ongoing. I am working at the possibility of
getting the help of experts from abroad to assist the police because
we have to find the guilty in this case”.
312. The enquiry was effectively reopened under the supervision of the
Deputy Commissioner of Police Mr. Sooroojbally and a team of
dedicated and experienced investigators.
313. Further scientific tests were carried out in France. Investigators
from Ireland participated in a reviewing of the evidence and to date,
police is still inquiring.
314. If a police enquiry has been reopened in a case in which the accused
parties were acquitted why can’t a police enquiry be re-‐opened in a
case where disturbing factors and new evidence come to light even
when accused parties have been found guilty.
The Hillsborough Disaster - England
315. On 15 April 1989, 96 Liverpool fans were crushed to death and
hundreds more injured on the steel-‐fenced terraces of Sheffield
Wednesday's stadium, which was hosting that year's FA Cup semi-‐
final.
316. The inquiry into the disaster led by Lord Chief Justice Taylor
established that the main cause was a failure of police crowd control.
317. In his interim report on 4th August 1989, Lord Justice Taylor wrote
that the key element of police control at fault was the failure to close
off the tunnel leading to pens 3 and 4 once Gate C had been opened.
318. Lord Justice Stuart-‐Smith was appointed to review "new" evidence
which had not been submitted to the inquiry or inquests and also
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dozens of police and witness statements, apparently critical of
police, which had been altered.
319. Lord Justice Stuart-‐Smith's conclusion was that the fresh evidence
did not add anything significant to the understanding of the disaster,
and that while statements should not have been edited, this was
simply an "error of judgement".
320. Jack Straw accepted the findings and ruled out a new inquiry, but in
August 1998 the Hillsborough Family Support group brought
charges of manslaughter against David Duckenfield and his deputy,
Superintendent Bernard Murray, in a private prosecution.
321. The case came to trial in 2000. After six weeks the jury found Mr
Murray not guilty of manslaughter, and said it could not reach a
verdict on Mr Duckenfield.
322. What followed, over an 11-‐year period, were various different
modes and levels of scrutiny, including Lord Justice Taylor's Interim
and Final Reports, civil litigation, criminal and disciplinary
investigations, the inquests into the deaths of the victims, judicial
reviews, a judicial scrutiny of new evidence conducted by Lord
Justice Stuart-‐Smith, and the private prosecution of the two most
senior police officers in command on the day.
323. Despite this range of inquiry and investigation, many bereaved
families and survivors considered that the true context,
circumstances and aftermath of Hillsborough had not been made
public. They were also profoundly concerned that following
unsubstantiated allegations made by senior police officers and
politicians and reported widely in the press, it had become widely
assumed that Liverpool fans' behaviour had contributed to, if not
caused, the disaster.
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324. In 2009, at the 20th anniversary of the disaster, Andy Burnham,
Secretary of State for Culture, Media and Sport, announced the
Government's intention to effectively waive the 30-‐year rule
withholding public records to enable disclosure of all documents
relating to the disaster.
325. In July 2009 the Hillsborough Family Support Group, supported by a
group of Merseyside MPs, presented to the Home Secretary a
case for disclosure based on increasing public awareness of the
circumstances of the disaster and the appropriateness of the
investigations and inquiries that followed.
326. The Home Secretary met with representatives of the Hillsborough
Family Support Group; and in January 2010 the Hillsborough
Independent Panel, chaired by James Jones, Bishop of Liverpool, was
appointed.
327. A parallel can be drawn in the case of Amicale in as much as since it
is widely believed that the true facts and circumstances of the
Amicale arson had not been made public.
328. In the case of the Amicale Four, only a commission of enquiry will
enable the truth to shine forth and finally give a sense of justice to
the families of the victims and the four innocents.
329. The wider repercussion of a Commission of enquiry is that it will set
the stage for major reforms as regards to:
a. The manner in which police investigations are carried out b. The facilities and training which need to be provided to the
police force since without the adequate tools, the police cannot be expected to perform to the required standard
c. A total review of the way in which the Fire Services are to operate
d. An overhaul of our Forensic Science Laboratory and Scene of Crime Officers.
e. The judiciary and (non) finality of justice.
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Terms of reference for commission:
330. The following is a non-‐exhaustive list of proposed terms of reference
for an eventual Commission of Enquiry:
331. Whether all scientific were fully probed into by our scientific
laboratory and whether there was a need to refer the specimens and
findings of our laboratory to international expert laboratories for
further investigation.
332. Whether the death of Mr. Hakim could have been caused by reasons
other than burns and whether the injuries found on his body were
ante mortem or post mortem.
333. Whether the Escadron de la mort has been involved in the arson of
Amicale; and if yes, what was the degree of their involvement.
334. Whether the police has by act, omission or otherwise been derelict
in their duty in investigating or failing to investigate:
a) the arson at L’Amicale de Port Louis
b) the arson of the bus near Mohun Hotel
c) the stoning of MFA, Blanche Birger, New Court House, lamp
posts at Cathedral square, Anquetil Building and the offices
of notaries and attorneys
d) the stoning and attack on the Pope Henessy Police Station
e) the chronology of events at Pope Henessy Police Station
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f) the different NSS reports more particularly the report one
week before the 23rd May 1999 specifying that there might
be trouble following the football match
g) the different calls received by the fire police station of Port
Louis, Quatre Bornes and Curepipe
h) the different phone calls and information received at IR and
follow up actions taken, if any
335. Whether actions were taken by the responsible police officer at the
scene of crime to prevent any contamination so as to preserve
evidence.
336. To enquire into what was done by the police to trace the ‘donor’ of
the pre-‐fabricated Molotov cocktail if ever they did believe the
version of Thupsee.
337. Whether the police did review the 180 hours of video tape and what
actions were taken following same.
338. Whether the police did forward all materials in relation to the case
to the DPP.
339. Whether the DPP did forward all documents received by the police
to the defence.
340. Whether any action/s was / were taken following the report of the
Chief Scotland Yard investigator, Mr. Donohue.
341. Whether the inquiry started by late Chief Inspector Raddhoa in
relation to the involvement of the ‘Escadron de la mort’ was taken
over or followed up.
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342. Why statements were not taken from the following:
a. The Fire people
b. The employees of Amicale
c. The injured persons who could have easily been traced back
as their addresses were available in hospital records.
d. The owners or persons present in the following:
i. Li Shing Tit which building is located at Anquetil
Street, Port Louis
ii. The then ONU Restaurant situated at Corner
Anquetil and Royal Roads.
iii. The various neighbours living opposite Amicale or
along the route which the mob has allegedly
followed
e. The taxi drivers present at Taxi Stand next to Amicale and
along Emmanuel Anquetil Street.
f. Punters and players who were inside Amicale
343. Whether the police, inquired on the threats received prior to the 23rd
May 1999 by Mr. Lai Yau Tim, owner of Amicale.
344. Whether the police, was in possession of letters allegedly remitted to
them by Mr. Lai Yau Tim.
345. Whether there was a CCTV at Amicale and which camera was posted
opposite Amicale itself.
346. Whether the police, in the different meetings prior to the match, did
the needful in the light of the report of Justice Ahnee to secure
Khadafi Square, and if not, why not.
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347. Whether the police secured the Diary book, Occurrence book and/
or log book of
a. Pope Henessy Police station b. Police Post of the Government House c. Vallee Pitot Police Station d. Trou fanfaron Police Station e. Albercrombie Police Station f. Harbour Police Station g. The Information Room including its log book h. Diary book and other documents and telephone log book of
Fire Brigade of MCPL i. The log book of all phone calls of the CEB of la Poudriere
Street, Port Louis
348. Whether the police did the needful to contact the relevant private
security firms in order to have their reports and CCTV footage.
349. How to prevent and minimise Miscarriage of Justice within our
system?
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Chapter 31: Recommendations
350. In Mauritius, there are no principles and protocols established when
it comes to disposal or preservation of exhibits and therefore any
accused party / appellant wishing to examine exhibits again for
further scientific tests or to challenge the tests done at the time may
find it difficult to do so.
351. We propose that a protocol be established to provide guidance as
regards to how exhibits are preserved. Exhibits such as weapons,
clothes, DNA sample, etc are to be preserved for a period of twenty
years and scientific report concerning same are to be kept as
protected data for a period of no less than 60 years.
352. Exhibits and also any other items collected at the place of the crime
are to be kept in three different packaging so as to enable further
scientific test and at the same time prevent any cross contamination.
353. It is also proposed that the scientific laboratory in a small country
like Mauritius should be under the aegis of a newly created Ministry
of Justice and not under the Prime Minister or Minister in charge of
Home Affairs since there can clearly be conflict of interests or
motivations to hide the truth.
354. We further propose that the Forensic Scientific Laboratory (FSL)
becomes a protected body with quasi constitutional status of
independence so as to ensure that there is no interference by other
entities of the constitution and further the laboratory is to open to
the defence to have tests carried out if need be on their terms and
reference.
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355. Even though the term of Ministry of Justice and Minister of Justice
has been used since independence, Mauritius does not have a
Ministry of Justice.
356. Instead the cabinet of Ministers in Mauritius consists of an Attorney
General responsible for the Attorney General’s office. The Attorney
General, according to the constitution must be a barrister and once
nominated, if he has not been elected, has the same powers as any
Minister within the cabinet. It is clear that in the absence of a
Minister of Justice or Ministry of Justice, there is no one or no
institution which will promote the advancement of justice.
357. We propose that no photos of the Accused parties or any
information which could lead to the identification of the Accused
parties, whether by way of photographs or address or place of work
be published in the press unless that person is a public figure.
358. In a list of scheduled cases, among others, murder, manslaughter,
rape, terrorism cases, dangerous drugs cases where trafficking is
averred, arson causing death, the Police is to digitally video record,
at the first opportunity witnesses and data recorded are to be
preserved as exhibits.
359. The police is under no duty to disclose post conviction evidence.
Often, the Police have in their possession evidence, which if
produced would prove the innocence of a convict. We propose that
protocols and guidelines are established to deal with the process of
post conviction evidence.
Commission for prerogative of mercy
360. At the moment the Commission for prerogative of mercy (CPM) has
been presided by a former Chief Justice. The seat of the prerogative
of mercy is surprisingly situated at the office of the Prime Minister.
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361. We propose that there shall be a full time chairperson of the CPM
with two assessors which shall have its seat separate from the Office
of the PM.
362. We further propose that there be arrangements made for the
commission of the prerogative of mercy to hear viva voce some
petitions where listening to the witnesses and barristers plea might
assist to come to the right conclusion the more so as institutions
despite all safeguards can still fail.
363. Prosecuting Counsel appearing at the trial court must not appear on
appeal because there is an inherent danger that as human being
what we become biased and influenced by ego, thus opening the
door for tunnel vision again.
364. During our enquiry, we have come to the conclusion that Mauritius
is not an exception to the phenomenon of false confessions, the more
so in highly publicised case. Police enquiring officers have a
tendency to act hastily and to close all avenues of enquiry because
they have under their hands a confession .
365. A confession can be false for numerous reasons and the police must
always be on alert that someone showing no signs of disturbance
mentally or physically may still produce a false confession.
366. We propose that all confessions must stand the test of physical
possibility and temporal possibility which must be supported by
independent witnesses or/and scientific evidence.
367. We propose, for the purpose of accuracy, that every police officer is
given a police notebook where he is requested to note important
events which came under his attention while carrying out his police
duty.
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368. In Mauritius such police notebooks are kept for a period of five years
and then they are destroyed. Huge criminal trials may take at least 3
– 4 years before they are heard before a jury (save exceptions) and
before the case is disposed before the JCPC, 7 years would have
passed by.
369. Often we have heard in Court, for example in the case of State vs.
Charles (2012) that police notebooks are not available because they
have been destroyed due to floods. We therefore propose that police
officers must on a daily basis upload their recorded information on a
computer.
370. A PE will be effective if it is done with the objective to further
enquire on what the police has found during their inquiry.We view
with much concern that challenges put forward by counsel at the
level of Preliminary Enquiry (P.E) have been turned down because
sufficient powers are not delegated to the District Magistrate to act
as an inquisitorial Magistrate thus leaving this arena to the Defence
and Prosecution counsel.
371. We propose that the Magistrate is to give a finding which shall be
public.
372. We further propose that the law be altered to allow the PE to be
conducted by Magistrates of the Intermediate Court instead of
District Court because murder and others being cases carrying a
heavy penalty cannot be left in the hands of Magistrates having two
of three years experience at the bar.
373. The role of the NIU is as its name indicates, to gather intelligence in
order to help the nation against any possible avoidable
dangers. Unfortunately there is no control on the activity of the
NIU. For example , during election times, they do opinion polls. Their
budgets are not known.
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374. That the secret service presently known as the National State
Service (NSS) must become independent of the police force. It should
have its separate budget, structure and infrastructure.
375. The NSS is to fall under the direct responsibility of an inter-‐
parliamentary committee or of a parliamentary committee
comprising of members from all sides of the house which will be
seating on a regular basis to monitor the work performed by the
NSS.
376. The law is to be amended and the intelligence service should also be
responsible to provide social information to the house in order that
they may be rooted towards the necessary institution.
377. The whole fire services need to be overhauled and tuned to the demand
of the present century. We observed the following:
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‘Truth alone will endure, all the rest will be swept away before the tide of time’
Mahatma Ghandi