Blog: Was the acquittal of Avinash Treebhoowoon and Sandip Moneea the result of a perverse jury?

While no accused should be found guilty of a crime which he/she did not commit, it is incumbent on the Criminal Justice System to ensure that no crime goes unpunished. In this respect, justice has not been done and the family of Michaela McAreavey and her loved ones should rest assured that the hearts of all Mauritians are with them and that the authorities would make every effort to bring the perpetrator(s) to justice.

Background
Newly wed Michaela Harte-McAreavey, an Irish National, was on honeymoon with her husband in Mauritius at Legends Hotel. On 10th January 2011 she was found dead in the bathtub in her hotel room 1025. Five hotel workers were arrested in connection with what was treated as murder. Two were charged with her murder. They were Floor Supervisor Sandip Moneea and Cleaner Avinash Treebhoowoon.

The prosecution case is that when Michaela McAreavey went to her room (to get her preferred biscuits), she caught the two thieves who attacked and killed her through asphyxia by strangulation, as established by her post-mortem. The prosecution’s case was supported, inter alia, by the very early confession made in graphic detail by Avinash Treebhoowoon, one of the two accused, and by a witness Raj Theekoye, a room attendant, who heard screams from her room and saw the two accused coming out of her room around the time of the alleged murder. Moreover, the door of the hotel room was not forced in. Hotels are normally well covered with CCTV cameras guarding the reception area and the ground of the premises. The likelihood that some stranger/s would have penetrated the premises and pinpointed the victim’s room and entered with an access card in the knowledge that the occupants were out was not established.

The Michaela McAreavey murder trial began on 22nd May 2012 and lasted for 7 weeks, said to be the longest murder trial in Mauritian legal history, with a summing up by the Trial Judge Hon. Pritviraj Fekhna for several hours, with break/s in between. The jury only took the minimum 2 hours to reach a unanimous verdict acquitting both accused. Did they reach their verdict well before the two hours, if not during the trial itself, but had to wait for the minimum time before declaring it? This also begs the question as to whether there was really a reasonable case against the two accused in the first place, assuming that the jury was not perverse. Mind you, perverse juries do exist, and the term is part of legal jurisprudence. When debating a point, one has to look at all aspects.

The prosecution said it had a strong case, but based on what?
(1) Based on a confession which Avinash Treebhoowoon said in court was given « after being beaten and threatened by police » but in which confession he described in great detail how he and Sandip Moneea were caught stealing, how they restrained Michaela, with Avinash Treebhowon (Accused No.1) holding her feet and Sandip Moonea (Accused No.2) strangling her and then leaving her for dead after moving the body into the bathtub. If the confession was extracted through Police brutality, as alleged, why was the Commission for Human Rights not involved? This is an area which needs to be explored. So far as we know, the confession was made early (on 13th Jan 2011), two days after the arrest and in the presence of Avinash’s lawyer. Moreover, three doctors gave evidence confirming that there were no marks of brutality on the accused. In addition, why did the other accused, Sandip Moneea, not ‘confess’ also?

In his summing up, the presiding judge made it clear that it was not up to the jury to act as politicians and judge the Police in the light of the mere unproven allegations of the accused, since the Police were not on trial. But, the jury does not appear to have heeded this direction. The jury clearly believed that the confession was extracted by force. This type of jury is often described as a « perverse jury ».

(2) The finding of the DNA of an accused is not a pre-requisite to finding an accused guilty of murder, but it does make matters ‘simpler’ for the prosecution. An accused can be convicted based on independent eye-witnesses or on circumstantial evidence, even if the body is not found. But the jury seems to have been influenced by the absence of DNA rather than by the evidence presented before them.

(3) The prosecution also heavily relied on its star witness, Raj Theekoye, to whom it gave immunity from prosecution for conspiracy. Under the title « Meurtre au Legends : un suspect avoue être le meurtrier », Le Matinal 13 January 2011, the following is reported : « Il ressort de nos recoupements que le présumé meurtrier aurait bénéficié de la complicité d’un collègue pour déplacer le cadavre alors qu’un troisième assistait passivement à la scène. Mais peu après, ce dernier aurait aidé les deux autres à faire le ménage », the first two being the accused Sandip Moneea and Avinash Treebhoowoon, and the ‘passive’ third being Raj Theekoye.

The defence highlighted contradictions in Raj’s statement, not relating to the murder scene as such, but to other matters, for example, to the fact that Raj previously said on 11 July 2011 that he went for tea (a Mauritian patois expression which can also mean coffee) in the canteen but said in court he was not a tea drinker. Raj also denied going to the canteen on the afternoon of the 10th Jan 11 when in fact he did, and in the company of Avinash Treebhowon, accused No.1. Rama Valayden proved it by showing a CCTV picture to the court. Obviously, Raj Theekoye lied about himself, because he admitted he was a ‘passive accomplice’ and he was in the company of Avinash Treebhowon at the time. This is why he was given immunity from prosecution « in the interests of public safety and security » because the « information about the extent and nature of [alleged] criminal activities » of the accused « is of greater importance than the possible conviction of an individual [the passive accomplice] » (ref. Crown Prosecution Service Principles and Criteria on immunity given to an accomplice). Was the jury equipped with such discernment, and what directions did the Trial Judge give on this issue?

Defence lawyers’ strategy
It is the job of the prosecution to prove its case beyond reasonable doubt and, at the same time, it is the job of the defence to raise that reasonable doubt in the mind of the jury. The defence teams, respectively led by Me Sanjeev Teeluckdharry for Avinash Treebhowon and Me Rama Valayden for Sandeep Mooneea, can of course be lauded for having done a good job in obtaining the acquittal of their clients. Reading Me  Valayden’s interview published in l’Express of 17th July 2012, the defence lawyers went about defending their clients by attacking the Police and the « amateurism » with which they allegedly went about their investigation. But, the pointing out of numerous flaws in the police investigation has nothing to do either with Avinash Treebhowon’s confession or with the evidence given by Raj Theekoye who benefitted from immunity.

The defence also alleged « a dark area of police brutality, extremism and miscarriages of justice », brutality and torture to extract confession, put provided no evidence. Me Ravi Ruthna, the assisting defence lawyer of Avinash, even resigned from the case very early in the trial because he disputed the evidence of Chief Inspector Luciano Gérard regarding matters about his client (Accused no.1) which took place in his presence, and was supposed to give evidence as a witness. In fact, the lawyer never appeared as a witness. This begs the question whether it was not a mere ploy of the defence to poison the mind of the jury and sway them, at a very early stage, against the Police?

Moreover, Me Valayden made out that Michaela’s husband, John, should have been a suspect and it was even alleged that the defence was in possession of a CCTV footage which showed both John and Michaela having an argument in the reception area around the time of the crime, but it turned out that it was a German couple. The defence also made unsubstantiated allegations that because a book on sex was found in the honeymooners’ room, this was an indication that the couple may been indulging in sadomasochist sex which turned fatal. If the jury believed, in the absence of proof, that the Police fabricated evidence against the accused, then, what did they believe the defence was trying to do in the presence of proof, namely the CCTV footage and the book on sex?

Appeal or Retrial
Although the police investigation has gone back to square one because the criminal (or criminals) is still at large, it is up to the DPP to study the judgement and decide if there is ground to lodge an appeal. He can however appeal only on a point of law, for example, if there is evidence that the jury was « tainted », or if media reports during the trial have caused serious prejudice to the course of justice, or if the Trial Judge had misdirected the jury. The DPP can also seek a re-trial in the public interest, where fresh evidence comes to light or where « there is a suggestion that the jury was influenced by factors other than the evidence » (ref. Archbold), in other words, that the jury was perverse. The Belfast Telegraph of 19th July 2012 reports the following : « Northern Ireland's Deputy First Minister Martin McGuinness has said the acquittal of two men over the murder of honeymooner Michaela McAreavey was perverse. The Sinn Fein chief said he wants a retrial in Mauritius over the unsolved killing as he prepared to meet the country's High Commissioner in London. »