On 10 March 2001 at about 14.00 hours Vanessa Lagesse was found dead in her bungalow. Her body was discovered in her bathtub, partially wrapped in a blood-stained brown bedsheet. Bernard Maigrot was prosecuted for the manslaughter of Ms. Lagesse before the Assises presided by a judge and nine jury members. On 27 June 2024, he was found guilty of the offence by a majority of 7 to 2. It is to be noted that a verdict before the Assises must be either unanimous or with a majority of 8 to 1 or 7 to 2. If the majority falls below 7 there is no verdict, it will be up to the Director of Public Prosecutions to take the appropriate action thereafter.

On the 27 May 2025, the Court of Criminal Appeal consisting of the Chief Justice Honourable Rehanna Mungly; Honourable Judge David Chan Kan Cheong and Honourable Judge K. Bissoonauth reversed the verdict and acquitted Maigrot.

The judgment has been the subject of several comments in the public. That members of the public express their opinion on a decision of a court of law is welcome. But what is to be deprecated are insinuations contained in comments that suggest that the Judges were motivated by other considerations other than fulfilling their task of rendering justice. It is a fact, as late Chief Justice Rajsoomer Lallah once told me, when a Judge delivers a judgment 50 percent of people would be happy and the other half would grumble. In any democracy it is open to anyone to criticise the judiciary. Lord Atkin, an eminent British judge stated in a Privy Council case in 1936, that justice is not a cloistered virtue and that it permissible to criticise in good faith a judgment or a judge. Even if those who criticise err in so doing no wrong is committed provided those who criticise abstain from imputing improper motives to those taking part in the administration of justice and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice. It should be recalled that in 1951, Guy Rozemont a prominent political figure, leader of the Labour Party and the first member for Port-Louis, was sentenced to undergo six weeks imprisonment for contempt of court for scandalising the judiciary by unleashing a bitter attack against magistrates following a judgment with which he did not agree. He imputed motives to the magistrates and had overstepped the limits of genuine criticism.

Now that Bernard Maigrot has been released, comments are being made that he had the means to retain expensive lawyers to fight his case unlike a person who has no means to do so. It is a fact that that wealth can influence access to legal representation. But it must be made clear that our legal system, as other legal systems in free democratic countries, are impartial and treat all persons equally and according to law. It is not correct to say that only the rich get justice. The justice system functions and treats different groups equally. It must be understood that in any criminal trial strict evidential and procedural rules apply. An accused must be found guilty beyond the shadow of a doubt. There must be credible and convincing evidence to connect him to the offence. If there is none he cannot be convicted. Inadequate evidence cannot be stretched in such a way to make it adequate to please any member of the public. Any individual is entitled to a fair trial as propounded in our Constitution.

The burden of proof

At a trial before the Assises the Presiding Judge and the jury each has an important duty to fulfill. Though the jury are the sole judge of the facts presented at the trial, it is for the Judge to give clear directions to the jury on points of law. One of the important points to convey to the jury is that it is for the prosecution to prove the guilt of the accused beyond reasonable doubt. In most cases an accused will not give evidence. He is not bound to give evidence at a trial. He can sit back and see if the prosecution have proved their case. If an accused does not give evidence the jury would have been deprived of the opportunity of hearing his story tested in cross-examination. It must be made clear to the jury that they should not assume that an accused is guilty because he has not gone into the witness-box to give evidence. That’s why a careful explanation of the burden of proof is necessary.

In the case of the Queen against Ramlochun in 1980 the Court of Criminal Appeal approved the explanation given by Justice Victor Glover who presided over the trial at the Assises. This is what Justice Glover stated: “The law does not only say that it is for the prosecution to prove its case; the law also says that it must be proved beyond reasonable doubt.” This, of course, is a form of word which could be taken to mean a number of things. What it means is this: always bear in mind that the burden of proof lies on the Crown, that when you have to consider the facts you must have no reasonable doubt that there is a possible alternative to the accused’s guilt. It is necessary that after you go away from here you do not have in your mind any reasonable doubt about the guilt or absence of guilt of the accused.

It is well settled that a Presiding Judge is entitled to express his own views on the evidence provided he does not go too far in doing so, and makes it clear to the jury that they are not bound by his opinion on the facts of the case, nor relieved of the responsibility for forming their own views. Subject to that consideration, the Judge is entitled to make such comments on the evidence as he thinks proper, whether in favour of the prosecution or of the defence. It is the duty of the Presiding Judge to ensure that members of the jury understand that responsibility, as the verdict is theirs and not his.

The Court of Appeal quashed the conviction of Maigrot in view of a number of flaws in the directions that the Presiding Judge gave or failed to give.

The case of whether Maigrot inflicted injuries on Ms. Lagesse turned on whether from the circumstantial evidence it could be irresistibly inferred that Maigrot was the assailant. In a criminal case, evidence may be direct or circumstantial.

The case for the prosecution was based essentially on circumstantial evidence, namely that Bernard Maigrot’s blood and mixed DNA belonging to the appellant and Vanessa Lagesse had been found on the bedsheet. Direct evidence is evidence of a fact based on a witness’s personal knowledge that he has witnessed. Direct evidence may prove guilt of an accused. Circumstantial evidence is direct evidence of a fact from which the court may infer the existence or nonexistence of another fact. Circumstantial evidence may prove guilt of an accused. Though circumstantial does not directly establish the guilt of an accused, it may give rise to an inference of guilt beyond a reasonable doubt. The law draws no distinction between circumstantial evidence and direct evidence. Both carry equal weight or importance. Either direct or circumstantial evidence or a combination of both would satisfy the burden of proof in a criminal trial. There are several cases where guilt has been established by circumstantial evidence. In 1980, Ramlochun was charged with murder. His guilt was established by circumstantial evidence only.

There was no direct evidence to establish the presence of Maigrot at the bungalow of Ms.Lagesse on the night and at the time that she was killed. The prosecution relied on circumstantial evidence to connect Maigrot with the commission of the offence. There was, however, no direct evidence to establish that Bernard Maigrot was present on the scene at the material time, that is on the night of 9 to 10 March, or that it was him who had inflicted the fatal injuries which caused the death of Vanessa Lagesse.

The Presiding Judge thus failed to bring to the attention of the jury that the only fact upon which the prosecution was relying for them to draw an inference of guilt, by way of circumstantial evidence, was the presence of the appellant’s blood and DNA at the crime scene.

Maigrot put up the defence of alibi. An alibi is not strictly a defence to a criminal charge. An accused who puts forward an alibi as an answer to a charge does not assume any burden of proving that answer. It is for the prosecution to negative or disprove the alibi. Where a person who is accused of committing a crime seeks to show that he was not present at the scene or vicinity of a particular place or area where the crime took place, and that he was somewhere else at the time the crime occurred, he has raised an alibi. Therefore, by having an alibi, an accused person is trying to show that he could not have committed the crime as he was elsewhere at the time that the offence was committed.

The duty of the Presiding Judge

This is precisely what Maigrot did. The passage from the judgment sets out the alibi. “He denied having been to the bungalow at any time during the night of 9 to 10 March. He stated that in the evening of 9 March he had dinner with his family and friends at a restaurant in Grand Baie. Whilst they were at the restaurant, his friend, Martine Desmarais had called his wife, Isabelle Maigrot and invited the family for drinks at her place. After leaving the restaurant, the Maigrot family proceeded to Martine Desmarais’s place where they remained until 00.45 hours on 10 March. Then, they proceeded home and put the children to bed. Mr and Mrs Maigrot went to sleep in their bedroom and woke up at 07.00 hours on 10 March. Later that day, they received news of Vanessa Lagesse’s death.”

Once an accused puts forward an alibi, it is the duty of the Presiding Judge to give clear directions to the jury on this alibi. The Court of Criminal Appeal found that the presiding judge did not sufficiently explain that aspect of the case to the jury. Though he explained the meaning of alibi to the jury, he did not tailor his directions to the facts and circumstances of the case for the jury to make a considered assessment of the evidence adduced by the defence to buttress Bernard Maigrot’s alibi. As the alibi was central to the defence of Maigrot, it was of vital importance, as pointed out by the Court, that the words used by the trial Judge in his directions to the jury on that aspect of the case should have been very clear, unambiguous and accurate so as to avoid any risk of confusion and/or doubt.

The Court concluded that was abundantly plain that the Presiding Judge’s directions regarding the general legal principles and the burden of proof governing alibis were lacking in more than one respect. The Presiding Judge told the jury the following “it is sufficient for the prosecution to establish that the accused could have been at the scene of the crime at the material time”. This was incorrect as it did not correctly convey the standard of proof required for the prosecution to disprove the alibi.

The other mistake the presiding judge made relates to the DNA evidence. It will be recalled that only the DNA established the presence of Maigrot in the bungalow. Though the Presiding Judge dealt well with the scientific evidence relating to the DNA, that was not enough. Since it was the case for the prosecution that Maigrot’s DNA had been deposited on the night of 9 to 10 March, it was the duty of the Judge to explain to the jury that Maigrot had stated that he had visited Vanessa Lagesse on 6 March and the jury had to consider the possibility that the DNA of Maigrot could have been deposited on 6 March as claimed by him. If the jury believed Maigrot’s version, then the prosecution would not have discharged the burden of proving beyond reasonable doubt that he had killed Vanessa Lagesse.

In that connection the Court found that the directions of the Presiding Judge to the jury did not provide the necessary guidance to the jury in their deliberations as to the evidential value of Maigrot’s DNA found at the scene in the assessment of his guilt or innocence. The presiding judge failed to guide the jury as to how to assess and view the scientific DNA evidence in relation to the alibi raised by the defence that consisted in the denial of Maigrot that he was at the bungalow on the night of 9 to10 March.

Maigrot initially lied about his affair with Vanessa Lagesse. He subsequently retracted and admitted having an affair. He consequently lied. When an accused lies the Court should give itself a warning known as the Lucas warning. In a jury trial it is important to explain to the jury what a Lucas warning is. This the Presiding Judge failed to do.

Though, as pointed out above, the jury are the sole judge of facts, the role of the Presiding Judge is vital in that he should give proper guidance on the law and the evidence to the jury. The two main elements in the Maigrot case were the presence of the DNA at the bungalow and the alibi he raised. On both these vital points the Presiding Judge failed to give proper guidance to the jury. Hence the quashing of the conviction.
The Court of Criminal Appeal made it a point to remind us how a summing up should be structured. This is what the Court said: “It is a cardinal rule that the summing up of the Judge to the jury should be neutral and objective, comprising a balanced presentation of the cases for the prosecution and the defence. It is incumbent upon the trial Judge to present both cases fairly and impartially, highlighting the inherent strengths and weaknesses of the case of each party. The trial Judge must direct the jury both on the evidence for and against the prosecution, as well as that for and against the defence, tailoring his direction to the issues particular to the case under consideration. For that purpose, the directions to the jury must consist of a succinct summary of the issues of fact on which the jury had to reach a decision. It must also include a concise summary of the evidence and arguments of the prosecution and the defence, accompanied by a statement of the inferences which the jury could draw following their conclusions about the primary facts.”

Under the law the Court, on any appeal against conviction, shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the Court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice. However, a verdict can still be saved even though there have been failures in the summing up of a Presiding Judge or the evidence is weak provided no substantial miscarriage of justice has actually occurred.

The question for the Court in the Maigrot case was whether it was inevitable that, if the jury had received proper directions in respect of the scientific and expert evidence, the circumstantial evidence, the alibi raised by the defence they would have come to the same verdict of guilty. The test is normally whether the appellate court is, further, satisfied that any jury acting properly must inevitably have convicted the defendant if the flaw or flaws in the proceedings had not occurred.

The Court declined to save the verdict. The Court ruled that: “The misdirections, nondirections as well as the limitations of extremely important directions in particular with regard to the expert scientific evidence, the circumstantial evidence, the appellant’s alibi and the failure to give a Lucas warning relate to real issues which are fundamental to the determination of the guilt of the appellant.”

The Judges were not satisfied that a jury properly directed would inevitably have convicted the appellant.

All the above shows that in a criminal trial any accused, rich or poor is entitled to a fair trial. A fair trial means that all proper rules of evidence and criminal procedure should be strictly applied and the constitutional rights of an accused should be respected. No one rich or poor would be delighted if he is convicted in the absence of any evidence. All citizens have equal rights before the law.