DECISIONS OF THE SUPREME COURT
On 6th April 2011, the attorney of Respondent No. 1 caused to serve on the Applicant, a notice of taxation together with a draft bill of costs made and incurred at the request of the Respondent to resist an application to set aside summons, which application was set aside on 9th of May 2010 with costs.
By way of letter dated 8th April 2011, the ICAC objected to the taxation of costs for the following reasons:
- because the Court of Civil Appeal has delivered a judgment on 21st February 2011 whereby the appeal has been set aside, but with no order as to costs, and
- because in the judgment delivered by the Court of Appeal, no specific mention has been made to the effect that the Appellant (ICAC) has to pay costs of the lower court.
The appellant also stated that costs, if any, may be allowed proportionately to the respondents but not to one respondent only.
Counsel for Respondent No. 1 expressed the view that the silence of the Court of Civil Appeal on the issue of the payment of cost before the lower Court cannot be interpreted as disallowing the costs made by the lower Court and he prayed for the payment of the said costs. Counsel for the Appellant expressed the view that where costs of lower Court has to be met by a party, specific order to that effect has to be made by the Court of Civil Appeal.
The Court concluded that the decision of the learned Judge setting aside the application should be maintained. From the reading of the judgment of the Court of Civil Appeal, it could be deduced that since there was no order as to costs, this could only mean no cost at the level of the Court of Civil Appeal. However, since judgment of the lower court was maintained, the order in relation to costs had to be maintained too.
The court decided to set aside the objection by the Appellant as well as the proposed mode of payment of costs.
In the motion paper and statement of case, the relief sought by the applicant is “Leave to apply for a judicial review of the decision and decision making process of Respondent No. 1 by persistently causing applicant’s arrests and investigating the matter on a piece meal basis over a long period of time.
The second respondent raised a Preliminary Objection to the effect that since the applicant was averring that his constitutional rights have been breached he should have proceeded by way of Plaint with Summons under section 17 of the Constitution by complying with the Supreme Court (Constitutional Relief) Rules 2000, instead of asking for leave to apply for judicial review.
Counsel for the first respondent urged that, on the face of the affidavit, leave should not be granted to the applicant. She relied on the decision in Ha Yeung Chin Ying T.S. v Independent Commission against Corruption & Anor [2003 SCJ 273], pointing out that there was nothing in the affidavit to show that the decision of the ICAC to resort to the services of Police Officers, which was being contested, was irregular.
The case of Ha Yeung (supra) highlights the importance for the ICAC to work in conjunction with the police for the conduct of its investigation as imposed on it by the PoCA. It is evident that a very limited power of arrest is given to the Commissioner of ICAC, which can be exercised only in the specific circumstances which are provided by section 53 (1) of the PoCA.
The court found that the applicant failed to disclose an arguable case in respect of the breach of any of the Constitutional provisions.
Court held that the applicant has failed to show on the averments of the affidavit that he has an arguable case for any of the prayers sought, and that the objection raised to the application is well founded. Consequently, there was no need for the court to deal specifically with the preliminary objection.
Application was dismissed with costs.
The respondent, a police officer, was prosecuted before the Intermediate Court on information containing four counts of corruption offences under the PoCA 2002, namely section 7(1), and 83, section 4(1)(b) and (2) and section 4(1)(a) and (2) of the Act respectively. Count 3 was dropped as there was no evidence in support. As for the other three counts, the learned Magistrate, found that the charges had not been proved and dismissed them. The present appeal challenges the decision of the learned Magistrate to dismiss those three counts.
The facts of the case are briefly as follows. Two warrants of arrest were issued against one Mrs Marie Angela Christine Azemoth, née Louise. Both warrants concerned non-payment of debts and the committal orders were issued pursuant to section 30 of the District and Intermediate Courts (Civil Jurisdiction) Act. In fact the two warrants were received at Abercrombie Police Station on 27 April 2004 and 25 May 2005 respectively. The respondent was in charge of the warrant squad at that police station at the relevant time.
The evidence reveals that Mrs Marie Angela Christine Azemoth was in Belgium at the time those two warrants were sought to be executed. The main witness for the prosecution was Mrs Marie Fleurange Louise, the mother of Mrs Marie Angela Christine Azemoth. In or about February or April 2004, Respondent came to her place and informed her there was a warrant of arrest against her daughter for unpaid fine and told her that this would cost Rs 3,000. She gave him Rs 2,600. He took the Rs 2,600 to allegedly pay the warrant against her daughter. In 2005, accused came anew to her place in the month of May and told her that there was another warrant and this will cost €500.
At the hearing of this appeal, learned counsel for the appellant indicated that he was not challenging any of the findings of fact of the learned Magistrate. He was, however, disputing the application of the law to those facts. It was the contention of learned counsel for the appellant that on those facts it was wrong for the learned Magistrate to come to the conclusion that the sums obtained or solicited did not amount to a gratification. He referred to the decision of this Court in Suneechara v The State [2007 SCJ 131] and submitted that the word “gratification” cannot be applied to any advantage obtained or solicited without looking at the proper context in which the advantage had been obtained or solicited. In his view, the fact that the respondent had
obtained Rs 2600 and that he had solicited €500 and Rs 400 shows that the respondent made an abuse of his public office for a private gain, and accordingly the money obtained or solicited was tainted and thus qualified as “gratification” for the purposes of the Act.
The Appellant Court finds that the respondent did not obtain any “gratification” as the money was remitted to him as an agent – and not as a police officer – to pay for a debt. With regard to the second and fourth counts, which charged the respondent with soliciting a gratification “for doing an act which is facilitated by his duties” and “for having done an act in the execution of his duties”, the evidence shows that the “act” contemplated could only be the payment of the debt.
Appeal was dismissed.
The appellant was prosecuted before the Intermediate Court on a charge of public official using his position for gratification in breach of Section 7(1) and 83 of the Prevention of Corruption Act (POCA). He pleaded not guilty but was found guilty and sentenced to undergo six months imprisonment.
He appealed against his conviction initially on fourteen grounds out of which, only thirteen were pressed.
Facts of the case:
Appellant being a Police officer stopped the complainant who was not wearing his seat belt and was carrying a number of children in excess of the authorized number. The appellant informed the complainant that he had committed two contraventions and would be accordingly booked. The complainant begged the appellant to be let off and offered him a Rs 100 note. The appellant asked for Rs 200 instead, which he had to be paid by noon. The complainant agreed to meet the Appellant to hand over the Rs 200 to him, opposite the Intermediate Court. In the meantime complainant called at the ICAC to report the matter. As agreed Complainant met the Appellant and gave him Rs 200. At the same time, some police officers approached the appellant, who swallowed the Rs 200 note and was arrested on spot.
Appellant denied that he had ever asked the complainant for a sum of Rs 200 or that the latter remitted such a note to him when they met opposite the Intermediate Court.
Out of the 13 grounds which were pressed before the Appellate Court, 12 grounds related to the factual issues which failed. The Appellate Court concluded that the Trial Magistrate’s analysis and assessment of the evidences, witnesses and so on were not erroneous or perverse.
Only one ground was raised a point in law and which reads as follows:
“The learned magistrate was wrong to find that s.4 and s.7 of POCA could be interchanged by the prosecution and by her.”
Before the trial court, the defense had argued that the prosecution had wrongly charged the appellant under Section 7(1) of the POCA, when the circumstances of this case fall squarely under Section 4(1) of the Act.
The Appellate Court seconds the trial Magistrate when she held that “what is averred here can equally fall under Section 4(1) as under Section 7(1) of the POCA. However this does not make the information defective for uncertainty and is not fatal to the case for the prosecution”. The fact that the appellant could, in the circumstances of the present case, have been equally charged under Section 4 of the Act, does not mean that the charge laid against him under Section 7, was defective.
All the grounds of appeal having failed, appeal was dismissed with costs.
The plaintiff lodged a plaint on the 17th December 2004 claiming the sum of Rs 10,500,000 from the 5 defendants.
The plaintiff averred that on the 17 December 2002 following a phone call from Inspector Tengnah “based” at ICAC, he was picked up by ICAC officers and taken to the backyard of the NPF Building where he was photographed and videoed by the MBC cameraman and other media photographers. He was thereafter taken to the ICAC office where Sergeant Mooroogessen informed him of his arrest on a charge of conspiracy to smuggle cigarettes. He was detained in police cell until the 23 December 2002. Thus his arrest and detention were unreasonable, abusive, arbitrary and unlawful and was based on fabricated evidence. The acts and doings of defendant No. 1, 2, 3, 4 and 5 constitute “fautes” causing him prejudice for which he is claiming damages.
As for Defendant No. 1 is concerned the plaintiff has averred that the latter has made a false and malicious declaration against him and other customs officers for bribery in connection with the cigarette smuggling case.
Defendants Nos. 2, 3, 4 and 5 have all raised pleas in limine litis, namely, with regard to the requirement of a notice prior to the action, that the action itself is time-barred and finally the plaint does not disclose a cause of action against them.
Court referred to Section 24(5)(b) of the PoCA which provides that the ICAC may for the purpose of the Act, “make use of the services of a police officer… designated for that purpose by the Commissioner of Police….”. And was of the view by extending their services to the ICAC the police officers who may be statutorily detached to work at the ICAC become the préposés of the ICAC. They remain police officers by virtue of their appointment in the Police Force and fall under the general operational control of the Commissioner of Police and are therefore also préposés of defendants Nos. 4 and 5.
The court also considered articles 91, 93 and 94 from Repertoire Dalloz Responsabilité du fait d’autrui – chapitre 1er – Section 2.
Another issue was whether the plaint has been entered within the two years’ delay provided for under section 4(1) of the POPA (Police Officers Protection ACT).
In computing the time for the purpose of the application of section 4(1) of the POPA, the relevant enactment is section 38(1)(d) of the Interpretation and General Clauses Act (the IGCA), it was clear that the plaint has been entered just one day outside the statutory delay. However, the Court has to apply the law as it finds it at any given time as it appears on our statute book - Mungroo & ors. v. The State of Mauritius & ors [2007 SCJ 326].
Court held that service in terms of section 4(2)(a) of the POPA has not been effected on defendants Nos. 2, 3, 4 and 5.
It has also been argued that the only complaint contained in the notice is that defendant No. 2 and police officers based at ICAC unreasonably, abusively, arbitrarily and unlawfully arrested the plaintiff on the 17 December 2002 and detained him until the 23 December 2002 and that they so acted in the conduct of their enquiry.
The Court finds that the plaintiff has failed to enter his case within the statutory delay against defendants Nos. 2, 3, 4 and 5. There was been no valid notice on defendants Nos. 2, 3, 4 and 5. The case was dismissed against those defendants but to proceed against defendant No. 1 after its “mise-en-état” following the present interlocutory judgment.
The Plaintiff has appealed against the decision of the court which has been fixed for merits on1st July 2013.
The Applicant was praying for leave from the Supreme Court to appeal to the Judicial Committee of the Privy Council against the decision of the Supreme Court in the case of Sicharam v ICAC 2011 SCJ 375 dismissing his appeal against the judgment of the Intermediate Court.
At the hearing of the present application, the Respondent raised a Preliminary Objection to the effect that it was only at this stage that the State of Mauritius has been put into cause. Initially, the Respondent in the appeal case was only the ICAC, and that it was only for the application for leave to appeal to the Privy Council that the ICAC has been substituted by the State of Mauritius for the first time without the proper procedure being followed by the Applicant, that is, for him to seek leave to put into cause the State of Mauritius at leave stage.
The Applicant submitted that no notice of Preliminary Objection has been served on the Applicant within the statutory delay. He further moved to amend the motion paper so as to put into cause the ICAC.
The Supreme Court held that it has a duty to ensure that the provisions of the constitution are respected and this in so far as the Judicial Committee of the Privy Council is concerned. The Preliminary Objection of the Respondent was upheld and the application dismissed with costs.
This was an appeal to the Supreme Court against the decision of the Learned Magistrate of the Intermediate Court dismissing the Information against the Respondent on the ground that the information could not stand inasmuch as they did not disclose any offence known to law at the relevant dates, namely on 1 and 23 March 2006.
The Learned Magistrate’s reasoning was to the effect that the provisions of the Prevention of Corruption Act (PoCA) 2002 did not apply to Mauritius. In her judgment, she held that Section 3 of the PoCA 2002, as originally enacted, did not provide for the application of the PoCA in Mauritius. The said section read as follows: -
“3. Application of Act
A person shall commit an offence under this Act where –
(a) the act or omission constituting the offence occurs elsewhere than in Mauritius; or
(b) the act constituting the offence is done by that person, or for him, by another person.”
She further referred to the Prevention of Corruption Amendment Act 2006 which amended section 3 of the PoCA by deleting the words <elsewhere than in Mauritius> and replacing them by the words <in Mauritius or outside Mauritius> ” and to section 16 of the amending Act which provided that the amendment to section 3 of the PoCA 2002 shall be deemed to have come into operation on 1 April 2002”.
The Learned Magistrate referred to the provision of the Constitution and to other Supreme Court judgments to hold that the PoCA 2002 did not apply at the time of the alleged offence and that the amendments to section 3 of the PoCA could not be applied retrospectively.
The Supreme Court held that the Learned Magistrate erred when she decided the case solely on the basis of the principle of non-retroactivity of criminal offences, as prohibited by section 10(4) of the Constitution, following an incorrect assumption that there was no actionable criminal offence in respect of acts and omissions committed in Mauritius until the 2006 amendment.
The Supreme Court further held that: -
“In our view, it is clear that the legislative intent in the 2002 Act was that all the corruption offences provided for in the Act would apply in respect of acts committed in Mauritius or “elsewhere than in Mauritius”. We say so for the following reasons which have been rightly evoked in the skeleton arguments and submissions of Counsel for both appellants and also in the written and oral arguments offered by Counsel representing the Attorney General subsequent to the State of Mauritius having been joined as a co-respondent in view of the importance of the constitutional issues raised.
First, the history of the 2002 Act, the explanatory memorandum to the Bill preceding the Act and the contents of the Parliamentary Debates in 2002 in relation to the Bill, leave absolutely no doubt that the main object of the Bill was to curb corruption offences in Mauritius.
Second, the contents of the Act – in particular the offences created at sections 4(e), 6(1), 8, 9, 10, 11, 12, 13, 14 and 15 - make it preposterous to contend that the legislation was only meant to apply to acts and omissions committed “elsewhere than in Mauritius”. This view is reinforced by the scheme of the legislation which makes extensive provisions as to the setting up of new institutions to combat corruption in Mauritius and for their exercise of powers which could only be intended with regard to combating corruption offences committed in Mauritius.
Third, a literal interpretation could result in ambiguity and this is where it becomes imperative to adopt the meaning which is in line with the legislative intent. Indeed, on a literal and isolated reading of section 3(a) of the 2002 Act, one possible interpretation is that a person would commit an offence under the Act only in respect of acts or omissions occurring elsewhere than in Mauritius. However, upon a reading of section 3 in context and bearing in mind section 45 of the Constitution and section 4 of the Interpretation and General Clauses Act (IGCA), that possible literal interpretation must be discarded as it would lead to an absurdity. Indeed, section 45 of the Constitution provides that it is the function of Parliament to make laws for the peace, order and good government of Mauritius and section 4(1) of the IGCA provides that every enactment shall apply to Mauritius. Section 3 of the 2002 Act is, in our view, so worded that it can be read as conveying the intention of the legislator to simply provide, more specifically, that the offences provided under the act would also be actionable in respect of acts or omissions committed elsewhere than in Mauritius. Section 3 was in fact intended to cast the net wider so that corruption offences with international ramifications are not left unpunished.
The 2006 Act, in our view, merely removed the possibility of any incongruous interpretation which could arise from a literal reading of section 3(a) of the 2002 Act as drafted.”
The Supreme Court held that the learned Magistrate was wrong to dismiss the two charges contained in the information. The decision to dismiss the information was quashed and the case remitted to the Intermediate Court for the trial to proceed on that information.
The Appellant pleaded guilty to two counts for having given a gratification to another person to use his influence to obtain a benefit from a public body.
He appealed against sentence. However, before the appeal heard, appellant moved for leave of the Court to file additional grounds of appeal outside statutory delay. The Application was fixed for Hearing on the same day as the Hearing of the Appeal.
At the Hearing before the Appellate Court, the Court set aside the application for leave to file additional grounds of appeal on the ground that the issues raised in the additional grounds of appeal were not novel points and the mere fact of invoking issues as to jurisdiction or constitution did not mean that application would be favourably entertained by the court.
The Application for leave to file additional grounds of appeal outside delay was set aside.
In relation to the appeal against sentence, the Appellate Court noted that the Learned Magistrate took into account all mitigating factors and exercised her discretion under section 151 of the Criminal Procedure Act to sentence the Appellant to undergo only 9 months imprisonment. The Appellate Court further stated that the Learned Magistrate was under no obligation to consider community service order.
The Appeal was accordingly set aside with costs.
This was an application for leave to appeal to the Privy Council against the decision of the Supreme Court dismissing the appeal against the judgment of the Intermediate Court which found the Applicant guilty of the offence of bribery by public official in breach of section 4(1)(e) and 2 of the Prevention of Corruption Act 2002 and sentencing the Applicant to undergo six months imprisonment.
The Application was based on two grounds: -
- As of right against the decision of the Supreme Court on a question of interpretation of the Constitution; and
- With leave of the Court on a question which is of great public importance so that it ought to be submitted to the Privy Council.
It was submitted on behalf of the Applicant under the first ground that the Supreme Court sitting on appeal erred in law whilst interpreting section 4(2) and 83 of the Prevention of Corruption Act 2002 as amended by Act No 5 of 2005, as against section 10(11) of the Constitution in respect of presumption of innocence. Counsel for the Respondent submitted that the issue under the first ground of the application does not deal with interpretation of the Constitution but with application of the Constitution.
The Court held that no case has been made out by the Applicant to allow an appeal as of right under section 81(1)(a) of the Constitution and there was no question of great general public importance that ought to be submitted to the Privy Council.
The application was set aside with costs.
The present matter was an appeal against conviction of both Appellants by the Intermediate Court for the offence of Bribery of Public Official in breach of section 4 of the Prevention of Corruption Act 2002 sentencing them to undergo a term of imprisonment of 3 months and to pay costs of Rs 500/-.
The particulars of the charge which were found proved by the learned Magistrate were that both appellants were police officers who were on duty as public officials at Rose-Hill Police Station. The first appellant solicited for himself and for the second appellant a sum of 300 rupees as gratification for abstaining from reporting the complainant Poinen for the offence of driving without licence. The second appellant had accepted for himself and for the first appellant a sum of 200 rupees as gratification for abstaining from reporting Poinen for the offence of driving without licence. The said abstention was facilitated by virtue of their functions and duties as police officers.
The Respondent raised a Preliminary Objection to the effect that the appeal was not prosecuted within the statutory delay as provided for by the District and Intermediate Court (Criminal Jurisdiction) Act. It was not disputed that the present appeal was not prosecuted within the statutory delay.
The Court found that no valid reason for the delay justifying the exercise of its discretion to grant leave to proceed with the appeal. The court also considered the grounds of appeal and found that same did not give rise to any risk of substantial injustice or miscarriage of justice which would warrant the appellate court’s intervention either proprio motu or by virtue of its supervisory jurisdiction under section 82 of the Constitution.
The appeal was accordingly set aside with costs.
M.J. Meeajun v The State & Ors 2011 SCJ 141
Judgment delivered on 20 May 2011
Appellant was convicted under four counts of an information for breach of section 5(1) and 8 of the Financial Intelligence and Anti-Money Laundering Act for carrying out a transaction in cash above the prescribed limit, which at the material time was Rs.350,000. Appellant is sentenced to pay a fine of Rs100,000 under each count.
Under Ground 1 of the appeal, Appellant argued that the learned Magistrate failed to make a separate determination for each of the 4 counts.
The Court noted that the mischief of the offence lies in engaging in any transaction in cash whether in Mauritian or foreign currency above the statutory limit. As per the information, all the four charges were under section 5(1) of the Act had the same elements. A reading of the judgment shows that the learned magistrate noted in the very first paragraph of her judgment the individual transactions under each count and the fact that these were not disputed by the appellant in his out of court statements. She also referred to the respective receipt of each transaction before she made a finding of guilt of the appellant on the four counts. Accordingly, their Lordships did not find any merit under Ground 1.
Under Ground 2, the decision of the learned Magistrate is challenged on the ground that she misdirected herself both on the facts and in law inasmuch as (a) no payment as such was effected by the Appellant; (b) the particulars of each of the 4 counts refers to “exchange” and not to “purchase;” (c) ex-facie the evidence on record it was the financial institutions which purchased the foreign currencies.
Learned counsel for Appellant referred to the words “cash dealer, ” “foreign exchange dealer” and “money changer” in the Banking Act to make the point that what the financial institution concerned does is “buying and selling foreign currency” so that when Shibani Finance Money Changer was “buying foreign currency” from the appellant while the appellant was only receiving payment and not making payment as such.
The Court found this to be an ingenuous argument which they did not accept. First, each legislation is to be read independently of the other, unless such reference is specified. So should each section, all the more when the law we are concerned with is a penal section. Second, the question to ask is who was the customer and who the shopper? It is not Shibani Finance Money Changer who went to the appellant to buy GBP. It is the appellant who went to Shibani Finance Money Changer to buy Mauritian rupees. If he, as customer, went to buy Mauritian rupees from Shibani Finance Money Changer as the shopper, it follows that it is the appellant who paid in GBP for same. He, therefore, made a payment in cash for the impugned transaction which exceeded the permissible statutory amount of Rs 350,000.
That should also dispose of the argument of learned counsel revolving around the word “exchange,” all the more so when that word is referred to in the particulars and is not an element of the offence. Section 5(1) does not speak of exchange as such but only of making and accepting payment in cash. Cash in section 2 means “money in notes or coins of Mauritius or in any other currency.” The Court found no merit in ground 2.
Under Ground 3, the decision of the learned Magistrate is challenged on the ground that she misdirected herself on the facts and in law inasmuch as, ex facie the record, on the evidence adduced by the witnesses called by the Prosecution, the transaction in respect of each of the 4 counts was an exempt transaction.
The legal exercise of applying section 2 of the Act (which defines an exempt transaction)to the facts of the case reveals that the transaction is not an exempt transaction.
Learned counsel submitted that the Appellant was an established customer of IOIB where the moneys were deposited after the change and that a couple of named witnesses considered that the transactions were exempt transactions. The Court found that IOIB only came into the scene after the events giving rise to the offences. Further, the question whether the transaction was exempt or not was not a question of facts as such but a question of law. The transactions had to comply with section 2 of the Act, which they did not, independently of the personal views of the witnesses who obviously had an interest to serve in making such a statement. Ground 3 was dismissed.
Under Ground 4, the decision of the learned Magistrate is challenged on the ground that she failed in her legal duty to determine the issue of mens rea. His submission is that ex facie the evidence on record, the Appellant, then accused, could not reasonably be held to have a guilty mind.
Their Lordships bore in mind the propositions of law laid down by Lord Scarman in Gammon Hong Kong Ltd. v. Attorney-General of Hong Kong v. (1985) AC 1, applied in our law in the case of Rayapoulle v The State [1990 MR 286] and held that the charge under section 5(1) of the Act is a criminal offence requiring mens rea and not a technical offence irrespective of the existence of mens rea.
In the present case, the mens rea of Appellant was more than self-evident. The Appellant knew what he was doing. He knew he was carrying cash on him, not once, not twice, not thrice but four times. He knew they were foreign currency. He knew he wanted cash in Mauritian rupees. He knew after changing the GBP he needed to deposit same in his regular accounts at a bank. He was looking for the best deal to change the GBP cash into Mauritian rupees cash. He knew what he was giving and what he was receiving in return. It cannot, therefore, be said that he lacked the criminal intent. Accordingly, the learned magistrate was right in her conclusions.
Under Ground 5, the decision of the learned Magistrate is challenged on the ground that she failed to carry a proper balancing exercise. Appellant’s counsel submitted that had she done so, she would have found that the Prosecution has failed to establish beyond reasonable doubt the guilt of the Appellant on each of the 4 counts. He referred to those parts of the evidence where prosecution witnesses had accepted that the appellant was an established customer of the IOIB, that all the moneys from the above transactions had been deposited in the account at the IOIB and Mauritius Post Office Bank and that some witnesses had taken the view that the transactions were exempt.
However, their Lordships referred to Abongo v. The State [2009 SCJ 81] where the learned Judges stated that the Act was meant “essentially for the purpose of combating money laundering offences which had the potential of adversely affecting the social and economic setup, both at the national and international level to such an extent that they may constitute serious threats not only to the financial system but also to national security, the rule of law and the democratic roots of society.” That the appellant, after carrying out the impugned transactions, placed the moneys in an established bank account, therefore, is more damning to him than redeeming of him. That is exactly what laundering is all about.
All the grounds of appeal having failed, the appeal was dismissed with costs.
N.K.Chady v Her Honour, Mrs R.Seetohul-Toolsee & Anor i.p.o ICAC 2011 SCJ 54
Judgment delivered on 24 February 2011
This was an application invoking the supervisory powers of the Supreme Court under section 82(1) of the Constitution to set aside the ruling delivered by the Respondents and further directing the Co-Respondent to communicate to the Defence all unused materials including the Preliminary Investigation Report (PIR).
The Respondents stated that they will abide by the decision of the Court whereas the Co-Respondent, that is, the ICAC, resisted the application.
The Applicant had averred in his affidavit that his constitutional rights to a fair trial encompass the disclosure to all materials in the possession of the prosecution that are of assistance to him in the preparation and conduct of his case. The denial of the prosecution to communicate the PIR will seriously jeopardise those rights the moreso as he has no other mean to ascertain where the investigation had been conducted in compliance with the provisions of the PoCA 2002, the identity of the Complainant, the existence of other witnesses who might exculpate him, whether all documents, statements and materials obtained in course of the investigation, including those which might exculpate him had been communicated to the DPP and the nature and statement given by one Deven Anacooty.
The stand of the Co-Respondent is that the relief sought is premature and is in form of a disguised appeal. Furthermore, the ICAC averred in its affidavit that all documents has been communicated to the Applicant except for the PIR which is an internal communiqué between the Director of Investigation and the Commission. It has further averred that the confidential nature coupled with the protection of the identity of the informants outweighs the public interest for disclosure.
The Court considered the guiding principles which will prompt its intervention under section 82 of the Constitution, that is, the non-administration of justice by a lower court or an urgent need for the Supreme Court to intervene as no other means are available. The Court further considered other judgments of the Supreme Court which held that a party cannot appeal against an interlocutory ruling as a trial cannot be interrupted each time a party is dissatisfied with a ruling.
The Court held that there was no merit in the present application justifying its intervention under section 82 of the Constitution. The Court further held that it had not been persuaded by the Applicant and his Counsel that non-disclosure of the PIR will hamper the Defence resulting in great or grave prejudice and a denial of a fair hearing. Any required information or material could be gathered from the witnesses, the moreso as the trial had not yet started. Any possible defect in the trial proceedings or possible wrong conviction resulting therefrom can be remedied at the appellate stage.
The Court therefore held that the applicant has not satisfactorily shown that justice was in fact not being administered and there were no other avenues to remedy the situation.
The Application was therefore set aside, with costs.
ICAC v K.Ramdoyal & Anor 2011 SCJ 44
Judgment delivered on 21 February 2011
This was an appeal against the judgment of the Supreme Court rejecting the Application by the Appellant for the setting aside of two summons to witness issued on the ICAC by the Intermediate Court at the instance of the two respondents who are, respectively, plaintiff and defendant in a case before that Court.
The application before the Supreme Court was based on the duty of confidentiality imposed by section 81(2) of the Prevention of Corruption Act 2002 (PoCA 2002).
The Court’s observation, to which Counsel on both sides agreed, was that section 81(2) of the PoCA 2002 does not debar a party to a case from summoning and securing the attendance as a witness of any of the Appellant’s officers unless the summon amounts to an abuse of the process of the Court, notably when the officer has no relevant evidence to give in the case concerned. It enables such an officer, when summoned in the witness box, to raise an objection, where appropriate, to the disclosure of any information falling within the ambit of section 81(2) of the PoCA 2002. The Court further observed that the wrong approach had been adopted by the learned judge of the Supreme Court by embarking into an unwarranted examination of the admissibility of the evidence which was sought to be elicited ex facie the two “summons”. The Court also observed that the learned judge failed to make a distinction between the propriety of summoning a witness and the admissibility of any particular piece of evidence having regard to section 81(2) of the PoCA 2002.
The Court held that in an application before the Supreme Court to set aside a summon to witness, the Court should only be concerned with the propriety of the summons and not with questions relating to admissibility of any item of evidence which a witness may be called upon to give. Such questions can only be properly decided by the trial court within the context of the case before it.
The Court further held: -
“We wish to make it clear that these purported pronouncements (that is, the pronouncement by the learned judge on admissibility of evidence, including the interpretation of section 81(2) of the PoCA 2002), which clearly fell outside the ambit of the application before the learned judge, should not be regarded as authoritative.”
Subject to the observations of the Court, the decision of the learned judge to set aside the application was maintained and the appeal set aside.
B. Hamtohul v ICAC & Anor 2011 SCJ 12
Judgment delivered on 28 January 2011
The Appellant, a former Police Sergent, was, on 20 February 2008, convicted by the Intermediate Court on three counts for offence of Public Official taking Gratification in breach of section 11 of the Prevention of Corruption Act 2002. He was sentenced to undergo nine (9) months imprisonment under each count. On the same day, he gave notice of appeal. His appeal was scheduled to be heard on the merits on 13 July 2009. However, he passed away on 20 June 2009. Learned Counsel for the appellant moved for and obtained a postponement. He thereafter indicated that the widow of the Appellant would wish to proceed with the appeal and asked for leave of the Court to do so.
The Court held that it was unable to accede to the request. The Court held that the right to appeal to the Supreme Court against a judgment of the Intermediate Court is conferred on the person charged and convicted. In the absence of an express provision in our legislation, the appeal proceedings must abate.
The Court therefore held that since there is no live appellant, the appeal cannot proceed and that in the present state of our law, the widow cannot pursue the appeal. The Appeal was accordingly dismissed.
Rajen Hanumunthadu v The state and the independent commission against corruption.
2010 SCJ 288
Judgment delivered on 01 September 2010
This was an appeal from the Intermediate Court where the Appellant was convicted and sentenced to undergo six months imprisonment.
The Appellant was prosecuted before the Intermediate Court under section 4(1)(a) of the Prevention of Corruption Act(POCA), for having, whilst being a Town Engineer of the Municipal Council of Quatres Bornes, solicited from another person, for himself, a sum of fifty thousand rupees to certify and process a claim for payment to that person from the Municipal Council of Quatres Bornes in respect of works carried out for the said Municipality by that person.
The Appellant challenged the conviction as well as the sentence passed on various grounds.
According to evidence adduced before the Intermediate Court, the Appellant would be the person to sign claims submitted to the Municipal Council and he asked the complainant the sum of fifty thousand rupees to facilitate his works.
The Supreme Court considered that it is sufficient for the prosecution to show that the purpose for which the money was solicited was in fact an act in the execution of the Appellant’s duties and that it was immaterial whether such purpose was achieved or not.
The Supreme Court also considered the issue of refreshing of memory. The Court was of the view that cross-examination is not a memory test and that refreshing of memory was not carried out on material facts. As such, it was proper for the Magistrate to allow the witness to refresh his mind while deposing in Court.
For the above reasons and after having gone through all the facts of the case, the Supreme Court concluded that it should interfere neither with the conviction nor with the sentence passed. The appeal was thus dismissed.
The facts of the case were as follows: -
- The Appellant was an Assistant Commissioner of Police and posted at the Central C.I.D. He was informed by the Commissioner of Police [CP] that complaints had been received from the management of the Oberoi Hotel to the effect that it was subject to blackmail and larcenies;
- The Appellant detailed on officer to enquire into the blackmail aspect of the complaint and eventually this problem was sorted out. The Appellant and his staff were thanked by the management of the Hotel (Mr Nirula), who however requested Appellant to tackle the problem of larcenies since it was a sensitive issue which involved the reputation of the hotel to which the Appellant replied that he will look into the matter.
- During the same period, Mr Husraz, the brother-in-law of the Appellant, happened to spend his holiday in Mauritius together with his family. Mr Husraz, a person of means, wanted to book a hotel for a week-end and to invite Appellant and his family. The Appellant suggested the Oberoi and personally made the booking in his name on behalf of his brother-in-law for two nights.
- Four rooms were booked and the Appellant and his family were offered VIP treatments.
Officers of the management of the Oberoi Hotel were the main prosecution witnesses. They were Mr Nirula and Mr Wilhelm. It has been established through these witnesses that the Appellant was in fact informed that the accommodation would be free for all police officers who are on official duty at the hotel.
On 11 April 2006, he was found guilty and sentenced to undergo 3 months’ imprisonment.
He appealed against conviction and sentence. The Appeal was resisted and skeleton arguments of the Respondent also contained a preliminary objection as to the fact that the ICAC should have been joined as a party (Respondent) inasmuch as it was the ICAC which prosecuted the Appellant, and that this defect was fatal to the appeal.
The Court held that, on the facts on record, ICAC, as a separate entity, remained an interested party and that it would have been advisable that it be made a respondent in the present appeal, with full latitude to take its own stand at that stage of the criminal proceedings. The Appellant was however right to join the State as a respondent considering the fact that the appeal is against a conviction. However, given the fact that learned State Counsel’s appearance before the trial Court could have misled the Appellant into believing that the DPP had exercised his power to take over the prosecution pursuant to section 72(3)(b) of the Constitution, the Appellate Court was of the opinion that, in compliance with the overriding principle that justice must not only be done but be seen to be done, the appeal ought to be heard on its merits. The Court allowed appeal to proceed on its merits as a matter of expediency.
The appeal relate to 4 aspects of the trial:-
- Fairness of the Enquiry;
- Failure of the Learned Magistrate of the Intermediate Court to give herself a warning as to the fact that some of the prosecution witnesses can be qualified as accomplices;
- The appreciation of facts by the trial court; and
- The Burden of Proof which has been placed on the Appellant (then Accused) and the constitutionality of section 4(2) of the POCA.
a. Fairness of the Enquiry
Counsel for the Appellant submitted that the Appellant has had to face an unfair trial given the fact that the ICAC failed to record a statement from the Appellant’s brother-in-law. The evidence on record shows that the Appellant’s brother-in-law lives abroad. He was not in Mauritius when the enquiry was ongoing. When he returned to Mauritius, the DPP had already referred the matter to the Intermediate Court and an Information had already been lodged against the Appellant. The Appellate Court held that submission of counsel for the Appellant has no merit when it considered that the Appellant, who was represented at the trial by Senior Counsel, could not have suffered any prejudice since he could have himself called the brother-in-law as a defence witness at the trial. The non recording of a statement from a defence witness at a time when the information had already been lodged did not close the option of the defence to call him on its own initiative and there was no deprivation of the substance of a fair trial and the protection of the law before the trial Court. As such, there was no unfairness in the enquiry.
b. Failure of the Learned Magistrate of the Intermediate Court to give herself a warning as to the fact that some of the prosecution witnesses can be qualified as accomplices
One of the grounds of appeal finds fault with the learned Magistrate’s alleged failure to give herself the warning that two of the prosecution witnesses were accomplices and had been given immunity from prosecution by the DPP. It is conceded that there is no specific pronouncement in the judgement of the trial magistrate to that effect but the record shows that the Learned Magistrate could not have overlooked that fact. The reason for this is the fact that the record clearly shows that two of the prosecution witnesses were given immunity as they were accomplices. The Appellate Court held that the Magistrate, who is a trained lawyer, is not to be presumed to have failed to warn herself of the need to view with caution the evidence of accomplices simply because she has not stated that she was giving herself the warning. It is only if the record indicates that the Magistrate actually overlooked the fact that the witness was an accomplice that the Appellate Court should interfere. As such, the Learned Magistrate cannot be said to be at fault.
c. The appreciation of facts by the trial court
The Appellant firstly questioned the finding of gratification by the trial court. The Appellate Court held that the word gratification which is defined in section 2 of the POCA must be applied in its proper context. If ever a public officer is enquiring in the hotel, it would be expected that he should have at least, for the sake of transparency, informed a superior officer of the impending enquiry and of the facilities provided to him. In common parlance, such necessitated stay would have been for business rather than pleasure. Furthermore, given the fact that the Appellant was staying at the hotel together with his family and that of his brother-in-law after having been informed that officers who are on duty at the hotel will enjoy free accommodation, the trial court was right to conclude that the Accused had the necessary mens rea. The Appellate Court held: -
“While the stay of the appellant would not have been blameworthy had that stay been primarily concerned with the purposes of furthering the police investigation on site, the fact that he took his family, including his extended family to enjoy the hotel facilities free of charge clearly amounts to accepting gratification in the circumstances. The gratification he accepted for his wife, his son and his brother-in-law and family, for which no charge was levelled in the information, can only give colour to his own stay which must be considered as tainted and amounting to the accepting of a gratification for himself and for which he stood charged.”
As to the agreement, counsel for the Appellant submitted that the fact that the enquiry as to the blackmail was already over, the proposition that there must be at first an agreement and then the act stands unclear in the case against the Appellant. The Appellate Court held that the provisions of the POCA provide that a public official may obtain gratification after having done or performed an act. The court held that there was accordingly no discrepancy or uncertainty between the offence charged and the evidence adduced before the trial court.
It was also submitted that the trial court erred in not concluding that the Appellant intended to pay for his stay inasmuch as, in one of the four registration forms the box for cash payment was ticked. The evidence on record shows that the Registration Forms were not properly filled in but on one form the box for Mode of Payment was ticked, without any record as to his credit card details. The Appellate Court held that proposition that the Appellant intended to pay cash for his stay is not serious when one consider that for the Appellant’s stay and that of his family, even his credit card details were not recorded in the relevant box found in the Registration Forms. This should have been flagrant to everyone handling the registration form, including the Appellant, the more so when a stay at the Oberoi in Mauritius is not within the means of many mortals. This is confirmed by the Registration Card which indicates that the rate for a double room at that particular hotel is not less than 700 Euros per day during off peak season. To crown it all, the preponderance of evidence indicates that the Appellant occupied Room 504, the Registration Form of which did not bear any indication regarding the mode of payment.
Submissions for the Appellant were also to the fact that there is no evidence that the Appellant inquired during his stay at the hotel. There was evidence on record which shows that the Appellant was informed that the accommodation will be offered to police officers who are on duty and involved in an enquiry. In the Appellant’s statement produced in court, he stated that in relation to a case of larceny at the hotel, he did his duty and made several observations. The Appellate court held that the finding of fact of the trial magistrate cannot be faulted.
d. The Burden of Proof which has been placed on the Appellant (then Accused) and the constitutionality of section 4(2) of the POCA
Section 4(2) of the POCA is to the effect that, where it is proved that a public official has accepted a gratification, it shall be presumed, until the contrary is proved, that the gratification was accepted for doing an act in the execution of the duties of that public official.
Section 10 of our constitution provides for the right of an accused to be presumed innocent until the contrary is proved.
The Appellant questioned the constitutionality of section 4(2) of the POCA inasmuch as when the presumption operates, the onus is shifted onto the Accused to prove the contrary.
The court referred to numerous cases whereby the law puts that burden on the accused to prove or disprove an element of an offence or to rebut a presumption.
The Court held that the presumption of innocence has long been a governing principle of criminal law and has been memorably affirmed in numerous cases. However, the court went on to state that there is no doubt that the underlying rationale of the presumption of innocence is a simple one; that it is repugnant to ordinary norms of fairness for the prosecution to accuse a defendant of a crime and for the latter to be then required to disprove the accusation on pain of conviction and punishment if he fails to do so. Section 4(2) of the POCA only creates a rebuttable presumption which does not infringe the principle of fair trial and more specially that of presumption of innocence enshrined in section 10(2) of the Constitution.
On the 21st of May, 2007, the Appeal was dismissed with costs.
R.Hanumunthadu v The State and ICAC 2010 SCJ 70
The Appellant sought leave of the Court to add an additional ground of appeal which was already set out in his Skeleton Argument on the day of hearing of the Appeal. The State objected to the prayer of the Appellant as same was to be made outside statutory delay. The Learned Judges held that the procedure to seek for leave of the Court to entertain the additional ground of appeal outside delay has not been followed. They also held that they find no sufficient reason to condone the failure to follow established procedure and they accordingly declined to entertain the verbal motion for leave.
The Appeal is due to be heard on the merits on the 21st of June, 2010.
Sheilendra Peerthum v The District Magistrate of Rivière du Rempart - SN 1369/2009
The applicant had seized the Judge in Chambers invoking his jurisdiction under article 806 of the Code de Procedure Civile as “Juge des référés” since the Magistrate of Rivière du Rempart had refused to grant him a variation order in relation to a provisional charge before the same court. [see Police v Sheilendra Peerthum - CN P878/08 (Ruling Mapou District Court) below]. The application was dismissed on 25 August 2009 and the Court held that:” It is clear that the balance tips heavily, in the circumstances, in favour of the prosecution authorities, in the absence of any special reason why there is an almost absolute necessity for applicant to leave the country. Given the seriousness of the charges laid against him, the applicant may choose to find ways and means never to return to Mauritius to face those charges.”
Fauzee Bros & Co Ltd & ors v/s ICAC – 2008 SCJ 296 (Interlocutory Judgment)
On 28 November 2007 the ICAC had applied to the Judge in Chambers for and obtained an attachment order against the applicants. On 11 December 2007 the applicants moved the Supreme Court to rescind and/or vary the said order. A preliminary objection was raised by the ICAC to the effect that the Supreme Court had no jurisdiction to entertain the present application and that same should have been entered before the Judge in Chambers. The Court held that: “…upon a close examination of sections 51, 54, 55 and 56 of the Act, it is clear that the intention of the legislator is that the Judge in Chambers, on account of the special features pertaining to the said jurisdiction ensuring expediency and confidentiality, should be the pre-eminent jurisdiction to be seized for orders to search certain premises, property tracking and monitoring orders, enforcement of property tracking and monitoring orders and attachment orders .” The application was accordingly set aside on 29 October 2008.
ICAC v Shvanand SOOBRUN i.p.o The DPP 2007 SCJ 318
Judgment delivered on 27th November, 2007
The Respondent, Mr Soobrun, was prosecuted before the Intermediate Court for the offence of Bribery by a Public Official in breach of section 4(1)(a) of the Prevention of Corruption Act 2002. He pleaded not guilty and was assisted by Counsel.
In the information, it was also averred that the Respondent wilfully and unlawfully obtained from another person a gratification for doing an act in the execution of his duties, to wit: to cause a road contravention to be filed.
The Prosecution adduced evidence to the fact that the Respondent, a police officer, was posted at the Enquiry Panel of Rivière du Rempart. The Complainant, Mr Reedha was booked for a road traffic contravention. Later, he met the Respondent on two occasions and requested to “donne ène ti chance”. On the second meeting, the Respondent told Mr Reedha “Prend Rs 1000 to vini”. Mr Reedha gave a statement to the ICAC. He explained that he was merely asking for a let-off but had not offered any money to the Respondent. A sting operation was organised. The Respondent met Mr Reedha in the latter’s car, where the money was remitted to him. The Respondent was immediately arrested by ICAC officers. He accepted having obtained the money.
After all evidence was adduced in court, counsel for the defence made submissions in law to the effect that the filing of the contravention was not part of the duties of the Respondent and therefore one element of the offence, that is, that the act of the Respondent was not done within the execution of his duties, was not proved. Counsel for the prosecution submitted that all elements of the offence had been proved and that the trial court should proceed with the conviction of the Respondent. The Learned Magistrate agreed with the submissions of the Counsel for the Respondent and dismissed that charge against him on the ground that one of the elements of the offence had not been proved.
The ICAC appealed against the judgment of the Magistrate on the ground that the Learned Magistrate erred in law and made a wrong interpretation of section 4 and other provisions of the Prevention of Corruption Act 2002.
The Appellate Court held that the Learned Magistrate was wrong in her findings and that she asked herself the wrong question leading to the wrong decision. The Magistrate, instead of asking herself whether it was part of the execution of the Respondent’s duties of file a contravention, she should have asked herself whether the Respondent was acting in the execution of his duties.
The Appeal was allowed, judgment of the trial Magistrate was reversed and the case was remitted to her to proceed with the conviction of the Respondent and to conduct a hearing for sentencing purposes.