DECISIONS OF THE SUPREME COURT
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.
The Appellant was found guilty by the Intermediate Court of the offence of Influencing a public official in breach of section 9 of the Prevention of Corruption Act (PoCA) 2002. He was sentenced to undergo 3 months imprisonment. He appealed against conviction and sentence by the Intermediate Court.
The Respondent, that is, the Independent Commission Against Corruption, took a preliminary objection to the hearing of the appeal by the Supreme Court on the ground that the Director of Public Prosecutions, either by himself or through the state, had not been made a party to the proceedings.
The Respondent submitted that, by virtue of section 47 and 82 of the PoCA 2002, the prosecution of the Appellant before the Intermediate Court was instituted and prosecuted by the Respondent with the consent of the DPP. As such, the DPP, through himself or through the State, ought to have been made a party to the appeal.
The Supreme Court held: -
“In an appeal against conviction following a prosecution by a party other than the Director of Public Prosecutions, the appellant has to join the Director of Public Prosecutions either by himself or through the State as a party to the appeal. However, in the case of an appeal against an acquittal following a prosecution by a person other than the Director of Public Prosecutions, the latter ought not to be joined as a respondent to the appeal, but notice of appeal may be given to him at any time before the hearing of the appeal. The requirement of joinder or notification is important if the Director of Public Prosecutions is to be in a position to meaningfully exercise his powers under section 72 of the Constitution.”
The Supreme Court further held that, given that the DPP, or the State, had not been joint in the appeal, this could now not be done as such joinder would not be owithin the mandatory time frame provided under section 92 of the District and Intermediate Court (Criminal Jurisdiction) Act.
The preliminary objection of the Respondent was therefore upheld and appeal dismissed with costs.
The Appellant made an initial application ex parte to a Judge in Chambers and obtained an order for the disclosure of transactions which the respondents might have had with the various banks and other financial institutions.
In a subsequent application before another Judge in Chambers (“the learned Judge”) the respondents applied for and obtained an order prohibiting the appellant to inquire and investigate in their transactions, movables and immovables, bank accounts, shares and interests, insurance policies, deposits, financial instruments, derivatives and transfers prior to the Prevention of Corruption Act coming into effect and setting up the appellant. The Appellant’s contention, which was to the effect that it was entitled to obtain evidence dating prior to its setting up in relation to money laundering offences which are offences of a continuous nature, was rejected by the Learned Judge.
The present matter is an appeal against the decision of the Learned Judge prohibiting the Appellant to inquire and investigate in Respondents’ transactions, movables and immovables, bank accounts, shares and interests, insurance policies, deposits, financial instruments, derivatives and transfers prior to the Prevention of Corruption Act coming into effect and setting up the appellant.
In its appeal, the Appellant raised two issues: -
- Whether the Learned Judge failed to apply the “serious question to be tried” and “balance of convenience” tests which in Counsel’s contention were the necessary tests for the granting of an injunction; And
- Whether the Learned Judge erred in holding that the Appellant could not investigate a money laundering offence by seeking an order from the Judge in Chambers for disclosure of transactions prior to the establishment of the Appellant.
In relation to the first issue, the Supreme Court held that there are two types of Injunctions: - (i) Interlocutory Injunctions and (ii) Final Injunctions. The issue of a serious question to be tried and the balance of convenience arise when the Learned Judge in Chambers is called to order an Interlocutory Injunction which is of a temporary nature and pending the determination of an eventual main case. However, the Learned Judge in Chambers may be called upon to consider a prayer for a final injunction in exceptional circumstances, for example when due to the time factor, an eventual main case cannot be contemplated or where the question to be decided is a simple legal question where the Judge in Chambers is in a good position to reach a final decision as a judge in Chambers. In these cases, the Learned Judge sitting in Chambers does not have to consider whether the Applicant has a serious issue to be tried eventually in Court, and if so, whether the balance of convenience lay in their favour. In the present matter, the Learned Judge was called to decide a simple question of law and she was perfectly entitled that question and, in light of her decision, to consider the prayer for a final decision. The first issue raised by the Appellant therefore failed.
In relation to the second issue raised by the Appellant, the Supreme Court held that, as per the provisions of the Prevention of Corruption Act 2002, there is no reason prohibiting the appellant to enquire, albeit upon reasonable suspicion, into facts which occurred prior to the POCA but relevant to suspected offences under the prevailing law after the coming into force of the POCA which the appellant is empowered to investigate, notably money laundering offences under the Financial Intelligence and Anti Money Laundering Act (FIAMLA) which came into force in June 2002.
The Court went on to hold that: -
“In our view, the principle of non-retroactivity of criminal law, which was invoked by the present respondents (then applicants), is in no way infringed by the investigation of facts prior to the enactment creating a specific offence so long as those facts tend to establish the commission of the offence not prior to the enactment but subsequent to the enactment.”
The appeal was accordingly allowed and the judgment of the Learned Judge in Chambers quashed.
The appellant was prosecuted before the Intermediate Court on the first count of an information containing two counts, for the offence of bribery by public official in breach of section 4(1)(e) and (2) of the Prevention of Corruption Act 2002 (POCA). He pleaded not guilty to the charge and was assisted by Counsel.
It was averred in the particulars under Count I that the Appellant was alleged to have on the 3rd August 2002, at Royal Road, Grand Bay, whilst being an assistant Secretary at the Ministry of Land and Shipping, obtained from Mr Mootoosamy Veerappa Pillay, director of Dovsomm Limited, the sum of Rs 15,000 for other persons, for assisting the said Mootoosamy Veerappa Pillay to obtain three PSV Contract Cars NYP licences from the National Transport Authority (NTA).
The undisputed facts of the case as established before the trial Court are as follows:-
(1) The appellant was an Assistant Secretary posted at the Ministry of Public Infrastructure, Land, Transport and Shipping (the Ministry) and thus a public official in the year 2002;
(2)He was duly designated by the Permanent Secretary of the Ministry, which was the parent Ministry for the NTA, to represent the Ministry on the Licensing Committee of the NTA;
(3)One of the functions of the NTA was to grant public service vehicle licences and, in order to discharge this function, the NTA had set up a Licensing Committee consisting of three members of the NTA Board;
(4) The Licensing Committee met at the NTA with regard to the granting of licences for public service vehicles such as taxis, contract cars, contract buses etc
(5) The complainant, Mr. Mootoosamy Veerappa-Pillay (witness No. 5) started a company Dovsomm Ltd in 2000 and he made an application to the NTA to obtain a licence to operate three contract cars. After the appropriate procedures were carried out at the NTA, their application was referred to the Licensing Committee which met on 29.7.02 to consider the application. The complainant and his brother, witness No. 6, were convened before the Committee chaired by the Road Transport Commissioner. The appellant was the representative of the Ministry on that Committee. The Committee recommended the granting of the application.
The evidence adduced before the trial Court by the complainant was to the effect that some days after he had been convened before the Licensing Committee, a man, whom he identified as being Accused No. 2 (charged with the offence of aiding and abetting the author of a crime, to wit: the appellant under Count 2 of the Information) came to his place on a motor cycle looking for him. He asked him if he had made an application and informed him that his application had been rejected. He also told him that a man had said that something could be done for him and he had to go to Port Louis near the Government House to meet that man. He went to Government House where he met both the appellant and accused No. 2.
Both of them took him inside the compound of Government House. The appellant proposed to him to give Rs 5,000 for each of three persons who held the file for the licence, that is, Rs 15,000, stating that he would be granted the licence only upon his giving the money. The appellant also told him that he personally did not need anything but three persons were involved and something had to be done quickly as the application was pending.
The witness thereupon told the appellant that he could not decide on his own for the company and he took the appellant’s phone number to contact him later. After leaving Government House, he immediately proceeded to ICAC premises where he related the matter to the officers and he was asked to give a statement. On the following day, he contacted the appellant by phone and a meeting was fixed for the latter to collect the money. The meeting was initially fixed at his house but he met them on the road and signalled to them to park their vehicle on the other side of the road on a parking space near a store. The appellant got down from the car and came to meet him. He remitted an envelope containing the money to him and the latter took same and went into the car whereupon ICAC officers arrested him. The witness had already taken down the serial numbers of the bank notes before he remitted same to the appellant.
Evidence was also adduced from officers working at the ICAC to the effect that they witnessed the remittance of the money and that immediately after the remittance, they disclosed their identity to the Appellant and secured the money which was remitted to latter by the Complainant. The Appellant further declined to give any statement, to identify any exhibit and sign on anything.
The Appellant was found guilty as charged and sentenced to undergo six months imprisonment. He appealed against conviction under 7 grounds of appeal.
Under Grounds 1 and 4 of the grounds of appeal, the Appellant prayed that the conviction by the Learned Magistrate be quashed inasmuch as there has been entrapment by the ICAC officers.
After considering judgments of the House of Lords, the Supreme Court held that: -
“We do not agree with the submission of appellant’s Counsel that the complainant did not want to give any money but was prompted to do so by the ICAC officers. It is clear from the evidence of the complainant that, when accused No. 2 told him his application had been rejected and asked him to come and meet someone at Government House, he immediately understood that they were looking for something that was not proper and he had already decided to go to meet them in order to find out what it was about and, if there was anything abnormal, he would then go to ICAC. His meeting with the appellant at Government House convinced him that bribes were sought from him and this is why he reported the matter to ICAC.”
The Supreme Court further held that it was satisfied that the commission of the offence by the appellant has not been brought about by the ‘state’s own agents’. The appellant already had the intent to commit the crime and the ICAC officers had no role to play in the formation of his intent.
The Supreme Court therefore held that it was satisfied that there was no entrapment, as rightly concluded by the Learned Magistrate. Ground 1 therefore has no merit and is set aside.
The issue raised under ground 4 was in relation to the fact that Learned Magistrate did not draw the proper inference from the fact that the money allegedly secured from the Appellant was never produced before the trial court.
The Supreme Court endorsed the submissions of Learned Counsel for the ICAC to the fact that the production of the money was not material as witnesses were called to give evidence about the remittance of the envelope containing the money and the securing of the said envelope from the appellant. Ground 4 was accordingly set aside.
Grounds 2, 3 and 7 of the Grounds of Appeal questioned the appreciation of the evidence by the Learned Trial Magistrate.
The Supreme Court held that, after perusing the record, it was satisfied that there was no major contradiction in the testimony of the prosecution witnesses such as to adversely affect their credibility. Contradictions, if any, are minor and of no consequence and do not affect the veracity of the witnesses. The Supreme Court held that it was satisfied that the Learned Magistrate made a correct appreciation of the evidence placed before her and her findings of fact cannot be disturbed
Grounds 2, 3 and 7 were accordingly set aside.
Ground 5 was to the effect that the Appellant was not charged with an appropriate offence and/or he was charged with an impossible offence.
The Supreme Court held: -
“We endorse the submission of respondent’s Counsel that it was immaterial in the present case that the appellant, not being a Board member of the NTA, was not in a position to do any official act in favour of the complainant and that what matters is that the appellant took a gratification for another person for a specific purpose, namely for favouring the complainant to obtain his PSV licence.”
On the issue that the appellant had been charged with the wrong offence, the Supreme Court held that it was for the prosecution in its discretion to decide under which charge to prosecute an accused party.
Ground 5 was accordingly set aside.
Ground 6 was to the effect that the Learned Magistrate was wrong not to have ruled that the shifting of the burden of proof and the ‘presumption of guilt’ provided under the Prevention of Corruption Act are unconstitutional.
The Supreme Court referred to the Supreme Court judgment in the case of Oozageer Suneechara v The State 2007 SCJ 131 and held that section 4(2) of POCA does not infringe the principle of fair trial and more specially that of presumption of innocence enshrined in section 10(2) of the Constitution’.
Ground 6 was accordingly dismissed.
The Supreme Court held that since all the grounds of appeal have failed, the appeal was dismissed 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. |
