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IN THE INTERMEDIATE COURT OF MAURITIUS
IN THE MATTER OF
POLICE
V/S
1. PIERRE GUY NOEL
2. RAVI KUMAR PARSAD RAMDEWAR
CN 1037/04
Ruling (abuse of process)
Accused no 1 stands charged with one count of conspiracy to commit the offence of money laundering in breach of S 4, 3(1)(b) and 8 of the Financial Intelligence and Anti-Money Laundering Act 2002 (FIAMLA). This is the subject matter of count I of the information.
Accused no 2 stands charged with 5 counts of money laundering in breach of S 3(1)(b) and 8 of the Financial Intelligence and Anti-Money Laundering Act 2002. These are the subject matter of counts II, III, IV, V and VI.
Both accused pleaded not guilty to the charges pending against them and are represented by counsel.
We are still at the beginning stages of the trial. After having called one formal witness, the prosecution has now called and is examining witness no 23, Joseph Hee Keng, a Senior Investigator of the ICAC. There was a motion that the witness be allowed to produce a certain number of documents which he had apparently secured in the course of the enquiry. Both defence counsel made a statement to the effect that it was only on the morning of the trial that that they were made aware that the prosecution intended to produce those documents. Copies of the documents were handed over to them on the day of trial itself and they realized that several of those documents had not been communicated to them earlier in spite of many requests made. This in turn prompted counsel to raise a preliminary point of law concerning the manner in which documents were communicated by the ICAC (which is the investigating body in the present case) to the DPP’s office. It is essentially the contention of counsel that the ICAC did not communicate all materials to the DPP in breach of specific legal requirements and they moved that proceeding be stayed in view of such illegality.
The point is founded on S 20(2), S 46 and S 47 of the Prevention of Corruption Act 2002 (henceforth referred to as the POCA). It must be pointed out that according to S 19 of the POCA there is established a Commission, known as the Independent Commission Against Corruption (ICAC) which consists of one Commissioner and two Deputy Commissioners. Under S 20(1)(b) and (c), the Commission is empowered to receive and consider any allegation that a corruption offence has been committed and to detect or investigate any act of corruption. S 20(2) imposes a duty on the Commission to act independently, impartially, fairly and in the public interest.
The procedures for carrying out investigations are set out in S 46 and 47 of the POCA. Essentially, it is provided that where the Commission becomes aware that a corruption offence may have been committed, it shall refer the matter to the Director of the Corruption Investigation Division who shall carry out a preliminary investigation of the matter. The Director shall then report the matter to the Commissioner who may either discontinue the investigation or decide to proceed with further investigation. Where the Commission decides to proceed with the investigation, in accordance with S 47(5), it shall, after conclusion of the investigation, submit the matter to the Operations Review Committee for its opinion. S 47(6) then provide the following:
“(6). After receipt of the opinion of the Operations Review Committee, the Commission shall submit a report to the Director of Public Prosecutions which shall include-
(a) all the material, information, statements and other documents obtained in the course of the investigation ;
(b) a description of the articles of evidence which have remained in the custody of the Commission;
(c) the recommendations of the Commission
(d) the opinion of the Operations Review Committee.
As has been said earlier, it is the contention of the defence that there has been a failure on the part of the Commission to communicate all material, information, statements and other documents to the DPP pursuant to S 47(6). The first issue that we have to consider is whether, as a matter of fact, there has been such a failure. This will have to be worked out on the basis of the evidence which has been adduced before us. Then, if it is established that there has indeed been such a breach, the next step would be to consider the legal implications of such a breach followed by a consideration of what would be the appropriate remedy.
The facts
We will first deal with the facts which can be ascertained from the court record itself and from a bunch of letters which have been filed in court by both prosecution and defence counsel:
(1). December 2002 - The alleged offences took place on or about that month.
(2). 21 June 2004 - The information was lodged. On that very day, Mr. Sauzier (counsel for accused no 1) wrote to the DPP’s office asking for communication of a full brief.
(3). 12 July 2004 – Mr Sauzier wrote to the DPP’s office again, giving notice that he will be officially moving for communication of all the statements of accused no 1 and of every witness for the prosecution relating to the transactions subject matter of count I in court on 13 July 2004.
(4). 13 July 2004 - The matter was called pro forma for the recording of the plea of the accused parties, and Mr. Sauzier stated that he has already written to the DPP’s office asking for a full brief. Since he has not received same, he was officially moving for communication of the brief in court. The matter was then fixed PF on 16 July 2004.
(5). 16 July 2004 – The prosecutor stated that the needful was being done for communication of the brief.
(6). 26 July 2004 – Mr Sauzier wrote to the DPP’s office referring to the letters dated 21 June and 12 July asking for communication of the brief and he stressed on the urgency of the issue.
(7). 2 August 2004 – Mr Sauzier wrote to the court requesting that the matter be called at the earliest available opportunity in view of the fact that he had not been communicated with a brief in spite of the undertaking given by the prosecution that the needful was being done.
(8). 2 September 2004 – The matter was called pro forma before court. Mr. Sauzier stated that he has not been communicated with a brief yet. He moved that all documents be henceforth communicated officially in court. The prosecutor moved for a postponement to take a stand.
(9). 20 September 2004 – The case was called again in court. Mr. Sauzier stated that so far he has been communicated with only 9 statements. Most of the persons whose statements have been communicated are not concerned with the case so that their statements amount to unused materials. There are 22 witnesses on the list of the prosecution and the statements of most of those witnesses have not been communicated. He therefore moved that proceedings be stayed for abuse of process on the ground that the trial would be unfair since the prosecution has been persistently refusing to communicate a full brief to the defence. The matter was fixed for arguments on 27 September 2004.
(10). 27 September 2004 – (a) Mr. Sauzier stated that he has been communicated only with copies of the statements of witnesses no 4, 5, 7, 8, 9, 10, 11, 12 and 21. He was given to understand that witnesses no 1, 2 and 3 have not put up any statements although they are recording officers. Moreover, it has now become clear that witnesses no 14 –20 will be deposing mostly in relation to documents. He therefore moved that a list of all the documents together with copies of the documents themselves be communicated.
(b). Mr. G Glover (counsel for accused no 2) who had so far been waiting for a brief joined in the motion of Mr. Sauzier and moved for communication of the statements of all the witnesses together with a complete set of documents in relation to accused no 2.
(c). Mr. Ahmine, the State Law Officer appearing on that day, stated that the needful would be done for he communication of a brief to counsel for accused no 2. As regards accused no 1, State Counsel stated that the prosecution (meaning the DPP’s office) has already communicated all the statements of witnesses whose names appear on the prosecution’s list except witness no 13. He would inform Mr. Sauzier whether witness no 13 will be called in due time. In the light of the above, arguments were not heard on the motion of abuse of process and the matter was fixed PF on 29 September 2004.
(11). 29 September 2004 – (a). Mr. Ahmine stated that on the last occasion he had informed the court that witnesses no 14 and 16 –20 would only be giving evidence in relation to documents. He is now informing court that there are also depositions which have been recorded from those witnesses. Copies of those depositions and the statements of witness no 13 have been communicated to counsel for accused no 1. As far as the request for a list of documents and the documents themselves is concerned, he stated that same would be communicated.
(b). Mr. G. Glover stated that he has requested for a brief as far back as July 2004. He has communicated a copy of this letter to State Counsel anew with evidence that the letter has been received by the DPP’s office. He has been reassured by State Counsel that a complete brief including statements of witnesses, a list of documents and the documents themselves would be made available before 9 November 2004.
(12). 9 November 2004 – Mr. Sauzier stated that the prosecution undertook to produce a list of documents but the defence has not been communicated with that list, so that we are still at the same stage where we were on the last occasion. Moreover, the defence has been communicated with only one statement of witness Robert Lesage (witness no 21) and it appears that there are other statements which may have been given by the witness which the defence has not been communicated with. Mr. Sauzier therefore renewed his motion that (a) a list of documents (b) copies of the documents themselves (c) statements and (d) all unused materials be provided.
(b). Mr Oozeer, the State Counsel who appeared on that day, stated that the documents requested for have already been communicated. Moreover, since there has been an undertaking on behalf of the prosecution to communicate a list of documents, same will be done as soon as possible. However, he stated that the prosecution cannot undertake not to travel outside that list since it would be tantamount to tying the hands of the prosecution. Thereupon, it was pointed out to Mr. Oozeer that the purpose of carrying out the exercise now was to sort out all pre-trial issues with a view to ensuring that there would be no postponements asked for at trial stage.
(c). concerning unused materials, State Counsel said that some unused materials have already been communicated. However, the prosecution needs some time to find out whether there are other unused materials still lying at the DPP’s office and to sort them out.
(13). 9 December 2004 – The case was called for the delivery of a ruling on another matter. On that day, Mr. Sauzier stated that the list of documents requested for has not been communicated yet. Mr Oozeer stated that the list would be communicated by the end of the month of December. He also undertook to communicate the unused materials by that time.
(14). 12 January 2005 – Mr. Sauzier wrote to the DPP’s office reminding them of the undertaking that was given on 9 December and stated that the list of documents has still not yet been communicated. He again moved for communication of same in view of the prejudice which his client was suffering in preparing his defence. The letter was copied to the court.
(15). 20 January 2005 – The matter was called pro forma in court. Mr. Sauzier stated that he has gone through the file and has found that certain documents were missing. For example, counsel has been provided with two statements emanating from witness no 21, Robert Lesage. Reference has been made in those statements to many other statements. Counsel moved for communication of those statements which date as from February 2003. Counsel further moved for communication of statements of two persons, namely (a) Donald Ha Yeung and (b) Dev Manraj.
Mr. Glover, counsel for accused no. 2, joined in the motion stating he required the statements of persons who would not be called as witnesses so that he can assess the possibility of calling those persons as defence witnesses.
Mr. Jean Louis, the State Law officer appearing on that day, stated that he has liaised with Mr. Oozeer the State Law Officer who has been appearing so far in this case. He stated that all statements and documents which were in the prosecution’s file have been communicated to the defence. However, as concerning the persons mentioned in court today, the prosecution will do the needful to make them available. Counsel on both sides will be in contact and should any statements be missing, the prosecution will look into the matter.
(16). 27 January 2005 – Mr. Sauzier wrote a letter to State Counsel again asking for communication of the statements requested on 20 January 2005.
(17). 31 January 2005 – The DPP’s office forwarded to defence counsel certain statements from Robert Lesage, Donald Ha Yeung and from Dev Manraj.
(18). 2 February 2005 – Mr Sauzier wrote to State Counsel acknowledging receipt of the above-mentioned documents and queried whether there were any other statements recorded from those witnesses.
(19). 8 February 2005 – Mr. Sauzier again wrote to State Counsel stating that his letter dated 2 February has remained unanswered. He further requested State Counsel to look into the matter.
(20). 15 February 2005 – Mr. Sauzier wrote to the court stating that he has been consistently asking for communication of all materials. However, in the light of the documents he has received so far, it is clear that there are many other documents which have not been communicated to the defence. He stressed that this is causing a lot of prejudice to the defence in preparing its case. He therefore moved the court to call the matter so that things could be sorted out officially. However, the matter was not called as there were further communications between counsel.
(21). 17 February 2005 – State Counsel, Mr Oozeer wrote to defence counsel and forwarded to him what he referred to as his “ personal list of statements with reference to the dates the statements were given and the folio numbers ” given by Robert Lesage and others. He referred to a third batch of documents which had just been forwarded to defence counsel. He then asked defence counsel to confirm whether there were any statements or pages missing from the batch.
(22). 22 February 2005 – State Counsel again wrote to defence counsel stating that he was presently communicating a copy of the statements of Donald Ha Yeung which were missing in the batch of documents forwarded earlier to the defence. Once again State Counsel asked defence counsel to confirm whether he was now in presence of all required statements.
(23). 1 March 2005 – Mr Sauzier again wrote to the court stating that he is still not in receipt of all the statements given by the witnesses and/or identified persons in the course of the enquiry carried out by the ICAC. The trial being only one month away, the defence was still struggling to obtain documents from the prosecution. He therefore moved the court to call and thrash out the matter. However, in view of subsequent communications between counsel, the matter was not called.
(24). 2 March 2005 – State Counsel, Mr. Oozeer, wrote to Mr Sauzier asking him to confirm whether he has received all documents required for the purposes of the trial.
(25). 3 March 2005 – Mr. Sauzier wrote back to Mr. Oozeer (with copy to the court) stating that it is obvious from the documents he has received that reference is made to several other documents which have not been communicated to him yet. Mr. Sauzier expressed the opinion that State Counsel may himself have been deprived of those documents. Thus, he stressed the importance of having a complete list of documents drawn up.
(26). 11 March 2005 – Mr. Oozeer wrote to Mr. Sauzier stating that he is communicating to the defence his list of statements recorded from Robert Lesage and Donald Ha Yeung. The letter contained the following statement: “ As at date we are not in possession of the 2 statements dated 4 th October 2003 and 10 th October 2003. I have already spoken with the liaison officer at the ICAC for the needful to be done”.
(27). 15 March 2005 – Mr. Sauzier wrote to Mr. Oozeer acknowledging receipt of the documents.
(28). 25 March 2005 – Mr. Sauzier wrote to Mr. Oozeer stating that in his statement dated 4 October, Donald Ha Yeung referred to a statement dated 28 February 2003. The list communicated by Mr. Oozeer refers to statements given in the months of July, October, November and December 2003 and in January and May 2004. Therefore Mr. Sauzier stated that he is unable to confirm whether he is in presence of all documents. Given the “tract” record of the investigating authorities concerning the communication of documents so far, he urged the authorities to do the needful for communication of all the requested documents.
(29). 28 March 2005 – (a). Mr. Oozeer wrote to Mr. G Glover informing him that additional statements were now being communicated to him following Mr. Sauzier’s observations that certain statements were missing. In fact, the statements of Donald Ha Yeung were communicated on that day, relating to the months of February 2003, October 2003, November 2003 and December 2003. The letter contained the following statement: “You are further being provided with additional statements which you may use for the preparation of the defence of your client”.
(b). Mr. Oozeer also wrote to Mr. Sauzier stating “ The statements which have further been communicated to this office recently and which may not be in your possession are as follows ……A copy of each of the above-mentioned documents is now being communicated to you. According to my personal workings, I can confirm that all documents recorded from witnesses, including unused materials are according to the list we have exchanged”.
(30). 4 April 2005 – This was the first day of trial. Prosecuting counsel handed over 46 documents to defence counsel which it intended to produce by calling Joseph Hee Keng whose name was added to the list of witnesses on the day of trial. Several of those documents had not been communicated to defence counsel before.
(31). 11 April 2005 – On 6 April 2005, witness Hee Keng produced 2 documents concerning the convocation of one Jean Marie Raisin by the ICAC to give evidence. Arguments were subsequently heard about those documents and other matters. The court was scheduled to give its ruling on 11 April 2005. On that day, Mr Ahmine, State Counsel, stated that he has just been communicated with a document which is relevant to the arguments raised and he moved for some time to confirm certain information and to consider the possibility of putting in the document before the court gave its ruling. Ultimately, the prosecution decided not to put in the document.
Analysis of facts
Having set out the above facts, three issues have to be considered:
(1) Did the ICAC indeed not communicate certain documents to the DPP’s office?
(2) What was the number or extent of documents which had not been communicated?
(3) What was the importance of the documents which had not been communicated?
We must start by pointing out that the information was lodged on 21 June 2004 upon the decision of the DPP. One can pre-suppose that, by that time, the DPP’s office must have been in possession of all statements given by persons who had been interviewed in connection with the case and all documents secured during the enquiry. On 21 June 2004 itself, defence counsel requested for communication of a brief. An undertaking was given that same would be done. Two and a half months later, no documents had been communicated and at the request of Mr Sauzier, the matter was called pro forma in court on 2 September 2004. The prosecution moved for a postponement at that stage to take a stand concerning communication of documents. One wonders what could have been the cause of the delay; this will be dealt with later.
The first communication of documents was done between 2 and 20 September 2004. Only 9 statements were communicated, most of which were unused materials. It is only when defence counsel moved that proceedings be stayed for abuse of process because of the persistent refusal of the prosecution to communicate a brief that things started moving. Between 20 and 27 September 2004, defence counsel for accused no. 1 was communicated with the statements of 9 witnesses out of the 22 witnesses whose names appear on the list attached to the information.
By way of explanation for that state of affairs, it is interesting to note that on 27 September 2004 Mr Ahmine gave the court and defence counsel to understand that witnesses no 14 and 16 – 20 would be deposing mostly in relation to documents. No statements emanating from those witnesses were communicated to defence counsel. We do not believe that a Principal State Counsel would have made such a statement lightly. Yet, two days later, on 29 September, Mr. Ahmine retracted what he had said earlier and stated that he is “now” informing court that those witnesses have in fact given depositions. This is, to say the least, startling when we bear in mind the established practice for State Counsel to consult his file with respect to materials which are available therein before making any statement about communication of the brief. One cannot therefore disregard the possibility that those depositions were not available in his file when he made that statement earlier.
On 27 September 2004, Mr Ahmine also stated that the prosecution, (meaning the DPP’s office, since he was speaking in his capacity as State Law Officer appearing in the case) has already communicated the statements of all the witnesses whose names appear on the list of witnesses. Obviously, he must have done so after consulting the materials available in his file.
One and a half month later, on 9 November 2004, Mr. Sauzier stated that the defence had been communicated with only one statement of witness no 21, Robert Lesage and it appears that there are other statements which the said witness may have given. He therefore requested that all statements be communicated to him. It would seem that following that request, one more statement of witness Lesage was communicated to defence counsel. On 20 January 2005, Mr Sauzier stated that so far he has been communicated with 2 statements of witness Lesage and it appears that there are more statements which have not been communicated yet. Mr Jean Louis, the State Law Officer appearing on that day stated that he has liaised with Mr Oozeer the SLO who is also appearing in the case and he confirmed that all statements and documents which were in the prosecution’s file have already been communicated to the defence. This obviously implies that prior to 20 January 2005, the DPP’s office had only two statements of witness Lesage in its file which it communicated to the defence.
The issue of the statements of witness Lesage came to the forefront again on 17 February 2005 when Mr Oozeer wrote to Mr Sauzier giving him a “list” of statements recorded from witness Lesage. Reference was again made to the a list of statements of witness Lesage in another letter dated 11 March 2005 which Mr Oozer addressed to Mr Sauzier. The list is attached to the letter and it can be said that the list is lengthy. It is therefore very clear that as at 20 January 2005, those statements of witness Lesage which appear on the “long list” communicated subsequently were not in the file which the ICAC had sent to the DPP’s office.
Let us now turn to the issue of other documents. On 27 September 2004, having been informed by State Counsel that witnesses no 14 and 16-20 would be called in relation to documents, both defence counsel moved that all documents together with a list of those documents be communicated to the defence. On 29 September 2004, Mr. Ahmine undertook to communicate that list. On 9 November, Mr. Oozeer stated that since an undertaking has been given that a list of documents would be communicated, he would make one available. However, he stated that he was not in a position to undertake that the prosecution would not travel outside that list. The ground for making such a statement, according to him, was that the hands of the prosecution would otherwise be tied.
The court then pointed out to State Counsel that the whole purpose of the pre-trial exercise was to ensure that there would be no motions for postponements at trial stage. Obviously, if the DPP’s office had all the documents secured in connection with this case in its file, it would have been very easy for the SLO working on the file to compile a comprehensive list of those documents and to communicate the list and the documents themselves to the defence. The need to travel outside that list of documents at trial stage would not even arise. It must be pointed out that the law caters for situations where the prosecution has to adduce further documents which have come out recently as fresh evidence. It therefore appears that the refusal of State Counsel to commit, at that stage, to a comprehensive list of documents may have been based on the apprehension that he himself did not have all the documents secured during the enquiry.
The above may find confirmation in the fact that two and half months later, (i.e on 9 Dec 2004) the list of documents had not been communicated. Defence counsel drew the attention of Mr Oozer to that fact and Mr. Oozeer again undertook to communicate the list. He even set down a date for the exercise to be completed, i.e by the end of December 2004. On 12 January 2005, Mr. Sauzier pointed out that the list had not been communicated in spite of the undertaking given on 9 December 2004. One month later, on 17 February 2005, Mr. Oozeer wrote to defence counsel referring to a “third batch of documents” which had just been forwarded to defence counsel. Three weeks later, on 3 March 2005, Mr. Sauzier stated that from the documents he had received, it was obvious that reference is made to several other documents which have not been communicated to him. At this stage, one cannot help but wonder why the DPP’s office was systematically not communicating a comprehensive list of documents together with the documents mentioned therein. Mr. Sauzier opined in his letter that State Counsel may himself not be in presence of those documents and State Counsel neither answered nor contradicted that opinion when he wrote back.
It appears that the fears of defence counsel were fully founded when we consider that the prosecution moved to call a new witness on the first day of trial for the purpose of having that witness produce 46 documents, many of which had not been communicated to the defence at all. Finally, one week after the trial had started and when the court had to pronounce itself on a point of law, Mr. Ahmine moved for a postponement on the ground that he had himself just been communicated with a document which might shed light on the point of law and he was considering the possibility of producing that document. The only inference that can be drawn is that the document was obviously in the possession of the ICAC and had not been communicated to the DPP before.
Let us now turn to the issue of unused materials. On 9 November 2004, Mr. Sauzier moved for the communication of all unused materials and Mr. Oozeer stated that some unused materials have already been communicated. However, the prosecution needed some time to find out whether there are other unused materials which are still lying at the DPP’s office and to sort them out. On 9 December 2004, Mr. Oozeer undertook to communicate all unused materials by the end of December 2004. On 20 January 2005, Mr. Jean Louis stated that the prosecution has already communicated all statements and documents which were in the prosecution’s file.
On 20 January itself, Mr. Sauzier specifically asked for communication of the statements of Donald Ha Yeung and Dev Manraj. The names of these two persons do not appear on the list of witnesses so that their statements fall in the category of unused materials which was one way or the other connected with the case. A few of the statements of those two persons were subsequently communicated in February and March 2005. On 11 March 2005, Mr. Oozeer wrote to Mr Sauzier stating that as at date, he was not in possession of two statements of Donald Ha Yeung. He has already spoken with the liaison officer at the ICAC for the needful to be done. Once again, it appears that those statements were not in the file of the DPP as at 20 January 2005.
Perhaps it bears pointing out that we have statements and letters emanating from three State Counsels which all point towards the fact that certain materials were not in their possession as and when they were being required to communicate those materials to the defence. This when added to the above analysis, makes it is clear that in certain instances the ICAC did not actually communicate certain statements, documents and unused materials to the DPP, the more so that Mr. Ahmine, on one occasion admitted openly in court that one document was “ not in possession of the DPP, in the custody of the DPP before. ” In other instances, once we realize that the statements, documents and unused materials subject matter of repeated demands in court and in letters were not in possession of the DPP’s office, we are led to draw the irresistible inference that they must still have been in possession of the ICAC since the documents, statements and unused materials were recovered and communicated subsequently.
The next issue that we have to look at is the extent or number of documents which were not communicated:
(1). On 27 September 2004, Mr. Ahmine gave defence counsel to understand that witnesses no 14 – 20 would be deposing only in relation to documents and stated that all the statements of witnesses whose names appear on the list attached to the information have already been communicated. On 29 September Mr. Ahmine informed the court that six of those witnesses have actually given depositions. It can only be inferred that those 6 depositions had not been forwarded by the ICAC to the DPP as at 27 September.
(2). As concerning witness no 21 Robert Lesage, only one document was initially communicated. A second statement was communicated subsequently. After the statement of 20 January 2005 to the effect that all documents in the prosecution’s file had been communicated, Mr. Oozeer communicated 15 statements of Robert Lesage as per list dated 11 March.
(3). As concerning unused materials, following the statement of 20 January 2005, 30 statements of Donald Ha Yeung were communicated as per list dated 11 March 2005 and other subsequent letters.
(4). As concerning documents, we have it that on the date of trial (4 April 2004), 46 documents were intended to be produced by the prosecution. Defence counsel stated that several of those documents have not been communicated to them prior to the trial date although we do not have the benefit of knowing exactly how many of those documents had not been communicated.
(5). On the other hand, we know for sure that one document was communicated after a point of law had been raised and argued in court.
As concerning other statements, documents and unused materials in relation to which inferences of non-communication by the ICAC to the DPP have been drawn, the exact number has remained unknown. As a whole, it is not as if one or two or a few documents were not communicated. The one thing that can be said for sure is that a large number of statements, documents and unused materials were not communicated by the ICAC to the DPP.
The next issue concerns the importance or otherwise of the statements, documents and unused materials:
(1). As concerning witness Robert Lesage, he must have been an important prosecution witness, if not the main prosecution witness since it appears that he gave no less than 15 statements in relation to this case.
(2). Even though Donald Ha Yeung is not on the prosecution’s list, he must have had important connections with this case since no less than 30 statements were recorded from him. This was acknowledged by State Counsel himself in his letter dated 28 March 2005. In fact, he communicated 11 statements of Donald Ha Yeung to Mr. G. Glover after stating: “ You are further being provided with additional statements which you may use for the preparation of the defence of your client”.
(c). As concerning the 46 documents, part of which were not communicated, it must be pointed out that they were cheques and other banking documents which are at the very basis of the prosecution’s case since 6 witnesses were going to depose in relation to those documents and the prosecution has tried to produce them right at the beginning of the trial as the foundation of its case.
At the end of the day, as a matter of fact, we are led to the conclusion that the ICAC did not communicate certain statements, documents and unused materials to the DPP, that there was a substantial number of such materials which was not communicated and that they were important documentary materials in connection with the case.
The remedy
Having been satisfied that the ICAC has failed to comply with the provisions of Section 47(6) we are left to decide what remedy is available. We note that The POCA is silent about the issue. However in the case of R V. J [2004] UKHL 42 Lord Bingham of Cornhill delivering the majority judgment stated that “ the deficiencies of the Act cannot absolve the court from its duty to give effect to clear and unambiguous provisions ” and in Wade, Administrative Law, p. 772, Breach of Statutory duty , one can read that: “everything depends upon the true intent of the statute, which will often be difficult to divine when it says nothing…the court is usually sympathetic to an action…if the statute has no scheme of its own for penalties.”
The prosecution has argued that once the DPP has, after subsequently taken cognizance of the materials, confirmed its decision to prosecute, the defect is cured. On the other hand, the defence has argued that the appropriate remedy would be to stay proceedings on the ground of abuse of process. Indeed, both defence counsel have referred us to provisions of the Constitution contending that it would be a abuse of the process of the court if the case is allowed to proceed.
It would be apposite for us to start by setting down certain basic principles before proceeding further. Where a prosecution is properly brought, a judge has no power to prevent the prosecution from presenting its evidence on the basis that he considers it unlikely that there will be a conviction: Att.-Gen.'s Reference (No. 2 of 2000)[2001] 1 Cr. App. R. 36, CA. However, it is not disputed that a court of law has the power, albeit limited, to prevent a prosecution from proceeding. It must be made clear, at the outset, that once an information has been lodged before a court, the accused must be tried unless one of the following four grounds is invoked: (a) the information itself is defective (b) the accused pleads autrefois convict or autrefois acquit (c) a nolle prosequi is filed; or (d) the court has no jurisdiction to try the case . [ see R v Chairman of London County Sessions, ex. parte Downes (1954) 1 QB 1 ].
A fifth ground was added to the above in the landmark case of Connelly v DPP (1964) AC 1254 where the court held that proceedings may be stayed where the particular criminal proceedings amount to an abuse of the process of the court. This power includes the power to safeguard an accused party from oppression or prejudice. There are various limbs which have been developed under this heading of abuse of process. Thus, the court may stay proceedings where the issue before them directly affects the fairness of the trial of the accused with whose case the court is dealing, such as unconscionable delay in instituting and disposing of the case against the accused or where there has been a misuse or a manipulation of the process of the court. This has been applied in a variety of situations, including abusive decisions to institute prosecution, manipulation of procedures, cases where the prosecution went back on promises formerly made, cases of entrapment by investigators and cases where a fair trial had become impossible.
In the case of Connelly , it was further held that the basis for staying proceedings on the ground of abuse of process is that the court has the inherent power to protect its own process from being abused. Recent case-law has enlarged the scope of abuse of process by stating that the inherent power of the court to preserve its process from abuse included the responsibility of the court to uphold the rule of law.
The matter was given much consideration in the case of R v Horseferry Road Magistrates’ Court, ex parte Bennet [1994] 1 A.C. 42. The reasoning behind “upholding the rule of law” as a limb of abuse of process was set out by Lord Lowry in the following terms:
“… the court, in order to protect its own process from being degraded and misused, must have the power to stay proceedings which may have come before it and have only been made possible by acts which offend the court’s conscience as being contrary to the rule of law. Those acts, by providing a morally unacceptable foundation for the exercise of jurisdiction over the suspect, taint the proposed trial and, if tolerated will mean that the court’s process has been abused.”
A similar approach was taken in the case of R v Latiff [1996] 1 WLR 104 where Lord Steyn stressed that the principle stated above in the case of Bennet was now settled and further added that what was at stake was the integrity of the criminal justice system itself.
“The law is settled ……. The speeches in Bennet conclusively establish that proceedings may be stayed………not only where a fair trial is impossible but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place”
The case of R v Mullen [1999] 2 Cr. App. R 143 , followed Bennet and Latiff but went further and held that the principle was based on considerations of public policy and was so important that it would, in its application, even supercede the certainty of an ultimate finding of guilt against the accused should the trial have been allowed to proceed. Indeed, it was held at pages 155 and 157:
“ However, as appears from the passage already cited from the speech of Lord Lowry in ex p. Bennet ……….certainty of guilt cannot displace the essential feature of this kind of abuse of process, namely the degradation of the lawful administration of justice…….the conduct of the security services and police in procuring the unlawful deportation of the appellant in the manner which has been described, represents, in the view of this Court, a blatant and extremely serious failure to adhere to the rule of law with regard to the production of a defendant for prosecution in the English courts. The need to discourage such conduct on the part of those responsible for criminal prosecutions is a matter of public policy, to which, as appears from Bennet and Latiff, very considerable weight must be attached .”
It would be interesting at this stage to refer to the analysis of the above cases as set out in Archbold, Criminal Practice and Procedure , 2005 edition, at para 4-55:
“ The jurisdiction to stay for abuse of process can be exercised ……where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place: (R v Mullen and ex. P Bennet)………The doctrine was held to apply in such a situation, even though the matter complained of would not prevent a fair trial and even though it would not be unfair to try the accused if he had been returned to this country through lawful extradition procedures. Lord Griffiths said that the court had the power to interfere with the prosecution because the judiciary accepted a responsibility for the maintenance of the rule of law that embraced the willingness to oversee executive action and to refuse to countenance behaviour that threatened either basic human rights or the rule of law. It was the function of the High Court to ensure that executive action was exercised responsibly and as Parliament intended. If, therefore, it came to the attention of the High Court that there had been a serious abuse of power it should express its disapproval by refusing to act on it. Lord Bridge said that there is no principle more basic to any proper system of law than the maintenance of the rule of law itself”.
It must be pointed out that the cases cited above deal with the very serious issue of the deportation of an accused by unlawful means. It would, however, not be correct to assume that the reasoning of the Law Lords applies only to cases of such a nature. The same principles were applied in the case of Re Barings plc and Others (No. 2) Secretary of State for Trade and Industry V. Baker and Others [1999] 1 All E.R. 311 , where the court was dealing with S 6 of the Company Directors Disqualification Act 1986. The Court of Appeal held as a matter of principle that:
“Having regard to the overriding need to preserve public confidence in the administration of justice, the court would stay proceedings on the ground of abuse of process where to allow them to continue would bring the administration of justice into disrepute among right-thinking people.”
The test as to the manner in which principles are to be applied
We must understand the manner in which the court must go about deciding whether proceedings must be stayed or not on the ground of non-respect of the rule of law. There are two elements which have to be borne in mind here:
(1) The power to stay proceeding falls within the ambit of the discretionary power which the court has and which the court may decide to exercise or not to exercise
(2) In applying its discretion, the court must carry out a balancing exercise between, on the one hand, the interest in allowing a serious case to proceed, and on the other hand, the public interest in staying proceedings so as not to allow the degradation of the system of justice.
Thus, in the case of Latiff ( supra) the following was held:
“Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of the process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed………..………….it is possible to say that in a case such as the present the judge must weigh in the balance the public interest in ensuring that those who are charged with grave crimes should be tried and the competing interest in not conveying the impression that the court will adopt an approach that the end justifies any means”.
We must therefore analyse the facts of the present case to see what was the nature of the breach and the seriousness thereof before balancing it with the implications of staying proceedings.
Was there a duty on the ICAC to communicate to the DPP.
With respect to the balancing exercise, the first issue that we have to deal with is whether there was indeed a duty on the ICAC to communicate the materials to the DPP. As we have pointed out earlier, S 47(6) of the POCA provides that the Commission “ shall submit ” to the DPP a report which “ shall include ” all the material, information, statements and other documents obtained in the course of the investigation.
In this connection, we must consider S 5(4) of the Interpretation and General clauses Act which provides:
“(a). The word “shall” may be read as imperative.
(b). The word “may” shall be read as permissive and empowering”
This section of the law is often interpreted as meaning that, as a general rule, where the word “shall” is used in a provision of the law, it conveys the idea of an imperative duty having been imposed. However, depending on the context, the word “shall” can be interpreted as being permissive. Thus, it is incumbent upon us to analyse the context in which the word has been used in S 47 of the POCA with a view to determining whether, in the present case, the ICAC was required ‘as an absolute must’ to communicate all materials gathered in the course of the enquiry to the DPP or whether the ICAC was entitled to withhold part of those documents notwithstanding that S 47 provides that the ICAC “shall” communicate.
We must bear in mind the provisions of S 19(1) and (2) of the POCA which provide:
“(1). There is established for the purposes of this Act a Commission which shall be known as the Independent Commission Against Corruption.
(2). The Commission shall be a body corporate.”
Therefore, the official status of the ICAC is that of a “body corporate” deriving its powers from an ordinary Act of Parliament. The ICAC has been vested with the power to investigate financial crimes generally. It has also been empowered to institute proceedings in respect of offences committed under the POCA itself. Thus S 82(2) provides:
“The Commissioner, the Director of the Corruption Investigation Division, or any other officer designated by the Commission, may swear an information and conduct the prosecution in respect of any offences under this Act.”
However, the final power to prosecute remains with the DPP. By comparison to the ICAC, the Office of the DPP is a Constitutionally created post, who derives his powers under S 72 of the Constitution. S 72(3) of the Constitution provides:
“The Director of Public Prosecutions shall have power in any case in which he considers it desirable so to do-
(a). to institute and undertake criminal proceedings before any court of law (not being a court established by a disciplinary law)
(b). to take over and continue any such criminal proceedings that may have been instituted by any other person or authority; and
(c). to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority”
Subsection 5 further provides
“The powers conferred upon the Director of Public Prosecutions by subsection (3) (b) and (c) shall be vested in him to the exclusion of any person or authority”
Additionally, S 82(1) of the POCA provides:
“ Subject to subsection (2), no prosecution for an offence under this Act shall be instituted except by, or with the consent of, the Director of Public Prosecutions”.
At this stage, it must be pointed out that there is an established presumption to the effect that the Legislator is deemed to know the other laws existing on the statute book at the time that he legislates. The legislative scheme that was worked out was to allow the ICAC to swear an information and conduct a case in respect of offences committed under the POCA, but subject to the prior consent of the DPP having been obtained. In cases where the ICAC investigates an offence under an Act other than the POCA, the power to institute proceedings rests with the DPP. Throughout these provisions, it is clear that it was the intention of the Legislator to subject the ICAC to the Constitutional powers of the DPP when it came to matters of prosecuting criminal offences.
It is in this context that we have to interpret the word “shall” found in S 47 of the POCA with respect to the communication of materials by the ICAC to the DPP. A parenthesis must be opened here to point out that, in the present case, the ICAC was investigating possible offences committed under the FIAMLA, which is an Act other than the POCA. Another thing that must be borne in mind here is that we are dealing with criminal offences which may have been committed, requiring the prosecution of accused parties. When dealing with provisions of the criminal law, the established principle has always been to interpret words of the relevant provisions strictly. Thus, in this context, we believe that S 47 of the POCA imposed an absolute duty on the ICAC to communicate all materials gathered in the course of the investigation to the DPP prior to the decision of the DPP to prosecute or not. This, the ICAC failed to do.
The next relevant issue in the balancing exercise concerns the initial decision of the DPP to prosecute on the basis of the (limited) materials which were referred to him by the ICAC. In order to determine the issue, it is important to look at the intention of Parliament in enacting Section 47(6) of the POCA. When one looks at the Act as a whole, it is clear that Parliament has put huge powers of investigation and ensuing means at the disposal of the ICAC to enable it to investigate matters relating to corruption. As has already been discussed earlier, it was the intention of Parliament at the same time that there should be some degree of checks and balances by providing that another independent institution should look at the evidence gathered by the ICAC in the course of its investigations with a view to assessing whether prosecution can be contemplated or not. Parliament has entrusted this role to the DPP.
In view of the provisions of S 47(7), it appears that the DPP has two main courses of action open to him once the ICAC communicates the materials that it has gathered in the course of its investigations:
(7). After consideration of the report submitted under subsection (6), the Director of Public Prosecutions may, where he does not advise prosecution or any other action, require the Commission to conduct such further inquiries as the Director of Public Prosecution considers fit to advise.”
In cases where the evidence is tenuous, the DPP may request for further investigations. On the other hand, where the DPP is satisfied that there is sufficient evidence to warrant prosecution, he may advise that an information be lodged and the matter be dealt with by a court of law. There is, therefore, no doubt that what the ICAC communicates to the DPP in terms of statements, documents and other materials will certainly have an influence on the decision of the DPP concerning the course of action to be followed. It goes without saying that if the ICAC is allowed not to communicate certain documents and materials to the DPP, then the latter would not be in a position to carry out his Constitutional functions properly at the initial stage of taking his decision to order further investigations, to lodge a prosecution, to advise no further action or to suggest another course of action altogether, as he deems fit and proper.
In the present case, according to letters emanating from the office of the DPP, certain documents which apparently were not communicated have a direct bearing on the case, such as the statements of witness Robert Lesage and the statements of Donald Ha Yeung. The prosecution itself admitted that those documents might be useful to the defence. Had the DPP had knowledge of those statements before tendering the advice to prosecute, he might have reached an altogether different decision. We do not wish to speculate on the issue. However, all we are saying is that we cannot disregard the possibility that the decision to prosecute may have been tainted as having been based on incomplete evidence and in absence of all relevant materials.
The third issue to be considered in the balancing exercise is the inter-relationship between the ICAC and the DPP as two separate institutions. We must stress that Parliament insisted in S 47(6) that “ all ” statements, documents and materials should be communicated to the DPP. It was open to Parliament to use another formula. But, to our minds, Parliament knew full well what it was doing when using that word. Parliament must have certainly envisaged the danger of leaving it to the ICAC, on its own, to decide which materials to send to the DPP and which materials it can retain. If we were to think about the policy behind S 47(6) we could express it as follows: One cannot disregard the possibility that in exercising the power to retain certain materials, the ICAC can easily manipulate the decision of the DPP and bring him to advise files as the ICAC wishes.
We can illustrate the above point in a couple of theoretical examples. Firstly, let us assume that the ICAC has gathered evidence which is damning against a suspect, but for one reason or another, does not wish that person to be prosecuted. The ICAC may forward to the DPP only those materials which are in favour of the suspect and retain those materials which are against him. The DPP, being in presence of only exculpating materials against the suspect, would most certainly advise no further action. Alternatively, there may be cases where the suspected person has a valid defence. If for any reason whatever, the ICAC wishes to have that person prosecuted, it may retain the documents in favour of that person and communicate only those documents which are unfavourable to him. Had all the documents been communicated in such a case, prosecution would certainly not be advised. By retaining certain documents, the DPP can be brought to advise prosecution in an unfair manner. If the word “shall” is interpreted as being permissive and it is held that the ICAC is not bound to communicate “all” materials, that may have the effect of reducing the role of the DPP to that of a mere rubber stamping authority to fit the whims and caprices of the Commission. It was to avoid the possibility of such abuses from arising that Section 47 has been enacted.
The fourth relevant issue which has to be considered in the balancing exercise is the possible consequences in the future for the rule of law on a national level if the court was to hold that it is open to the ICAC not to communicate certain documents to the DPP. Two things must be borne in mind here:
(1). The above requirement placed on the ICAC is found in an Act of Parliament. It is therefore “statutory law” as opposed to other lower forms of directives such as practice directives, rules..etc.
(2). The ICAC, to whom these requirements apply, is a very small investigative body compared to other investigative bodies which exist in the country.
The police force, which is the main investigative body of the country, is a much larger institution than the ICAC and it deals with a much larger number of cases. The police must also abide by a similar requirement as the one imposed on the ICAC and with the exception of a few minor cases, is under a duty to communicate the materials it has gathered in the course of enquiries to the DPP. The relevant provision reads as follows:
“Prior to prosecution being ordered or final decision made by Officers in charge of Areas/Branches, cases reported to the Police, disclosing offence/s against the under-mentioned provisions will, after investigation, be referred to the State Law Office in a PF 100 for instructions.”
What we must realise is that this provision is found in Order 8 of part 118 of the Standing Orders of the police entitled ‘Disposal, Classification and Prosecution of cases’. These Standing Orders have themselves been made by the Commissioner of Police pursuant to S 6 of the Police Act. The status of these “Standing Orders” is much lower than that of an “Act of Parliament” in the hierarchy of laws. If we are to hold that the ICAC is under no obligation to communicate all materials to the DPP in spite of clear statutory provisions, then we might be opening the door to similar arguments being put forward by the police in order not to communicate all materials it has gathered to the DPP, the more so that the duty imposed on it is not even found in an Act of Parliament but is to be found in Standing Orders.
The consequences would be staggering if, in theory, the police could decide which materials to retain and which materials to communicate to the DPP. As we have discussed earlier, the possibility of enquiries being framed to gear the decisions of the DPP to prosecute or to advise no further action would affect such a large number of cases that it would become a serious danger to the rule of law in our country. Indeed, no citizen would feel safe knowing that the ICAC or the police force can, at any time, start an enquiry against him and then gear a decision to prosecution or to take no further action by communicating statements, documents and materials selectively to the DPP. At the same time it would turn the DPP into a toothless tiger with no real authority to oversee the decision process of prosecution, thus rendering the Constitutional provisions creating the office of the DPP of no real effect.
If the court was to condone non-compliance by the ICAC with the clear and unambiguous provisions of a statute to disclose all documents to the DPP before the latter takes any decisions, we would be sending the wrong signal to the ICAC and other institutions responsible for the investigation and detection of crime amongst which the much larger force of the police. We would in effect be encouraging non-compliance with clear statutory provisions, thus flouting the basic principles of good governance and transparency and ironically encouraging corrupt practices. This is in opposition with what Parliament intended by enacting the POCA and we believe that Parliament did not intend to open the floodgate to abuses.
The fairness of the trial
The fifth issue which we must consider is the effect that the failure of the ICAC to communicate all materials to the DPP may have on the fairness of the trial itself. It is trite law, and in accordance with established procedures for the DPP’s office to communicate a full brief to the defence upon such a request being made or where the court orders such communication. It goes without saying that the DPP’s office must itself be in actual possession of the documents so as to communicate them to the defence. If the DPP’s office is not in possession of the documents, communication thereof becomes very difficult if not impossible for all intents and purposes.
The accused and his counsel are obviously prejudiced in preparing their defence if they are not in possession of all the materials, since the process of such preparation entails reading and studying the materials, selecting such materials as are in their favour and gathering other evidence in order to counteract the evidence of the prosecution. This in turn obviously affects the fairness of the trial itself contrary to the basic Constitutional provisions of S 10 which guarantees the right of an accused to a fair trial.
As a matter of fact, in the present case, defence counsel has over and over again in his letters addressed to the DPP drawn attention to the urgency of the situation and to the fact that his client was being prejudiced in the preparation of his defence because of non-communication of all materials. This is obvious from a simple perusal of the letters dated 26 July 2004, 12 January 2005, 27 January 2005, 15 February 2005, 1 March 2005, 3 March 2005 and 25 March 2005.
It is arguable that any prejudice caused to the accused at pre-trial stage can be cured if the court was to allow one or more postponements at trial stage to give the accused time to prepare his defence based on documents and materials freshly produced during the trial. This solution can certainly be entertained. However, we should not lose sight of the fact that such postponements would unduly procrastinate matters where the accused is already under the threat of prosecution. The prejudice caused to the accused by undue delay in disposing of his case has been the subject matter of many recent pronouncements to the effect that unconscionable delay may in itself be a ground for staying proceedings for abuse of process. The court should certainly not encourage practices which would lead to more delays than are strictly necessary for the timely disposal of the case. Moreover, postponements caused by piecemeal communication of materials at trial stage would undoubtedly interfere with the smooth running of the trial. The court has a duty to ensure that its process is not dealt with in this way. At the end of the day, the non-communication of materials by the ICAC to the DPP as per S 47 of the POCA negatively affects the fairness of the trial itself, and this contrary to the clear provisions of S 10 of the Constitution.
Can the DPP ratify non-communication by the ICAC
At this stage, we must open a parenthesis to deal with the submissions of State Counsel more in depth. Prosecuting counsel has suggested that once the DPP has decided to prosecute and is maintaining that decision, the initial failure of the ICAC to communicate those documents to the DPP is neither here nor there.
It is not disputed that the DPP has a discretion to prosecute or not to prosecute under Section 72 of the Constitution. However, in the case of Lagesse v. Director of Public Prosecutions [1990] MR 194, the full bench of the Supreme Court analysed the power of the courts to review the decision of the DPP. It decided that:
“By its very nature and in contradistinction from other administrative decisions, the matter (i.e the DPP’s decision to prosecute) automatically falls under the control of the Courts by virtue of sections 10, 76 and 82 of the constitution….The right which does exist is to have a fair trial once the charge has been preferred. This is something which the Courts will always strive to protect by all the means at their disposal, by dismissing the charge or even, in an appropriate case, by preventing the trial from getting under way, where it is patent that the trial cannot be a fair one because, for example, the information is lodged in specific circumstances 20 years after the event where the defence of the accused has been adversely affected or the prosecutor is actuated by malice and nothing else.”
The Court then went on to say that:
“Section 72(3) of the Constitution provides that the Director of Public Prosecutions shall have power, in any case in which he considers it desirable so to do, to institute, take over and discontinue criminal proceedings…And section 119 says that when the Constitution provides that a person shall not be subject to control in the exercise of his functions, a Court may determine any question whether that person has exercised those functions in accordance with the law.”
From the above, the Supreme Court decided that the decision of the DPP to prosecute is subject to review by the courts and that the yardstick is that the trial must be fair. Similar pronouncements have been made by courts in the UK and by the Court in Strasbourg.
In Barnfather v Islington Education Authority [2003] EWHC 418 (Admin ) , the court referred to the case of Salabiaku v France (1988) 13 EHRR 379 in which it was held that article 6(2) of the Convention (which is similar to Section 10 of our Constitution) provided a criterion against which the court could scrutinise procedural and evidential matters but not the substantive elements of an offence.
At this stage, we haste to emphasise that the issue before us does not concern the decision of the DPP to prosecute. Rather, it concerns the non-communication of certain materials by the ICAC to the DPP prior to that decision. The above cases are relevant only by way of analogy with respect to the argument raised by State Counsel. Indeed, the latter seemed to suggest in his submissions that the communication of materials or otherwise pursuant to S 47 of the POCA was an internal matter between the ICAC and the DPP and was outside the ambit of intervention by the court. Thus, once the court has been seized with the matter and the DPP has confirmed his decision to prosecute, the trial has to proceed and it was not open to the court to intervene based on the ground of dealings between the ICAC and the DPP prior to the trial.
In the light of the cases cited above, it is clear that the decision of the DPP to prosecute may itself be reviewed. A fortiori , we are not able adhere to the proposition that the confirmation of the DPP to proceed with the case based on materials communicated to it subsequently can in any way ratify a decision which was ab initio objectionable as being in clear breach of statutory provisions. Moreover, the analysis of the implications and possible results of breaches of unambiguous statutory provisions clearly shows that it is far from being an internal matter between the ICAC and the DPP. Rather, it has repercussions which affect the rule of law in the country at large. Thus, we are of the view that the power of the court to intervene remains.
The case of The State v. Bhoyjoo [1991] MR 297 involved more or less similar issues, where in the course of committal proceedings, the Magistrate did not sign the deposition of a witness according to what was provided by statute. The DPP advised prosecution and a proper information was laid. The trial judge stayed the case as there had been a procedural irregularity. The action of the DPP was held not to cure the illegality.
Pronouncements concerning non-respect of statutory provisions
In the case of R V. J [2004] UKHL 42, the House of Lords laid emphasis on the “duty of the court to give full and fair effect to the meaning of a statute. It cannot pick and choose, giving effect to some and discounting others .” Lord Steyn who concurred with the majority decision stated that:
“Parliament does not intend the plain meaning of its legislation to be evaded. And it is the duty of the courts not to facilitate the circumvention of the Parliamentary intent…It must observe statute law as Parliament framed it. In our Parliamentary democracy nobody is above the law. The powers of the CPS are extensive but not extensive enough to permit it to take decisions intended to evade the clear intent of Parliament.”
In Bradbury V. Enfield LBC [1967] 1 WLR 1311 Danckwerts L.J said that:
“ It is imperative that the procedure laid down in the relevant statutes should be properly observed . The provisions of the statutes in this respect are supposed to provide safeguards for Her Majesty's subjects. Public bodies and Ministers must be compelled to observe the law ; and it is essential that bureaucracy should be kept in its place.”
( The underlining is ours)
The above was said in relation to matters pertaining to the field of administrative law, but we find no reason why these principles could not be applied in the present case. Indeed, one can read the following in Wade, Administrative Law, at p. 249 :
“…where the effect is penal, scrupulous observance of statutory conditions is normally required .” ( the underlining is ours )
In two recent cases involving the ICAC itself, the Supreme Court of Mauritius took a rather similar stand. Thus, in the case of Technology Soft Corporation & Ors V. The Independent Commission against Corruption [2005] SCJ 99 , the Judge in chambers refused to extend a Freezing Order which had not been renewed within the period of 60 days as provided by Section 57 of the Prevention of Corruption Act and which was held to be stale.
We hold the view that the reasoning set out in the case-law cited above should be applied regarding the ICAC and the office of the DPP. Thus, we are of the view that the decision of the ICAC to retain certain documents would have the effect of rendering the purpose behind S 47(6) and (7) of the POCA nugatory, and therefore, scrupulous compliance with these clear statutory provisions is inescapable.
Seriousness of the offence
The seriousness of the offence is one of the elements which has to be weighed in the balance in deciding which way the discretion of the court should be exercised. Indeed, in the case of Mullen ( supra ) the court having explained the nature and implications of the balancing exercise, held:
“In arriving at this conclusion we strongly emphasise that nothing in this judgment should be taken to suggest that there may not be cases, such as Latiff , in which the seriousness of the crime is so great relative to the nature of the abuse of process that it would be a proper exercise of judicial discretion to permit a prosecution to proceed or to allow a conviction to stand notwithstanding an abuse of process in relation to the defendant’s presence within this jurisdiction. In each case it is a matter of discretionary balance, to be approached with regard to the particular conduct complained of and the particular offence charged”.
At this stage, we must say that we are fully alive to the fact that we are presently dealing with a serious case. Indeed, the two accused parties stand charged with offences of ‘conspiracy to commit the offence of money laundering’ and ‘money laundering’ involving rather large sums of money. Moreover, as Mr. Sauzier has pointed out to us, the case has received wide coverage in the press and is a subject of concern for the citizens of this country. Bearing this in mind we still have to balance the seriousness of the present case with the public interest which lies in upholding the rule of law in our country. We have given profound thought to the issue and we are unable to say that the interest in prosecuting this individual case outweighs the public interest in upholding the rule of law.
The necessity to take such decisions at times was explained in the case of R V. J [2004] UKHL 42 where both the majority and the minority decisions agreed that the category of cases in which the abuse of process principles can be applied are not closed. The majority of the House took the view that “…even in cases where the prosecution had not been guilty of any devious, underhand or manipulative conduct…They had not sought to take unfair advantage of a technicality or to prejudice the conduct of the defence in any improper way…The delay in prosecuting J, in no way the fault of the prosecution did not imperil the fairness of the trial. There was no misconduct by the executive…[and where]… the decision to prosecute was one which the general public would applaud ” there was nevertheless an abuse of the process of the court and the appeal was allowed. ( the underlining is ours ).
In the case of Ex.p Bennet ( supra), the court cited the South African decision of S v Ebrahim where Stevens, J gave the following opinion:
“The Court of Appeal of South Africa – indeed, I suspect most courts throughout the civilised world – will be deeply disturbed by the ‘monstrous’ decision the court announces today. For every nation that has an interest in preserving the rule of law is affected directly or indirectly, by a decision of this character”.
Now, in the case of Bhoyjoo (supra) the court was dealing with a case of manslaughter, involving the death of a person. The court nevertheless had no hesitation to stay the trial where it was evident that certain clear statutory provisions had not been respected. Indeed, the learned Judge held:
“I am of the view that since the record of the preliminary enquiry shows that the depositions were not read over to the witness, a requirement of the law has not been complied with and this renders the committal invalid”
State counsel then argued in the case Bhoyjoo that the court still had the power to hear the case. The Court in its ruling reported at page 300 and 301 of the 1991 edition of the Mauritius Reports held:
“In R v Gee and ors 25 Cr App R 198 and in R v Wharmby and ors 31 Cr App R 174, it was held that the committal for the trial was unlawful because the depositions had been taken in a manner which did not comply with S 17 of the Indictable Offences Act 1948 (our section 46 of the District and Intermediate Courts (Criminal Jurisdiction) Act) and the indictment was quashed.
I hereby quash the information and discharge the accused”
In the present case we are dealing with offences of a financial nature which in our reckoning is a less heinous crime than manslaughter and which carry a lesser sentence.
Coming to court with clean hands
A final word has to said concerning the nature of the remedy itself. We must realize that the court, by its very definition, justifies its “ raison d’être ” as an institution based on the concept of the rule of law. It is therefore repugnant to this institution, which in essence is a “court of law” to entertain actions which have been brought before it but which are, ab initio based on a non respect of the law itself. In the case of R V. Beckford [1996] 1 Cr. App. R. 94 , Lord Justice Neil stated that:
“the constitutional principle which underlies the jurisdiction to stay proceedings is that the courts have the power and the duty to protect the law by protecting its own purposes and functions.”
In the case of R. V. Horseferry Road Magistrates’ Court, ex.p. Bennett [1994] AC 42 , the House of Lords confirmed the fundamental importance to be attached to the protection and promotion of the dignity and integrity of the judicial system. The law lords referred to cases in other jurisdictions of the world namely, the United States, New Zealand and South Africa (see United States v. Toscanino [1974] 500 F. 2 ed 267, R.V. Hartley [1978] 2 N.Z.L.R. 199) . In the South African case of S. v. Ebrahim [1991] (2) SA 553 , the Court of Appeal applying the fundamental legal principles about human rights and the sound administration of justice held that:
“The fairness of the legal process and the abuse thereof (should) be prevented so as to protect and promote the dignity and integrity of the judicial system. The State was bound by these rules and had to come to court with clean hands.” (the underlining is ours)
The greater importance of upholding the rule of law was explained in the New Zealand case of Moevao v Department of Labour (1980) 1 N.Z.L.R. 464 , where Woodhouse, J stated:
“Those remarks (made in the case of Connelly) involve an important statement of constitutional principle. They assert the independent strength of the judiciary to protect the law by protecting its own purposes and function. It is essential to keep in mind that it is ‘the process of law’ to use Lord Devlin’s phrase, that is in issue. It is not something limited to the conventional practices or procedures of the court system. It is the function and purpose of the courts as a separate part of the constitutional machinery that must be protected from abuse rather than the particular process that are used within the machine. It may be that the shorthand phrase ‘abuse of process’ by itself does not give sufficient emphasis to the principle that, in this context, the court must react not so much against an abuse of the procedure that has been built up to enable the determination of a criminal charge as against the much wider and more serious abuse of the criminal jurisdiction in general. It is for reasons of this kind that I remain of the opinion that the trial judge would have been entirely justified in the Hartley case in stopping the prosecution against the man Bennett.”.
Conclusions
In considering the motion for stay of proceedings in this case we have borne in mind that a balancing exercise has to be carried out. If we have, on the one hand, the demand of society that people who have committed serious crimes should be prosecuted, we have on the other hand, the interest of society and every citizen at large in upholding the rule of law.
We are fully alive to the far reaching consequences of a stay of proceedings which was emphasised in the case of Barker v Wingo (1972 ) 407.45.514, where the court stated:
“This (i.e the stay of proceedings ) is indeed a serious consequence because it means that a defendant who may be guilty of a serious crime will go free, without having been tried ”.
It has been confirmed time and again that the staying of proceedings is an exceptional measure. Thus in the case of Jago v District Court of New South Wales (1989) 168 CLR 23 , it was held:
“Stays imposed on the grounds of delay or for any other reason should only be employed in exceptional circumstances. If they were to become a matter of routine, it would be only a short time before the public, understandably, viewed the process with suspicion and mistrust”.
As a general rule a trial should be allowed to proceed and should not be stopped merely based on matters of personal opinion or feelings. It is only if there has been an abuse of process that the prosecution should be stopped. Thus in the case of R v Humphrys (1977) AC 146 , it was held that:
“ a judge……(does not have) any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought. It is only if the prosecution amounts to an abuse of process of the court and is oppressive and vexatious that the judge has the power to intervene”
In the same vein, it must be pointed out that a stay of proceedings is not meant to be a form of sanction against the prosecution in cases where there have been certain shortcomings on the part of the prosecution. Thus, in the case of Ex-parte Bellsham (1992) 1 All ER 394 , it was held that:
“A stay of criminal proceedings should not be ordered simply as a form of disciplinary disapproval of the Crown prosecution ”.
In the Mauritian case of State v Bissessur and others [2001] SCJ 50 ( supra), the Supreme Court confirmed the above principles and held:
“The court should exercise its discretionary power to order a stay of the proceedings only in exceptional cases and a staying order is an exception rather than the rule.
A stay of criminal proceedings should not be ordered simply as a form of disciplinary disapproval of the DPP’S office”.
As we have pointed out earlier, it is not the office of the DPP which is on trial here. The issue that is being decided is whether the ICAC as an investigating body can afford not to comply with specific statutory provisions regulating its own procedures without causing an affront to the public conscience.
After having carried out the balancing exercise in this case, we have come to the conclusion that the public interest in upholding the rule of law outweighs the need to go through with the prosecution in this individual case.
We are of the opinion that the rule of law demands that the court does not close its eyes to the process whereby an accused party is brought to trial where the said process is tainted with illegality and has been carried out in blatant disregard of clear and unambiguous statutory provisions. The rule of law demands that the ICAC, or any other investigating body for that matter, should not be given the signal that it is above the law and can afford not to comply with the statutes enacted by the Parliament of this country. The rule of law demands that the court sanctions such illegality and the only way to do it is to prevent the prosecution from proceeding with the case.
For all the reasons given above, we would therefore stay the proceedings of the present case and in view of our present decision, there is no need for us to delve any further on the other points of law that have been canvassed.
P. Fekna P. Kam Sing
Vice-President Magistrate
Criminal Division Intermediate court
Intermediate Court
Date: 30 June 2005
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URL: http://www.commonlii.org/mu/cases/MUIntC/2005/263.html