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IN THE INTERMEDIATE COURT OF MAURITIUS
Cause No.: 572/04
In the matter of:
v
1. Sir Harry Krishan Tirvengadum
2. Joseph Desire Robert Rivalland
3. Louis Joseph Chan San Chen Yip Tong
4. Derek James Alexander Taylor
Accused nos. 1 and 2 are charged under the first count with conspiring to do an act which was wrongful to Air Mauritius Co Ltd, by having between 1982 and 1997 agreed with Louis Joseph Marie Gerard Tyack to operate a scheme involving fictitious payments of a special commission by Air Mauritius in favour of Rogers and Co Ltd, when the commission was not due to Rogers, and in so doing, causing prejudice to Air Mauritius Co Ltd.
Under count 2 accused no. 3 is charged with conspiring with accused no. 2 to endorse uncrossed cheques issued by Air Mauritius Co Ltd in favour of Rogers & Co Ltd, whilst knowing that those cheques were used for fictitious payments, and in so doing, causing prejudice to Air Mauritius Co Ltd between 1992 and 1999.
Under count 3 accused no. 4 is charged with conspiring with Louis Joseph Marie Gerard Tyack to endorse uncrossed cheques issued by Air Mauritius Co Ltd in favour of Rogers Co Ltd whilst knowing that those cheques were used for fictitious payments, and in so doing, causing prejudice to Air Mauritius Co Ltd between 1997 and 1998.
The four accused parties plead not guilty to the charges and are all assisted by counsel.
The trial on the merits commenced on the 1 st August 2005 and ASP Jangi has already deposed. He stated among other things that he recorded 2 statements from accused no. 1 and that he was one of the enquiring officers in the case.
He produced 80 cheques, 41 Debit Advices as well as a cashbook, all secured during the enquiry. He explained that the cashbook was important inasmuch as the entries in the invoices and the cheques were compared with the entries in the cashbook and were found to be identical. The police enquiry was therefore focused on the setting up of a special fund.
While the officer was under cross-examination, he confirmed that the cheques were to be paid in favour of Rogers & Co Ltd and that the signatories to the cheques were Mr Tyack, Ms Sandrassagen, Mr Chidambaram and Mr Appa. Statements were recorded from Ms Sandrasagen but further statements could not be recorded from Messrs Chidambaram and Appa as they were abroad. He added that Mr Chidambaram was looked for much after the case was lodged in order to obtain a further statement from him.
The enquiring officer further revealed that Messrs Bujooharry, Seethal, Poonoosamy and Seegobin only gave statements with regard to the cheques towards the end of July 2005 .
It was not considered important to obtain statements from these persons since the police already had sufficient evidence to establish the charges against the accused parties.
The drawing of cheques was however regarded as essential as from the outset of the police enquiry. ASP Jangi explained that additional statements were recorded from some persons after so long because the police had reached the conclusion that they were not involved in the setting up of the special commission and because the persons who were recently interviewed were mere co-signatories in respect of the cheques.
The officer thus explained that the purpose of recording the recent statements from Messrs Chidambaram, Poonoosamy, Bhujooharry and Seegobin was to cause them to identify and confirm their signatures on the cheques as co-signatories and their enquiry had also revealed that these persons were authorized signatories of Air Mauritius.
As for the reason for recording a further statement from Mr Seetul on the 29 th July 2005, it was explained that it was because defence counsel had produced a document during the first motion for abuse of process purporting to be an agreement between Air Mauritius and Rogers whereby Rogers was allegedly appointed as General Sales Agent. That document had not been produced during the police enquiry and the police was duty-bound to verify whether it indeed emanated from Air Mauritius once it was produced in Court. It had thus been confirmed that the document did in fact originate from Air Mauritius.
Furthermore, since the statement recorded from Mr Seetul supported accused no. 1’s version, there had been no need to record a further statement from the latter.
In view of the evidence led from ASP Jangi, the defence moved that proceedings be permanently stayed in relation to all counts on the grounds of abuse of process and unfairness.
Mr Sauzier pointed out that Mr Jangi had been lengthily cross-examined regarding the signatories of the cheques produced in Court and that these were essential documents to show that any transaction took place at a certain stage. When deposing in August last year the witness had indeed stated that these were important documents on which the prosecution was relying.
Counsel submitted that the accused parties had to be confronted with such a crucial part of the enquiry and that no such step was taken by the police until the week preceding the hearing of the case on the merits.
The defence had made complaints from the start in relation to the communication of documents and statements, and the accused parties could not be made to stand such unfair proceedings.
Counsel further remarked that the trial started on the 13 th April 2004 and that there were qualms about the communication of documents and statements to the defence as far back as the 4 th August 2004.
It was therefore contended that the appropriate remedy was a permanent stay of proceedings based on the laches from the prosecution, that it was the duty of the police to conduct a fair and impartial investigation at all stages of the enquiry, and that the DPP had to be aware of all the facts before instituting prosecution.
The documents referred to concerned one of the crucial issues leading to the enquiry and that aspect had not been put before the DPP with the consequence that the decision reached by the DPP could have been different.
Mr Y. Mohamed S. C. for his part submitted that the fact that statements were being recorded by the police at the last moment and during the trial amounted to unfairness since the police was trying to forestall the defence in their cross-examination. He also argued that it was unfair that the police carried out investigations after the production of a document in Court and that the prosecution was seeking to reinforce its case by interviewing defence witnesses at such a late stage. He thus pointed out that Mr Bujooharry was on the list of witnesses for the defence and that tremendous prejudice was being caused.
As for Mr Ollivry Q.C , he submitted that the recording of statements from witnesses three days before trial infringed the right of silence guaranteed to the accused parties as the completion of the enquiry during trial would deny them the chance of a fair trial. He further pointed out that accused parties were usually confronted with the version of witnesses at the enquiry stage and that this could not be done at the present stage. He therefore submitted that what had taken place was a clear departure from a practice which was compatible with a fair hearing.
In the case of The State v Velvindron 2003 SCJ 319, the general principles governing motions of abuse of process were reiterated. The motion in that case was to the effect that because of the manner in which the police enquiry had been conducted and because of the conduct of the prosecution the accused could not benefit from a fair trial in terms of section 10(1) of the Constitution.
Our Supreme Court restated the following:
• Courts have the power and the duty to protect the law by protecting its own purposes and functions and they also have an inescapable duty to secure fair treatment for those who come or are brought before them. ( Connelly v DPP 1964 2 WLR 1145).
• The Court may stay proceedings where to allow them to continue would bring the administration of justice into disrepute among right thinking people, and that would be the case if the Court was allowing its process to be used as an instrument of oppression, injustice or unfairness. ( Re Barings PLC and others (No. 2); Secretary of State for Trade and Industry v Baker and Others, 1991, 1 All ER 311).
• An abuse of process is something so unfair and wrong that the Court should not allow a prosecutor to proceed with what is in all other respects a regular proceeding. ( Hui Chin Ming v R 1992 1A.C. 340).
• Two types of cases have been identified where proceedings may be stayed on the basis that their continuance will be an abuse
of process, namely (a) where the defendant would not receive a fair trial and/or (b) where it would be unfair for the defendant to
be tried. (
R v Beckford
1996 1 Cr. App. R. 94).
• The trial process itself is equipped to deal with the bulk of complaints on which applications for stay of proceedings are founded. ( R v Hector & Francois 1984 1 All ER 785).
• An order for a stay of proceedings is of an exceptional nature and should never be made where there were other ways of achieving a fair hearing of the case, still less where there was no evidence of prejudice to the defendant. ( DPP v Hussain , The Times 1 June 1994).
• The ultimate objective of this discretionary power is to ensure that there should be a fair trial according to law, which involves fairness both to the defendant and the prosecution. ( R v Derby Crown Court exp. Brooks 1985 80 Cr. App. R. 164).
• In criminal proceedings, whilst weighing countervailing considerations of policy and justice, it was for the trial judge, in the exercise of his discretion, to decide whether there had been an abuse of process which amounted to an affront to the public conscience thereby requiring those proceedings to be stayed. ( R v Latiff and R v Shahzad 1996 1 WLR 104).
It is also widely established that the burden of establishing that the pursuit of particular proceedings will amount to an abuse of process is on the defence, the standard of proof being the balance of probabilities. ( R. v. Telford JJ., ex p. Badhan ); (see also Archbold’s Criminal Practice 2005 edition at paragraph 4-51 )
It will not be unessential at this juncture to repeat some of the relevant principles already underlined in our first ruling in respect of a similar motion, namely that the defence would have to establish precisely how, in relation to the defence they advance at trial, prejudice is suffered. (per Bingham CJ in R v Cardiff Magistrates’ Court, ex p Hole ).
It was also held in R v Dobson [2001] All E R 109, that “ the adequacy of the evidence necessary before charging a suspect was essentially a matter for the judgment of the police. ”
Finally, a stay of criminal proceedings should not be ordered simply as a form of disciplinary disapproval of the prosecution: R. v. Crown Court of Norwich, ex p. Belsham , 94 Cr.App.R. 382, DC.
Turning to a different aspect of the case, the defence has in the present motion sought reliance on the case of Police v Pierre Guy Noel & Another, (CN 1037/04), where a differently-constituted Bench of the Intermediate Court granted a motion to stay proceedings after it was found that they were tainted with illegality.
It is conceded that as far as the present case is concerned, the above ruling is at best of persuasive authority, but in view of the specific allusion to it by counsel, we feel bound to express our own observations on the issues raised in that case.
The complaint in the case of Noel (supra) concerned the fact that certain materials were not communicated to the DPP. The Court found it established that the Independent Commission Against Corruption (ICAC) had failed to comply with the unambiguous provisions enacted under section 47(6) of the Prevention of Corruption Act 2002 (POCA), which imposed an absolute duty on the ICAC to communicate all materials gathered during their investigation to the DPP prior to the decision of the DPP to prosecute.
It was held that the public interest in upholding the rule of law outweighed the need to continue such proceedings since they were tainted with illegality and had been carried out in blatant disregard of clear and unambiguous statutory provisions.
The situation in that case was obviously dissimilar to what has occurred before us.
Firstly , it is not the contention of the defence that the police withheld material from the DPP thereby making the present proceedings unfair. In fact, it is not challenged that the recent statements recorded were communicated to the DPP soon after they were obtained and that they were thereafter made available to the defence.
Secondly , it became apparent during the proceedings in Noel that the DPP was not in possession of material documents which were in the custody of the ICAC. The circumstances in our case are different.
Thirdly , ASP Jangi gave an indication regarding the nature of the recently recorded statements inasmuch as the police did not consider them very important for the simple reason that sufficient evidence had already been obtained to establish the charges against the accused parties.
Having dealt with the above, we now turn to the gist of the complaint put forward by the defence. They aver that the fact that the statements were recorded so soon before the trial started on the merits implied that the DPP was not aware of all the crucial aspects of the case before advising prosecution, that such conduct was unfair inasmuch as it sought to forestall the defence in cross-examination and reinforce the case for the prosecution at a late stage, and that the right to silence guaranteed to the accused parties would be denied.
In the case of DPP v. Jimale, [2001] Crim.L.R. 138, the respondent was charged with assault. While the victim was cross-examined by counsel for the respondent, he gave the names of other people who were present at the time of the incident. The arresting officer also deposed to the effect that due to oversight a statement was not recorded from a witness. The case was adjourned due to shortage of time and when it resumed the prosecution sought to call evidence from a witness who had been present during the incident. The Court held that there had been an abuse of process since the prosecution had taken unfair advantage of the case being adjourned to call evidence from a witness whose existence was known to the prosecution at the start of the trial.
It was however held on appeal that it was not only proper, but might be highly desirable in the interests of justices for the prosecution to take further witness statements between hearings of an adjourned case and adducing evidence of those witnesses at an adjourned hearing . It was further held that in some circumstances the prosecution would be failing in their duty if they failed to do so and that the Court always had the power under section 78 of the Police and Criminal Evidence Act (PACE) to consider the admissibility of such evidence, and if necessary, to exclude it.
It was thus observed that if the Court was of the opinion that the prosecution had taken unfair advantage of the case being adjourned to call evidence from a witness whose existence was known to them at the start of the trial, the matter should be dealt with by excluding the evidence under section 78 rather than by staying the proceedings, since it would only be in an exceptional case that the Court’s discretionary power to stay for abuse of process should be employed.
In the case of Munnery 1992 94 Cr. App R. 164, it was further observed that when exercising the discretion to exclude evidence, one of the considerations to be addressed by the Court was the possibility of prejudice to the accused where the defence had identified a gap in the case for the prosecution and the defence had committed itself to a tactic based on the exploitation of that gap, only to find it plugged unexpectedly by the prosecution.
In the present case, it is on record that the recent statements recorded from some of the witnesses were allegedly only meant to confirm their signatures on the cheques produced before the Court, and ASP Jangi added that as far as Mr Seetul’s latest statement was concerned, the latter had supported the version of accused no. 1.
Following the authority of Jimale, it is therefore clear that the conduct of the police in recording statements from witnesses at such a late stage does not necessarily entail sanction in the form of a permanent stay of proceedings. Furthermore, the trial process is better equipped to deal with complaints of this nature since this Court always retains the power to exclude unfair evidence.
In that respect, it is worth mentioning that the rule of exclusion found under section 78 of PACE in England emanates from established rules of common law, as identified in a number of cases (see Archbold 2005 Ed. Paragraphs 15 455 & 15 -535).
In view of the above considerations, we further wish to observe that and even if it had been shown that the prosecution authorities had attempted to fill a gap in the prosecution case which the defence intended to exploit, there would have been no justifiable grounds to stay the present proceedings since our rules of evidence provide that our Courts have the power to exclude evidence which is unfairly obtained.
As for the contention that the prosecution was seeking to forestall the cross-examination of the defence and the fact that the accused parties could be denied their right to silence, it is worth mentioning in that regard that Lord Mustill considered in the case of Munnery ( 1992 94 Cr. App. R 164), that although tactics were a legitimate part of the adversarial process, at the end of the day justice was what mattered , i.e., justice to the public, (as represented by the prosecution), as well as to the defendant.
The relevant case law therefore clearly shows that the exceptional measure prayed for by the defence can find no application in the present circumstances, especially where no precise prejudice to the defence has been spelt out.
In the light of the authorities considered, we therefore hold the view that recently recorded statements to confirm signatures borne out on the cheques produced before the Court cannot amount to the type of unfairness which could bring the administration of justice into disrepute, especially when it has not been shown that there has been a blatant attempt on the part of the prosecution to use the process of the Court as an instrument of oppression, injustice or unfairness.
This is even more so when our rules of evidence and procedure are more appropriate to deal with the kind of complaints made by the defence.
In such circumstances we find that there is no justification in granting the exceptional remedy prayed for by the defence.
We however wish to remind our investigating authorities that nothing is to be gained by untimely delay in the conduct of enquiries, especially when our judicial process is endowed with the required tools to exclude evidence where the circumstances require it.
For these reasons we find that the motion for a stay of proceedings cannot succeed.
We therefore allow the trial to proceed on the merits.
Vice-President Magistrate Magistrate
Intermediate Court Intermediate Court Intermediate Court
This 22 nd September 2005
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