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IN THE INTERMEDIATE COURT OF MAURITIUS
Cause No.: 380/01
In the matter of:
The accused stands charged with having on the 2 nd May 2000, while being a police officer, criminally and wilfully received RS 250 to abstain from doing an act in the execution of his functions, i.e. he accepted the money in order not to report a contravention for which he had booked Jean Paul Christian Travailleur earlier on during the day.
He pleaded not guilty to the charge and was assisted by Mr G. Glover in his defence.
The main witness for the prosecution, Mr Jean Paul Christian Travailleur , related that at about 11 10 a.m. on the 2 nd May 2000 he parked his van on Tommy Pilot Street in Rose Hill at a spot where he was required to use a parking coupon. He forgot to do so and left his vehicle there for about 30 to 45 minutes. When he came back a police officer [whom he identified in Court as the accused] approached him and informed him of the contravention. He admitted on the spot that he had forgotten to use a coupon and he also apologised but he was informed that he was still going to be booked. He was asked where he wanted to produce his driving licence and he answered that he would do so at Rose Hill Police. The officer filled in a PF 3 and asked him to sign it. He was then given the original.
At some point the police officer asked him whether he was willing to pay. He answered that he did not wish to do so. He was at that time under the impression that the officer would realise that he had simply forgotten to use a coupon and that he could get away with a simple warning once he had apologised. The officer then invited him to alight from his vehicle and to cross the road. When they met a few seconds later he was again asked whether he wished to pay a fine and he replied in the negative. The officer then asked him how much he was prepared to pay.
Although he did not expect this, the declarant replied that he was willing to pay RS 200. The officer enquired as to whether he had the money with him but as Mr Travailleur had no intention of giving him money, he replied that he did not have such a sum in his possession. The accused then suggested the use of a cash-dispenser but the complainant informed him that he did not have his bankcard with him. The officer also tried to find out whether he could obtain the money from a friend or relative. He then requested the witness to bring the money to Rose Hill Police Station at 12 30 p.m. in order to avoid being given the contravention. Mr Travailleur had by that time guessed that the officer would not mention the incident in what he referred to as the “logbook”.
He went to his office in Reduit and called the CID to inform them of what had happened.
As a result of that phone call, he followed certain instructions given to him, namely, photocopying the bank notes which were to be used as payment as well as the PF 3 remitted to him by the accused. He was also asked to meet the police officers who would tell him what to do. He then went to a spot near Rose Hill Police Station at an agreed time and met the CCID officers who instructed him as to the course of action to be followed.
Mr Travailleur thereafter left for Rose Hill Police Station where he met the accused. Once they were inside his vehicle he gave the envelope containing the RS 250 and the PF 3 to the accused and the latter told him that he would not mention the contravention in the “livre”. The accused stepped out of the vehicle and was then arrested.
Under cross-examination the declarant denied that he was reluctant to accept the contravention or that he had asked the police officer to let him off. He conceded having said in his statement that he did not want to pay a fine but explained that he had said so because he was under the genuine impression that the accused was going to accept his apologies and that he could get away with a warning.
.
Although he had only mentioned one such instance in his statement to the police, he maintained that the accused had asked him more than once whether he wanted to pay the contravention.
He admitted having mentioned in his statement that he waited “a few minutes” before he replied to the accused but explained in Court that with hindsight this was improbable. He also accepted that the alleged request by the accused to proceed to the other side of the road, the conversation regarding the cash-dispenser and the suggestion that he could contact his friends had not been mentioned in his statement since he could not recall every single detail at the time. He was at first unable to say whether he had waited 5 minutes before meeting the accused on the Royal Road but eventually agreed that it could have taken him that long.
He also could not recollect the times at which he went back to his car or when he reached the station.
Mr Travailleur denied setting up an “operation” or asking for advice from anyone although he had been advised to report the matter to the Central CID. He denied that he was instructed by the CCID to entrap the accused but stated that the CCID had advised him regarding the course of action to be followed since he had no intention of remitting the bribe.
Under re-examination he confirmed that it was the accused who asked him to sign the PF 3. He also maintained that he had been truthful in his testimony.
DI Bangaroo explained that the purpose of a police pocket notebook was to enter all actions taken by a police officer and to insert entries immediately after such actions were taken. He had been to the spot where the declarant had been booked and he confirmed that anyone parking in that area without a parking coupon would commit a road traffic offence.
He explained that the procedure for contravening someone was to take down the particulars of the vehicle, those of the driver, to fill in a PF 3, to warn the driver of the offence committed and to report the contravention in the notebook and eventually in the Diary Book [DB].
It would therefore amount to gross neglect if no entry was inserted in the Diary Book. He added that if no Diary Book entry was inserted then no one would be aware of the contravention except for the contravening officer and the person contravened. He agreed that the issuing of a PF 3 did not automatically entail a contravention and that NIP’s (Notice of Intended Prosecution) were not usually issued in cases of failure to use parking coupons. He was of the view that the accused should have made the entry in the Diary Book immediately after one hour.
He was not aware of any agreement with the main witness for the prosecution to entrap the accused.
Ex-ASP Moutien stated that on the 2 nd May at about 11 30 hours he was given instructions by Mr Jassoodanand to meet Mr Travailleur at Rose Hill. He met the latter at about 11 15 a.m. Once his memory was refreshed the witness stated that he in fact met the declarant at 12 20 hours. Mr Travailleur informed him of certain facts and gave him photocopies of banknotes. Mr Moutien then left for Rose Hill police compound in company of a party of men. He went to the office of the Rose Hill Police Inspector from where he could have a clear view of Mr Travailleur’s van in the police compound. He saw Mr Travailleur seated at his steering wheel and at about 12 30 hours he saw the accused coming out of the police station and sitting next to Mr Travailleur in his vehicle.
The accused left the van after a few minutes and was intercepted by PS Ramlagun in front of the police station. At that time the accused’s hands were “clenched” and PS Ramlagun removed 2 banknotes from the accused’s right fist whereas the original PF 3 was found in his left fist. The accused was then arrested and brought to CCID.
Inspector Ramlogun was positioned behind a wall at Rose Hill Police Station compound on the 2 nd May 2000. He had a clear view over the compound and he saw the accused going into Mr Travailleur’s vehicle. The accused alighted after a few minutes and was then intercepted. The officer revealed his identity to the accused and asked him to open his fists. He found in his right hand the sum of RS 250 and in his left hand an original PF 3.
The officer confirmed that when contravening someone a police officer should insert a note to that effect in his police notebook and then insert a DB entry, an OB as well as put up a statement once he reached the station.
Under cross-examination the officer admitted that when contravening someone an officer only issued the contravened person with a PF 3 in case the latter was unable to produce his driving licence and insurance certificate on the spot. He denied that there was an agreement that Mr Travailleur would go and bribe the accused and maintained that there had been an original complaint to the effect that the accused had solicited a bribe.
No evidence was adduced for the accused.
According to his statement in defence (given in presence of Counsel on the 3 rd May 2000) he joined the police force in 1989 and had been posted at Rose Hill Police for two months. On the 2 nd May 2000 he went to patrol Rose Hill Royal Road to prevent and detect offences and to regulate traffic. At about 11 40 hours he saw private van no. 1004 MR 99 parked on the left side of Thommy Pitot Street without a parking coupon. The driver came by while he was noting down the vehicle details on a PF 3 as he intended to contravene him. He informed the driver of his intention and he also asked him for his name and address.
He then asked him to sign the PF 3. Mr Travailleur asked to be given a chance as he claimed that he could have problems at work if he was fined. The accused told him that there was nothing he could do and left the spot. He conceded that according to his duty roster on that day he was supposed to patrol until 13 00 hours although he called at the station at 12 30 hours to insert an entry regarding the contravention against Mr Travailleur.
As he was about to enter the station he saw Mr Travailleur who “ insisted in a friendly manner ” for the accused to accompany him to his van as he had something to tell him. They both went inside the van and were seated in front. Mr Travailleur again told him that he was scared of a police case because of his job. As the accused stepped out of the van Mr Travailleur put something inside his right pocket trousers and drove off. When the accused removed his hand from his pocket he found that it contained the PF 3 earlier remitted to Mr Travailleur enclosing the sum of RS 250.
He was then arrested by members of CID personnel. He maintained that he would have reported a case of “bribing police officer” had the CID officers not intervened.
He was not in possession of his police pocket notebook at the material time. He denied telling Mr Travailleur to meet him at Royal Road after asking him whether he was willing to pay the fine. He further denied asking the declarant to meet him at 12 30 hours at Rose Hill Police Station and to bring RS 250 in order for him not to report the contravention. The accused also denied asking the declarant for the money while they were in the van, or telling him that he would not report the contravention after he was given the money.
He explained that the false allegations were levelled against him in order for the declarant to avoid prosecution.
Ms Gareeboo for the prosecution submitted that the elements constituting the offence had been proved, namely that (1) the accused was a public officer on duty, (2) he received a gift or reward, (3) to abstain from doing an act (4) which he was empowered to do. She submitted that the only issue was the credibility of witness Travailleur who could not be doubted in spite of some contradictions in his testimony which could not be assimilated to a memory test.
She added that the accused’s unsworn version was hardly credible since Mr Travailleur could not have inserted something in the accused’s pocket while he was at his steering wheel. It could not also be considered a coincidence that the witness and the accused were found at the station at the same time.
As for the issue of entrapment, she submitted that this was inconsistent with the defence put up by the accused. It was not Mr Travailleur who had offered to pay and the role played by the police officers on the spot was passive as the offence had already started well before the police intervened.
Mr G. Glover submitted for his part that the evidence of Mr Travailleur could not be believed because of the many inconsistencies contained therein. He suggested that the latter hatched a plan to trap the accused since he did not immediately report the matter to the police and decided to seek advice before he did anything.
Defence Counsel drew a distinction between the offence of receiving a bribe and that of soliciting a bribe which latter offence had already been committed when the main witness for the prosecution was instructed to trap the accused.
It was thus argued that although entrapment was not a defence, this Court had an inherent power to prevent abuse of its process.
In view of the evidence of Mr Travailleur, defence counsel submitted that it was obvious that the police had instructed the latter to give a bribe to the accused and that the crime amounted to state-created crime. Had it not been for police interference, the offence would thus not have been committed.
The whole of the evidence adduced by the prosecution had to be closely examined in the light of the submissions offered by counsel for the defence.
It is immediately apparent that Mr Travailleur’s credibility was thoroughly tested during the prolonged examination to which he was subjected.
He was asked to relate events which took place more than four years before he appeared in Court, and since he was at the witness stand for some time, I had ample opportunity to observe the manner in which he reacted to the questions put to him.
I found him an extremely cogent witness. He was unhesitant in the answers he gave and candidly informed the Court whenever he could not recollect events.
His memory had to be refreshed on a few occasions and he convincingly explained why he was unable to recall some of the details concerning the case.
In that respect, I fully endorse the proposition of Ms Gareeboo for the prosecution to the effect that the evidence given in Court by a witness cannot amount to a memory test.
The following remarks in Pahalad Chatoorsing v The State (2002) SCJ 4, relying on Dhunny v R (1991) SCJ 145, are thus relevant:
Furthermore, a witness is not expected to remember every fact he had stated to the police in the course of the investigation..
I now turn to the alleged incoherent parts in Mr Travailleur’s evidence.
He did state at the beginning of his testimony that it was difficult for him to remember certain facts since the events happened some time ago. He also frankly stated that he could not remember the exact words which had been used by the accused at the material time.
Indeed, this Court would have been highly sceptical had the witness been able to remember with ease and minute precision the exact time for each of the alleged events which occurred more than four years before he testified in Court.
He explained that he was unwilling to pay a fine because he was under the impression that he could get away with an apology and a warning. He further stated that he gave as much information as he could at the time he gave his statement although it had been impossible for him to recall all the details. He was not surprised by the realisation that his statement to the police did not contain all the particulars concerning the incident since he admitted that he had not recounted all the details to the police.
Bearing in mind that the incident occurred on the 2 nd May 2000, i.e. almost 5 years ago, I find that it would be unrealistic to expect the witness to recollect with extreme accuracy what happened on that day between 11 40 hours and 12 30 hours.
After close scrutiny of Mr Travailleur’s evidence as well as his demeanour in Court, I find that he deposed in such a straightforward and coherent manner that the Court was left with no doubt that he was truthful under oath.
I therefore find him a reliable witness on whose testimony I can safely rely, especially since the minor contradictions highlighted were incidental to the material issues and were all accounted for by the witness.
The second limb of Mr Glover’s arguments concerns the issue of entrapment.
In that respect, the main witness for the prosecution stated that once he was issued with the PF 3 he was asked by the accused whether he was willing to pay the fine. Then ensued a number of queries from the accused as to how much he was willing to pay and in what manner he could obtain the money before he was finally requested to bring the money to Rose Hill Police Station at a specified time.
Mr Travailleur adamantly denied setting up an operation to entrap the accused or acting under the instructions of the Central CID to do so.
Much was also made about the giving of “instructions” although it became abundantly clear during the trial that the said “instructions” only amounted to the agreed course of action to be adopted in order to successfully gather evidence against the accused.
For reasons already outlined, I have no doubt as to the veracity of Mr Travailleur’s version on the above issues.
Having accepted his evidence as true, I must consider whether the circumstances related by the witness amount to entrapment in law, and therefore to an abuse of the Court‘s process.
It was indeed recognised in the case of
The State v Fadhili Mwikalo Salim
(2000) SCJ 192, following the House of Lords cases of
R v Latif & R v Shahzad
(
1996) 2 Cr. App. R. 92, that in criminal proceedings, 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. The case of
R v Mullen
(1999) C. L. R. 561, was referred to, where the Court of Appeal held that a Court determining whether there had been an abuse of
process had to carry out the balancing exercise, identified by Lord Steyn in
Latif
and
Shahzad
(supra), between the public interest in ensuring that those charged with grave crimes should be tried and the competing public interest
in not conveying the impression that the Court would adopt the approach that end justified any means.
The cases of R v Looseley and AG’s Reference (No. 3 of 2000) (2001) UKHL 53, are also widely accepted as authoritative on the tests to be adopted by Courts in similar instances.
It was held in these cases that in deciding whether conduct amounts to state-created crime, the overall consideration was whether, having regard to all circumstances of the case, the conduct of the police or other law enforcement agency is so seriously improper as to bring the administration of justice into disrepute .
Circumstances which are of particular relevance are the nature of the offence, the reason for the particular police operation, and the nature and extent of police participation in the crime. The greater the inducement held out by police, and the more forceful or persistent the police overtures, the more readily may a Court conclude that the police have overstepped the boundary.
It was thus propounded (at paragraph 23) that a useful guide was to consider whether the police did no more than present the defendant with an unexceptional opportunity to commit a crime i.e. the police did no more than others could be expected to do in the circumstances.
As far as the nature of the offence was concerned it was observed that the use of proactive techniques was more needed and, hence, more appropriate in some circumstances than others, and that having reasonable grounds for suspicion was one way of establishing good faith.
Lord Hoffman remarked at paragraph 66 of the Judgment that consensual offences such as dealing in unlawful substances or offences with no immediate victim like bribery or offences which victims are reluctant to report are the most obvious candidates for such methods.
[The emphasis is all mine].
In an article titled “ Re-drawing the Boundaries of Entrapment ” by Andrew Ashworth and published in (2002) Crim. L. R. 161, which defence counsel kindly provided to the Court, the author confirmed that there was now what he termed as the “unexceptional opportunity” test, described by Lord Nicholls in Looseley as the yardstick of “ whether the police conduct preceding the commission of the offence was no more than might be expected from others in the circumstances .” [See also: Mack 2 S. C. R. 903, Supreme Court of Canada].
The author also confirmed the “reasonable suspicion” requirement for cases involving ordinary members of the public, as proposed by Lord Hoffman in Looseley.
The learned author also writes at page 169:
“As argued by David Omerod and Andy Roberts ([2000] 2 Cr. App. R. 472), the proper response to such circumstances is surely to mount a surveillance operation in order to identify individuals in respect of whom there is reasonable suspicion of involvement in the offence, and then only target those individuals. That would maintain the principle that individuals should not be subjected to temptation from officials unless there are reasonable grounds for suspicion .”
He concludes by saying that:
A. There is no entrapment (i) if the law enforcement officers have reasonable grounds to suspect the targeted individual of involvement in a certain kind of offence, or at least reasonable grounds to suspect people frequenting a particular place to be thus involved, (ii) if the officers are duly authorised to carry out the operation, in compliance with the appropriate Code of Practice, and (iii) if the officers do no more than provide the individual with an unexceptional opportunity to commit the offence.
…
Applying the above principles to the case in hand, it becomes apparent, based on the evidence of Mr Travailleur, that the accused himself was the main instigator of the events which occurred on the 2 nd May 2000.
He initiated the whole process leading up to his arrest when he asked the declarant whether he was prepared to pay the fine, thus obviously hinting at a way out of the contravention.
He thereafter persevered in trying to find ways and means of obtaining the money and also suggested the time and place where the bribe was to be remitted.
The evidence in effect shows that it was the accused himself who invited the complainant to pay him in order to avoid the contravention.
Mr Travailleur clearly explained that his intention at the time was to inform the police of what had happened so that the accused could be caught. The “instructions” he received were clearly meant to facilitate the gathering of evidence, especially since the Central CID, once informed by Mr Travailleur, mounted an operation which was in line with “reasonable suspicion”, as exposed in the authorities just referred to.
In view of the evidence adduced from the main witness for the prosecution, it cannot also be disputed that Mr Travailleur and the CID officers who were part of the operation did nothing more than provide the accused with an unexceptional opportunity to commit the offence since the accused himself had already given directions to Mr Travailleur as to how to pay the bribe once he had ascertained that the latter was seemingly interested in doing so.
There was thus nothing on the part of the witnesses for the prosecution which could come close to inciting or luring the accused into doing something which he was not going to do in the first place.
In view of the nature of the offence charged and the circumstances revealed in Court, I find that there was nothing “so seriously improper” in the conduct of the prosecution witnesses at the material time which could properly justify either a stay of proceedings or a dismissal of the charge against the accused.
On the other hand, the Court has taken cognizance of the version contained in the accused’s defence statement which was given in presence of counsel. He does not dispute contravening the declarant and being caught with the money and the PF 3. He however explains that the declarant insisted to approach him in a “friendly manner”, (a most unlikely prospect in view of their earlier encounter), and that he planted the money and the PF 3 in his pocket.
Quite apart from the improbability of such a scenario arising in the given circumstances, Mr Moutien and Inspector Ramlogun both stated that at the time of his arrest the accused was holding the money and the Police Form within clenched fists and that they had seen the accused and Mr Travailleur inside the latter’s car.
If anything, the accused’s unsworn version tends to support the evidence led from Mr Travailleur in Court since he admits that (1) he booked the declarant for a road traffic offence on the material day, (2) he met him at Rose Hill Police Station at 12 30 hours and (3) he was found with RS 250 in his possession soon after meeting the complainant.
The remaining parts of his statement are clearly untenable.
I have taken into account that defence counsel did not dispute the charge as laid as well the submissions made by counsel for the prosecution on that score which are in line with the decisions in Deoadass Kaundun v The State (1998) SCJ 120 and Monaf Naim v The King (1945) MR 26. There is therefore no need for me to dwell on that aspect of the case.
In view of the above considerations I find that the evidence unequivocally points towards the accused’s guilt. I therefore have no doubt that he did accept a bribe in the circumstances described by the prosecution witnesses on the 2 nd May 2000.
For these reasons I find the accused guilty as charged.
This 3 rd March 2005
Magistrate
Intermediate Court
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