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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 namely, 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, which commission was in fact not due to Rogers, and in so doing causing prejudice to Air Mauritius Co Ltd.
Under count 2 accused no. 3 is also 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 1996 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.
All four accused parties plead not guilty to the respective charges against them and are assisted by counsel.
The defence moves that proceedings be stayed in relation to all counts because of (1) undue delay, being given the dates mentioned in all the counts of the information and (2) on the ground of abuse of process.
The motion was subsequently amended to include the averment that the police had not observed fairness, especially at the level of the police investigation, so that the accused parties should not have been brought to trial.
The particulars of the alleged unfairness were given by way of letter dated the 6 th August 2004. They are as follows:
1. The police failed in its duty to record statement(s) from several persons who have been named by Mr G. Tyack as allegedly having benefited illegally from the funds of the “special commission”. Therefore the police failed to verify every allegation made by Mr Gerard Tyack concerning the use of the “special commission”.
2. The following persons mentioned by Mr Gerard Tyack in his statements have passed away: Mr Philippe Boulle, Mr Edwin Venchard, Mr Raymond Robert, Mr Marcelle Lagesse, Mr Didi Lagesse, Mr Harold Walter, Mr K. Sunnassee.
These persons are alleged to have received payments from the impugned funds and could have been witnesses for the defence to deny having received payments from the so-called special commission funds.
3.1 A document has been produced to the police in relation to the General Sales Agreement between Rogers and Co Ltd and Air Mauritius Limited dated 15 th October 1984 signed by Mr Jean Ribet, who has passed away.
3.2 The defence will rely on the Agreement of General Sales Agreement between Air Mauritius Ltd and Rogers and Co Ltd dated 1 st April 1982 where two of the signatories of the Agreement, namely Mr P. Boulle and Mr C. Coaucaud have passed away.
They are the persons who could have enlightened the Court as to the tenor of the agreement, especially in relation to the alleged special commission.
3.3 It is emphasized that on the one hand Mr Jean Ribet was concurrently the General Manager, Commercial Affairs of Air Mauritius Ltd and the General Manager of Rogers Aviation for at least the period 1967 to 1985, and on the other hand Mr Philippe Boulle was the secretary of Air Mauritius.
4. Mr Nash Mallam Hassam, the former Chairman and Managing Director of Air Mauritius Ltd, who is an important witness as regards the changes made in 1998 to the 1984 Agreement between Air Mauritius Ltd and Rogers Co Ltd has also passed away.
5. Mr Ian Leclezio, a person named by Mr Gerard Tyack, has settled in France.
6. The Accused are also prejudiced in their defence as documentary evidence in support of their case have been destroyed or are untraceable, namely:-
(i) Air Mauritius admits that its archives have been destroyed and it does not have any documents prior to 1 st April 1990 on the issue of special commissions;
(ii) It is also verily believed that there is no documentary banking evidence prior to 1990 to support the defence as such evidence have been destroyed.
ASP Jangi testified on behalf of the prosecution and solemnly affirmed an affidavit in connection with the first ground since the defence only included the ground of unfairness after the present proceedings had already started.
The contents of the affidavit reveal the factual background which led to the institution of the present proceedings.
According to the affidavit the police enquiry was initiated on the 13 th September 2001 when Mr Jack Bizlall, an accounts clerk, made a declaration of alleged conspiracy against the personnel of Air Mauritius Co Ltd involving fraudulent practices to defraud funds of the said company in the amount of several millions of Rupees.
The investigation was referred to the Central Criminal Investigation Division of Port Louis on the 15 th September 2001 and the enquiry revealed that alleged fraudulent transactions took place at Air Mauritius in the sum of about RS 85 million from 1981 to 1999.
The police interviewed sixty persons in connection with the case and about 113 statements were recorded. In the course of the investigation a bulk of documents was produced and several documents were also secured during search operations.
The following persons were arrested during the enquiry:
Gerard Tyack, Sir Harry Krishna Tirvengadum, Joseph Desire Robert Rivalland, Louis Joseph Chan San Chen Tip Tong [sic] and Derek James Alexander Taylor.
The file was sent to the DPP on the 31 st May 2002 for advice and further enquiry was requested on the 19 th July 2002. The file was again submitted to the DPP on the 31 st July 2002 and on the 8 th November 2002 the police was advised to first prosecute J. M. G. Tyack for conspiracy.
The file was sent to the Intermediate Court Prosecutor on 11 th November 2002 and the case against Mr Tyack was lodged on the 19 th November 2002. He pleaded guilty to both counts of the information and on the 6 th March 2003 was sentenced to 3 years penal servitude under each count. He gave notice of appeal on the same day and execution of judgment was thereafter stayed.
The Supreme Court heard his appeal on the 11 th May 2004 and Judgement dismissing the appeal was delivered on the 10 th June 2004. Mr Tyack then moved for leave to appeal to the Judicial Committee of the Privy Council.
On the 5 th September 2003 the DPP’s Office requested the police to clarify certain matters in the enquiry with regard to other persons.
On the 15 th October 2003 accused no. 4 informed the DPP’s Office that he had useful information and a statement was recorded from him in presence of counsel on the 22 nd January 2004.
On the 23 rd March 2004 prosecution was advised against the four accused parties for the offence of conspiracy in breach of section 109 of the Criminal Code (Supplementary) Act before the Intermediate Court. The present case was lodged on the 25 th March 2004.
ASP Jangi therefore states in the affidavit that there was no undue delay in the institution of the proceedings since the prosecution intended to call Mr G. Tyack as a witness and had to wait for the disposal of the case against him before lodging the present information.
He further avers that the alleged fraudulent transactions only came to the knowledge of the police in September 2001.
The evidence in Court
Mr Jangi stated in Court that there were two limbs to the police enquiry inasmuch as they enquired into (1) the alleged special commissions and (2) the insurance policy. The present case was concerned with the first part of the police enquiry, i.e., the “special commissions”.
The police relied upon the evidence of Mr G. Tyack, as well as on various documents and on witnesses from Air Mauritius and Rogers. The documents involved were cheques, invoices and a cashbook.
Mr G. Tyack had mentioned many persons to whom he allegedly gave money from a fund and almost all of them had been interviewed. Some of the persons named by Mr Tyack had passed away, namely Mr P. Boulle, Marcel Lagesse, Raymond Robert, Sir Harold Walter and K. Sunnassee.
ASP Jangi explained that some of the persons who had passed away (Philippe Boulle, Edwin Venchard, Raymond Robert, Marcel Lagesse, Didi Lagesse, Sir Harold Walter and K. Sunnassee) were, according to the enquiry, not involved in the setting up of the special commission.
No statements were recorded from J. P. de Chazal, Michel de Ravel, Maurice Desjardins and P. Audibert because it was not deemed necessary to do so. No statement was also recorded from Sir Cassam Moollan.
Patrick Audibert, Giblot Ducray, Kamal Prakash Ruchpaul and Cassam Uteem had declined to give statements to the police.
Mr Tyack had mentioned about 40 names in his statement to the police, and according to Mr Tyack himself, most of them had benefited from the fund. Enquiries had been carried out regarding 26 of these persons and 22 of them gave statements to the police whereas 4 of them declined to do so.
Only six of them, [JWL Gaston Ritter, Louis Wilmen Brasse, Mr Leclezio, Mr l’Argentier, Mr Lam Nang Chin and Mr Patrick Michel], confirmed having received money from the alleged special funds although they had denied knowledge of the origin of the money.
Most of the names mentioned in the cashbook had been inquired into and, according to the enquiry, none of the persons mentioned by Mr Tyack in his statement to the police were involved in the setting up of the alleged scheme for fictitious payment of the “special commission”.
Accused no. 2 had produced a document dated the 15 th October 1984 (document C – Notes of Discussion), which was signed by Mr Ribet on behalf of Rogers and Co Ltd. The document made reference to a letter of the 28 th March 1984 (document D – also in possession of the police), signed by accused no. 1, the then Chairman and Managing Director of Air Mauritius.
During the enquiry none of the witnesses or accused parties had mentioned the General Sales Agreement dated the 1 st April 1982 between Air Mauritius and Rogers. No documents had also been produced in that respect.
According to the police witness, accused no. 2 had told the police that document C was approved by accused no. 1 and that document D mentioned the fact that Air Mauritius had decided not to renew the agreement with Rogers as sole General Passenger and Cargo Sales Agents. The police did not try to find out who had produced this document and whether such an agreement existed since it had not been mentioned by anyone. (Page 8 of proceedings of 3 rd September 2004).
The witness confirmed that document D referred to the equivalent in overriding commission and that it was possible that Mr Ribet, now deceased, could have been able to interpret the document. He however maintained that there was no mention of “special commissions” in the document.
The purported original agreement of 1982 was also put in evidence (document F) but the witness stated that no one had mentioned or produced that document to the police during the enquiry.
Mr Jangi could not say in Court whether certain Societes which were under the control of Mr Tyack had been enquired into.
As for accused no. 2, he had said in his statement that Mr Ribet was his boss until 1986 and that the latter had also endorsed some of the cheques drawn by Air Mauritius in alleged payment of “special commission” to Rogers.
The police had found no agreement between Air Mauritius and Rogers concerning the alleged “special commission” payable to Rogers.
There had also been attempts to trace Mr Patrick Audibert, Mr Giblot Ducray, Christian Perreau, Laval Perreau, Eric Espitalier Noel and Mario Ah Tong but they had not been found.
Mr P. de Chazal, Eric Noel, Laval and Christian Perreau, Maurice Desjardins, Mario Ahtung, Mr Heeramun, Mr Bundhoo, Mr Gregg, Mrs Catherine Appaya, Mr Chattugoon Harry, Ian Leclezio and Sei Yo Foo were according to the witness in fact all overseas so that statements could not be recorded from them.
ASP Jangi further explained that after discussion with the officer in charge of the enquiry, it was decided not to proceed further with regard to these witnesses since some of the persons interviewed had denied knowledge of the existence of the special fund. That line of enquiry had therefore led to no fruitful purpose in connection with the establishment of the special fund or knowledge of the funds by the alleged beneficiaries. (Page 1-2 of proceedings of 3 rd September 2004.)
The police authorities therefore had to use their discretion to stop that line of enquiry and to start focusing on the setting up of the alleged “special commission”. (Page 6 of proceedings of 3 rd September 2004).
As for Mr Tyack, he had explained in his statement that he set up the special commission after he was asked by accused no.1 to devise a way of obtaining money to help political parties. It was then agreed between him and accused no. 2 that the way to obtain such money was to deduct funds in favour of Rogers and to have the cheques returned to Air Mauritius after the directors of Rogers had endorsed them. (Proceedings of 13 th September 2004).
Mr Tyack had explained that the only opportunity for doing so was for Air Mauritius to pay a “special commission” to Rogers over and above the normal and overriding commission already paid to them as General Sales Agents for Air Mauritius. Mr Tyack had thus informed accused no. 1 that the only possibility for such financing was to apply a “special commission”. He had revealed that after the cheques were endorsed by the directors of Rogers, he cashed them and kept the money under his control.
ASP Jangi explained that debit advices were therefore drawn by Rogers and addressed to Air Mauritius.
Before these debit advices were issued under the authority of Mr Tyack, a “releve des comptes” of commission allegedly due to Rogers was prepared by the Clerks of Air Mauritius in their accounts department. (Page 23 of proceedings of 3 September 2004.)
The police had therefore enquired into the adopted procedure from Mr Tyack himself and from personnel of Rogers and Air Mauritius.
Mr Jangi accordingly maintained that the 1982 agreement was related to the fact that Rogers was appointed as the General Service Agent of Air Mauritius (page 8 of proceedings of 5 th October 2004). It was also found that the said agreement was not renewed in 1984 although it was agreed that Rogers would continue to sell tickets for Air Mauritius and would thus be paid an overriding fee.
The police had in fact enquired as to whether there existed a written or verbal agreement with regard to the alleged “special commission” but had found that such agreement did not in fact exist.
The witness also explained that it had come to light during the police enquiry that the directors of Air Mauritius endorsed cheques whilst the clerks of Air Mauritius prepared the amount of commission to which Rogers was allegedly entitled under the orders of Mr Tyack. These cheques were drawn after the debit advice from Rogers reached Air Mauritius. The police had tried to obtain the cheques endorsed by Mr Ribet but these were not retrieved because they had been destroyed in compliance with normal business transactions. (Page 20 of proceedings of 3 rd September 2004).
ASP Jangi was not aware as to whether the explanations from accused no. 2 regarding the context in which overriding commissions were paid to Rogers had been verified. He could not also say whether there were statements from representatives of Oceanic Travel Agency concerning the payment of overriding commissions over and above normal commissions on the Singapore and Hong Kong routes.
He confirmed that Mr Mallam Hassam had put an end to the commission by letter dated the 12 th May 2000.
He further stated that according to the statement of accused no. 1, the question of increasing or decreasing commissions rested with the commercial and finance departments of Air Mauritius, i.e., Mr L. J. Ribet, and that when the latter retired, Mr Seegobin from Air Mauritius together with Mr Tyack and Senior Officers took care of those particular transactions.
No statement had however been recorded from Mr Seegobin.
Mr Tyack had further revealed holding investments abroad although ASP Jangi could not say whether any foreign accounts belonging to Mr Tyack had been checked. The police had also not found it necessary to verify the “ casier hypothecaire ” of Mr Tyack.
The witness therefore maintained that the enquiry had been geared towards the establishment of the alleged “special commission”.
Statements had also been recorded from Mr Rama Sithanen but the latter had informed the police that Mr Tyack’s allegations were untrue. (Page 8 of the record for the 13 th September 2004).
As far as accused no. 2 was concerned, the witness stated that the enquiry had revealed that the latter had not derived money from the operation of the scheme and that the said accused had explained in his statement the circumstances in which Air Mauritius was created and the relationship it shared with Rogers Co Ltd since its inception.
Accused no. 2 had produced documents C and D to the police although the officer strongly denied that the overriding commissions mentioned in these documents included the alleged “special commission” (page 13 of proceedings of 13 th September 2004) since this had not been clarified by accused no. 2.
The witness explained that it was not vital for the police to verify what was meant by overriding commission or to check from Mr Legis Rivalland who was to follow up the implementation of the agreement mentioned in document C since the police had already worked out the difference between an overriding commission, a normal commission and a “special commission”. (Page 14 of proceedings of 13 th September 2004).
The police authorities had therefore used their discretion and had decided not to go into certain details as some of their enquiries were leading nowhere.
Mr Jangi therefore maintained that the enquiry had been carried out in a fair manner to both sides.
He further stated that according to the enquiry, accused nos. 3 and 4 had also not benefited from the alleged special funds. He added that he was aware of the statement given by the Treasury Manager of Air Mauritius, Mrs Sandragassen, who had said that she did not find the “special commission” irregular since the payments were accounted for by the accounting section and were budgeted in the company’s financial statements. She had also apparently never been queried by the audit department of Air Mauritius.
As for Mr Venchard, although he was informed that his name appeared in the cashbook, he had declined to give a statement to the police after he had already started representing accused no. 1 as counsel.
Mr Tyack had also stated that he was not the only person who had remitted funds to people since he had also given money to accused no. 1 for the latter to effect certain payments himself.
ASP Jangi further explained that the names of Christian Perreau, Laval Perreau, Eric Espitalier Noel and Mario Ah Tong mentioned by Mr Tyack were not only found in the latter’s statement, but also appeared in the cashbook.
The names of P. de Chazal, Espitalier Noel, Laval and Christian Perreau, Maurice Desjardins, Mario Ah Tung, Mr Heeramun, Mr Bundhoo, Mr Gregg, Mrs Appaya, Mr Harry, Ian Leclezio and Sey Yoo Foo were thus obtained from the cashbook and supported most of the documentary evidence obtained by the police.
The cashbook was divided into two parts and the sums on the “income side” tallied exactly with the figures found on the cheques for the payments of the alleged “special commissions”. (Pages 5, 6 and 7 of proceedings of the 5 th October 2004).
Mr Jangi conceded that statements were not recorded from some people and that not all entries in the cashbook had been verified since the police had decided not to pursue every detail contained in the cashbook and since the enquiry was principally geared towards the “special commission”. Whatever was considered trivial was therefore not enquired into. (Page 7 of proceedings of 1 st December 2004).
He maintained that the police had carried out a thorough enquiry which was focused on the establishment of the alleged “special commissions”.
He also confirmed that police was relying on cheques, invoices and especially the cashbook of Mr Tyack. During the enquiry about 41 debit advices dating from 1996 to 1999 as well as 80 cheques dating from 1992 to 1999 had been secured.
Mr C. Manraj deposed on behalf of the defence and stated that Mr Jean Ribet was employed by Rogers Co Ltd between February 1946 to December 1990 as Manager of the Aviation Department and thereafter as Manager and Adviser. He was also a Director on the Board of Directors of Air Mauritius Ltd from 1981 to 1988. As for Mr Couacaud, he had left employment at Rogers in January 1984 as Chief Executive of the company. The witness was aware that Rogers was being sued by Air Mauritius and that according to their plaint, their archives up to March 1990 had been destroyed.
The internal auditor of the Mauritius Commercial Bank testified to the effect that documents which included cheques for the period 1990 to 2004 were still available although those dating back to before 1990 were no longer in existence following normal banking practice. (Page 30 of proceedings of 1 st December 2004.)
Evidence was also adduced for the defence revealing that in April 2002 accused no. 1 had resigned as chairman of the Indian Ocean Regional Fund because of his involvement in the present case. The witness who deposed to that effect however pointed out that accused no. 1 had not been dismissed from his post.
We have considered the relevant evidence adduced for purposes of the present motion and there is no need at this juncture to reproduce in extenso the detailed submissions offered by counsel on both sides.
We shall now consider the relevant authorities in turn in order to set out the principles which we found pertinent to the issues raised.
A. The Guiding Principles
Lord Griffiths held the view in
R v Horseferry Road Magistrates Court, ex p. Bennett
(1994) 
98 Cr. App. R. 114, that:
“If the Court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law …
I have no doubt that the judiciary should accept this responsibility in the field of criminal law.”
It can therefore be safely stated at the outset that this Court has an overriding duty not to tolerate proceedings founded on blatant breaches of an accused party’s fundamental rights, as guaranteed under our Constitution.
In Mauritius, these Constitutional safeguards are not restricted to criminal proceedings since there have been instances in civil proceedings where our Supreme Court found that no fair trial could ensue if a party would be prejudiced in the conduct of his case. The Court recognised that our Constitutional provisions, under article 10(8), protected parties who might suffer from prejudice resulting from delay.
Thus, in Bundhoo v Bhugoo & Another (1995) MR 177, the action was dismissed on the ground of inordinate delay.
That case can however be distinguished from the case under consideration since not only did it concern civil proceedings, but it was agreed in that case that the defendants had been more than minimally prejudiced for having had proceedings hanging over their heads for a long time. It is also to be noted that in that case the plaintiffs had started their claim in 1972, it was then struck out in 1977 and re-lodged 7 years later.
The contumelious conduct on the part of the plaintiff was therefore a major consideration during the Court’s determination.
B. Delay
The defence contend that due to the delay which has arisen since the occurrence of the alleged offences, the accused parties cannot benefit from a fair trial and documents as well as witnesses are no longer available, thereby causing prejudice to the accused parties.
We respectfully cannot endorse that proposition since it has been confirmed by the case law that in deciding whether proceedings are instituted within a reasonable time, the relevant time period commences at the earliest time at which a defendant is officially alerted to the likelihood of criminal proceedings against him, i.e., the time at which the defendant is charged or served with summons. [See: Attorney General’s Reference [No. 2 of 2001] 2004 2 All E R 1049].
The Privy Council in Darmalingum v The State of Mauritius [2000] UKPC 30, has also recognised that the relevant period would commence upon the arrest of the appellant [See: Deweer v Belgium [1980] 2 All E R 439.]
In the present case it has not been disputed that the police enquiry was initiated on the 13 th September 2001 [re: the affidavit filed for the police], and that the case was lodged in March 2004, once the case against Mr G. Tyack had been disposed of.
There was also no suggestion on the part of the defence that their objections rested on classic pre-trial delay complaints.
Be that as it may, in view of the submissions made with regard to the alleged unfairness in the way the police enquiry was conducted, we shall at a later stage revert to the issue of delay, with particular reference to the alleged difficulties which may be encountered by the accused in the conduct of their defence.
C. Categories of Unfairness
In the case of Ian Anthony Beckford v R (1996) 1 Cr. App R. 94, it was found that in certain circumstances the Court could stay criminal prosecutions based on the Constitutional principle that the Courts have the power and the duty to protect the law by protecting its own purposes and functions.
Two main strands were thus identified:
(1) Cases where the Court concluded that the defendant could not receive a fair trial;
(2) Cases where the Court concluded that it would be unfair for the defendant to be tried.
Mr Y. Mohamed S.C who appears for accused no. 1 thus submitted [at page 22 of the transcript for the sitting of 2 nd September] that the defence was relying on the second category recognised in Beckford.
It is also to be noted that in that case the Court was faced with circumstances where the police had failed to make arrangements for the retention of a car which had been scrapped before the appellant was charged with causing death by careless driving.
We are not concerned in the present case with failure to retain evidence by the police since it appears from ASP Jangi’s testimony that the police was in fact unable to collect some evidence, as the case was reported well after the evidence had been destroyed.
The internal auditor of the bank who gave evidence on behalf of the defence also clearly stated that certain documents had been destroyed in compliance with normal banking practice.
In the cases of Ebrahim v Feltham Magistrates’ Court & Mouat v DPP [2001] 2 Cr. App. R. 427, (the Ebrahim case ), these two categories were reaffirmed.
We shall therefore examine the submissions of counsel while paying particular regard to the applicable authorities under that limb.
D. The Facts
1. The Unavailable Beneficiaries of the ‘Special Commissions’.
The defence avers that the police failed to record statements from the alleged beneficiaries of the “special commission” and that they therefore failed to verify every allegation made by Mr G. Tyack concerning the use of the “special commission”.
Here again, we are unable to follow the submissions made by the defence on that score since it has not been established that the police had such a duty to discharge.
ASP Jangi maintained in Court that there was no need to carry out such an exercise. The reasons were manifold. Some of the alleged beneficiaries had passed away and out of most of those who were alive and interviewed, some had declined to give statements.
Moreover, after enquiries were made with 26 of those named, only six of them confirmed having received money but denied knowledge of the source of the funds. The enquiry thus revealed that none of the persons interviewed in that regard were involved in the setting up of the alleged scheme for fictitious payments from the “special commission”, which was the main focus of the police enquiry.
The officer also stated that the police had unsuccessfully tried to trace out a number of persons named by Mr G. Tyack and that it was eventually decided not to pursue that line of enquiry as it was leading to no fruitful purpose in connection with the setting up of the alleged “special fund”.
We may pause here to refer to the text relied upon by Mr Y. Mohamed S.C., namely Abuse of Process in Criminal Proceedings (2 nd Ed.) by D. Corker and D. Young.
At paragraph 3. 21 of the book the Judgment of Brooke L.J. in Ebrahim is analysed in the light of the 1997 Code of Practice published under the Criminal Procedure and Investigations Act 1996 (CPIA).
The authors state:
“The key question for a Court, when determining whether material should have been retained, depends upon the Court’s view as to whether the videotape, for example, was or may have been relevant in wide terms, thus imposing an onerous obligation on investigators or prosecutors to retain material. Under the CPIA Code of Practice, para 2.1 the following definition is given:
‘ material may be relevant to an investigation if it appears to an investigator, or to the officer in charge of the investigation, or to the disclosure officer, that it has some bearing on any offence under investigation or any person investigated, or on the surrounding circumstances of the case, unless it is incapable of having any impact on the case’”.
After considering the evidence adduced, we find that it has not been established in what manner further statements recorded from the alleged beneficiaries of the “special fund” could have been of relevance to the police enquiry into the charges laid before this Court.
At paragraph 3.23 of the same publication it is also suggested that the duty to investigate is clearly proportionate to the issues involved, the relevant considerations being factors such as disclosure requests made and information supplied by a suspect.
The Code of Practice referred to in the case of Ebrahim can easily find its application in our local context in view of the fact that it was highlighted at paragraph 12 of the Judgment that the provisions of the code “preserve and amplify common law rules” prescribed by Judges before the code came into force.
2. Persons Since Deceased
The defence further avers that a number of potentially material witnesses have passed away as a result of the long delay which has occurred since the commission of the alleged offences.
It is further averred that some of these persons could have enlightened the Court as to the General Sales Agreements of the 1 st April 1982 and 15 th October 1984, as well as to the changes made in 1998 to the 1984 Agreement between Air Mauritius and Rogers.
In that respect, ASP Jangi clearly stated in evidence that none of the witnesses or accused parties had mentioned the General Sales Agreement of the 1 st April 1982 and that no documents had been produced to that effect.
He further stated that as far as the letter of the 28 th March was concerned, [document D], it did not refer to “special commission”.
The police enquiry had also revealed that the overriding commissions referred to in documents C and D [October and March 1984 respectively] could not have referred to the alleged “special commissions”, subject matter of the charges against the accused parties.
In that respect, the police had already established during their enquiry the difference between the various types of commissions which were paid.
According to the police witness, it was also found that there was no written or verbal agreement with regard to the alleged “special commissions”.
The police had thus relied on the explanations given by Mr G. Tyack with regard to the details of how the payment of special commissions was effected. They had also enquired into the adopted procedure from Mr Tyack himself as well as from personnel of Rogers and Air Mauritius.
We also took into account that the witness stated that the police enquiry was geared towards the setting up of the “special commission” and that they had used their discretion in not pursuing certain lines of enquiry to a further stage, as this was leading nowhere.
We must therefore revert to the case of Ebrahim to determine whether the police acted unfairly in so using their discretion, and whether the prosecution should be penalized for bringing the present proceedings before us.
In that case para 3.4 of the Code of Practice which was earlier referred to was reproduced, namely:
“In conducting an investigation, the investigator should pursue all reasonable lines of inquiry, whether these point towards or away from the suspect. What is reasonable in each case will depend on the particular circumstances”
We note that, according to ASP Jangi, the police interviewed no less than 60 persons and recorded 113 statements during their enquiry.
Moreover, the circumstances in the present case show that a significant delay had already elapsed by the time the police was apprised of the commission of the alleged offences.
Mrs Manna for the prosecution also reminded us that the alleged offences spanned over a considerable number of years.
In Duval v District Magistrate of Flacq [1989] MR 166, [where it was also averred by the defence that potential witnesses had passed away], the Supreme Court observed that committal proceedings instituted within a short time from the complaint made to the police, be it after 18 years from the alleged commission of the offence, were not bound to result in an unfair hearing.
In the case of Ebrahim , para. 3.5 of the Code of Practice was cited, namely:
“If the officer in charge of an investigation believes that other persons may be in possession of material that may be relevant to the investigation, and if this has not been obtained under paragraph 3. 4 above, he should ask the disclosure officer to inform them of the existence of the investigation and to invite them to retain the material in case they receive a request for its disclosure … However, the officer in charge of an investigation is not required to make speculative enquiries of other persons: there must be some reason to believe that they may have relevant material.”
The case of Ebrahim also considered the unreported case of Reid [March 10, 1997], where Owen J. had said that …”there must be a judgment of some kind by the investigating officer, who must decide whether material may be relevant…” and that “… if his breach of duty is sufficiently serious, then it may be held to be unfair to continue with the proceedings.”
Bearing in mind the nature of the enquiry and the offences listed in the information, as well as the fact that the remedy sought by the defence should only be granted in exceptional cases, we find nothing in the evidence adduced before us which could indicate a potential serious breach of duty by the police.
It is also mentioned at paragraph 16 of the Judgment in Ebrahim that “when a complaint is made on an abuse application that relevant material is no longer available, the first stage of the Court’s inquiry will be to determine whether the prosecutors had been under any duty, pursuant to the 1997 code and the new guidelines, to obtain and/or retain the material of whose disappearance of destruction complaint is now made. If they were under no such duty, then it cannot be said that they are abusing the process of the Court merely because the material is no longer available. ”
We refer to the evidence of ASP Jangi who explained that in view of the evidence already obtained by the police in respect of the setting up of the “special commission”, there was no duty on the police to seek further evidence.
We here open a parenthesis to observe that in Ebrahim at paragraph 27 it was reiterated that the “trial process itself was equipped to deal with the bulk of the complaints on which applications for a stay are founded” and that “it must be remembered that it is commonplace in criminal trials for a defendant to rely on ‘holes’ in the prosecution case, for example, a failure to take fingerprints or a failure to submit evidential material to forensic examination. If, in such case, there is sufficient credible evidence, apart from the missing evidence, which, if believed, would justify a safe conviction, then a trial should proceed, leaving the defendant to seek to persuade the jury or magistrates not to convict because evidence which might otherwise have been available was not before the Court through no fault of his. Often the absence of a video film or fingerprints or DNA material is likely to hamper the prosecution as much as the defence.”
The burden to prove the charges beyond reasonable doubt against the accused parties therefore clearly remains on the prosecution if the case is to be heard on the merits.
Should the prosecution encounter difficulties in proving their case due to the unavailability of witnesses or documents caused by the long time lapse, this may prove prejudicial to the prosecution themselves.
3. Unavailable Documents
The defence further avers that archives from Air Mauritius and the Mauritius Commercial Bank before 1990 are no longer available.
In that respect, ASP Jangi testified to the effect that the police had the necessary documents in their possession to proceed with the case against the accused parties.
They relied on about 80 cheques, invoices, 41 debit advices and a cashbook.
Furthermore, they had found that many of the names mentioned in the cashbook were also found in other documentary evidence and that the sums shown on the “income side” of the cashbook tallied with the figures found on the cheques which the police had secured.
Based on the same principles applied with regard to the unavailability of witnesses, we find that since the burden to prove their case beyond reasonable doubt rests on the prosecution, it cannot be held that the police have acted in an unreasonably unfair manner.
We find support for saying so based on the authorities considered in connection with the balancing exercise which Courts are bound to carry out when dealing with complaints of similar nature before deciding whether to grant the exceptional remedy prayed for.
We now propose to look at these two elements more closely.
4. The Balancing Exercise
The various authorities relied upon by counsel clearly acknowledge that the right of a person charged with an offence to a fair trial must be balanced with the public expectation that persons reasonably suspected of having committed criminal offences will be brought to trial.
This was accepted in Mauritius as far back as in 1989 in the case of Duval v The District Magistrate of Flacq and the Director of Public Prosecutions [ supra ], when Glover CJ and Yeung Sik Yuen J (as they then were) held in no uncertain terms [following Bell v DPP (1985) A.C. 937], that “ the right, if any, for a person not to be charged with an offence after an unreasonable lapse of time must be balanced with the right of society to seek justice.”
In Flowers v R [2000] 1 WLR 2396, the Privy Council also followed Bell [ supra ] where Lord Templeman had stated that “the Courts of Jamaica must balance the fundamental right of the individual to a fair trial within a reasonable time against the public interest in the attainment of justice in the context of the prevailing system of legal administration and the prevailing economic, social and cultural conditions to be found in Jamaica.”
This was again a factor which was considered relevant in the cases of Ebrahim, R v L. J. Coughlan [2001] BCPC 0017, a Canadian case relied upon by Mr Ollivry Q. C., and Mullen v R [1999] EWCA Crim. 278.
In Ebrahim, at paragraph 25 of the Judgment, it was held that one of the well-known principles invoked was that:
“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, because the fairness of a trial is not all one-sided; it requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted.”
In Mullen v R the following dicta from L. Steyn in the case of Latif (1996) 1 WLR 104, was reproduced:
"The law is settled. 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 process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed: Ex p Bennett ” [ supra ].
It was thus proposed in Mullen that in similar cases, as a primary consideration, it was necessary for the Court to take into account the gravity of the offence in question. In the ensuing discretionary exercise, great weight should therefore be attached to the nature of the offence under consideration and in each case, it was a matter of discretionary balance which was to be approached with regard to the particular conduct complained of.
In the case of Coughlan it was also held that the seriousness of an alleged offence would enhance the societal interest that a matter be tried on its merits in spite of the length of the delay.
We have thus borne in mind that the case before us concerns an alleged conspiracy to defraud a public company of about RS 85 million.
In view of the particular nature of the offences with which the accused parties stand charged, and weighing in the balance the alleged unfairness complained of by the defence, we find that we must exercise our discretion in favour of the prosecution.
As already pointed out earlier, the bulk of the complaints averred by the defence can be disposed of at the trial stage when the burden will rest on the prosecution to prove their case beyond reasonable doubt.
In the case Ebrahim , it was also held [paragraph 20] that in “category 2” cases “the question is not so much whether the defendant can be fairly tried, but rather whether for some reason connected with the prosecutor’s conduct it would be unfair if the Court were to permit them to proceed at all. The Court’s inquiry is directed more to the prosecutor’s behaviour than to the fairness of an eventual trial.”
The Court considered the unreported decision in Reid [ supra ], where the Court of Appeal dismissed a challenge to the trial judge’s decision to refuse a stay. The Court directed itself that before there could be any successful allegation of an abuse of process based on the disappearance of evidence, there had to be either an element of bad faith or at the very least some serious fault on the part of the police or the prosecution authorities.
In AG’s Reference [No. 2 of 2001] ( supra ), it was also held that criminal proceedings could be stayed on the ground that there had been a violation of the reasonable time guarantee in art 6(1) of the ECHR only if a fair hearing was no longer possible, or it was for any compelling reason unfair to try the defendant.
It has not been established before us that the police enquiry was conducted in such a manner as to show that material evidence was intentionally withheld or that it amounted to “an affront to the public conscience”. [See: Ex p Bennett supra ].
5. The Role of the Defence
Having underlined the above considerations, we must now turn to the burden which rests on the defence to show that the conduct of the police or the prosecuting authorities amount to an abuse of the present proceedings.
Although we are alive to the fact that the Privy Council observed in Tan v Cameron [1992] 2 A. C. 205, that nothing was to be gained by the introduction of shifting burdens of proof, we found the following passage from the book of Messrs Corker and Young to be of particular relevance:
“Para. 3.06:
…In the light of the Ebrahim decision the Courts will have a further consideration to take into account when considering certain prosecution failures to obtain and/or retain material evidence. They may also have to consider whether the defence have proved ‘either an element of bad faith or at the very least some serious fault on the part of the police or the prosecution authorities.’ These issues will be relevant to the Courts’ determination as to whether a ‘Category 2 case’ arises, namely a circumstance where it would be unfair for a defendant to be tried, irrespective of whether a fair trial was possible.” [See also paragraph 3. 27].
At paragraph 3. 26 the authors further suggest:
“In this context, the simple test for a defendant will be whether or not he has proved, more likely than not, that owing to the ‘serious prejudice’ caused by the lost or destroyed material, he cannot receive a fair trial. The ‘serious prejudice’ test in Ebrahim has since been followed by the Court of Appeal in the recent case of R v Dobson [2001] EWCA Crim 1606. It follows therefore that an element of prejudice will not suffice and must be tolerated. Only where the defence can successfully demonstrate a sufficient level of seriousness to the prejudice will a stay be considered, and this will depend on the facts of the particular case.”
The burden resting on the defence does not however stop there.
At paragraph 3. 09 we find the following:
“… This attitude of scepticism towards defence complaints of prejudice in these circumstances is consistent with that concerning defence complaints arising out of prosecutional delay. In Chapter 1 the approach of Bingham CJ in R v Cardiff Magistrates’ Court, ex p Hole was considered. There Bingham CJ insisted that the defence, in arguing abuse, would have to establish precisely how in relation to the defence(s) to be advanced at trial prejudice was suffered, ‘… it is necessary to look at the charges and see exactly what defence it is that they are impeded from advancing.’”
In the present instance, we find that the defence has been unable to point at any precise and serious prejudice which they may encounter should the case proceed for trial.
They have averred that potential witnesses who are now deceased or no longer available might have helped to interpret the existing documents and that other documentary evidence is no longer available.
The authorities however clearly show that simply invoking prejudice is insufficient to obtain the exceptional remedy they seek.
In that vein, it has been time and time again reaffirmed that a stay of proceedings remains the exception rather than the rule, especially when bearing in mind, as already emphasized, that the rights of the accused parties to a fair trial are to be balanced with the public interest.
Indeed, it was recognized in Ebrahim [paragraph 26] that “the circumstances in which any Court will be able to conclude, with sufficient reasons, that a trial of a defendant will inevitably be unfair are likely to be few and far between.”
In AG’s Reference [No. 2 of 2001] [ supra ] it was said that: “The right of a criminal defendant under article 6(1) was to a hearing. Article 6(1) required that hearing to have certain characteristics. If a breach of the reasonable time requirement was shown to have occurred it could not be cured. But it would be anomalous if breach of the reasonable time requirement had an effect more far-reaching than breach of a defendant’s other article 6(1) rights in circumstances where the breach did not taint the basic fairness of the hearing at all, and even more anomalous that the right to a hearing should be vindicated by ordering that there be no trial at all.”
It is also relevant to refer to the Commentary on Ebrahim found at [2001] Crim. L. R. 741:
“The Court stresses that in most cases any alleged unfairness can be cured in the trial process itself so that the power to restrain should be used in those exceptional circumstances where it cannot be so cured and it is really necessary to invoke the power. A case is not exceptional merely on the ground that evidence has been lost or destroyed .” [The emphasis is ours].
We also found that most of the remaining case law relied upon by defence counsel could be distinguished from the facts of the present case.
Thus, Bahadoor v Kim On Leung Pah Hang and Others 1999 SCJ 157, concerned a civil case where the Court had to deal with a situation where pre-trial proceedings had been initiated since 1993 but the matter was then subjected to delay after the reply to the defence in October 1996.
In Dahall v The State [1993] MR 220, the police enquiry into the occurrence of the alleged offence was started in 1983 and the appellant was arrested upon his return in Mauritius in 1991.
In Johannsen & Chambers v DPP [1996] QCA 111, there was an unexplained delay of 20 years in commencing proceedings after an inquest had been opened in January 1975 and then resumed in 1993. The Court found that everything turned on the prosecution’s fault for the delay.
The Court in R. Dunne v DPP [2003] IESC 27, identified a major procedural difference between the United Kingdom and Ireland and disagreed with the pronouncement in Ebrahim , a case on which the defence has heavily relied in the present instance.
In R v Lord Advocate & Another [2003] 1 LRC, the defendant was charged in 1995 although the procurator fiscal concluded that no proceedings were to be taken at that time until an indictment was served for trial more than five years later.
Turning back to the duties of the police, it was found 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.”
Furthermore, it was also observed at paragraph 70 of the Judgment in Ebrahim that “the extent of the duty of investigation should be proportionate to the seriousness of the matter being investigated…”
ASP Jangi stated in that respect that a thorough enquiry had been carried out with specific regard to the setting up of the alleged “special commissions” and that the police had exercised its discretion in deciding not to enquire into certain details which were not deemed relevant.
After listening to the evidence led from the main witness for the prosecution on the preliminary motion, we are unable to hold that the conduct of the police enquiry in the present case has in any way impeded the defence in such a manner as to amount to serious prejudice to the accused parties in the conduct of their defence.
The fact that accused no. 1 chose to resign as chairman of the Indian Ocean Regional Fund because he was involved in the present case cannot lead this Court to conclude that he suffered prejudice since it was revealed that he had not been dismissed from his post.
We have also taken into account the fact that all four accused parties are on bail.
As for the issues relating to the credibility of Mr G. Tyack’s allegations, we further hold the view that our rules of evidence and procedure are well equipped to deal with such matters as and when they will arise at the trial stage, and that a stay of proceedings is wholly inappropriate to counter the weaknesses highlighted by the defence in the case for the prosecution at the pre-trial stage.
Moreover, after having carefully assessed the complaints put forward by the defence in the light of the particular nature of the charges laid before this Court, we find that the public interest demands that the prosecution be allowed to proceed with the case on the merits, especially since it has not been conclusively shown that the conduct of the police or the prosecuting authorities was so bad as to deserve sanction. In that respect, we have borne in mind that a stay of criminal proceedings should not be ordered simply as a form of disciplinary disapproval of the prosecution: R. v. Crown Court at Norwich, ex p. Belsham , 94 Cr.App.R. 382, DC.
For all the given reasons we find that the grounds on which the motion to stay the proceedings rest cannot be sustained.
We therefore allow the trial to proceed on the merits.
Vice-President Magistrate Magistrate
Intermediate Court Intermediate Court Intermediate Court
This 10 th March 2005
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