Intermediate Court of Mauritius Decisions

POLICE v BEERBUL DHARAMDUTH

2006 INT 270

CN: 655/05

IN THE INTERMEDIATE COURT OF MAURITIUS

IN THE MATTER OF: -

Police

V.

Dharamduth Beerbul

RULING

Accused stands charged on an information containing 5 counts. Under count 1 he is charged with the offence of knowingly receiving articles, namely two fishing rods and winches which had been obtained by means of a misdemeanour in breach of Section 40 of the Criminal Code. Under counts 2, 4 and 5 he is charged with knowingly receiving articles which had been obtained by means of crime, particularized as larceny by night breaking and larceny made by 2 individuals, in breach of Section 40 of the Criminal Code. Finally under count 3 the accused is charged with having been found in possession of a pair of binoculars and some bottles of alcoholic liquor which had been obtained by means of a crime. The accused pleaded not guilty on all 5 counts and is represented.

On the day of trial counsel for the accused moved that the proceedings be stayed in as much as the prosecution has made an abuse of process of the court by preferring the present information against the same accused party based on similar facts and circumstances but on a different section of the law when there has been a previous case, case cause number 680/04, Police V. Beerbul, in which a nolle prosequi was filed. It was submitted that in that other case the same accused party had pleaded guilty to one count of the information so that the prosecution has adopted a procedure that is objectionable.

Evidence was adduced on both sides. The Head Clerk, Criminal Section, of the Intermediate Court was called by the defence to produce a true copy of the proceedings in case cause number 680/04 in the matter of Police V. Dharamduth Beerbul (Doc. A). It appears that a nolle prosequi was filed on 19 July 2005 and the accused in that case had pleaded guilty to count 3. Inspector Varlet produced an affidavit on behalf of the prosecution (Doc. B) so as to explain the delay which had occurred in the present case.  

The prosecution then moved to have count 3 of the present information dismissed without adducing any evidence.

Submissions were heard on both sides. Counsel for the defence made it clear that it is not the delay which is being in issue but the integrity of the criminal process. It was submitted that the accused was originally charged with 5 counts of possession of property obtained by means of a crime/ misdemeanour. When the attention of the prosecution was drawn to the decision of the Supreme Court of J.P.D. Prayag V. The State [ 2004 SCJ 29 ] , it was decided to discontinue with the case. It was submitted that the case was lodged in April 2004 whereas the decision in Prayag was given in February 2004, that is to say that at the time the case was lodged the prosecution was already aware of the decision but that nevertheless decided to prosecute the accused on the wrong section of the law. It was also submitted that had the defence not apprised the prosecution of the matter the trial in CN 680/04 would have continued and the case would have been dismissed. The conduct of the prosecution would suggest that the defence was not right to draw the attention of the prosecution on the matter. Counsel was of the opinion that the prosecution is oppressive by coming again, that the integrity of the criminal process should be preserved and that since the process of the court is not being respected the present information should be stayed.

Counsel appearing for the prosecution admitted that the prior information against the accused was discontinued and the present information filed in the light of the decision in the case of Prayag. She explained that when the decision of the Supreme Court was delivered advice had already been tendered to prosecute the accused for possession of property obtained by means of a crime. She laid emphasis on the prerogative of the DPP to discontinue a criminal matter at any stage of the proceedings and submitted that it is in exceptional cases that a stay should be granted. In the present matter there is no evidence of prejudice and the witnesses are the same so that the accused will not suffer any kind of prejudice.

At the very start it can be said that the motion of abuse of process is not based on the issue of unconscionable delay but on the propriety of the trial process being given that the accused was previously charged on the same facts and circumstances on an information containing 5 counts for the offence of possession of property obtained by means of a crime and misdemeanour. It is also common ground that following the decision of the Supreme Court in the case of J.P.D. Prayag V. The State [ 2004 SCJ 29 ], and also the remarks made by the defence of this aspect of the case, the prosecution chose to discontinue proceedings in that previous information except for the charge under which the accused had pleaded guilty (Count 3). The issue that is raised is whether the lodging of a fresh information based on the same set of facts and circumstances, against the same accused party but now on a different section of the law is tantamount to making an abuse of the process of the court and putting the integrity of the trial process into ridicule.

It is trite law that once an information has been lodged before a court, the accused must be tried unless one of the following four grounds is invoked: (a) the information itself is defective (b) the accused pleads autrefois convict or autrefois acquit (c) a nolle prosequi is filed; or (d) the court has no jurisdiction to try the case . [see R v Chairman of London County Sessions, ex. parte Downes (1954) 1 QB 1 ].   A fifth ground was added to the above in the case of Connelly v DPP (1964) AC 1254 where the court held that proceedings may be stayed where the particular criminal proceedings amount to an abuse of the process of the court. This power includes the power to safeguard an accused party from oppression or prejudice.

Thus, the court may stay proceedings where the issue before them directly affects the fairness of the trial of the accused such as unconscionable delay in instituting and disposing of the case against the accused or where there has been a misuse or a manipulation of the process of the court including abusive decisions to institute prosecution, manipulation of procedures, cases where the prosecution went back on promises formerly made, cases of entrapment by investigators and cases where a fair trial had become impossible and which was summarized in R. v. Derby Crown Court ex p. Brooks. 80 Cr. App. R. 164 , Lord Roger Ormrod C.J., at 168 stated: "The power to stop a prosecution arises only when it is an abuse of the process of the court. It may be an abuse of process if either:

(a) the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by law or to take unfair advantage of a technicality, or

(b) on the balance of probability the defendant has been, or will be, prejudiced in the preparation or conduct of his defence by delay on the part of the prosecution which is unjustifiable... 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".

In the case of Connelly , it was stressed that the court has the inherent power to protect its own process from being abused. The matter was given much consideration in the case of R V. Horseferry Road Magistrates’ Court, ex parte Bennet [1994] 1 A.C. 42 Lord Lowry said the following “…the court, in order to protect its own process from being degraded and misused, must have the power to stay proceedings which may have come before it and have only been made possible by acts which offend the court’s conscience as being contrary to the rule of law. Those acts, by providing a morally unacceptable foundation for the exercise of jurisdiction over the suspect, taint the proposed trial and, if tolerated will mean that the court’s process has been abused.”

A similar approach was taken in the case of R V. Latiff [1996] 1 WLR 104 where Lord Steyn stressed that the principle stated in the case of Bennet was now settled. The following extract could be read: “The law is settled ……..The speeches in Bennet conclusively establish that proceedings may be stayed………not only where a fair trial is impossible but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place”. In Re Barings plc and Others (No. 2) Secretary of State for Trade and Industry V. Baker and Others [1999] 1 All E.R. 311 , The Court of Appeal held as a matter of principle that: “Having regard to the overriding need to preserve public confidence in the administration of justice, the court would stay proceedings on the ground of abuse of process where to allow them to continue would bring the administration of justice into disrepute among right-thinking people.” (see also R V. Mullen [1999] 2 Cr. App. R 143 , Archbold, Criminal Practice and Procedure, 2005 edition, at para 4-55 )

However it should be noted that unless it is shown that the prosecution has resorted to unlawful means to bring a person before the court to be tried (such as abducting people abroad to be tried before the national courts), the court will normally carry out a balancing exercise between, on the one hand, the interest in allowing a serious case to proceed, and on the other hand, the public interest in staying proceedings so as not to allow the degradation of the system of justice. In the case of R V. Latiff [1996] 1 WLR 104 , which was referred to earlier, the court held that “Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of the process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed…it is possible to say that in a case such as the present the judge must weigh in the balance the public interest in ensuring that those who are charged with grave crimes should be tried and the competing interest in not conveying the impression that the court will adopt an approach that the end justifies any means”. (see also Flowers V. R. [2000] 1 WLR 2396 , in which the Privy “recognises that the right given by section 20 of the Constitution of Jamaica must be balanced against the public interest in the attainment of justice…”

It is indeed regrettable that it was the defence which had to draw the attention of the prosecution that, based on the facts and evidence disclosed (from the brief?), the accused was being prosecuted on the wrong section of the law. The prosecution immediately took advantage of those remarks and discontinued the previous (wrong) information and put in a fresh one based on the proper sections of the law. But it cannot be said that, by acting as it did, the prosecution has been acting in bad faith or illegally.   In the present case there is also no evidence of the prosecution manipulating or misusing the process of the court with the intention to deprive the accused of a protection provided by law or taking an unfair advantage of a technicality. The trial has not yet started and the accused has not yet disclosed his line of defence which would have placed the prosecution in an unfair advantage that the court cannot refuse to allow the prosecution to proceed with the case. Thus it was held in the case of R v Humphrys (1977) AC 146 , that: “ a judge…(does not have) any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought. It is only if the prosecution amounts to an abuse of process of the court and is oppressive and vexatious that the judge has the power to intervene”

It is apparent that when advice was tendered, no account was taken by the prosecution of the authority of the decision in J.P.D. Prayag V. The State [ 2004 SCJ 29 ] and that although it may seem that the prosecution is being allowed to have a second chance, it is trite law that a stay of proceedings is not meant to be a form of sanction against the prosecution in cases where there have been certain shortcomings on the part of the prosecution( see R. v. Crown Court of Norwich, ex p. Belsham , 94 Cr.App.R. 382, (1992) 1 All ER 394 ); and in the Mauritian case of State v Bissessur and others [ 2001 SCJ 50 ] in which the Supreme Court confirmed the above principles and held: “The court should exercise its discretionary power to order a stay of the proceedings only in exceptional cases and a staying order is an exception rather than the rule. A stay of criminal proceedings should not be ordered simply as a form of disciplinary disapproval of the DPP’s office”.

Additionally since there has not been any determination on the merits of the case it cannot be said that the accused is being placed in a situation of double jeopardy all the more so that he will continue to benefit from all the constitutional safeguards of a fair trial before an independent and impartial court established by law. The second prosecution cannot be said to be either oppressive or vexatious.

Section 72 of the Constitution establishes the post of a Director of Public Prosecutions who shall have power “to institute and undertake criminal proceedings before any court of law (not being a court established by a disciplinary law); to take over and continue any such criminal proceedings that may have been instituted by any other person or authority;   and to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority.”

In the case of Jeewan Mohit V. The Director of Public Prosecutions of Mauritius [2006] UKPC 20, PCA 31 of 2005 , the Privy Council indeed held that the Constitution does not use the language of “nolle prosequi” which is a prerogative power but Section 72 (3) (c) of the Constitution expressly gives power to the DPP to discontinue any criminal proceedings at any stage before judgment is delivered. There is no provision which would prevent the prosecution to come again with a fresh information contrarily to the situation where there has been a dismissal of the case by the court after hearing evidence. The power of the DPP to discontinue proceedings, under Section 72 (3) of the Constitution, has more or less similar effect as the English nolle prosequi so that the applicable principles are the same. The prosecution is thus allowed to lodge a fresh information when previous criminal proceedings have been discontinued.   In Archbold 2005, §1-251 it is said that “a nolle prosequi puts an end to the prosecution…but does not operate as a bar or discharge or an acquittal on the merits…and the party remains liable to be re-indicted. It has been said that fresh process may be awarded on the same indictment…”

This court is comforted in its views by the decision of the Privy Council in the case of Jeewan Mohit V. The Director of Public Prosecutions of Mauritius [2006] UKPC 20, already referred to above and in which case the Law Lords did not make any comment and hence did not find it abusive for the same private prosecution to be entered against the same defendant on matters relating to the same facts on no less than four occasions (three times by the same complainant), each and every time after that the DPP has caused the said private prosecutions to be discontinued.

For all the reasons given above, I find that it is neither oppressive nor vexatious                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             for the prosecution to lodge a new information for other offences based on the same set of facts and circumstances and against the same accused party when a previous prosecution had been discontinued. After having carried out the balancing exercise, this court does not find that the continuation of the present proceedings would be tantamount to an affront to the public conscience or would bring the administration of justice into disrepute among right-thinking people. As it has been said time and again a stay of proceedings is an exceptional remedy to be granted in exceptional circumstances only. This court does not find that the present case falls within the definition of those exceptional circumstances warranting such an exceptional remedy.

The motion for a stay of the present proceedings is therefore set aside and the case is to proceed.

P.M.T. Kam Sing

29 May 2006