Supreme Court of Mauritius, 29 avril 2026, 2026 INT 109 – ICAC v. R.Peeharry

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ICAC v. R.Peeharry

2026 INT 109

IN THE INTERMEDIATE COURT OF MAURITIUS (FINANCIAL CRIMES DIVISION)

CN 326/2020 FCD CN 67/2020 In the matter of:

The Independent Commission Against Corruption

v/s

1. Vishwadanand SEEGOBIN RAMJUS 2. Ramdeo PEEHARRY

RULING Accused No. 1 is charged with having wilfully, unlawfully and criminally fail to disclose, whilst being an employee of a public body, in writing, to that public body the nature of his interest under count 1 of the information in breach of Sections 13 (1) and (3) of the Prevention of Corruption Act 2002 and for having wilfully, unlawfully and criminally conceal a property which, in whole, directly or indirectly represented the proceeds of a crime, where he, the said accused had reasonable grounds for suspecting that the property was derived, in whole, directly or indirectly from a crime under counts 2 to 13 of the information in breach of Sections 3(1), (b), 6 and 8 of The Financial Intelligence and Anti Money Laundering Act 2002. Accused No. 2 is charged with having wilfully, unlawfully and criminally engage in transaction that involved property which in part, directly or indirectly represented the

proceeds of a crime, where he, the said accused had reasonable grounds for suspecting that the property was derived, in whole, directly or indirectly from a crime under counts 14-30 in breach of Sections 3(1), (a), 6 (3) and 8 of The Financial Intelligence and Anti Money Laundering Act 2002. Accused No. 1 has passed away. Accused No. 2 has pleaded not guilty to the charges and was legally represented. Mr Koonjul appeared for the prosecution. Accused No. 2 was represented by Mr J.Seetaram. Learned Counsel for accused No.2 moved for the present proceedings against accused No. 2 to be purely stayed on the following grounds: (i) Formerly the ICAC had prosecuted two co-accused, one Mr V. Ramjus who has passed away and one Mr R. Peeharry before another bench. The enquiry carried out by the prosecution with regards to all the witnesses and also the statements gathered in relation to Accused No. 1 and 2 as part of the evidence, was in relation to both Accused. Since Accused No. 1 has passed away, evidence gathered with regards to the deceased accused shall be deemed to be hearsay evidence and therefore out-of-court statements as evidence must be excluded and deemed inadmissible by the Court. (ii) As a matter of procedure, because of the hearsay evidence, all attempts to adduce such evidence as emanating from and in relation to Accused No. 1 would be obviously objected to by the defence. (iii) The evidence to be adduced by the prosecution would require the input of the deceased accused as the prosecution has mainly based its case on the evidence obtained from the deceased accused to proceed accused No. 2 and the prosecution cannot proceed with its case without adducing evidence from the deceased accused. (iv) If the case were to proceed, it will be wrong in law and also against the constitutional rights of the present accused i.e his right to benefit from a fair trial.

(v) If the matter was to be proceeded with, it would deprive the present accused the rightful opportunity to cross examine, to confront and to test the deceased accused. Therefore, taking into consideration all of the above and in the interest of justice, the defence has moved for the proceedings to be permanently stayed against the present accused. The prosecution objected to the motion. Arguments were heard. The case for the prosecution At the outset, Learned Counsel for the prosecution called witness No.2, Mr Naiken, Acting Chief Investigator posted at the FCC. The witness stated that he is the main enquiring officer. He explained that there were two accused parties, who were the subjects of the enquiry and one has passed away. He further explained that his investigation revealed that allegedly based on a document that he received, accused No. 2 had received contracts for land cleaning, works at the Airport of Mauritius Ltd. The accused had admitted that many of the contracts awarded were for fictitious works and that this involved a large amount of money of around 18 million rupees from 2011 to 2013. The witness further explained that the payments were made by cheques by the finance section of the Airports of Mauritius Ltd (AML) to the accused and to his family members. He highlighted that the nature of the evidence against accused No. 2 is that he admitted that he received payment for work not done and that he had given the money to the landscaping supervisor, the deceased accused. He further stated that there is documentary evidence that is invoices also submitted by the accused and witness statements as well as bank documents. During cross-examination, he stated that accused No. 2 received payments and the same payments were remitted to the deceased accused. He highlighted the fact that there is sufficient evidence against accused No. 2 based upon his own admission. It was also put to him that accused No. 1 has passed away and the prosecution will not be able to cross- examine. The witness maintained that there is evidence against accused No. 2 to proceed with this case.

The witness was not re-examined. The case for the defence No evidence was adduced on behalf of the accused. Submissions by the defence Learned Counsel for accused No. 1 submitted that accused No. 1 was charged with an offence under Section 3 (1) (b) of the FIAMLA as well as for an offence of corruption under Section 13 whilst accused No. 2 is being charged with an offence under Section 3 (1) (b) çof the Act. It was highlighted that the accused parties are being charged, under different sections of the Law. This coupled with what was stated by the witness shows that there is sufficient evidence to proceed with the case against accused No. 2 and that the evidence cannot be hearsay evidence. Learned Counsel referred to the judgments of Walton v. Gardiner [1993] HCA 77, The State v. Marie François Bernard Maigrot [2023] SCJ 437, Attorney General’s Reference No. 2 of 2001 [2023] UKHL 68, Hui Chi-Ming v. R [1992] 1 A.C 34, State v. Wasson [2008] SCJ 209 to submit that a permanent stay of proceedings is granted in exceptional circumstances and the test to be applied by the Court to grant same. It was also submitted that the objection raised is premature in as much as the trial is still at an early stage and evidence is yet to be adduced. In relation to the out-of-court statements of accused No. 2 amounting to hearsay, Learned Counsel submitted that, according to the enquiring officer, defence statements were recorded from accused No. 2 and thus cannot amount to hearsay evidence. He referred to the judgment of A.Seegobin v. The State [2002] SCJ 163 to submit that such statements only become evidence when they are repeated in the course of testimony and he submitted that this will be done during the course of trial. Reference was also made to the judgment of R v. Cedric Gourdon, Supreme Court Criminal Appeal No. 109/89. It was further submitted that the motion for stay of proceedings should be set aside and the prosecution should be allowed to proceed with the case accordingly. Submissions in reply by the defence Learned Counsel for the defence submitted that both accused parties were being previously prosecuted before this Court of Law as confirmed by the enquiring officer and accused No. 1

has passed away. It was submitted that the evidence as per the investigation is interwined with that of accused No. 1. Reference was made to the judgment of Budlawan v. R [1987] SCJ 153 to submit that the prosecution is duty bound to call witnesses who are adducing evidence and ensure that they are cross-examined. It was submitted that if the prosecution is adducing evidence from a previous co-accused, this evidence has to be tested. Learned Counsel questioned whether the accused would be afforded a fair trial if the evidence of the deceased accused will not be tested in this case. He also referred to the judgment of R.M.K. Dzitse v. The State [2016] SCJ 236 in relation to hearsay evidence to submit that the defence will not be able to confront the evidence adduced on behalf of the prosecution as the accused party has passed away. It was further submitted that this is not premature as the prosecution will not be able to proceed without any evidence from the deceased accused. Learned Counsel also referred to the judgment of The State v. L.D.L Fangamar [2008] SCJ 25 in relation to the rights of the accused under Section 10 of the Constitution including the right to cross-examine. It was further submitted that the evidence in relation to the deceased accused which the prosecution will require amounts to hearsay Analysis I have considered the submissions by the prosecution and the defence as well as the authorities filed. The Law At the outset, this Court refers to the principle of a fair hearing as laid out in the judgment of Velvindron v. the State [2003] SCJ 319 as follows: “One of the safeguards provided under section 10(1) of our Constitution is that any person who is charged with a criminal offence shall be afforded a fair hearing. In that respect, the principle which underlines the jurisdiction to stay proceedings is that the Courts have the power and the duty to protect the law by protecting its own purposes and functions as was expressed in the words of Lord Devlin in Connelly v. D.P.P. (1964 A.C. 1254) “The Courts have an inescapable duty to secure fair treatment for those who come or are brought before them” and at page 1296 Lord Reid said “……… there must always be a residual discretion to prevent anything which savours of abuse of process.” ….”

This was further emphasized in the case of Sumodhee v. the State [2005] SCJ 71: “Moreover, it is true that the concept of a fair trial guaranteed by section 10(1) of the Constitution involves fair and impartial inquiries into the allegations of accused parties without in any way causing any prejudice to them in their defence or in the preparation of their defence.” Now, the defence has moved for the proceedings to be stayed for the reasons as set out above. The Court will proceed to consider in which circumstances this Court may exercise its power to stay proceedings. The power to stay proceedings In Archbold digital edition 2018 at para 4.75, the power of the court to stay proceedings is noted as follows: “Although it can be exercised in many different circumstances, the court has power to stay proceedings in two categories of case, namely— (a) where it will be impossible to give the defendant a fair trial, and (b) where a stay is necessary to protect the integrity of the criminal justice system: R. v. Maxwell [2011] 2 Cr.App.R. 31, SC, and Warren v. Att.-Gen. for Jersey [2012] 1 A.C. 22, PC (indicating that these two categories are distinct and should be considered separately).” At para 4.99, the following is also noted: “In the leading judgment of the Privy Council in Warren v. Att.-Gen. for Jersey [2012] 1 A.C. 22, Lord Dyson stated that the court had to strike a balance between the public interest in ensuring that those who are accused of serious crimes should be tried and the competing public interest in ensuring that executive misconduct does not undermine public confidence in the criminal justice system and bring it into disrepute.” Nevertheless, it is pertinent to note that at para 4.76 that this power “The power of justices to stay criminal proceedings for abuse of process is to be most sparingly exercised, and should be strictly confined to matters directly affecting the fairness

of the trial of the particular accused with whom they are dealing, such as delay or unfair manipulation of court procedure, since the wider supervisory responsibility for upholding the rule of law is vested in the High Court; where, therefore, a question arises as to the deliberate abuse of extradition procedures, they should exercise their discretion to grant an adjournment to facilitate an application to the High Court: R. v. Horseferry Road Magistrates’ Court, ex p. Bennett [1994] 1 A.C. 42, HL.” (The underlining is mine) Thus, it can be gleaned from the above principles that the Court’s power to stay proceedings may only be “sparingly exercised.” In the present case, it is the contention of the defence that evidence in relation to the deceased accused, which the prosecution would seek to adduce, amounts to hearsay evidence and this will infringe on the accused’s constitutional rights. At this stage of the proceedings, the trial has not yet started. The prosecution has not yet adduced evidence in this matter, which would as contended by the defence, amount to hearsay evidence. Additionally, the Court notes from the testimony of the enquiring officer that he explained that there is sufficient evidence against accused No. 2 based upon his own admission (he admitted to having received money for work not done) as well as witness statements and documentary evidence i.e invoices and bank statements. Thus, at this stage of the proceedings, the nature of the evidence against accused No. 2 is not before this Court and it cannot be preempted what evidence the prosecution would seek to adduce against accused No. 2. Thus, the Court is left in the dark which piece of evidence that the prosecution would be relying upon to prove its case against accused No. 2. The Court cannot therefore be called upon to rule as whether that evidence would amount to hearsay and whether the constitutional rights of the accused have been infringed. The motion of the defence, at this stage of the proceedings, is premature. Conclusion In the light of all the above, the motion by the defence is set aside.

Ms N.Seebaluck Magistrate Intermediate Court 29.04.2026