Supreme Court of Mauritius, 30 janvier 2020, 2020 LPW 2 – Marie Valerie Natasha Caprice v Police

Marie Valerie Natasha Caprice v Police

2020 LPW 2

PCN 1898/2017

THE DISTRICT COURT OF LOWER PLAINES WILHEMS (MAURITIUS)

In the matter of: –

Police

v/s

Marie Valerie Natasha Caprice

Ruling

The Applicant is provisionally charged with the offence of money laundering in breach of Sections 3(1)(a), 6 and 8 of the Financial Intelligence and Anti-Money Laundering Act (“the Act”). The Applicant was represented by Counsel and the Respondent also was represented by Counsel from the Independent Commission Against Corruption (ICAC).

The provisional charged was preferred against the Applicant on 03.08.17.

At present, the Applicant is at large since she was bailed out on 03.08.17.

Counsel for the Applicant moved that the provisional charge be struck out on account of delay.

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The Enquiring Officer, Investigator Daby, (“EO”) in a gist testified to the effect that the enquiry is still in progress and he needs 6 months to complete the enquiry and to lodge the main case. He averred that the present case is a complex one. He averred that further statements need to be recorded from other co-accused. He also averred that an identification parade needs to be done and statements have to be recorded from other witnesses. He averred that one of the co-accused is reluctant to collaborate with the ICAC and this explains the delay.

In cross-examination, the EO averred that the statement of the Applicant is not completed and further statements need to be recorded from her.

No evidence has been adduced on behalf of the Applicant.

Counsel for the Respondent to support his submission relied on the case of The State v Bissessur [2001] SCJ 50. He submitted that the delay in the present matter is not unreasonable in as much as a co-accused is protracting matters, several witnesses have to be examined and a further statement from the Applicant is pending.

Counsel for the Applicant relied on the case of Police v Navinchandra Ramgoolam [2017] UPW 150, which is a Ruling from the District Court of Curepipe. He submitted that ample time was given to the Respondent and in December 2019 the enquiry is still not completed. He submitted that the Applicant is provisionally charged for about 28 months. Learned Counsel for the Applicant agreed that complex cases will take time for the enquiry to be completed. He averred that in the present case only Rs. 175000 has been transferred from the Applicant’s bank account to another bank account.

I have duly considered all the evidence adduced on record including the submissions of both learned Counsel.

I must place on record that the Ruling in the case of Police v Navinchandra Ramgoolam [2017] UPW 150, is not binding upon me but is of persuasive value.

I agree to the principles the learned Magistrate set out in the case of Police v Navinchandra Ramgoolam concerning Provisional Information, however, with all due respect to the learned Magistrate, I do not ascribe myself to her reasoning for striking the provisional information in the said case.

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As far back as in 1981, the established practice of lodging Provisional Information was expounded in the case of Mootoosamy v The Queen [1981] MR 476, where it was held that:

“Its distinctive features are that it is fundamentally a process to bring a suspect before the Court, and at the same time to inform him of the nature of the charge against him. If the enquiry results in a prosecution, the suspect is never tried under the provisional information, which is struck out and replaced by a regular information. Sometimes, the provisional information is struck out without being replaced, and the case is filed, in a number of cases because the answer of the suspect to the provisional information shows a good defence. By reason of its nature, the provisional information is normally lodged in the early stages of the enquiry, before the evidence of all the material witness has been collected, and frequently (as in this case) before the suspect has given any statement. It follows that if no statements could be taken from a suspect after a provisional information, the enquiry would stop before it had started, to the great benefit of all criminals. In fact, the provisional information has the advantage of informing the suspect distinctly of the nature of the charge …”

In the case of DPP v Indian Ocean International Bank and Ajay Shanto [1989] MR 110, it was held that:

“As everybody knows, a provisional information is entered when a suspect is arrested or is brought into custody. Its purpose is to bring the detention of the individual under judicial supervision and control so as to prevent an administrative detention and to enable a judicial authority to decide whether the detainee should be released on bail or not and, if not, for how long he should be detained. No detainee pleads to a provisional information and no trial takes place. Consequently no question arises as to whether evidence is required to be given in those proceedings. When the need arises for evidence to be given, the provisional information is simply struck out and an information is lodged to which the accused pleads and in respect of which a trial takes place.”

In Gordon-Gentil v The State of Mauritius [1995] MR 38, it was held that:

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“A provisional information is a mechanism whereby a Court is informed of the reason for the arrest of an individual. The police may well inform the Magistrate orally but the use of a provisional information is now a well established practice. Only an offence known to the law and not any act not sanctioned as an offence should give birth to the provisional information.”

I verily believe that the offence with which the Applicant stands provisionally charged is an offence which is known to our law more precisely under the Act.

In The State v Rome & Ors [2009] SCJ 139A, it was stated that:

“The issue of stay of proceedings on the ground of abuse of process has been extensively examined and commented upon by Caunhye J. in the recent case of the State v. Wasson and ors. [2008 SCJ 209] quoted by Counsel for the prosecution.

The upshot of the authorities referred to in that case is that the Court exercises its discretion with a view to ensure a fair trial, that there cannot be a standard form of words that shall apply in all cases, that each case must be decided on their own merits, and that there must be compelling reasons for the Court to stop proceedings against an accused who is standing charged with a serious criminal offence.”

Again, I verily believe that the offence of money laundering is a serious criminal offence and I must say that the Applicant did not adduce such compelling reasons for this Court to stop the current proceedings against her.

In the case of Dahall v The State [1993] MR 220, reference was made to the case of Attorney General of Hong Kong v Wai-bun [1993] 3 WLR 242 where it was held that:

“Ultimately what has to be determined is whether proceedings can be fair, and it is for the defendant, if he is to succeed, to establish on the balance of probabilities that they cannot be fair.

That test does not materially differ from that laid down by Lord Lane CJ in A- Gs Reference (No 1 of 1990) [1992] 3 All ER 169 at 176… which was

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approved by their Lordships’ Board in Board in Tan v Cameron [1993] 2 AL ER 493 … Lord Lane CJ stated that –

‘no stay should be imposed unless the defendant shows on the balance of probabilities that owing to the delay he will suffer prejudice to the extent that no fair trial can be held…’

The approval of the Board in Tan v Cameron of that statement of Lord Lane CJ was made subject to one exception, which the Board identified, namely as to whether it was appropriate in certain circumstances to presume that the delay has caused prejudice. As to this Lord Mustill, in his judgment, said …

Naturally, the longer the delay the more likely it will be that the prosecution is at fault, and that the delay has caused prejudice to the defendant; and the less that the prosecution has to offer by explanation, the more easily can fault be inferred. But the establishment of these facts is only one step on the way to a consideration of whether, in all the circumstances, the situation created by the delay is such as to make it an unfair employment of the powers of the court any longer to hold the defendant to account. This is a question to be considered in the round, and nothing is gained by the introduction of shifting burdens of proof, which serves only to break down into formal steps what is in reality a single appreciation of what is or is not unfair.”

I am of the view that to establish that a provisional charge is to be struck out on account of delay in lodging the main case, the Applicant will need to prove, on balance of probability, because of the delay, she will suffer such serious prejudice that a fair trial cannot be held.

In The State v Bissessur [2001] SCJ 50, Narayen J suggested that before a Court accedes to a motion to stay proceedings, it has to take into account the following principles:

(1) “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.

(2) There is no mathematical calculation for how long is too long, it differs from jurisdiction to jurisdiction and each case has to be decided on its own facts.

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(3) A stay of criminal proceedings should not be ordered simply as a form of disciplinary disapproval of the DPP's office.

(4) The Court ought to carry out a balancing exercise which requires an examination of the length of the delay in the light of other factors, namely: (1) the seriousness of the offence; (2) limits on our institutional resources; (3) reasons for the delay and (4) trial-related prejudice, in order to determine where the attainment of justice lies.”

In Bissessur (supra), the learned Judge also stated that the Court in carrying out the balancing exercise must take into account the ‘limits on our institutional resources’. The EO did not testify on the limits of ICAC. However, it cannot be said that ICAC is investigating only in the case of the Applicant, it stands to reason that the ICAC must be investigating in several other cases which involves corruptions.

At the sitting of 19.06.19, the EO averred that he needed 6 months to complete the enquiry, whereas at the sitting of 04.12.19 he averred that he needed another 6 months to complete the enquiry. I respectfully endorse the finding of the l earned Judge in Bissessur (supra) when she stated that there is no mathematical calculation for how long is too long and each case has to be decided on its own facts and circumstances.

The reason put forward by the EO for the delay is because the present case is a complex one. Learned Counsel for the Applicant submitted that only the sum of Rs. 175000 is involved. I am of the view that it is not the sum of money that is involved that makes a case of money laundering complex or not it is rather the nature of the offence that makes a case complex or not. However, I am of the opinion that the amount of money that is involved in a case of money laundering will be viewed as an aggravating factor by the trial court.

I must say that no evidence has been adduced by the Applicant to rebut the contention of the Respondent that the present case is a complex one.

In the case of Attorney-General’s Reference (No 1 of 1990) [1992] 3 W.L.R. 9, there was a delay by the prosecution for 27 months before trial. The Attorney-General referred the matter to the Court of Appeal as to whether proceedings upon the indictment could stay on the grounds of prejudice resulting in the institution of those proceedings. The Court of Appeal held:

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“(1) a stay for delay or any other reason was to be imposed only in exceptional circumstances; that, even where delay could be said to be unjustifiable, the imposition of a permanent stay was to be the exception rather than the rule; and that even more rarely could a stay properly be imposed in the absence of fault on the part of the complainant or the prosecution, and never where the delay was due merely to the complexity of the case or contributed to by the defendant’s action (post, pp. 643G-644A).

Connelly v Director of Public Prosecutions [1964] A.C. 1254, H.L.(E): Reg v Derby Crown Court, Ex parte Brooks (1984) 80 Cr. App. R. 164, D.C. and Reg v Telford Justices, Ex parte Badham [1991] 2 Q.B. 78, D.C applied.

(2) That no stay was to be imposed unless a defendant established on the balance of probabilities that, owing to the delay, he would suffer serious prejudice to the extent that no fair trial could be held, in that the continuation of the prosecution amounted to a misuse of the process of the court; …”

I must place on record that the Respondent did not adduce any evidence to the effect that the Applicant contributed to the delay and I must say that there is no evidence to suggest that the Applicant contributed to the delay.

In Bissessur (supra), Narayen J went on to say –

“However, it is not just any prejudice, which will avail an accused party. The court must be satisfied that the accused has suffered trial-related prejudice.”

In R v Stephen Paul S [2006] EWCA 756, it was stated that the test to be applied when an application for a stay for abuse of process on the ground of delay is made, the correct approach is that the Court must take the following principles into account namely:

“(i) Even where delay is unjustifiable, a permanent stay should be the exception rather than the rule;

(ii) Where there is no fault on the part of the complainant or the prosecution, it will be very rare for a stay to be granted;

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(iii) No stay should be granted in the absence of serious prejudice to the defence so that no fair trial can be held;

(iv) When assessing possible serious prejudice, the judge should bear in mind his or her power to regulate the admissibility of evidence and that the trial process itself should ensure that all relevant factual issues arising from delay will be placed before the jury for their consideration in accordance with appropriate direction from the judge;

(v) If, having considered all these factors, a judge's assessment is that a fair trial will be possible, a stay should not be granted.”

I am of the view that nowadays an Applicant must not only show to the Court that the delay will cause prejudice but will cause serious prejudice for the Court to stay the proceedings.

I must say that the Applicant has failed to demonstrate to this Court that she would be faced with any serious prejudice and she has also failed to establish that no fair trial can be held in the given circumstances.

Taking into account the whole aspect of the present case, I am unable to conclude that the Applicant is suffering from any serious prejudice and/or she will suffer trial-related prejudice.

The motion of the Applicant to have the Provisional Information struck out on account of delay is set aside for the reasons I have detailed above in this Ruling.

I so order.

Ruling delivered by: Neeshal K JUGNAUTH, District Magistrate. Ruling delivered on: 30 th January 2020.