Minority Voice réclame l’annulation du droit d’appel du DPP contre les acquittements



• Me Jacques Panglose : « Je trouve injuste qu’une fois qu’une personne ait été trouvée non coupable, l’État décide de faire appel et prolonge le calvaire de ce citoyen »

Le Directeur des Poursuites Publiques a émis un communiqué mercredi après-midi pour signifier son intention de faire appel de l’acquittement de Pravind Jugnauth en Cour Suprême. A Minority Voice, nous n’allons pas nous prononcer sur ce cas. Nous allons simplement afficher une solidarité sans faille envers le leader du MSM et sa famille non pas sur un plan politique mais sur une base humanitaire.

Etant proche du petit peuple, nous savons le traumatisme qu’endure les justiciables de ce pays pendant de longues mois ou de longue années. C’est pourquoi Minority Voice réclame l’annulation du droit du DPP de faire appel contre les acquittements peu importe le niveau de la cour de justice qui est concerné.

Me Jacques Panglose GOSK affirmait dans un récent entretien : « Auparavant, le DPP n’avait pas le droit de faire appel d’un jugement, mais aujourd’hui il peut le faire. Je trouve injuste qu’une fois qu’une personne ait été trouvée non coupable, l’État décide de faire appel et prolonge le calvaire de ce citoyen. »

Les pouvoirs du DPP doivent être revues
Par contre, il est temps, selon nous, de relancer certains débats autour de l’institution du Directeur de la Poursuites Publiques mais non pas de la personne qui assume ces fonctions. Elle nous ne nous intéresse nullement.

En novembre 2003, après la très juste décision du DPP d’alors Abdool Raffick Hamuth, de stopper les poursuites contre Cehl Meeah sur la base du témoignage d’un ex-droguée Hateem Oozeer, il y a eu une levée de boucliers autour de la fonction. A tel point qu’une loi a même été circulée pour revoir ses pouvoirs. Minority Voice se demande s’il n’y a pas lieu d’accroître les pouvoirs du ministre de la Justice et de suivre le modèle français où c’est le Garde des Sceaux qui est redevable envers l’Assemblée nationale et la nation de toute décision du parquet.

Il faut s’inspirer de l’expérience australienne, où l’article 33 du Director of Public Prosecutions Act stipule que le DPP doit soumettre son rapport annuel au plus tard le 30 septembre. Ce dernier est soumis au procureur général qui le dépose ensuite sur la table de l’Assemblée législative dans les six jours suivant la date de la réception du document. Là-bas le DPP a un adjoint même s’il dépend administrativement de l’Attorney General, le DPP « is not subject to direction by the Attorney-General or any other person in the performance of the Director’s functions. »

La loi australienne permet au procureur général, après consultation avec le DPP, de lui donner des directives concernant la politique générale dans l’exécution de ses fonctions. Le DPP australien exerce aussi un pouvoir, une autorité ou une discrétion concernant les enquêtes et la poursuite des délits « that is vested in the Attorney-General ». Au Canada, il y a trois cours pour juger les infractions. Elles sont la cour des poursuites sommaires, la cour de juridiction criminelle et la cour supérieure de juridiction criminelle.

Dans le passé un célèbre juriste, Ivan Collendavelloo, Senior Counsel, avait affirmé dans un autre contexte: « Nous sommes probablement le seul pays où il y a une personne qui jouit d’un régime de protection et qui peut, sans rendre compte, prendre des décisions affectant la liberté des citoyens ou inversement les droits des victimes. Il en est ainsi dans notre Constitution. Il y a eu dans le passé des remous causés par des décisions du DPP. Cela ne va pas s’arrêter là à moins d’une vraie réforme. Il y eut l’affaire Gaëtan Duval et l’affaire Bacha. Les DPP qui avaient traité ces dossiers ne sont pas restés longtemps à leurs postes. Cependant, depuis un certain temps, il y a une accumulation de décisions du DPP qui suscitent des interrogations de la population. Il ne faut pas se taire lorsqu’il y a des injustices qui se passent dans notre société. ».

Avant de préciser : « La remise en cause des pouvoirs du DPP est d’actualité et de l’intérêt public. Doit-on revoir le rôle du DPP et, si oui, comment le faire ? Le débat est un débat ouvert quoi qu’extrêmement compliqué. Sur une question pareille, il s’agit d’œuvrer dans le consensus et non pas en utilisant une majorité parlementaire. Je ne peux toutefois pas dire quand on va le faire, le calendrier relève du Conseil des ministres, mais il ne faut pas aller vite en besogne. Quand je parle de remise en question des pouvoirs du DPP, cela ne veut aucunement dire mettre le bureau du DPP sous le contrôle soit de l’exécutif soit de quelque autre personne, mais travailler pour trouver des garde-fous afin de protéger la liberté. J’ai des doutes moi-même sur la suggestion d’instaurer le système de juge d’instruction»

Le drame c’est ce que ce commentaire suscite toujours une profonde réflexion.

Revenons à l’affaire Pravind Jugnauth

Les raisons d’appels du DPP

Le Directeur des poursuites publiques (DPP) avance quatre points d’appel pour justifier sa décision de contester le jugement en faveur de Pravind Jugnauth dans l’affaire Medpoint. Satyajit Boolell a indiqué qu’il s’agit d’une question qui est «of great general public importance to the future administration of justice in Mauritius».

Les points d’appel mis en avant par le DPP portent notamment sur la notion d’intention criminelle dans la commission du délit, le terme «personal interest», la définition du terme «conflit d’intérêts». Il évoque également la section 13(2) du Prevention of Corruption Act. Celle-ci stipule que «where a public official or a relative or associate of his has a personal interest in a decision which a public body is to take, that public official shall not vote or take part in any proceedings of that public body relating to such decision.»

Le DPP veut savoir si la Cour suprême a eu raison de statuer qu’une fois un contrat a été alloué par un organisme public à une compagnie privée, dans laquelle un proche d’un officier d’État détient des actions, il n’y a pas de conflit d’intérêts. Tout comme il n’y a pas de conflit d’intérêts dans des décisions relatives à l’exécution de ce contrat telles que des arrangements pour le paiement suivant l’achat.

Communiqué of the Office of the Director of Public Prosecutions

1. The Office of the Director of Public Prosecutions has today lodged an application before the Supreme Court for leave to appeal to the Judicial Committee of the Privy Council, pursuant to section 81(2)(b) of the Constitution and section 70A of the Courts Act, against the judgment delivered by the Supreme Court on 25th May 2016 in the matter of Pravind Kumar Jugnauth v. Independent Commission against Corruption & Ors.

2. The Director of Public Prosecutions (DPP) has had regard to the following factors in deciding to appeal to the Privy Council.

3. The Supreme Court observed in its judgment that it was the first occasion on which the offence of Conflict of Interests, under section 13(2) of the Prevention of Corruption Act (POCA), has come before it for determination and this case raises fundamental legal issues relating to the interpretation of that offence.

4. The Supreme Court’s judgment, which overturned the decision of the Intermediate Court, gives rise to important questions as regards the determination of guilt under section 13(2) of the POCA, inter alia:

(a) the requisite degree of knowledge and criminal intent of a public official to establish an offence of Conflict of Interests, and whether good faith can be invoked as a defence;

(b) the meaning of the term “personal interest” and whether it excludes the shareholding of the relative of a public official in a company;

(c) the nature of participation in proceedings prohibited under that provision and whether a public official is precluded from taking any step in the execution of a contract which has been awarded by a public body to a company in which a relative of that public official has shares.

5. The DPP is of the considered opinion that the above legal issues raises points of law of great general public importance, the final resolution of which is in the interests of the public and of the administration of justice in Mauritius.

6. Moreover, the DPP has taken note that there are a number of cases either awaiting decision as to charge or awaiting trial, the final outcome of which will depend on the decisions of law made in this case.

7. The DPP has therefore concluded, after careful review, and thorough internal consultations, that it is essential in the public interest and for the future development of the law in this vital area that these fundamental legal issues, on which the two courts have disagreed, should be referred to the Judicial Committee of the Privy Council for its ultimate decision.

08 June 2016

VOICI L’AFFIDAVIT DU DPP

IN THE SUPREME COURT OF MAURITIUS

(Application under sections 81(2)(b) of the Constitution and 70A of the Courts Act)

In the matter of:- The Director of Public Prosecutions, 10th-16th Floors, Garden Tower Building, La Poudrière Street, Port Louis.

Applicant
v/s
Pravind Kumar Jugnauth, of No. 16 Angus Road, Vacoas.
Respondent

In the presence of:-

The Independent Commission Against Corruption, ICAC Building, Moka Triangle, Réduit

Co-Respondent

I, Noorjahan ZMANAY (born Hasan-Miyan), Senior Legal Assistant, at the Office of the Director of Public Prosecutions, holder of NIC bearing number: H2405784611307, MAKE SOLEMN AFFIRMATION AS A MUSLIM AND SAY THAT:

1. I have been duly authorised to solemnly affirm this affidavit on behalf of the Applicant.

2. The Respondent was prosecuted before the Intermediate Court for the offence of Conflict of Interests, in breach of section 13(2) and (3) of the Prevention of Corruption Act, on an information which was solemnly affirmed by an officer of the Co-Respondent. Copy of the Information dated 14th March 2014, bearing Cause Number IR/L 265/14 is herewith attached and marked as Annex A.

3. On 30th June 2015, the Respondent was convicted by the Intermediate Court and was, on 2nd July 2015, sentenced to 12 months’ imprisonment. The sentence was, pursuant to section 3(1)(b) of the Community Service Order Act, suspended pending a community service suitability report from the Probation Office. On 16th July 2015, upon the filing of a favourable report by the Probation Officer, the Respondent was, pursuant to section 4(2)(b) of the Community Service Order Act, asked whether he consented to a community service order. The Respondent gave no express consent to such an order and informed the Court that he intended to appeal against the judgment. In the absence of the Respondent’s consent to a community service order, the Intermediate Court sentenced him to the original 12 months’ imprisonment and further ordered him to pay Rs. 500 as costs. Copies of the judgment of the Intermediate Court dated 30th June 2015 and the sentence are herewith attached and respectively marked as Annex B and Annex C.

4. The Respondent appealed against both his conviction and sentence to the Supreme Court. At the hearing of the appeal, the Supreme Court was invited by the Respondent to disregard the original grounds of appeal and to consider only the amended grounds of appeal set out in the notice of appeal dated 27th July 2015. The grounds were grouped by the appellate court under the following headings:
Ground 1 – The mental element of the offence
Ground 2 – The meaning of “personal interest”
Ground 3 – Errors in relation to conflict of interest
Ground 4 – The construction of “any proceedings” relating to a “decision” “which a public body is to take”
Ground 5 – Disclosure
Ground 6 – Charging
Ground 7 – Injustice in sentencing

5. In its judgment dated 25th May 2016, the Supreme Court (Honourable Chief Justice, K.P. Matadeen and Honourable Judge A.A. Caunhye) allowed the appeal on Grounds 1, 2 and 3, and, accordingly, quashed the conviction and sentence of the Respondent. Copies of the notice of appeal dated 27th July 2015, judgment of the Supreme Court dated 25th May 2016, bearing SCR 8798 and the transcripts of the proceedings before the appellate court of 12th and 13th January 2016 are herewith attached and respectively marked as Annex D, Annex E and Annex F.

6. The Supreme Court observed in its judgment that it was the first occasion on which the offence of Conflict of Interests, under section 13(2) of the Prevention of Corruption Act, has come before it for determination and it raises fundamental legal issues relating to the interpretation of that offence.

7. The Applicant considers that the judgment of the Supreme Court is wrong in law and raises important questions as to the correct definition of the elements of the offence of Conflict of Interests under section 13(2) of the Prevention of Corruption Act, which are of great general public importance to the future administration of justice in Mauritius.

8. The Applicant accordingly seeks leave to appeal, pursuant to sections 81(2)(b) of the Constitution and 70A of the Courts Act, against the said judgment of the Supreme Court to the Judicial Committee of the Privy Council on the following grounds:
(a) Whether, as the Supreme Court held, the State is, for the purpose of establishing guilt under section 13(2) of the Prevention of Corruption Act, required to prove that an accused knew that he possessed a conflict of interests and, with that knowledge, intended to act in breach of his duty not to take part in the proceedings of the relevant public body or whether it is sufficient for the State to prove that the accused knew each of the objective facts and circumstances that a reasonable person would regard as giving rise to a conflict of interests and that he failed thereafter to abstain from participation in those proceedings?

(b) Whether the Supreme Court erred in law in holding that it was a defence for an accused charged with an offence under section 13(2) of the Prevention of Corruption Act to establish, on a balance of probabilities, that he had acted in good faith, namely that he had acted under a honest and reasonable belief as to the circumstances, which if true, would have rendered his act devoid of guilty intent?

(c) Whether, as the Supreme Court held, for the purpose of establishing the existence of a conflict of interests pursuant to section 13(2) of the Prevention of Corruption Act, the expression “personal interest” in section 13(2) is to be construed, in its statutory context, as preventing the State from relying on the shareholding of the relative of a public official in a company?

(d) Whether, as the Supreme Court held, once a contract has been awarded by a public body to a company in which the relative of a public official holds shares, that public official possesses no conflicting interests in decisions relating to the execution of the contract, such as internal arrangements relating to payment of the purchase price, and may participate in them without infringing section 13(2) of the Prevention of Corruption Act?

9. I am advised and verily believe that the pronouncements of the Supreme Court in this case are capable, if not reversed, of constituting a precedent not conducive to the public interest in the proper administration of justice, and there are no means of preventing these consequences other than by way of an appeal to the Judicial Committee of the Privy Council. Moreover, the questions which arose in this case are likely to occur often in the future.

10. I am further advised and verily believe that the decision of the Supreme Court in this case will have a bearing on a number of other cases involving “conflict of interests” which are either awaiting Applicant’s decision as to charge or trial.

11. I am advised and verily believe that, in the circumstances, it is urgent and necessary that the Applicant be granted leave to appeal to the Judicial Committee of the Privy Council against the judgment of the Supreme Court delivered on 25th May 2016, by the Honourable Chief Justice, K.P. Matadeen and Honourable Judge A.A. Caunhye, bearing record number: SCR 8798.

12. I, therefore, move for an Order from the Honourable Court:

(a) granting the Applicant conditional leave to appeal to the Judicial Committee of Privy Council against the judgment delivered on 25th May 2016, by the Honourable Chief Justice, K.P Matadeen and Honourable Judge A.A Caunhye, bearing record number: SCR 8798;

(b) fixing the conditions and time limit within which the necessary steps for the purpose of procuring and preparation of the record and its despatch to England as the Court, having regard to all the circumstances of the case, may think it reasonable to impose;

(c) granting such order as the Court may deem fit and necessary to make.

13. I, therefore, pray accordingly.

Solemnly affirmed by the abovenamed deponent )
in Chambers, Supreme Court House, at Port Louis )
this 8th day of June, 2016. )
Drawn up by me Before me
K. Parson
State Attorney and Attorney for the Applicant

Pour rappel voici les points saillants du jugement :

It was submitted that the learned Magistrates were wrong to proceed on the basis that the appellant’s sister’s shareholding in Medpoint Ltd meant that she held a “personal interest” in the decision relating to the payment to be made to the company. The interests of a shareholder and the interests of a company are distinct and separate. As a result, the learned Magistrates were wrong to disregard the separate personality of the company. The learned Magistrates wrongly conflated the appellant’s sister’s interest in Medpoint Ltd with Medpoint Ltd’s interest in its contract with the Government.

Additionally, the learned Magistrates’ finding on the issue of “personal interest” was glaringly flawed because the Ministerial decision was not one to “find funds” but one to approve the reallocation of funds, which had already been previously earmarked, from one source to another. The learned Magistrates clearly failed to make this crucial distinction in their appreciation of the evidence before them in determining the issue of interest.

As was expressly recognised by the learned Magistrates themselves, the decision to reallocate funds was “… at the very last stage of the whole process, when all major steps had already been fulfilled for the acquisition of Medpoint site and decision to pay had already been taken. The sole decision that had to be taken at that stage and in which accused confirmed having participated is the source of funds for the agreed payment to Medpoint Ltd.” Therefore, it stands to reason, having regard to the above sequence of events, that the decision taken by the appellant to approve a reallocation of funds at the stage after funds had been identified, after the payment deadline had been determined, after the contract had been awarded and after the contract amount had been determined could not possibly have resulted in any “personal interest” to his sister.

The sum of Rs 144,701,300 was already due to be paid by Government and there was already an available and identified source of payment which was MOFED’s Lottery Fund. By affixing his signature to the minute, the appellant approved the proposal to use MOHQL’s savings as the source of funding the payment rather than MOFED’s Lottery Fund. It was an internal administrative decision which was merely concerned with an allocation choice between two possible sources of funding, resulting in payment being effected from another available source. It was not a decision to “find” or “identify” funds, as erroneously found by the learned Magistrates.

Having ascertained that the decision had already been taken to pay, no situation of conflict could arise with regard to the obligation to pay. It was no longer an issue that Medpoint Ltd was entitled to the payment of Rs 144,710,300. Government had not only taken the decision to award the contract to Medpoint Ltd but had also expressly bound itself to effect payment to Medpoint Ltd. The only remaining issue was payment of the sum in question. The interest of Medpoint Ltd to obtain payment of that sum had already been secured since 14 December 2010, well before the appellant affixed his signature for the approval of the reallocation of funds. As we have found earlier, the decision to reallocate funds could not in the least have affected the interest of Medpoint Ltd.

Section 13(2) of the Act is not concerned with any perception of bias but creates a criminal offence which requires the prosecution to prove an actual conflict of interest when the public official takes part in a decision-making process including the personal interest of a relative. There must not be merely an apparent conflict of interest.
Whilst the test for apparent bias is appropriate to determine the impartiality of an adjudicating tribunal or an administrative body entrusted with a statutory decision-making process as in Porter v Magill (supra) or in Khedun -Sewgobind v The Public Service Commission [2010 SCJ 6a], the same principle or test would not apply to the proof of a criminal offence under section 13(2) of the Act.

The learned Magistrates erred when they proceeded to convict the appellant based on an apparent conflict of interest. Section 13(2) of the Act does not criminalise apparent conflicts of interest but actual conflicts of interest, to which the learned Magistrates utterly failed to apply their minds.

This ground hinges on the mental element aspect of the offence and reproaches the learned Magistrates of having failed to properly appreciate the mental element required for the offence to be proved. We, therefore, hold that the presumption of law that mens rea is required before a person can be convicted of an offence under section 13(2) has neither been rebutted by any express provision in the Act nor by necessary implication.

It is not the least surprising, therefore, that the prosecution chose to aver all the ingredients of mens rea in the information against the appellant. The charge brought by the prosecution against the appellant is that the appellant acted “willfully”, “unlawfully” and “criminally”. Thus, the charge which the appellant had to answer and to which he pleaded expressly mentions that full mens rea is required.

The approach adopted by the learned Magistrates with regard to the mental element is, accordingly, flawed in several respects. >They were clearly wrong to treat the offence under section 13(2) and (3) as being an absolute offence creating an absolute prohibition. They failed to recognise that the prosecution had to prove beyond reasonable doubt the requisite mental element on the part of the appellant in order to establish his guilt at the material time of the commission of the offence in conformity with section 13(2) of the Act.

This approach adopted by the learned Magistrates is wrong in law. The use of the words “shall not” by the legislator does not operate to exclude the need to establish “mens rea” or “a guilty intent” for the purpose of establishing an offence under section 13(2) of the Act. The learned Magistrates failed to appreciate the presumption that it was incumbent on the prosecution to prove mens rea in relation to all the constitutive elements of the offence. Such presumption had not been displaced expressly by any statutory provision nor by necessary implication.

As a result of the misdirections in law under (a) above, the legal approach adopted by the learned Magistrates was vitiated and defective from the outset. It was incumbent upon the prosecution to prove beyond reasonable doubt that the appellant had the requisite guilty intent in respect of all the prohibited acts which constitute an offence under section 13(2). No such finding was reached by the learned Magistrates.

True it is that the learned Magistrates found that the appellant knew that his sister possessed an interest “ in Medpoint Ltd ” and also knew that his decision to approve the reallocation of funds related to the payment of Medpoint Ltd. However, it cannot be said that they found the requisite mens rea in respect of all the conduct elements of the offence, in particular the third conduct element, proved beyond reasonable doubt. What they found was that the appellant must have known that his sister was a shareholder. This cannot, de facto, be equated or stretched to a finding that he knew that she had any “ personal interest” in the decision to reallocate funds and that he knowingly participated in a decision-making process involving a conflict of interest.

The learned Magistrates erred in law in misconstruing the requisite mens rea and as a result failed to make a proper assessment of the criminal and guilty intent of the appellant which had to be established beyond reasonable doubt in respect of all the composite elements of an offence of conflict of interests under section 13(2) of the Act;
In these circumstances, it was highly questionable whether the appellant had the requisite guilty intent at the material time that he participated in a decision limited solely to a reallocation of the funds for payment to which Medpoint Ltd was already lawfully entitled, the more so when this was done at a time and in a situation where there was a total absence of any competing interests or conflict of interests.

In view of all the above, we hold that: (a) the learned Magistrates erred in law in misconstruing the requisite mens rea and as a result failed to make a proper assessment of the criminal and guilty intent of the appellant which had to be established beyond reasonable doubt in respect of all the composite elements of an offence of conflict of interests under section 13(2) of the Act;

(b) the highly questionable nature of the evidence cannot safely support a conclusive finding that the appellant had the requisite guilty knowledge in respect of all the constitutive elements of an offence under section 13(2);
(c) the learned Magistrates erred in law when they failed to consider whether the appellant may have been acting in the bona fide execution of his duty as Minister of Finance in approving the proposal for reallocation of funds essentially to suit the internal financial and administrative convenience of the Ministry and in the absence of any conflict of interest.

It necessarily follows that the appeal must also succeed under ground 1. For all the reasons we have given above, we allow the appeal and quash the conviction, and the sentence of the Intermediate Court. We make no order as to costs.
K.P. Matadeen
Chief Justice
A.A. Caunhye
Judge
25 May 2016

Posted by on Jun 8 2016. Filed under Actualités, Blog, Featured, Politique. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry

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