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DIRECTOR OF PUBLIC PROSECUTIONS v JUGNAUTH P K

2017 SCJ 227

Record No. 113319

THE SUPREME COURT OF MAURITIUS


In the matter of:-

The Director of Public Prosecutions


Applicant
v

P.K. Jugnauth
Respondent
In the presence of:-

The Independent Commission against Corruption

Co-Respondent
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JUDGMENT

The respondent was convicted and sentenced by the Intermediate Court for the offence
of conflict of interests, in breach of section 13(2) and (3) of the Prevention of Corruption Act.

He appealed to the Supreme Court against the judgment of the Intermediate Court and,
on 25 May 2016, the Supreme Court, as presently constituted, quashed his conviction and
sentence.

The applicant is now seeking leave to appeal to the Judicial Committee of the Privy
Council by virtue of section 81(2)(b) of the Constitution and section 70A of the Courts Act on the
following four grounds:
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(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?

In essence, learned Counsel for the applicant has, whilst providing us with a synopsis of
the legal submissions made before us during the appeal proceedings in relation to each of the
above grounds, drawn analogies with and placed reliance on several decisions of the Supreme
Court whereby the applicant was previously granted leave to appeal to the Judicial Committee
of the Privy Council, including The Director of Public Prosecutions v Sabapathee [1994 MR
32] and The Director of Public Prosecutions v Hurnam [2005 SCJ 23].

It is the applicants submission that the cursus has been for the Judicial Committee of
the Privy Council to entertain applications such as the present one in cases involving an
interpretation of provisions of law, the more so when the possibility of erroneous interpretation
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exists. It was also submitted that our pronouncements in the judgment dated 25 May 2016 are
capable, if not reversed, of constituting a precedent not conducive to the public interest in the
proper administration of justice.

On the other hand, learned Queens Counsel for the respondent has argued that the
applicants complaints concern findings of facts by the Supreme Court on appeal and, therefore,
do not raise any issues of great general or public importance which ought to be submitted to the
Judicial Committee. It was also submitted that, through the present application, the applicant is
only seeking to explore the wider parameters of the law governing the offence of conflict of
interests.

We have given due consideration to the arguments of learned Counsel on either side.
The following passages from the decision of Hurnam (supra) are relevant and worth
reproducing:

It is indeed a well-established principle that the Judicial Committee will


not sit as a Court of Criminal Appeal. However, as stated in Halsburys
Laws 4th Ed, Vol. X at paragraph 786, the Judicial Committee will
exceptionally grant special leave to criminal cases where questions are
raised of great and general importance which are likely to occur often and
where the due and orderly administration of the law is shown to be
interrupted or diverted into a new course, which might create a precedent
for the future.

In this context, we may also refer to Buxoo v R [1988 MR 259] where


their lordships had firmly stated that they would not depart from the
traditional principles with regard to the right of appeal to the Judicial
Committee in criminal matters and referred to Badry v DPP [1982 MR
378] the first appeal to come before the Judicial Committee under section
70A, and to Ibrahim v The King [1914] AC 599, the locus classicus
where these principles are stated. They, however, remarked that those
principles were not necessarily to be applied with the most extreme
rigidity and that where an important point of law of general application is
raised by an appeal, and the decision in question is capable, if not
reversed, of constituting a precedent not conducive to the public interest
in the proper administration of justice, the appeal may be capable of
being accommodated within the intendment of the principles. Thus the
Board have on occasion granted special leave to appeal to a prosecutor.

It is to be noted that in Y. Mamodeally v The Queen (Privy Council


Appeal) [1989 PRV 48] where one of the grounds on which leave as of
right was granted by the Judicial Committee was that their lordships were
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of the opinion that a conviction which involved an erroneous interpretation


or application of a series of connected sections of the Criminal Code
relating to the forgery of documents by a functionary or a public officer is
something which tends to direct the due and orderly administration of the
law into a new course and which may be drawn into an evil precedent in
future. [Underlining ours]

Turning to the present application, we find it apt to highlight once again what we had
observed in our judgment delivered on 25 May 2016 allowing the respondents appeal:

The present appeal, in fact, happens to be the first appeal heard by the
Supreme Court in relation to an offence of conflict of interests under
section 13(2) and (3) of the Act. It raises a number of fundamental legal
issues, to a large extent concerned with the interpretation of certain
elements of the offence itself and their application to the facts of the
case.

Applying the principles laid down in the case of Hurnam (supra), we have no difficulty in
holding that the present application indeed raises substantial and significant issues of law which
essentially involve an interpretation of:

(a) the essential elements of the offence of conflict of interests under section 13(2) of
the Prevention of Corruption Act, in particular the elements of personal interest
and mens rea;

(b) whether, in law, the respondent could invoke the defence of good faith; and

(c) whether the respondents conduct in relation to the implementation of the


contract could absolve the respondent from liability under section 13(2) of the
Prevention of Corruption Act.

We accordingly consider that the issues raised by the applicant are of great general or
public importance which ought to be submitted to the Judicial Committee of the Privy Council
and, in that respect, we see no reason why we should depart from the approach previously
adopted by this Court in similar applications.
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In the circumstances, we grant leave to the applicant to appeal to the Judicial Committee
of the Privy Council on condition that:

(a) the applicant shall within 14 days from the date of this judgment enter into good
and sufficient security in the sum of Rs 150,000 to the satisfaction of the Master
and Registrar for the due prosecution of the appeal and the payment of all such
costs as may become payable by the applicant in the event of the applicant not
obtaining an order granting it final leave to appeal, or of the appeal being
dismissed for non prosecution, or of the Judicial Committee ordering the
applicant to pay the costs of the appeal (as the case may be); and

(b) the applicant shall procure the preparation of the record and the despatch thereof
to England not later than three months from the date of this judgment.

K. P. Matadeen
Chief Justice

A.A. Caunhye
Judge
22 June 2017
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Judgment delivered by Hon. K. P. Matadeen, Chief Justice

For Applicant : Ms K. Parson, State Attorney


Mr R. Ahmine, Deputy Director of Public Prosecutions, together
with Mr R. Rammaya, Senior State Counsel

For Respondent : Mrs S. Sonah-Ori, Attorney-at-Law


Mrs C. Montgomery QC, together with Messrs D. Basset SC,
R. Chetty SC and R. Gulbul, of Counsel

For Co-Respondent : Mr S. Sohawon, Attorney-at-Law


Mr M. Roopchand, together with Mr H. Ponen, of Counsel