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COMMISSIONER OF POLICE v DIRECTOR OF PUBLIC PROSECUTIONS

2018 SCJ 141

SCR 114157

THE SUPREME COURT OF MAURITIUS

In the matter of:-

Commissioner of Police

Applicant

v/s

Director of Public Prosecutions

Respondent

In the presence of:-

1. Veekram Bhunjun

2. Permanent Secretary,
Ministry of Industry, Commerce and Consumer Protection

Co-Respondents

JUDGMENT (leave stage)

This is an application by way of motion for leave to apply for judicial review of the
decision-making process of the respondent with respect to a decision taken by it on
23 November 2016 and for an order directing the respondent to bring up the record of such
decision-making process.

The original application was dated 23 February 2017 and lodged on 27 February
2017. On 6 March 2017, Counsel for the applicant moved to amend the Motion Paper as per
a proposed amendment dated 1 March 2017. The respondent objected to the proposed
amendment. The matter was subsequently fixed and we heard arguments on both the
objection to amend the Motion Paper and the application for leave for judicial review.

Before proceeding further, we propose, for the sake of clarity, to briefly set out the
facts. It is not disputed that the applicant received a letter dated 12 February 2015 from co-
respondent no. 2, following which his officers started an enquiry. At least six suspects,
including co-respondent no. 1, were arrested and provisional charges were lodged against
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them. Preliminary communications were exchanged between the applicant and the
respondent with the latter requesting for further enquiries which were attended to by the
applicant’s officers. By way of a PF 100 dated 16 November 2015, the applicant requested
for the advice of the respondent on alleged offences of bribery of public officials, forgery,
conspiracy and other related offences committed under the Prevention Against Corruption
Act and the Public Procurement Act.

The applicant has alleged that he did not hear anything about the case until
23 November 2016 when an officer of the respondent appeared in Court and made a
statement followed by a communiqué published in the media which was, essentially, to the
effect that proceedings were being discontinued by the respondent.

The applicant maintains that several verbal requests were made for the case-file to
be returned to him which, however, remained unanswered. Thus, on 20 February 2017, the
applicant wrote to the respondent requesting formally for communication of the case-file
whist, at the same time, informing the respondent that he had the intention of applying for a
judicial review of the decision of the respondent. On 21 February 2017, the respondent
returned the case-file to the applicant with a short minute to the effect that no further action
had been advised against all suspects as explained in the communiqué dated 23 November
2016.

In a supporting affidavit, sworn by an officer of the applicant, it has been stated that
the applicant is aggrieved by the course of action adopted by the respondent which,
according to him, is most unusual in the sense that it was improper for the respondent to
give his advice in the public domain before having given formal advice to the applicant in the
PF 100. This, according to the applicant, undermines his authority in the eyes of the public
and is detrimental to the proper working of the criminal justice system in the country. Further,
the applicant has averred that, having regard to the provisions of the Standing Orders made
pursuant to section 6 of the Police Act, the action of the respondent constitutes a procedural
irregularity. It is also the contention of the applicant that the respondent has failed to take
into account relevant matters and that the decision reached by him is unreasonable. The
present application for judicial review is being made because there is a strong public interest
element in the matter.

Motion to amend
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We propose to deal with the objection to the proposed amendment to the Motion
Paper first. In order to appreciate the nature of the objection taken by the respondent, it is
apposite that we should set out the details of the original motion and the proposed
amendment. The original motion was for leave to apply for judicial review of the decision-
making process of the respondent not to institute criminal proceedings against certain
parties whose conduct had been enquired into by the applicant and in respect of which the
applicant had sought the advice of the respondent pursuant to a PF 100 dated 16 November
2015 (vide OB 120/2015 CCID). The motion was also for a Writ of Certiorari for the
respondent to bring up the record of its decision-making process.

The proposed amendment does the following:

[1] it deletes the motion to ‘bring up the record’ from the original motion and sets it
out as paragraph (a) with certain additions, thus moving for a Writ of Certiorari to
bring up all the records related to the decision of the respondent in order to have the
said decision, as published by the respondent in the communiqué from the office of
the respondent quashed, set aside, reversed or otherwise dealt with as the Court
deems fit;

[2] it moves, as paragraphs (b)(i) and (ii), for an order of Mandamus directing the
respondent to address the suggestions of charges made by the applicant, in the light
of all statements and documents submitted to the respondent, and:

[i] to tender his written advice as appropriate via the PF 100 through a
proper entry by way of minutes duly dated and signed by him, as is the
normal practice; and
[ii] to explain clearly in the said minute in respect of each suggested
charge the reason of his disagreement (in case the respondent
disagrees with the suggestions of the applicant), having regard to
whether or not there is disclosed ex-facie the material before him any
evidence to support or not each charge as suggested by the applicant;

[3] it adds a general prayer for the Court to make any other order as it deems fit and
proper in the circumstances.

Counsel for the respondent objected to the proposed amendment on the grounds
that:
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“[1] it constitutes a material alteration to the initial application wherein new


remedies are being sought outside delay, and no good reason or adequate
explanation has been given for the delay;
[2] the relief sought is misconceived in law and purely academic”.

Under the limb of delay, it must be pointed out that the decision which is being
challenged is dated 23 November 2016. The delay of three months to lodge the application
expired on 22 February 2017 and the original application was dated 23 February 2017 and
was lodged on 27 February 2017 being, therefore, outside delay. The motion to amend was
officially made on 6 March 2017 even though the notice for such proposed amendment is
dated 1 March 2017. Thus, the proposed amendment was also outside delay. Counsel for
the respondent has submitted that the test for the lodging of a judicial review application is
promptness and, in view of the dates which have been set out above, the applicant has
failed to act promptly.

It is trite law that, as a general rule, and in the normal course of things, the Court
would insist that delays be strictly respected based on the principle that prescribed delays
ensure the smooth running of cases and that, at some point in time, there must be finality to
litigation. However, the Courts have always been willing to exercise their discretion to
consider applications made outside delay where there is a good explanation for the delay
and, more particularly, where it is in the superior interest of justice that the Court should
consider and determine the point at hand. Indeed, we are only repeating the obvious when
we say that a litigant is not to be denied access to justice based merely on procedural
timelines since, to do so, may lead to the undermining of confidence in our system of justice.

The applicant, in the present case, has contended that the respondent was not
communicating with him concerning the impugned case-file. We have it, as a matter of fact,
that the applicant did not receive any written minutes in the PF 100 up to 23 November
2016. The communiqué of the respondent was made in Court on that day and was given
directly to the press. True it is that the applicant must have become aware of the contents of
the communiqué as at that date; however, for him to undertake any action, legal or
otherwise, he needed an official communication from the respondent enclosed in the case-
file. According to the officer of the applicant who was handling the file, several verbal
requested were made for the case-file to be returned to the applicant but same were not
attended to by the respondent. It is arguable that there is no evidence that these requests
were made at all and, at any rate, if the applicant wanted the file, he should have applied for
it earlier. However, we are of the view that there is no substance in such an argument
inasmuch as the respondent had a duty to communicate the file with his decision officially
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set down in the PF 100 in a timely manner to the applicant. It was not for the applicant to go
chasing the respondent for its own police file to be returned to it. It was the inaction of the
respondent which finally prompted the applicant to write officially for the case-file to be
returned to him.
It was only on 21 February 2017 that the case-file was returned to the applicant with
an official minute in it to the effect that no further action had been advised for the reasons set
out in the communiqué dated 23 November 2016. The original Motion Paper was lodged six
days later. It goes without saying that the case must have been prepared under pressure
and a motion to amend which came a few days later, if not justified, is at least perfectly
understandable. We are of the view that the applicant has offered a good reason as to why
the original motion and the subsequent motion to amend were made outside delay. On the
other hand, the respondent cannot benefit from his own turpitude and successfully raise the
issue of delay as an objection in the circumstances which have been set out above.

The second argument of Counsel for the respondent was to the effect that the
proposed amendments are of such a nature as to introduce a totally new cause of action
outside delay and, therefore, constitute a material alteration to the initial application. We are
of the view that the proposed amendments actually mean to elaborate or set out in more
details the remedies sought by the applicant. At any rate the Courts have always taken a
pragmatic approach to judicial review applications and have shown a willingness to grant the
form of relief most likely to resolve satisfactorily the dispute between the parties (see
Judicial Review of Administrative Action by De Smith, Woolf and Jowell, 5th Edition).

Based on the above, we set aside the objection and allow the motion to amend the
Motion Paper. We will now proceed to consider the application for leave for judicial review.
The second limb of the objection of Counsel for the respondent actually raises an issue of
substance and will be more appropriately dealt with under the application for leave.

The application for leave


Counsel for the respondent has taken certain preliminary objections to leave being
granted. A few of those objections were dropped and, what remains, reads as follows:
“The respondent moves that the application be set aside, with costs, on the
following grounds:
(i) ………………………………………………………………………………………
(ii) the application as couched discloses no cause of action against the
respondent and the remedy sought is misconceived in law and purely
academic;
(iii)………………………………………………………………………………………
(iv)………………………………………………………………………………………
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(v) the application does not disclose an arguable case”.

Counsel for co-respondent No. 1 also took certain preliminary objections which read
as follows:
“The co-respondent/intervening party objects to leave being granted to the
applicant to apply for judicial review of the decision of the respondent on the
ground that:
[1] the application for leave has not been made promptly and, in any event,
the application has not been made within 3 months from the date the
applicant became aware of the decision of the respondent;
[2] on the face of the affidavit filed in support of the motion for leave, the
application does not disclose any case, let alone an arguable case”.

We have already dealt with the issue of delay in lodging the application. We now
propose to look at the prayers one by one to see whether the application discloses a cause
of action and whether there is an arguable case warranting the granting of leave or not.

The Writ of Certiorari


The first prayer is for a Writ of Certiorari ordering the respondent to bring up its
records relating to the decision not to institute prosecution against certain suspected parties
so as to have the said decision quashed, set aside, reversed or otherwise dealt with.

There are two limbs that have to be examined here, the first one being the prayer for
an order requiring the respondent to ‘bring up the record’ of his decision. The basic legal
principle in this connection was set down in the case of Chinien v The Public Service
Commission and anor [1981 SCJ 411] where a similar order was applied for but was
subsequently abandoned. Commenting on the issue, the Supreme Court held:

“……… the removal of the record of a statutory body such as the


Commission, the records of which contain confidential and personal
information relating to parties other than those in Court, is not to be had for
the mere asking, unless, of course, the Court is satisfied that its production is
required for the purpose of determining the real question at issue or that the
material necessary to determine the question is not already contained in the
affidavits filed by the parties” (the underlining is ours).

The Director of Public Prosecutions (the DPP) holds his position pursuant to section
72 of the Constitution and matters concerning the prosecution of criminal offences are within
his exclusive province. Files sent to the DPP for advice are handled by State Law Officers
posted at his office. Exchanges between those officers and, ultimately, the DPP himself must
be done with the utmost candour and State Law Officers must feel free to express their
opinions without the impending apprehension that opinions expressed in all confidence to
fellow colleagues or to superior officers would, at a later stage, be disclosed in Court and
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made public knowledge. Should disclosure in Court become the practice or the rule, the
result would be that the working of the office of the DPP would be impeded to a large extent.

However, this is not to say that materials contained in the form of minutes in a file
where decisions have been taken at the DPP’s office would never be disclosed in Court. As
stated in the case of Chinien (supra), it must be shown that ‘its production is required for the
purpose of determining the real question at issue’. Moreover, if the material which can help
the Court to reach a decision is already available in the file before the Court, then the need
to bring up and produce the other records of the DPP would not arise.

In the present case, the communiqué which was filed in Court and which was
subsequently released to the media has been annexed to the affidavit of the applicant. This
communiqué is not in the form of a short minute, but is constituted of 11 typed pages and
extensively sets out the decision taken by the respondent and what motivated that decision.
We will deal with the communiqué in more details later. However, for the time being, suffice
it to say that the communiqué and other materials available in the form of affidavits as well
as the extensive annexures thereto have placed enough information on record for the issue
to be decided should we reach that stage. Thus, we are of the view that this limb of the
prayer has no merit.

The second limb of the Writ of Certiorari prayed for is for the decision of the
respondent to be ‘quashed, set aside, reversed, or otherwise dealt with’. At this stage, we
must lay emphasis on the fact that this is an application for judicial review. An order to quash
a decision taken administratively is normally made on the ground of illegality, breach of the
rules of natural justice, procedural impropriety or if the said decision fails the ‘Wednesbury
reasonableness test’ in the sense that the decision is so unreasonable that no reasonable
person or body would have reached such a decision.

But, the prayer, as it has been presently drafted, appears to be no more than a
disguised form of appeal whereby this Court is being asked to sit and reconsider the
decision of the respondent. In the case of Francis M C G & Ors v The Employment
Relations Tribunal [2014 SCJ 266] the Supreme Court was asked, by way of judicial
review, to reconsider a decision taken by the Tribunal and their Lordships held:

“As a matter of fact, the applicants are asking this Court to review the
findings of the Tribunal. It is well settled that the purpose of a judicial review
is to look at the legality of a decision and at the decision making process and
not to act as a court of appeal ……… In the present case, the applicants are
in effect asking this Court to sit on appeal on the merits of the award of the
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Tribunal …….. For the above reasons, we find that the present application
does not disclose any arguable case. Leave is accordingly refused and the
application is set aside with costs”.

In the light of the above, we are of the view that this limb of the prayer for a Writ of
Certiorari to issue cannot hold.

The order of Mandamus


The second prayer of the applicant is for an order of Mandamus directing the
respondent to do certain things which he has, allegedly, not done. They are to the effect that
the respondent should be directed:

[a] to address the suggestions of charges to be preferred against the suspects which
were made by the applicant;
[b] to tender his written advice, as appropriate, via the PF 100 with proper entries
made by way of signed minutes as is the normal practice; and
[c] to clearly explain, in respect of each charge suggested by the applicant, the
reasons for the respondent’s disagreement with such suggestions.

The main argument of Counsel for the applicant was to the effect that what is at
stake is the relationship between two arms of the process of criminal investigation and
prosecution in Mauritius. He submitted that the remedy sought would not be purely academic
even though it may appear to have a theoretical flair to it. One of the main reasons
motivating the decision of the respondent to advise no further action was the alleged fact
that the police enquiry fell short of revealing essential elements of evidence which would
have been required to sustain a prosecution in Court. Counsel contended that if the
respondent felt that there were certain shortcomings in the enquiry, it had a duty to ask for
further investigations which the applicant would have done with a view to curing any defects.
The judicial review of the decision of the respondent in the present case would have the
effect of obtaining a judgment that would set out clearly the functions of the DPP and of the
police so that each party would know in the future what his role and duties are in the context
of a decision to discontinue proceedings.

At this stage, we need to consider the communiqué issued by the respondent in more
details. It sets out the background of the case, the salient features of the police enquiry and
deals with the possible charges suggested by the applicant. It is worth noting that it also sets
out the reasons as to why no further action was being advised. The argument of Counsel for
the applicant suggesting that the respondent should have given an opportunity to the
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applicant to remedy the shortcomings in the enquiry is not tenable inasmuch as there is
evidence to suggest that the respondent did ask for further enquiries which were attended to
by the applicant. Such an exercise cannot, obviously, be repeated indefinitely and it stands
to reason that, at some point in time, a final decision had to be taken based on the evidence
as it stood in the police file.

The final argument of Counsel for the applicant was to the effect that the applicant
has an arguable case; that the act of the respondent to go public with its decision for no
further action without having officially communicated same to the applicant first constituted a
procedural irregularity as concerning the way in which the criminal justice system is
administered in Mauritius; furthermore, the respondent acted unreasonably in not respecting
the interaction between the two offices of the applicant and of the respondent as has been
established as a matter of practice and in existing Standing Orders. Counsel also submitted
that there is a strong public element in this case which warrants a full hearing. These,
according to Counsel, are matters which can only be thrashed out when the merits of the
case would be heard.

We are of the view that the course of action adopted by the respondent in this case
was certainly uncommon. But, we are not prepared to say that it amounted to an irregularity,
let alone a serious irregularity warranting a judicial review of the decision making process
and of the decision of the respondent. At the end of the day, what matters is whether the
decision of the respondent was transparent and clearly explained. Any right-thinking citizen
cannot claim to have his confidence in the criminal justice system undermined as long as the
decision not to prosecute was fully justified. In view of the interests at stake and the
personalities involved in this case, the publication of the decision of the respondent by way
of a communiqué may have achieved more good in the public eye.

Finally, the fact that a case has solicited interest in the country and involved the
administration of ministries at high level do not in themselves warrant a prosecution.
Prosecution is lodged before a Court of law where there is a strong likelihood of the case
against the suspects being proved beyond reasonable doubt whilst bearing in mind
procedural rules and the admissibility of evidence. To do otherwise would only amount in a
wastage of time, effort and public funds.

In the light of the above, we find that any prejudice which the applicant feels he may
have suffered is more apparent than real. Thus, we are of the view that the case fails the test
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of arguability which is necessary before it can be referred to be heard on the merits at the
second limb of an application for judicial review.

In the circumstances, we agree with the submission of Counsel for the respondent
that this prayer is misconceived inasmuch as the exercise that the applicant is asking this
Court to impose on the respondent has already been done by the latter. Indeed, the charges
suggested by the applicant have been addressed, official advice has been tendered in the
form of a signed minute in the PF 100 on 21 February 2017 and the respondent has
explained, in his communiqué, with ample details the reasons why he disagreed with the
suggestions of the applicant and the motivation for no further action. Granting this prayer
would serve no real purpose and would be merely an academic exercise. In the light of the
above, we hold that the prayer for an order of Mandamus cannot stand.

We, therefore, uphold the preliminary objections raised and refuse the applicant
leave to apply for judicial review.

With costs

A. Hamuth
Judge

P. Fekna
Judge

25 April 2018

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Judgment delivered by Hon. P. Fekna, Judge

For the Applicant : Mr N. Patten of Counsel, together with


Mr H. Dhanjee of Counsel
Ms A. Ragavoodoo, Attorney-at-Law

For the Respondent : Mr M. Armoogum, Senior State Counsel together with


Mr R. Rammaya, Senior State Counsel
Mr M. Lallah, Deputy Chief State Attorney

For co-respondent No.1: Mr R. Pursem SC


Mr R. Bucktowonsing SA

For co-respondent No.2: Mr Jean Louis, Principal State Counsel


Ms V Nirsimloo Principal State Attorney