“There is nothing preventing the DPP from filing a public prosecution if the evidence available raises a prima facie case”

Qs & As

The Dayal Private Prosecution &The ‘Kistnen Papers’

By LEX

* ‘The DPP does not need to give reasons for any decision he takes. However, in the name of transparency giving reasons would be recommendable’

In the private prosecution lodged by Suren Dayal against the PM for alleged violations of the spending limits as indicated by the ‘Kistnenpapers’, the DPP has intervened to discontinue the case. That decision may be open to judicial review according to Mr Dayal’s lawyers. Lex helps clarify to what extent a DPP’s decision is amenable for judicial review.

* SC Antoine Domingue has stated that his client, Suren Dayal, might consider applying for a judicial review of the decision of the Director of Public Prosecutions to discontinue the private prosecution lodged by Mr Dayal against the leader of the MSM, Pravind Jugnauth, for allegedly swearing a false affidavit with regard to his electoral expenses at the last elections. The first question that comes up is whether the decision by the DPP to discontinue a private prosecution is reviewable by the courts?

The Judicial Committee of the Privy Council ruled in the case Mohit v DPP [2006 UK PC 20] that the decision of the DPP is reviewable, thereby reversing a judgment of the Supreme Court that held the contrary view. In that latter case the DPP put a stop to a private prosecution, and Mr Mohit challenged that decision. Though the Court would intervene, it will not substitute its own decision to that of DPP.

In that connection the Privy Council held: “Recognition of a right to challenge the DPP’s decision does not involve the courts in substituting their own administrative decision for his: where grounds for challenging the DPP’s decision are made out, it involves the courts in requiring the decision to be made again in (as the case may be) a lawful, proper or rational manner.”

* What are the grounds that might be considered in this present matter to support the application for a judicial review?

The grounds are for the lawyers involved in the case to come up with. But the Privy Council did give some guidance in the Mohit v DPP case by holding as follows:

“It may be accepted, however, that a purported exercise of power would be reviewable if it were made:

  1. In excess of the DPP’s constitutional or statutory grants of power— such as an attempt to institute proceedings in a court established by a disciplinary law (see s 96(4)(a)).
  2. When, contrary to the provisions of the Constitution, the DPP could be shown to have acted under the direction or control of another person or authority and to have failed to exercise his or her own independent discretion— if the DPP were to act upon a political instruction the decision could be amenable to review.
  3. In bad faith, for example, dishonesty. An example would arise if a prosecution were commenced or discontinued in consideration of the payment of a bribe.
  4. In abuse of the process of the court in which it was instituted, although the proper forum for review of that action would ordinarily be the court involved.
  5. Where the DPP has fettered his or her discretion by a rigid policy— e.g., one that precludes prosecution of a specific class of offences.

There may be other circumstances not precisely covered by the above in which judicial review of a prosecutorial discretion would be available. But contentions that the power has been exercised for improper purposes not amounting to bad faith, by reference to irrelevant considerations or without regard to relevant considerations or otherwise unreasonably, are unlikely to be vindicated because of the width of the considerations to which the DPP may properly have regard in instituting or discontinuing proceedings. Nor is it easy to conceive of situations in which such decisions would be reviewable for want of natural justice.”

* We understand that the DPP may, in exercise of his powers under section 72(3)(c) of the 1968 Constitution, discontinue a private prosecution without giving reasons for his decision. But isn’t it fair that the DPP should be seen to be and made more accountable when it comes to the issue of taking over private prosecutions for the purpose of either continuing or discontinuing such prosecutions?

Of course, the DPP does not need to give reasons for any decision he takes. However, in the name of transparency giving reasons would be recommendable. In this connection the Privy Council held –

“But it is for the DPP to decide whether reasons should be given and, if reasons are given, how full those reasons should be. The English authorities cited above show that there is in the ordinary way no legal obligation on the DPP to give reasons and no legal rule, if reasons are given, governing their form or content. This is a matter for the judgment of the DPP, to be exercised in the light of all relevant circumstances, which may include any reasons already given. The Supreme Court must then decide on all the material before it, drawing such inferences as it considers proper, whether the appellant has established his entitlement to relief.” 

* The United Kingdom’s Court of Appeal held in the matter of Gujra. R (on the application of) v Crown Prosecution Service that ‘private prosecution is… a safeguard against the feelings of injustice that can arise when, in the eyes of the public, public authorities do not pursue criminal investigations and proceedings in a manner which leads to culprits being brought before a criminal court. The impunity which offenders appear to enjoy can be socially detrimental.’ That makes sense, doesn’t it?

In the Gujra case the Court explained that “until late in the 19th century prosecutions were brought almost entirely by the victims of the alleged crimes or, if they were dead, by their kinsmen. Local parish constables, not organised on any national or even regional basis and not even paid, sometimes helped the victims to prosecute. By about 1730, if they could afford it, prosecutors and defendants sometimes engaged lawyers to represent them. At around the same time associations of people with a common, sectional, interest in prosecuting particular felonies sprang up in order to conduct prosecutions on behalf of their members.”

By about 1830, as explained in the Gujra case, a system of public prosecution came into force, but the law also provided that an individual has the right to file a private prosecution, subject to the British DPP or Attorney General taking over the case or discontinue it.

* Now that the DPP would have taken cognizance of the material evidence contained in the so-called ‘Kistnen Papers’, which contain the alleged expenses incurred in beach of the Representation of the People Act, does it mean that the DPP is now in possession of what could be considered as prima facieevidence to take over and continue any criminal proceedings that he would deem appropriate?

There is nothing preventing the DPP from filing a public prosecution if the evidence available raises a prima facie case against the Prime Minister. It would be up to him to decide. But, as mentioned earlier, in the name of transparency giving reasons for any decision taken would be recommendable.

* Prima facie is a term commonly used in civil and criminal matters, but what is the prima facie rule and why is it important?

In civil proceedings, one party – the plaintiff – has a burden of proof, which requires him to present prima facie evidence for each element of his plaint. In criminal proceedings where the burden of proof is on the prosecution, it is for the latter to bring evidence of the charges against the accused that raises a presumption of guilt beyond reasonable doubt.

*Mr Dayal’s case is built on the basis of information contained in the ‘Kistnen Papers’, which were in the custody of the late SoopramanienKistnen. Whose responsibility is it to confirm the veracity or otherwise of those documents – and therefore constitute prima facieevidence?

That will rest on those who produce the papers and any expert witness who would be called to establish the authenticity of the documents. There is nothing however for a witness to testify to facts contained in the papers if he has direct knowledge of them.

If the papers contained facts from which inferences can be drawn, they would constitute circumstantial evidence — provided that the papers are admitted as evidence.

* Do you think that justice would be best served if the DPP were to take over the case if he is now in possession of the prima facieevidence?

The DPP has all the powers to take over and conduct a case filed by a private party. It will be for him to decide.


 

Mauritius Times ePaper Friday 24 June 2022

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