“There was no reason for the DPP to take over the Sawmynaden case as the information was only a provisional, not a formal one”

Private Prosecutions

Qs & As

A private prosecution is a criminal proceeding initiated by an individual private citizen or private organisation (such as a prosecution association) instead of by a public prosecutor who represents the state. Though private prosecutions are sometimes regarded with suspicion given their potential for vexatious or malicious prosecution, they are also considered by aggrieved parties as the only avenue for redress of injustice whenever there exists the perception that investigative bodies and other public authorities would not be pursuing criminal investigations and proceedings in a manner which leads to culprits being brought before a criminal court. LEX sheds light on issues related to private prosecutions, the DPP, etc.

By LEX

* A private prosecution by way of a provisional information was lodged in the District Court of Port Louis in December 2020 by Mrs Simla Kistnen against Hon Yogida Sawmynaden in relation to an alleged offence of ‘abuse of authority by a Public Officer’. What does the ruling in this case informs us about the validity of the private prosecution lodged in this case?

It appears that a provisional information was lodged against Yogida Sawmynaden. That was the weakness of the case right from the beginning. In a 1989 case the Supreme Court observed:

“…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 provisional information and no trial takes place.”

* The Mauritian Supreme Court has held that a private prosecution may only be instituted by an aggrieved party and that the Director of Public Prosecutions may take over and continue/discontinue a private prosecution. Should the Director of Public Prosecutions have taken over as regards this particular case?

There was no reason for the DPP to take over the Sawmynaden case as the information was only a provisional, not a formal one. Let us not forget that in the Bruneau Laurette’s private prosecution against two ministers, in the absence of a thorough investigation, the required elements of the offence or offences alleged against the two ministers might not have been clear. Hence the decision of the DPP to stop the prosecution pending the completion of the police inquiry.

* An aggrieved party may be of the view that the investigative authorities, for instance the Police, ICAC, MRA, etc., would not fulfilling their duties to track crime or alleged criminals, hence the recourse to private prosecutions. What does this tell us about the integrity of the law and order institutions in the country?

There will be always whining and criticisms when the DPP or the police does not prosecute a case. The prosecution of a case depends on the evidence available that will stand the test of credibility in a court of law. Even after an investigation, the police or the DPP may decide not to prosecute. That leaves the aggrieved individual the option of filing a private prosecution. It should be borne in mind that any prosecution, whether by the police, the ICAC, the MRA or any other institution is still under the control of the DPP.

* It is possible however for people who are not victims of crime or direct aggrieved parties themselves to use private prosecutions to harass others, especially public figures. Are there sufficient safeguards in our judicial system to ensure that frivolous and vexatious proceedings and abuse of the system are prevented?

It is clear that the DPP has primary power to prosecute offences triable before the Supreme Court, whether they are crimes or misdemeanours, and that no such prosecution can be entered by an individual unless, first, he is an aggrieved party, second, the DPP has refused to enter a prosecution on the basis of his complaint and, third, the Judge decides that he may use the process of the Court. The important element to retain is that the person must be an aggrieved party.

* Is it correct to say that neither the Mauritian Constitution nor legislation provides for the right to institute a private prosecution? If that is correct, how come private prosecutions are allowed?

The Supreme Court has ruled in 1994 that there is no constitutional right to file a private prosecution. Private prosecutions are provided for and regulated by the Criminal Procedure Act.

* Who has locus standi to institute a private prosecution and what is the role of the Director of Public Prosecutions in private prosecutions?

Only a person who satisfies the requirement that he is an aggrieved party. The aggrieved party must be an individual who has personally suffered a prejudice.

* Does the Director of Public Prosecutions have to give reasons in case he does take over a particular case and discontinues the private prosecution?

No. But he may if he so wishes.

* The Director of Public Prosecutions is said to be responsible for and exercise control over the conduct of prosecutions in the Republic of Mauritius. What are the parameters and limits within which the ODPP operate?

Under section 72 of the Constitution, the DPP alone is responsible for advising prosecutions. He is subject to the control of nobody. Remember that following the 2014 elections, the government wanted to place the DPP under the authority of a Prosecutions Commission where no doubt there would have been political nominees. That would have meant that prosecutions or non-prosecutions would have been decided by politicians.

What parameters the DPP uses depends on the evidence that an inquiry reveals. Then there is a public interest in prosecuting or not.

* Section 4 of the Criminal Procedure Act provides that: ‘(1) In any case of crime or of misdemeanour triable before the Supreme Court, the Director of Public Prosecutions may, on the complaint of an aggrieved party, institute a prosecution on behalf and at the expense of the State.’ Does this mean that the DPP could have instituted a prosecution in the Sawmynaden after a complaint from an aggrieved party?

 It would not have been advisable for the DPP to take over the case and advise a prosecution in the absence of a full-fledged investigation.


* Published in print edition on 11 May 2021

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