Magistrate Off Course

 By R.V. 

Last week, the District Magistrate of Port-Louis 3rd Division dismissed a case of cheating in a horse-race against jockey Nishal Teeha in breach of section 146(e) of the Gambling Regulatory Act 2007. According to the learned Magistrate, Jockey Teeha was being prosecuted for the very act for which he has been sanctioned by the horse racing organiser, the Mauritius Turf Club. Since the acts for which accused has been sanctioned and for which he stands charged are the same, she argued it stands to reason that the Jockey runs the risk of being punished twice for the same offence in breach of the legal rule against double jeopardy. Is she correct in her application of the rule of double jeopardy?

The double jeopardy rule arises from the Fifth Amendment to the US Constitution, the relevant clause of which reads: “… no person shall be subject for the same offence to be twice put in jeopardy of life or limb”. The clause is intended to limit abuse by prosecuting agencies in repeated prosecution for the same offence as a means of harassment or oppression. The rule is embodied in our laws. Section 46 of the Interpretation and General Clauses Act defines its application by providing that where an act constitutes an offence under 2 or more enactments, the offender shall be liable to be prosecuted under either or any of those enactments but he shall not be liable to be punished twice for the same offence. Similarly the Constitution at section 10(5) incorporates in our law the principles of autrefois acquit and autrefois convict so that it is not possible to try a person twice for the same crime. Our law clearly demarcates the application of the rule to criminal cases brought before a court of law.

If the Magistrate is right, then the decision of an administrative tribunal, the disciplinary body of the Mauritius Turf Club, to punish one of its members or a Jockey for a breach of its Rules of Racing will as a consequence debar any future prosecution against a member or a Jockey for an offence under the Gambling Regulatory Authority Act in respect of the same act. Let us for argument’s sake, consider the case of a member of the Turf Club assaulting another member after a heated discussion and as a result seriously injuring that other member. The victim in that case goes to the police and makes a declaration for assault. The Managing Committee of the Turf Club institutes a disciplinary hearing against the member and upon a finding that in fact the member was guilty for serious misconduct takes the obvious decision of having the member fined and banned from the Club and its premises. This course of action is hardly surprising. Every member of the Club has to abide by the rules of the Club. That must have been a condition for joining as a member.

Similarly any jockey who wants to participate in a horse race organised by the Club has to abide by the Rules of Racing imposed by the Club. Does that mean that the Police are debarred (if we accept the reasoning of the Magistrate) from prosecuting the member subsequently for assault since he has already been sanctioned by the Club? The Magistrate, in my view, has failed to make a distinction between the sanction meted out by an administrative body established by a private club and that of a court of law.

It may well be the case that the Jockey is being sanctioned twice in relation to cheating (although no reference has been made to the relevant Rules of Racing), but the fact remains that the Jockey is being sanctioned by two different bodies, one being a court of law and the second being an administrative tribunal set up by the Mauritius Turf Club, a private club registered with the Registrar of Association. Before the court, he is being prosecuted for a statutory offence of cheating under the Gambling Regulatory Act in relation to an activity regulated by the Gambling Authority.

The case will have to be proved on the high threshold of “beyond reasonable doubt” applicable to all criminal cases. It is not the case before an administrative tribunal which operates on lower civil standard of “balance of probabilities”. The tribunal for its part will have the duty of deciding whether the Jockey, who has undertaken contractually to abide by the Rules of Racing, has committed a breach of the rules or not. The tribunal normally enjoys a large margin of appreciation and its decision is unlikely to be interfered with by a court of law. The learned Magistrate was in my view completely off course on that one. 

* Published in print edition on 30 July 2010

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