The Admissibility of Unlawful Recordings

A Case Study of the Sanspeur-Sithanen Affair and the ‘Missié Moustass’ Leaks

Qs & As

By Lex

The recent claims by Gerard Sanspeur, former Second Deputy Governor of the Bank of Mauritius (BoM), regarding an audio recording of a conversation involving BoM Governor Rama Sithanen and Stephane Adam of Pulse Analytics, have brought critical legal and ethical questions to the forefront of public debate. Sanspeur’s public hints about the recording’s potentially “embarrassing” content have created a dilemma: should such information be released directly to the public, or should it be handed over to the authorities for a formal investigation? Lex examines the logical and responsible steps Sanspeur should take if his true motive is to serve the public interest, exploring the complex interplay between private grievances, the rule of law, and the perils of “trial by media” in a society where accountability and civility are increasingly at odds.

* During his press conference last Friday, Gerard Sanspeur, the former Second Deputy Governor of the BOM stated that he was in possession of an audio recording of a conversation between Mr Rama Sithanen and Mr Stephane Adam of Pulse Analytics. He insinuated that the recording, if made public, could prove embarrassing to the Governor of the BoM. What logical and responsible next steps should MrSanspeur take if he genuinely believes making the information in the recording public would be in the public interest?

Two issues are at the heart of this matter: Mr Sanspeur’s private interests versus the public interest. It’s clear MrSanspeur was forced to resign from a prestigious and responsible position, a move he likely resents. The release of the recording is a blatant threat and a form of blackmail against the Governor of the BOM. A social media message explicitly stated the tapes would be released if Mr Sithanen didn’t resign by Monday at 5 pm. Yet, Mr Sithanen did not resign, and the tapes were never made public.

This raises several questions. Was Mr Sanspeur’s threat merely an empty gesture? Are the tapes actually incriminating, or are they defamatory, causing him to hesitate? This appears to be a classic example of “look before you leap”, as Aesop’s fables often remind us.

Ultimately, the public interest is what matters most. If MrSanspeur truly believes Mr Sithanen’s actions harm the BOM, he has a duty to either release the tapes or provide them to the police or the FCC for a proper investigation. This is the only way to ensure the public interest is served. 

* It’s better therefore to go through official channels like the police or the anti-corruption institution when it comes to making allegations of misconduct. Just hinting at wrongdoing or in some cases threatening to release a recording could be perceived as an attempt at character assassination. What’s your view?

That would certainly be the better approach. However, it depends on the authenticity of the recordings and whether they contain anything that would be incriminating against Mr. Sithanen. We should not forget that if an individual makes a false complaint against another person to the police or an investigative authority, they could be subject to prosecution for false and malicious denunciation.

* It’s quite possible that the police or the anti-corruption commission is equipped to verify the authenticity of a recording, investigate the context, and determine if any laws were broken. Submitting the evidence to the authorities would also demonstrate that the individual is acting on principles rather than for questionable reasons. Would you agree?

Yes, I agree. Submitting the recording to the authorities is the proper course of action. The Mauritius Police Force’s Digital Forensic Laboratory (Cyber Cell), established in 2005, is equipped to verify the authenticity of the recording, investigate its context, and determine if any laws were broken. This action would also show that the individual is acting on principle rather than for self-interest or questionable motives.

* On the other hand, a public leak of an illegally obtained recording, without a formal investigation, can lead to a “trial by media,” which bypasses the legal process and could be unfair to the individual targeted. What’s your take on that?

In Mauritius, there is a clear abuse of social media. Cowards who lack the courage to come forward publicly use social media to defame people daily, often with no action taken by the authorities. Even when measures are taken, people and the media often cry foul, claiming it is a breach of the right to free expression. People clamour for their rights but rarely discuss their responsibilities or civility.

Releasing recordings unlawfully would be distinct from the daily “trial by media.” This kind of media influence is more relevant in a jury trial. However, when a case is heard by a judge or magistrate, it is highly unlikely that a judicial officer would be influenced by comments on social media.

* Safeguarding one’s honor and reputation against organized leaks, as well as protecting one’s right to privacy, presents a formidable challenge. It would appear that individuals are largely defenseless, as the prospects of identifying those responsible for social media attacks are quite limited, and the subsequent legal recourse is a protracted and arduous process. That’s unfortunately the case, isn’t it?

Yes. However, the future may hold a solution. The link between the basic principles guiding the protection of ideas (such as privacy, safety, and freedom of expression) by both states and social media companies, along with the growing influence of international and regional human rights standards on these platforms, suggests the development of new models. These models would be based on cooperation and contributions from tech companies, regulators, media actors, and civil society as indicated in ‘Freedom of expression, journalism, platform governance, privacy, social media, August 2023’.

* We have not heard anything at all from those targeted by the “Moustass Leaks” audio recordings. These tapes, which targeted politicians, police officers, and other prominent figures, were reportedly illegally wiretapped and circulated on social media in the run-up to the last general elections. Silence might be the best option to avoid the public spectacle of a long legal battle with an uncertain outcome. What’s your perspective on that?

To date, the authorities have also remained silent. This could indicate that an official investigation is underway. Alternatively, it is plausible that the perpetrators of the “Moustass Leaks” are being protected, given their potential role in assisting the new alliance to secure power. However, all of this is mere conjecture.

* While high profile leaks can be a major source of public and political turmoil, their admissibility in a court of law remains a key point of contention. A common issue with leaked recordings is that the people targeted may claim they were illegally made or that the audio was tampered with. So, how do courts in Mauritius decide if these kinds of recordings can be used as evidence?

In Mauritius, the admissibility of tape recordings depends primarily on proving their authenticity and ensuring they comply with the Data Protection Act 2017. The Act requires that personal data be processed on a lawful basis and with confidentiality measures in place. The core principle is to demonstrate that the recording is a genuine, accurate reproduction of a conversation and that its collection and use did not violate privacy or other rights. Specific rules on admissibility are found within both evidence and data protection laws.

Two significant cases have shaped this legal precedent in Mauritius. In the Bacha case, Judge Sik Yuen conducted a thorough analysis of this issue, laying the groundwork for how courts should handle such evidence.

More recently, in the case of ICAC v. Dayal, Magistrates Boodoo and Gayan cited English law to clarify the following points regarding the use of audio recordings:

“While the best way of establishing the authenticity of a recording is through evidence of its provenance and history, this is not the only way; authenticity can be proved circumstantially and the test is whether there is sufficient material for the tribunal of fact to conclude that the recorded sounds reproduce a conversation that occurred and which would be admissible if proved by oral testimony.”

* Does Section 46 of the Information and Communication Technologies Act (ICTA) in Mauritius make unauthorized wiretaps and recordings illegal, thereby providing a basis for legal arguments against their admissibility in court?

In Mauritius, it’s generally illegal to record telephone calls or private conversations without the consent of the parties involved, as this is a breach of privacy and could be an offence under the Cybersecurity and Cybercrime Act. Such recordings are typically inadmissible as evidence in court due to their unlawful origin.
However, their admissibility depends on specific circumstances and a judge’s discretion. There are exceptions for cases authorized by a court or those related to national security. The Information and Communication Technologies Authority (ICTA) regulates the ICT sector, but the admissibility of private recordings is a matter for the courts, governed by the Data Protection Act (DPA) and other rules of evidence.

* In State v Sir Bhinod Bacha and Ors 1996 SCJ 167, the Supreme Court of Mauritius addressed the crucial issue of admitting audio recordings as evidence in a criminal trial. The case centered on the prosecution’s attempt to use two audio cassettes as evidence against the accused. What formed part of the basis of the judge’s ruling?

In brief, the core legal question is whether original or even copied recordings, if proven to be genuine, are admissible as evidence. In the Bacha case, Judge Sik Yuen concluded that the interception of a telecommunication message was unlawful because there was no specific law authorizing it at the time, which led to its inadmissibility on fundamental rights grounds.

The legal framework has evolved since that case. The interception or recording of phone calls without the consent of the parties involved is illegal unless authorized by a court. Any manipulation or dissemination of such illegally obtained data constitutes an offense under the Cybersecurity and Cybercrime Act. The Information and Communication Technologies Act also has provisions governing the interception of phone communications. Additionally, the Data Protection Act makes it an offense to access personal data without a person’s consent or a court order.

These laws create significant legal challenges for the use of illegal recordings as evidence. Even if a recording is proven to be authentic, its admissibility can be contested on the grounds that it was obtained without consent or proper legal authorization. The court must also determine whether the recording is an original or a copy, as this can affect its reliability and weight as evidence.

Mauritius Times ePaper Friday 5 September 2025