“To get the man at all costs and by all means”

Dr. Navin Ramgoolam was charged before the Financial Crimes Division of the Intermediate Court on several charges of unlawfully accepting a payment in cash in excess of an amount equivalent to Rs 500,000 and other offences. The case had been dragging for several years. In a ruling delivered on 8 June, Magistrates B. R. Jannoo-Jaunbocus (Mrs.) and A. R. Tajoodeen (Mr.) stayed the proceedings against Dr. Ramgoolam. In other words, this means that the prosecution cannot go ahead unless and until the decision is reversed on appeal. In fact, the Director of Public Prosecutions (DPP) intends to appeal the ruling.

The defence represented by Robin Ramburn, Senior Counsel, based its motion for a stay on three points that there has been a long delay in the determination of the case; that two persons, one Mr. Simo Carevic and one Mr. Thomas Galet, who had sworn an affidavit known as the “Dufry affidavit” were not summoned at the trial; and abuse of process.

The affidavit, according to the defence, contained crucial evidence to support the defence case that the proceedings against Dr. Ramgoolam were politically motivated as it connected one Mr. Rakesh Gooljaury with three then senior ministers in the Mouvement socialiste militant (MSM) government who were apparently threatening Mr. Simo Carevic, the then Chief Executive Officer of the Mauritius Duty Free Paradise Company Limited, and one Mr. Thomas Galet, the Deputy Chief Operating Officer of the Dufry Group, by preventing them from leaving the country unless they provided evidence of bribery against Dr. Ramgoolam. The defence also relied on the concept of abuse of process for a stay of the proceedings.

The court rejected the delay argument as well as the argument on the absence of the two persons who had sworn the Dufry affidavit. The stay was granted on account of abuse of process. In a criminal trial, abuse of process is a legal argument raised by an accused that the prosecution has misused or perverted the judicial system to an extent that proceeding with the trial would be fundamentally unfair or undermine the integrity of the administration of justice.

However, in exercising its discretion when faced with an abuse of process situation, the judge or magistrate court must be careful. “He should not have or appear to have any responsibility for the institution of a prosecution. The functions of prosecutors and of judges must not be blurred.” The discretion must be exercised with great care. A judge or magistrate must not give the impression that he is staying a prosecution because he does not agree with the decision to prosecute.

There are two principles on abuse of process which the court quoted from an English case namely where it will be impossible to give the accused a fair trial (First limb); secondly where it offends the court’s sense of justice and propriety to be asked to try the accused in the particular circumstances of the case (Second limb). The Court based its decision on the second limb to stay the proceedings.

The Court referred extensively to decided cases and to articles by eminent lawyers and law professors where the second limb of abuse of process has been discussed. In one case, a British Judge stated that “in the field of criminal law and if it comes to the attention of the court that there has been a serious abuse of power it should, in my view, express its disapproval by refusing to act upon it.” It has also been decided in England that “where the police or prosecuting authorities have been engaged in misconduct in bringing the accused before the court for trial… the court is concerned to protect the integrity of the criminal justice system. A stay will be granted where the court concludes that in all the circumstances a trial will offend the court’s sense of propriety and justice.”

Striking a balance

In considering abuse of process arising from police misconduct or otherwise, the court must “weigh in the balance the public interest in ensuring that those charged with crimes should be tried against the competing public interest in maintaining confidence in the criminal justice system”. So, there must be a balance, as to the interests of the individual against those of society. A fair balance must be struck between the demands of the general interest of society and the protection of the fundamental rights on the individual.

In the light of the legal principles referred to above, the Court analysed the manner in which the police investigation had been conducted. The Court referred to the evidence of Inspector Ramdoo who conceded that it was known that Mr. Simo Carevic and Mr. Thomas Galet, both of Dufry Group, were brought to the flat of the then Attorney General with two other ministers also present. Both Mr. Carevic and Mr. Galet made serious allegations against two ministers in office, the Attorney-General, and one Mr. Rakesh Gooljaury as to how they were threatened to implicate and provide proof of bribery against Dr. Navin Ramgoolam.

The Court found that the allegations had a direct link with the monies secured at the premises of Dr. Ramgoolam. The Court concluded that there was no mention whether the allegations as to the integrity of the police enquiry or allegations of Mr. Simo Carevic and Mr. Thomas Galet were ever investigated into. The Court also found that there was also no enquiry into the allegations made by Dr. Ramgoolam to the effect that he held information that a member of the cabinet was actively following and advising the police in respect of the Rs. 200 million found at his place.

Inspector Ramdoo also conceded that the then Attorney General was present during the counting of the Rs. 200 million but that upon objection raised by the legal representatives of Dr. Ramgoolam he left. The allegations that accused was making since the inception of the cascade of arrests, provisional charges and enquiries against him, putting into cause the impartiality and independence of the police enquiry, were no fanciful thoughts. There were sufficiently disturbing facts which clearly warranted an enquiry. The absence of an enquiry, by the police, into those serious allegations could not be condoned by the Court.

The Court concluded that the cascade of arrests, provisional charges and enquiries against Dr. Ramgoolam were no less than “to get the man at all costs and by all means”. Finally, the Court determined that all sufficient grounds for the Court to conclude that “it would be against its sense of justice and propriety to continue with the trial of accused in the circumstances of the present case”.

There is one very important lesson that the police force and politicians have to learn from this ruling and that is to allow institutions to function independently. Under section 71 of the Constitution, the Commissioner of Police is responsible for determining the use and controlling the operations of the police force with the qualification that may receive general directions from the Prime Minister. When the police is investigating an offence, irrespective of who the suspect is, they should act independently from anybody and more particularly from politicians. Unfortunately, in the Ramgoolam case, the then Police Commissioner and his close assistants along with Inspector Ramdoo simply brushed aside the concept of independence to please the politicians in power then.

Politicians and the police should be reminded of what Lord Denning, an eminent British Judge stated in a case in 1968: “No minister of the Crown can tell [The Commissioner of Police] that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that. Nor can any police authority tell him so...” On the duties of the police the Court referred to an English case where it was held that “… in conducting an investigation, the investigator should pursue all reasonable lines of inquiry, whether those point towards or away from the suspect. What is reasonable in each case will depend on the particular circumstances”. No police inquiry should be one-sided.

The DPP has now signified his intention to appeal. This is his absolute right pursuant to the independence he enjoys under the Constitution. As matters stand, the ruling is a brutal blow to the police.