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Mohit v. The Director of Public Prosecutions of Mauritius (Mauritius)

Smart Summary

Factual and Procedural Background

The Appellant, a private citizen of Mauritius, repeatedly attempted to institute private criminal proceedings against a senior political figure (“Political Figure”) for allegedly harbouring an offender (“Individual A”) connected to a series of violent crimes committed in 1996. Each time the Director of Public Prosecutions (“DPP”) exercised the constitutional power under section 72(3)(c) to discontinue the private prosecutions by entering a nolle prosequi. The DPP supplied reasons only on the first occasion (19 July 2001), citing the risk of prejudicing an imminent “main case” involving Individual A.

After three separate discontinuances, the Appellant sought leave in the Supreme Court of Mauritius to judicially review the DPP’s decision. On 30 September 2003 a two-judge bench held that the DPP’s decisions to discontinue or not to prosecute were not justiciable. A further application was dismissed on 14 September 2004 as an abuse of process, the Supreme Court applying its earlier ruling. The present appeal challenges the correctness of those two Supreme Court decisions.

Legal Issues Presented

  1. Whether, in principle, a decision by the DPP of Mauritius to discontinue a private prosecution under section 72(3)(c) of the 1968 Constitution is amenable to judicial review.
  2. Whether the Supreme Court of Mauritius erred in holding that such decisions are absolutely immune from court scrutiny.

Arguments of the Parties

Appellant’s Arguments

  • The DPP is a constitutionally created public officer; therefore, like any other public officer, the DPP’s powers must be exercised lawfully, properly and rationally and are subject to review.
  • The reasoning adopted by the Supreme Court in Lagesse v DPP should be rejected in favour of the approach set out in Matalulu v DPP, which recognises limited but real grounds for reviewing prosecutorial discretion (illegality, bad faith, fettering, acting under improper influence, etc.).
  • The availability of civil remedies or political mechanisms is not an adequate substitute for judicial oversight when a constitutional power is exercised unlawfully.

DPP’s Arguments

  • The decision to prosecute, not to prosecute, or to discontinue is inherently polycentric, involving evidential, policy and public-interest considerations that the courts are institutionally unsuited to examine.
  • International authorities (e.g. Maxwell v R, Keung Siu Wah) and historic English doctrine regarding the Attorney General’s nolle prosequi show that such decisions are traditionally non-justiciable.
  • Section 72(6) guarantees prosecutorial independence, and exposing decisions to review would undermine that constitutional safeguard and blur the separation of powers.

Table of Precedents Cited

PrecedentRule or Principle Cited ForApplication by the Court
Attorney General of Fiji v DPP [1983] 2 AC 672Constitutional guarantee of prosecutorial independence.Used to explain the scope of s. 72(6) (independence) but noted that independence does not imply immunity from review.
Tappin v Lucas (1973) 20 WIR 229Reviewability of DPP decisions in Guyana.Cited as comparative authority showing that review is available elsewhere.
Re King’s Application (1988) 40 WIR 15Review of prosecutorial decisions in Barbados.Same comparative purpose as above.
Tapper v DPP (Jamaica, 1999)Judicial oversight of prosecutorial discretion.Cited as further Commonwealth comparison.
Matalulu v DPP [2003] 4 LRC 712Sets out specific grounds on which DPP decisions are reviewable.Adopted by the Board as an “accurate and helpful summary” for Mauritius.
Edath-Tally v Glover [1994] MR 200Caution against equating Mauritian DPP with English Attorney General.Endorsed; underpins the Board’s distinction between the two offices.
Lagesse v DPP [1990] MR 194Held Mauritian DPP decisions non-reviewable.Rejected as incorrect.
Gouriet v Union of Post Office Workers [1978] AC 435Attorney General’s prerogative decision not reviewable.Distinguished; power there was prerogative, not constitutional.
Maxwell v R [1996] 1 LRC 299Obiter support for non-justiciability of prosecutorial discretion.Discussed but not followed.
Keung Siu Wah v Attorney General [1991] LRC (Cons) 744Hong Kong authority for non-reviewability.Discussed but not followed.
Barton v R (1980) 147 CLR 75Australian support for non-reviewability.Cited within discussion of Maxwell; not adopted.
R v McCready (1985) 20 A Crim R 32Part of Australian line on prosecutorial discretion.Referenced within Maxwell analysis.
R v von Einem (1991) 55 SASR 199Same as above.Referenced within Maxwell.
Chow v DPP (1992) 28 NSWLR 593Same line of authority.Referenced within Maxwell.
R v Apostilides (1984) 154 CLR 563Prosecutorial choice of evidence / charges not reviewable.Referenced within Maxwell.
Connelly v DPP [1964] AC 1254Recognition of broad prosecutorial discretion.Referenced within Maxwell.
DPP v Humphrys [1977] AC 1Limits on court interference with prosecutorial decisions.Referenced within Maxwell.
Jago v District Court (NSW) (1989) 168 CLR 23Separation-of-powers concerns if courts choose who to prosecute.Referenced within Maxwell.
Williams v Spautz (1992) 174 CLR 509Same principle.Referenced within Maxwell.
Ridgeway v R (1995) 129 ALR 41Same principle.Referenced within Maxwell.
R v Allen (1862) 1 B & S 850Historical statement of Attorney General’s unreviewable discretion.Considered but distinguished.
Council of Civil Service Unions v Minister for the Civil Service (“GCHQ”) [1985] AC 374Reviewability depends on subject-matter, not source of power.Used to counter reliance on prerogative immunity.
R v Panel on Take-overs and Mergers, Ex p Datafin [1987] QB 815Statutory powers are normally reviewable.Formed starting premise that s. 72 powers are reviewable absent contrary intent.
R v Commissioner of Police, Ex p Blackburn [1968] 2 QB 118English example of reviewing prosecutorial decisions.Cited to show that review does not compromise separation of powers.
R v General Council of the Bar, Ex p Percival [1991] 1 QB 212Same point.Cited.
R v Chief Constable of Kent, Ex p L [1993] 1 All ER 756Same point.Cited.
R v Inland Revenue Commissioners, Ex p Mead [1993] 1 All ER 772Same point.Cited.
R v DPP, Ex p C [1995] 1 Cr App R 136Same point.Cited.
R v CPS, Ex p Hitchins (QBD 1997)Same point.Cited.
R v DPP, Ex p Treadaway (QBD 1997)Same point.Cited.
R v DPP, Ex p Manning [2001] QB 330Same point.Cited.
McCormack v Curran [1987] ILRM 225Irish authority for reviewability of DPP decisions.Relied on as comparative support.
H v DPP [1994] 2 IR 589Irish authority.Cited.
Eviston v DPP [2002] IESC 43Irish authority.Cited.
Barton v The Queen (1980) 32 ALR 449Australian case emphasising non-reviewability of nolle prosequi.Cited by DPP; distinguished.
Hanna v DPP of NSW [2005] NSWSC 134Recent statement that prosecutorial discretion is not reviewable.Cited by DPP; not followed.
The State v Ilori [1983] 1 SCNLR 94Nigerian authority on non-reviewability.Cited by DPP; not followed.
R v Toohey, Ex p Northern Land Council (1981) 151 CLR 170Statutory nature of some prosecutorial discretions.Referenced in Maxwell.
Newby v Moodie (1988) 83 ALR 523Same context.Referenced in Maxwell.

Court’s Reasoning and Analysis

The Board began with the orthodox rule in Datafin that statutory powers are presumptively reviewable. It found no “compelling reason” in the Mauritian Constitution to displace that rule. Key steps in the analysis were:

  • Source of power. The DPP’s authority originates in section 72 of the 1968 Constitution, not in the royal prerogative. Consequently, analogies with the English Attorney General’s prerogative nolle prosequi (e.g. Gouriet) are inapposite.
  • Independence vs. immunity. Section 72(6) guarantees that the DPP acts free from external direction. However, constitutional independence does not equal absolute immunity from legal scrutiny; section 119 expressly preserves the courts’ jurisdiction to ensure that constitutional functions are lawfully exercised.
  • Comparative jurisprudence. The Board preferred the flexible, limited-grounds approach in Matalulu over the Supreme Court’s reliance on Lagesse, Maxwell and Keung Siu Wah. It noted that in most Commonwealth jurisdictions prosecutorial decisions are reviewable, albeit on a high threshold (illegality, bad faith, improper purpose, fettering, acting under external influence, etc.).
  • Separation of powers concerns addressed. Judicial review does not require courts to decide whom to prosecute; it merely ensures that the prosecutorial decision is made lawfully and rationally. If a defect is found, the matter is remitted to the DPP for reconsideration, thus respecting institutional roles.
  • Practical considerations. While victims may have civil remedies, and the DPP can theoretically be removed for misbehaviour, those avenues do not replace the need for judicial review when constitutional powers are allegedly abused.
  • Absence of a duty to give reasons. The Board reaffirmed English authority that the DPP is generally not obliged to give reasons, though may choose to do so; nevertheless, lack of reasons does not bar review—courts may draw appropriate inferences.

Holding and Implications

HOLDING: The appeals are ALLOWED.

The Supreme Court judgments of 30 September 2003 and 14 September 2004 are set aside. The Appellant’s applications for judicial review are remitted to the Supreme Court for reconsideration consistently with the principles stated by the Board. The DPP is to pay the Appellant’s costs in relation to the first application; no further cost orders were made.

Implications: The decision establishes that, under the Mauritian Constitution, the DPP’s decisions to discontinue or decline prosecutions are in principle justiciable on limited public-law grounds. While the threshold remains high, the ruling aligns Mauritius with most Commonwealth jurisdictions and clarifies that prosecutorial independence does not entail absolute legal immunity. No new substantive causes of action were created, but the scope of judicial supervision of prosecutorial discretion in Mauritius has been definitively expanded.

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Mohit v. The Director of Public Prosecutions of Mauritius (Mauritius)

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Mohit v. The Director of Public Prosecutions of Mauritius (Mauritius)
(Apr 25, 2006)