Seneque & Anor v Director of Public Prosecutions (Mauritius) [2002] UKPC 42 (24 July 2002)

	Privy Council Appeal No. 43 of 2001

(1) Gaetan Seneque and
(2) Jacques David	Appellants
	v.
The Director of Public Prosecutions	Respondent

	FROM

THE SUPREME COURT OF MAURITIUS
	---------------

	JUDGMENT OF THE LORDS OF THE JUDICIAL
	COMMITTEE OF THE PRIVY COUNCIL,
	Delivered the 24th July 2002
	------------------

	Present at the hearing:-
			Lord Slynn of Hadley
			Lord Steyn
			Lord Hutton
			Lord Millett
			Lord Rodger of Earlsferry
		  	[Delivered by Lord Slynn of Hadley]
	------------------

1. 	In July 1995 Mr Seneque was the editor in chief and Mr David was a reporter of the daily newspaper Le Mauricien, a newspaper which is widely read in Mauritius.  By an information laid on 3rd November 1995 they were charged with publishing false news contrary to Section 299 (1)(b) of the Criminal Code. The particulars of the charge were that they did wilfully and unlawfully publish false news, to whit:-
“Achat d’une patrouilleuse de Rs. 250 millions sans appel d’offres [‘purchase of a patrol vessel of Rs. 250 millions without any call for tenders’] in the issue of Le Mauricien dated 4th July 1995 and the said publication was of a nature to disturb public peace.”

2. 	After hearings in October 1996 and June 1997 the district court magistrate on 7th July 1997 dismissed the information.  The Director of Public Prosecutions appealed to the Supreme Court which on 14th January 2000 allowed the appeal.  The order of the magistrate was reversed and “altered to one finding both respondents guilty as charged”.  Each respondent was ordered to pay a fine of Rs. 5,000 and the costs of this appeal.

3. 	Mr Seneque and Mr David applied to the Supreme Court for leave to appeal to Your Lordships’ Board on a number of grounds under both the Constitution and the Criminal Code.  It was accepted that the Court had no power to impose a fine of Rs. 5,000 since the maximum fine at the relevant time was Rs. 2,000 but, all other grounds of the application being rejected, the Supreme Court held that there was no appeal of right and they refused leave to appeal on that issue.  It felt that this error could be put right either by correcting the judgment under Rule 36 of the Supreme Court Rules or by the Commission on the Prerogative of Mercy.  Special leave to appeal was granted by the Board on 5th April 2001.

4. 	The newspaper article of 4th July 1995 was in French: the agreed translation of the relevant part is as follows:

At the National Assembly this morning

The purchase of a patrol vessel of Rs. 250 million
without any call for tenders

The order for the purchase of a patrol vessel, “Offshore Patrol Vessel” by the Government of Mauritius at the cost of US Dollars 14,620,725, that is about Rs. 250 millions has been made without any tender having been launched. This is the answer given this morning by Dr Prem Nababsing, who is acting as the Leader of the House in the absence of the Prime Minister, Sir Aneerood Jugnauth, in reply to a question by Mr Paul Berenger regarding surveillance, research and eventual rescue operations in the exclusive economic zone of Mauritius, the cost of the vessel and whether tenders had been launched.

Mr Berenger drew the attention of Dr Nababsing to an undertaking given by the Prime Minister, Sir Aneerood Jugnauth while answering a parliamentary question dated 12th July 1994 to the effect that tenders will be launched when Mauritius decides to buy such a patrol vessel.  The Leader of the House replied that not later than this morning he had a meeting with the Commissioner of Police and that the latter has informed him that the tender exercise has not been made. And to Rajesh Bhagwan, member of parliament, who asked the names of those who went to visit the vessel which is under construction in Chile, Dr Nababsing answered that the Commissioner of Police and probably Mr Raghoobar did go there, but as regards the Security Adviser, he had no information whatsoever.

5. 	The heading does not specify whether the patrol vessel being talked about was an “offshore” or an “inshore” vessel.  The first sentence of the article identifies the vessel being discussed as an “offshore patrol vessel”.

6. 	The question of purchasing a patrol vessel had been raised by Mr Peeroo MP in Parliament on 29th March 1994 when the Prime Minister said that a contract had been signed by the Government of Mauritius with a Canadian company “for the purchase of an offshore patrol vessel”.  The Prime Minister added that “international tender was called for for the purchase of a patrol boat from 11 countries”.

7. 	On 4th July 1995 Mr Berenger MP in question B/729 asked whether “(a) when our new Offshore Patrol Vessel will be delivered, giving its final price”.  The Acting Prime Minister gave the contract price of US$14,624,735 and the scheduled delivery date of May 1996.

8. 	Mr Berenger also asked “(d) if offers for a new Inshore Patrol Vessel had been invited”.  The reply was that as far as part (d) of the question was concerned “in the negative”.  Mr Berenger countered “How does he reconcile his reply to what was said by the Prime Minister on 12th July 1994 when he stated here that once the Offshore Patrol Vessel is about to be delivered, offers for an Inshore Patrol Vessel would be called for?”  The Acting Prime Minister replied “I only checked with the Commissioner of Police this morning and he assured me that up to now offers have not been invited.  Maybe it will be in the future, but not yet”.

9. 	Mr David soon realised that a mistake had been made in his article of 4th July.  On 6th July 1995 Le Mauricien published an explanation and an apology under the heading “Précision” (corrigendum) which with the necessary underlining made the position clear.  In translation this second article read:

Corrigendum

Offshore/Inshore Patrol Vessel

There has been some confusion on the question of the purchase of a patrol vessel (Offshore Patrol Vessel) at the cost of US$ 14620725 (i.e. about Rs. 250 millions) for the surveillance of the exclusive economic zone and the intention of government to proceed with the purchase of another patrol vessel (Inshore Patrol Vessel) for the surveillance within our lagoons.  Through error, we have written that there has been no tender launched for the Chilean vessel at the cost of Rs. 250 millions.  In fact no tender exercise has yet been launched for the “Inshore Patrol Vessel”.  On Tuesday Mr Paul Berenger asked in Parliament:  “If offers for a new Inshore Patrol Vessel have been invited?”  Dr Prem Nababsing had answered: “It is in the negative”. We apologise towards the authorities concerned and towards our readers.

10. 	The Criminal Code Act provides:
“Section 299:  Publishing false news

The publication, diffusion or reproduction, by any means, of false news or of news which though true in substance has been altered in one or more parts or falsely attributed to some other person, if the publication, diffusion or reproduction is of such a nature as to disturb public order or public peace, shall be punished – (b) where the offence is committed by means of any writing, newspaper [by a fine and imprisonment] 

unless it is proved by the accused that the publication, the diffusion or reproduction was made in good faith and after making sufficient enquiries to ascertain its truth.”

11. 	The magistrate accepted that the burden of establishing guilt beyond doubt rested on the prosecution but he said that once a prima facie case has in the first place been made out the burden shifts to the accused “to justify his good faith by proving that he had made sufficient inquiries to ascertain the truth”.  Here there was a genuine mistake followed by a correction.  He ruled “Where the facts stated are not true and are in the nature to disturb the public peace, it is likely to cause prejudice so that there is raised a similar consideration of public order”.  In the event he held:
“The evidence of the prosecution taken as a whole raises no prima facie against the accused parties to the extent that it cannot be said in the circumstances, by any stretch of the imagination, that the accused had any mens rea.  In the absence of an essential ingredient of the offence charged I find that both accused have no case to answer.  I accordingly dismiss the information against them.”

12. 	In the Supreme Court the judgment was criticised for the way in which it dealt with the presumption of guilt and mens rea as well as the Magistrate’s use of the term “No case to answer” since there had not been a submission of no case to answer.  The Supreme Court said:
“It was incumbent, therefore, on the Magistrate to make a finding on the falsity of the news and also on its nature to disturb public order or public peace before turning to the respondents to see whether they had any good defence. Nowhere in his judgment did he make any specific pronouncement on whether those two elements had been proved to his satisfaction but there is sufficient evidence from the published article and from the certified copy of Hansard that in fact the falsity of the news as well as its nature to disturb public order were not being questioned. Furthermore, the evidence of witness Nababsing, with regard to the campaign made by the Press and more particularly the newspaper in question and by the journalist who wrote the incriminating article, was not challenged before the trial Court.”

13. 	Their conclusion was “Since the falsity of the news and its nature to disturb public order had been clearly established and the respondents had failed to avail themselves of the defence provided by law the learned Magistrate ought to have returned a verdict of guilty against both of them”.

14. 	On this appeal Mr Ollivry QC has raised many issues under the Constitution, under the Criminal Code, the Courts Act, the Criminal Procedure Act, the District and Intermediate (Criminal Justice) Act and under the Criminal Appeal Act.  Some of these points were also raised before and rejected by the Supreme Court on the application for leave to appeal to Your Lordships’ Board.

15. 	Since this is an appeal from the decision of the Supreme Court it is necessary to consider first whether the Director of Public Prosecutions had the power to appeal against the acquittal at all.  It seems clear to their Lordships that the Director did have such power.  Section 92 of the District and Intermediate (Criminal Jurisdiction) Act provides that:
“Where any person is charged with an offence before a Magistrate or before the Intermediate Court, an appeal shall lie to the Supreme Court against final decision of the Court –
(a)	...
(b)	by the Director of Public Prosecutions or, in the case of a private prosecution, by the prosecutor, against any dismissal of a charge or, in the case of a conviction, against the imposition of any sentence.”

16. 	The second question raised is whether under Section 96(2) of the same Act the Supreme Court had power to set aside the decision of the Magistrate and to record a conviction.  Section 96(2) provides:
“(2)	Subject to sub-sections (3), (4) and (5) the Supreme Court may affirm or reverse, amend or alter the conviction, order or sentence ...”

That is a general question of interpretation.  It seems to their Lordships that the Supreme Court does have such power. Following that answer are several of the constitutional and other issues raised.  It seems to their Lordships however that there is a fundamental question as to whether, even if there is such a power, it was appropriate for it to be exercised in this case.

17. 	It is important to stress that the publication of false news is only an offence if the publication is “of such a nature as to disturb public order or public peace”.

18. 	As the Supreme Court said, the Magistrate did not make any finding on this and the Supreme Court was content to say that such evidence as had been given had not been challenged and that that was sufficient to prove that “its nature to disturb public order had been clearly established”.  It is therefore necessary to examine that evidence.

19. 	The Acting Prime Minister in July 1995, Dr Nababsing, gave evidence that the news published was false and that “It also gave the wrong impression that Government was doing, purchasing a boat of such high value without going through tender”.  The Magistrate disallowed a general question: “What was the political situation at the material times?” but allowed a question about “any specific situation which you can remember prevailing at that point in time between the Opposition and the Government”.  Dr Nababsing replied “There was an intense campaign from the Opposition against the Government from inside and outside Parliament and in the Press, in particular by the newspaper in question and more particularly by the journalist who wrote the incriminating article”.  That may well be so though Dr Nababsing does not make specific reference to the purchase of the boat as causing the debate.  Section 299, however, does not make it a criminal offence simply to publish criticism of Government or Government policy even when the facts stated are false.  It must be established that the false statements are of such a nature as to disturb public order or public peace.  This does not mean that there must necessarily be evidence that a disturbance of public order or public peace has actually occurred.  The prosecution must show, however, that such a disturbance is likely to result in the circumstances existing from such false words being published, and even then there is a defence that the publication “was made in good faith and after making sufficient enquiries to ascertain its truth”.  This was the approach of the Supreme Court itself in Hurnam v. Khodabux, 1989 MR 236.

20. 	Their Lordships accept that public indignation or outrage at some act of the Government or Government policy may be such that a false statement about such act or policy could be capable of creating a likelihood of disturbance occurring i.e. could be of such a nature as to disturb public order or public peace.  The mere fact that such a statement is critical of Government and even that people, and particularly voters, will not like it, however, is not in itself enough.

21. 	Their Lordships fully realise that a local court is in a better position than they are to know of local issues and local feelings. But there must be sufficient evidence of the risk of disturbance. Here all the evidence given is before the Board in the same form as it was before the Supreme Court.  Their Lordships consider that there was quite clearly no sufficient evidence to justify the conviction (which their Lordships consider was what the learned Magistrate meant when he said that no prima facie case had been shown) and that a failure by the defence to challenge such evidence as there was does not establish the prosecution’s case.

22. 	Their Lordships consider accordingly that the appeal must be allowed and the Magistrate’s order restored on this ground.  It is thus not necessary to consider all the other legal objections which have been raised.  The appellants are to have their costs of the appeal.