Section 6: Procedure for an evidence-gathering order or a search warrant

6. Procedure for an evidence-gathering order or a search warrant (1) Notwithstanding any other enactment, where the Central Authority grants a request by a foreign State, or an international criminal tribunal, to obtain evidence or a search warrant in Mauritius, the Central Authority may apply to a Judge in Chambers for— (a) an evidence-gathering order; or (b) a search warrant for the search of a person or premises, and removal or seizure of any document or article. (2) Subject to section 5 (5), a request by a foreign State, or an international criminal tribunal, for an evidence-gathering order shall— (a) comply with the requirements in section 4 (3); (b) specify— (i) the name and address or the official designation of the person to be examined; (ii) the question to be put to the person or the subject matter about which he is to be examined; (iii) whether it is desired that the person be examined orally or in writing; (iv) whether it is desired that an oath be administered to the person; (v) any provision of the law of the foreign State as to privilege or exemption from giving evidence which appears especially relevant to the request; M69 – 7 [Issue 1] Mutual Assistance in Criminal and Related Matters Act (vi) any special requirements of the law of the foreign State as to the manner of taking evidence relevant to its admissibility in that State; (vii) the document, record or property to be inspected, preserved, photographed, copied or transmitted; (viii) the property of which samples are to be taken, examined or transmitted; and (ix) the site to be viewed or photographed. (3) A request by a foreign State or an international criminal tribunal for a search warrant shall— (a) comply with the requirements in section 4 (3); (b) specify the property to be searched for and seized; and (c) contain such information available to the foreign State or international criminal tribunal, as the case may be, as may be required for the purpose of the application. (4) (a) Subject to subsection (9), the Judge in Chambers shall grant an application for an evidence-gathering order where he is satisfied that there are reasonable grounds to believe that— (i) a serious offence has been or may have been committed against the law of the foreign State or an international criminal tribunal offence has been or may have been committed; and (ii) evidence relating to an offence referred to in subparagraph (i) may be— (A) found in Mauritius; or (B) given or produced by a person believed to be in Mauritius. (b) The Judge in Chambers shall not grant an application for a search warrant where it would, in all the circumstances, be more appropriate to grant an evidence-gathering order. (5) For the purposes of subsection (4) (a) (i), a statement contained in the request to the effect that— (a) a serious offence has been or may have been committed against a law of the foreign State; or (b) an international criminal tribunal offence has been or may have been committed, shall be prima facie evidence of that fact. (6) An evidence-gathering order— (a) shall provide for the manner in which the evidence is to be obtained in order to give effect to the request and may require any person named therein to— (i) make a record from data or make a copy of a record; [Issue 1] M69 – 8 Revised Laws of Mauritius (ii) attend before the Master and Registrar to give evidence; and (iii) produce to the Judge in Chambers, or to any other person designated by him, any article, including any document, ie evidence of that fact. (6) An evidence-gathering order— (a) shall provide for the manner in which the evidence is to be obtained in order to give effect to the request and may require any person named therein to— (i) make a record from data or make a copy of a record; [Issue 1] M69 – 8 Revised Laws of Mauritius (ii) attend before the Master and Registrar to give evidence; and (iii) produce to the Judge in Chambers, or to any other person designated by him, any article, including any document, or copy thereof; or (b) may include such terms and conditions as the Judge in Chambers considers desirable, including those relating to— (i) the interests of the person named therein or of third parties; or (ii) the questioning of the person named therein by any representative of the foreign State or international tribunal, as the case may be. (7) Subject to subsections (8) and (9), a person named in an evidencegathering order may refuse to answer a question, or to produce a document or article, where the refusal is based on— (a) an enactment which permits the person to decline to give evidence in similar circumstances in proceedings originating in Mauritius or a privilege recognised by the law in Mauritius; (b) a privilege recognised by a law in force in the foreign State that made the request; or (c) a law currently in force in the foreign State that would render the answering of that question, or the production of that document or article by that person, in his own jurisdiction, an offence. (8) (a) Where a person refuses to answer a question or to produce a document or article pursuant to subsection (7) (b) or (c), the Central Authority shall notify the foreign State and request the foreign State to provide a written statement on whether the person’s refusal was well founded under the law of the foreign State. (b) A written statement received by the Central Authority from the foreign State in response to a request under paragraph (a) shall be admissible before the Judge in Chambers and, for the purposes of this section, be conclusive evidence that the person’s refusal is, or is not, well founded under the law of that State. (c) Any person who, without reasonable excuse, refuses to comply with an order of a Judge in Chambers made under this section or who, having refused to answer a question or to produce a document or article on a ground specified in subsection (7), continues to refuse notwithstanding the admission into evidence of a statement under paragraph (b) to the effect that the refusal is not well founded, shall be in contempt of Court. (9) Notwithstanding section 26 of the Bank of Mauritius Act, section 64 of the Banking Act , section 83 of the Financial Services Act and subsections (7) and (8), a Judge in Chambers hearing a request from a foreign State or M69 – 9 [Issue 1] Mutual Assistance in Criminal and Related Matters Act an international criminal tribunal may grant an evidence-gathering order or search warrant against the Bank of Mauritius, a bank or financial institution where he is satisfied that— (a) the information is material and necessary to the proceedings in the foreign State or before the international criminal tribunal; and (b) the law of the foreign State permits the disclosure of information to foreign States in circumstances similar to the one relating to the request. (10) The Central Authority shall inform the foreign State of the date and place of the taking of evidence pursuant to this section. (11) The Judge in us, a bank or financial institution where he is satisfied that— (a) the information is material and necessary to the proceedings in the foreign State or before the international criminal tribunal; and (b) the law of the foreign State permits the disclosure of information to foreign States in circumstances similar to the one relating to the request. (10) The Central Authority shall inform the foreign State of the date and place of the taking of evidence pursuant to this section. (11) The Judge in Chambers may authorise the presence of representatives of the foreign State, and of parties to the relevant proceedings in the foreign State, at the proceedings under this section. (12) The Central Authority shall provide such authenticated report as may be required by the foreign State, or international criminal tribunal, concerning— (a) the result of any search; (b) the place and circumstances of seizure; and (c) the subsequent custody of the property seized. [S. 6 amended by s. 72 (4) of Act 34 of 2004 w.e.f. 10 November 2004; s. 103 (6) of Act 35 of 2004 w.e.f. 10 November 2004.]