Abdool Cader Abdool Gaffoor v The Queen

Abdool Cader Abdool Gaffoor

Appellant

v.

The Queen

Respondent

Appeal from the Supreme Court of Mauritius

Composition of the Board:

Lord Keith of Kinkel

Lord Roskill

Lord Templeman

Lord Goff of Chieveley

Sir Robin Cooke

Judgment delivered on the 2nd October 1990

by Lord Keith of Kinkel

______________________________________________________________

(1) Privy Council jurisdiction - Accept Supreme Court's statement on common public knowledge

(2) Criminal law - Drug trafficking

(3) Procedure - Supreme Court powers - Direction by the Supreme Court to the Intermediate Court

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Case referred to in judgment

Buxoo v. The Queen [1987] 1 W.L.R. 820

Legislations referred to in judgment

Courts Act, section 75

Dangerous Drugs Act 1986, sections 28, 38

District and Intermediate Courts (Criminal Jurisdiction) Act, section 105

The following judgment was delivered by the Board:

The appellant was charged upon an information alleging possession on 22nd January 1987 of 150 grams of heroin, in contravention of section 28(1)(a)(i) of the Dangerous Drugs Act 1986. The information averred that in the circumstances of the possession the appellant was a drug trafficker.

Section 28(1)(a)(i), as read with section 28(2)(b), makes it an offence for a person unlawfully to have in his possession inter alia heroin and provides for the penalty on conviction of a fine not exceeding 5000 rupees and of imprisonment for a term not exceeding 8 years. Section 38(1) of the Act enacts that the court which tries a person for an offence under inter alia section 28 shall make a finding whether the accused person is a trafficker in drugs, and section 38(2) provides that a person shall be a trafficker where having regard to all the circumstances of the case against him it can be reasonably inferred that he was engaged in trafficking in drugs. By section 38(3) a person who is found to be a trafficker under sub-section (1) is made liable on first conviction to a fine not exceeding 100,000 rupees together with penal servitude for a term not exceeding 20 years, and to more severe penalties on a second or subsequent conviction. The Act contains no definition of trafficking in drugs.

The appellant's trial took place before the Intermediate Court (P. Lam Shung Leen and Mrs. A.F. Chui Yew Cheong) on 14th August 1987. Evidence was led by the prosecution to the effect that on 22nd January 1987 the appellant's house was raided by the police officers acting under a warrant, and that there was found behind a sofa in the living room a blue plastic bag containing a white plastic bag containing a quantity of brownish substance. This substance was subsequently analysed by a scientific officer and found to weigh 150 grams and to contain some heroin. He did not, however, determine the weight of heroin in the substance, saying that this would have taken a long time and required a more sophisticated apparatus than was available in his laboratory. The appellant gave evidence denying all knowledge of the presence in his house of the package of brown substance and suggesting that someone might have planted it on him.

The Intermediate Court gave judgment on 22nd September 1987. They found that the appellant knew of the presence of the package of brown substance in his living room, disbelieving his evidence to the contrary. In the light of the scientific officer's testimony they found that the prosecution had not proved that the package had contained 150 grams of heroin, but only that the substance in it weighed 150 grams and that some heroin was present in that substance. They accordingly found the appellant guilty of possession of a certain quantity of heroin and further found that it had not been established that he was a trafficker in drugs. Observing that the appellant had no previous convictions for drug offences, they sentenced him to a fine of 1000 rupees and found him liable for 200 rupees of costs.

The Director of Public Prosecutions requested the Intermediate Court to state a case for the opinion of the Supreme Court, posing the question, among others, whether the Intermediate Court had erred in law in finding that the appellant was not a drug trafficker. None of the other questions is relevant for purpose of this appeal. At the same time the appellant appealed against his conviction for possession.

The Director's appeal by way of case stated was heard by the Supreme Court (Glover A.C.J. and Lallah J.) on 18th January 1988. On 1st July 1988 the Supreme Court delivered judgment quashing the sentence imposed on the appellant by the Intermediate Court and directing that Court to find that the appellant was a trafficker in drugs and to sentence him accordingly. Their view was, in effect, that no reasonable tribunal could properly, on the evidence, have reached a different conclusion. The Intermediate Court had failed to give any, or any proper, weight to the significance of the quantity of the substance in which heroin had been found to be present, it being within common, and hence judicial, knowledge in Mauritius that heroin was regularly sold there, not in pure form, but mixed with brown substance under the trade name of "brown sugar" or "brown". The precise amount of heroin in the brown substance was irrelevant to the question whether or not the appellant was a trafficker in drugs. The material circumstances were that the appellant was in possession of a substantial quantity of a substance which contained heroin and which was in the form commonly in use in the drug trade, that the appellant substance was concealed behind furniture and that the appellant offered no explanation of its presence apart from the suggestion, which was disbelieved, that it had been planted on him. On the same date the Supreme Court dismissed the appellant's appeal against his conviction for possession.

On 18th July 1988 consideration of the case was resumed by the Intermediate Court, which following the directions of the Supreme Court gave judgment finding the appellant to be a trafficker in drugs and sentencing him under section 38(3) of the Act of 1986 to penal servitude for a term of 8 years and to pay a fine of 50,000 rupees. The appellant appealed to the Supreme Court against this judgment. The grounds of appeal did not include a contention that the sentence was excessive. The appeal was dismissed on 21st October 1988. The appellant now appeals to Her Majesty in Council, as of right, under section 75A of the Courts Act.

This appeal is in substance against the decision of 18th January 1988 whereby the Supreme Court directed the Intermediate Court to find that the appellant was a trafficker in drugs and to sentence him accordingly. As this Board recently reaffirmed in Buxoo v. The Queen [1987] 1 W.L.R. 820, P.C., its practice, when dealing with an appeal as of right from the Supreme Court of Mauritius in a criminal case under section 75A of the Courts Act, is to apply the principles traditionally in use as regards applications for special leave to appeal in criminal cases generally. An appeal will only be allowed if the Board are satisfied that they can properly advise Her Majesty that a really serious miscarriage of justice has occurred, by reason of misconduct of the trial or upon some other cogent ground. There is no question here of any procedural irregularity. The Supreme Court in the exercise of its powers under section 105 of the District and Intermediate Courts (Criminal Jurisdiction) Act, had jurisdiction in disposing of the appeal by case stated to direct the Intermediate Court as it did. The Supreme Court took the view that in all the circumstances appearing form the evidence given at the trial the only reasonable inference capable of being drawn was that the appellant was a trafficker in drugs, and that the magistrates of the Intermediate Court were perverse in not drawing that inference. The only issue in the appeal is whether in taking that view the Supreme Court acted quite wrongly and so perpetrated a serious miscarriage of justice. Their Lordships are of opinion that they did not. The decision of the Supreme Court was to some extent based upon what they stated to be common public knowledge in Mauritius, namely that heroin is regularly traded there mixed in with a brownish substance known as "brown sugar" or "brown". Their Lordships must accept the Supreme Court's statement of what is common public knowledge in Mauritius, and hence within judicial knowledge here. It follows that what the appellant had in his possession, in a place of concealment, was a commodity of a nature which is the subject of trading among drug dealers and their customers in Mauritius. The quantity of that commodity of which the appellant was in possession was a substantial one. The precise amount of heroin in it was not of real significance. The appellant was, of course, under no obligation to give evidence. It was for the prosecution to prove its case against him. But the appellant did give evidence of lack of knowledge of the presence of the incriminating package and was disbelieved. Although it may have been possible to envisage some explanation for the presence of this substantial quantity of incriminating substance which was consistent with a purpose other than trafficking, no such explanation was in fact put forward. The Supreme Court was entitled to reach the decision it did.

Their Lordships will humbly advise Her Majesty that the appeal should be dismissed.

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Tricanipillay Canarapen v Jubilee Insurance Company Limited

Tricanipillay Canarapen

Appellant

v.

Jubilee Insurance Company Limited

Respondent

Appeal from the Supreme Court of Mauritius

Composition of the Board:

Lord Keith of Kinkel

Lord Templeman

Lord Griffiths

Lord Lowry

Sir Robin Cooke

Judgment delivered on the 25th July 1990

by Lord Griffiths

Cur. adv. vult.

_____________________________________________________________

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Cases referred to in judgment

Hornal v. Neuberger Products Limited [1957] 1 Q.B. 247

Jeffreys v. Jeffreys (1873) MR 36

Thomas v. Thomas [1947] A. C 484

Watkins and Davis Limited v. Legal and General Insurance company Limited [1981] 1 Lloyd's Rep. 675

Legislations referred to in judgment

The following judgment was delivered by the Board:

The appellant was the owner of a building at Avenue John Kennedy, Vacoas. The respondent insured the building and the appellant's stock in trade against fire. On 15th October 1977 at about 3.30 p.m. a fine started which destroyed the building and the stock in trade. The appellant claimed the sum of Rs100,000 from the respondent which was the sum for which the building and the stock in trade were insured under the policy of insurance issued by the respondent.

The respondent refused to pay and so the appellant commenced an action to recover the sum of Rs100,000 to which he claimed to be entitled under the policy. The loss was agreed between the parties at Rs98, 356.45; but the respondent disputed liability upon two grounds, first that the fine had been occasioned by the wilful act and/or with the connivance of the appellant and accordingly he was net entitled to any benefit under the policy, and second that the appellant had net commenced the action within three months of the rejection of his claim by the respondent and accordingly was net entitled to any benefit under the policy.

The judge rejected bath defences and gave judgment for the appellant for the agreed sum. The Court of Appeal allowed the appeal of the respondent insurance company holding that it had discharged the burden of proving that the appellant had at least connived at the setting of the fine. Having arrived at this conclusion the Court of Appeal did net consider it necessary to consider the second ground of defence based upon the alleged failure to commence proceedings timeously.

The appellant now appeals against the judgment of the Court of Appeal on the first ground of defence and the respondent does net now challenge the judge's rejection of the second ground of defence.

The appellant occupied part of the building as a furniture shop and he let part to a Mr. Coopamah as a bar restaurant on the ground floor with residential accommodation on the first floor. The respondent's case was that the appellant, in order to rid himself of Mr. Coopamah as a tenant, had instigated a young employee Idriss Gopal to burn down the building. It was net suggested that the motive was to defraud the insurance company with whom the defendant had insured ail his properties for the previous fifteen to twenty years without ever having made a prier claim; non was it disputed that the appellant, who was aged 61, was a man of previous good character.

There had been an earlier judicial enquiry into the cause of the fine conducted between 18th May 1978 and 9th May 1979 and a record of those proceedings was put in evidence at the trial. That report concluded: -

"From the evidence adduced at the hearing, I suspect that there has been foul play - and that it was Idriss Boodhoo Gopal who set fine to the premises in question."

However, no criminal proceedings were brought against Gopal or any other person.

The evidence called before the judge was very much a re-run of the evidence called at the enquiry seven years earlier. Perhaps net wholly surprisingly there were some discrepancies in the recollections of the witnesses. The judge found the following facts:-

"The Defendant company adduced evidence as to the circumstances in which this fine broke out and destroyed the building. From such evidence I find that the fine started and spread throughout the building at an alarming speed. It must have been what Scientific Officer Beeharry called 'an assisted fine'. I find also that the conduct of worker Idriss Gopal immediately prier to the fine was such that it can be reasonably inferred that he played an active part in setting it.

The name of Idriss Gopal was mentioned on the day of the fine itself, and later, on the same day the Plaintiff helped the police to trace him out. On the same evening he was arrested for purposes of the enquiry, by then he had had a bath, a shave and a hair cut. At the relevant time Gopal was working for the Plaintiff who had instructed him to repair the roof of the building, as such the Plaintiff had bought and had caused to be conveyed there, 100 shingles. According to the Plaintiff, Gopal had been working for him for 7 to 8 years ; and, earlier, on the day of the fine, between 12.00 noon and 1 p.m., he had checked the latter's work and talked to him. According to witness Coopamah, Gopal had started working for the Plaintiff when the latter bought the building, which would be around 1966.

The plaintiff denied having done the needful for the release of Gopal from police custody, but Assistant Superintendent of Police Ramjooawan said the plaintiff had contacted him for Gopal's release.

I find also from the evidence on record that the relationship between the plaintiff and his tenant Coopamah were difficult and that the plaintiff who, at a certain stage, wanted to self, or to erect a new building, would net have been free to do so without safeguarding the rights of his tenant.

Counsel for the Defendant submitted that upon those facts, the Court should draw inference that Gopal had set fire to the Plaintiff's building with the latter's connivance, to get rid of Mr.Coopamah's tenancy.

It may very well be that the Plaintiff wanted Mr. Coopamah to vacate his building but to go so far as to say that he gave secret approval to Gopal to set fine to his own building, with ail its consequences, is a proposition which, as the evidence stands, has net been proved; non would it be warranted on my part to draw such an inference. The second ground fails as well."

In arriving at his conclusion the judge had the advantage of seeing the appellant subjected to a long and searching cross-examination during which it was directly suggested to him that Gopal had set fine to the premises on his instructions to get rid of his tenant. This was an allegation of the utmost gravity for it involved setting fire to the building with petrol or a similar substance at a time when there were bath staff and customers in the bar. There was net a shred of direct evidence to support this allegation which was based upon the supposed motive to get rid of his tenant. There had been no proceedings between the appellant and his tenant for the last seven years and the judge had the chance to evaluate the sincerity of the appellant's denial of such a motive when it was put to him in the witness box. The judge also had the opportunity to evaluate the apparent credibility of the appellant in his denial of the charge of arson.

Despite these advantages enjoyed by the trial judge the Court of Appeal felt justified in drawing the inference of arson, that the judge refused to draw after seeing and hearing ail the witnesses.

The Court of Appeal accepted the primary facts found by the judge as set out in the extract from his judgment cited above. They commented upon the fact that the judge had apparently net accepted certain parts of the appellant's evidence, namely his opinion that Gopal had net set fine to the building and that he had net instructed him to repair the roof but only to repair a water closet outside the building. The judgment then continued:-

"In the light of the findings of fact, counsel for the appellant has urged that the learned Judge was wrong to draw the conclusion he did even on a balance of probabilities.

Counsel for the respondent has argued that the standard of proof applicable to the appellant in a case of this nature where a criminal act or else complicity in a criminal act is alleged against the respondent, the standard of proof which the appellant had to discharge would have been that which applies in a criminal prosecution. And counsel prayed in aid the case of Jeffreys v. Jeffreys (1873) MR 36 regarding proof of adultery in divorce cases. Divorce is a matter of public order and cannot be assimilated to other civil proceedings. We agree with counsel for the appellant that the standard of proof which lay on bath parties for their respective contentions always remained that applicable in civil proceedings, that is to say a standard that is based net on conclusive proof but rather on a balance of probabilities.

It seems to us that, given the fact that it was the appellant which had, either by cross-examination or else by independent testimony, elicited ail the facts found and which we have highlighted seriatim above and, further, given the nature of the burden of proof applicable in the proceedings, the balance of probabilities was clearly in favour of the appellant in his defence that the respondent had at least connived at the setting of the fire. It is difficult to imagine what kind of further proof the appellant could, in the circumstances, be reasonably expected to produce."

The Court of Appeal were right to reject the submission that the burden on the insurance company was the criminal standard of proof. But, nevertheless, bearing in mind the gravity of the allegation, which was arson of an occupied building, a high degree of probability was required to discharge the civil burden of proof see Hornal v. Neuberger Products Limited [1957] 1 Q.B. 247 and Watkins and Davis Limited v. Legal and General Insurance company Limited [1981] 1 Lloyd's Rep. 675. The Court of Appeal make no reference in their judgment to the higher degree of probability required before a court accepts so grave an allegation as proved non do they make any reference to the advantage that a trial judge enjoys in resolving such a dispute after having seen and heard the witnesses for himself , see Thomas v. Thomas [1947] A. C 484.

The Court of Appeal do net say what particular matters weighed with them in coming to a different conclusion from the judge and which justified disregarding the obvious advantage the judge enjoyed as a result of seeing and hearing the witnesses. It may perhaps be inferred that they doubted the credibility of the appellant because they commented that the judge did net accept his opinion that Gopal had net started the fine and his denial that he instructed Gopal to repair the roof. But it is a common experience in the courts that those accused of crime, even if innocent, will sometimes tell untruths in an attempt to distance themselves from the accusations. The judge heard this evidence and it was for him to decide upon its significance.

What else justifies the inference that the appellant told Gopal to set fire to the building? The fact that an employee commits an apparently motiveless act of arson on the employer' s premises is manifestly insufficient to justify the inference that he did it at the request of the employer. What else can support the inference in this case - only the suggested motive to get rid of the tenant? There are a number of obvious objections to this suggested motive. Firstly the fire would net achieve the objective, for the appellant would remain under an obligation to rehouse the tenant in any reconstructed building; secondly there had been no proceedings between the tenant and the appellant for seven years; and thirdly the inherent improbability that a man of good character and mature years would resort to such a wicked act as to order his employee to set fire to an occupied building for such a motive.

The judge was fully justified in refusing to find that the insurance company had discharged the burden of establishing arson on such evidence and their Lordships are unable to perceive any ground which would entitle an appellate court to interfere with his finding.

Accordingly their Lordships will humbly advise Her Majesty that this appeal should be allowed with costs in the Court of Appeal. The respondent must pay the appellant's costs before their Lordships' Board.

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M. O. Nazir v A. A. Bundhoo

M. O. Nazir

Appellant

v.

A. A. Bundhoo

Respondent

Appeal from the Supreme Court of Mauritius

Composition of the Board:

Lord Keith of Kinkel

Lord Templeman

Lord Griffiths

Lord Lowry

Sir Robin Cooke

Judgment delivered on the 23rd July 1990

by Lord Templeman

Cur. adv. vult.

______________________________________________________________

The following judgment was delivered by the Board:

On 2nd April 1958 the appellant, Mr. Nazir, purchased 14 perches of land from Hamid Gokhool ( "the vendor"). On the same day the respondent, Mr.Bundhoo, purchased an adjoining 15 perches of land from the vendor.

Mr. Nazir's land, according to his transfer, had a frontage of 32 feet to a public road and it was bounded:-

"Du troisième côté par Mamode Issa Gokhool - un chemin de six pieds de large entre sur 175 pieds."

Mr. Nazir's land was therefore defined partly by reference to a track 6 feet wide. The question is whether that 6 foot track lies between the land granted to Mr. Nazir and the land of the adjoining neighbour Mamode Issa Gokhool ("the neighbour") or whether the 6 foot track is within the land granted to Mr. Nazir. The importance of' the 6 feet wide track ("the access road") in these proceedings is that the access road provides the only means of access from the public road to the land conveyed to Mr. Bundhoo. The transfer to Mr. Bundhoo contained no express grant of a right of way. But it is clear that the vendor had no power to grant a right of way over the land of the neighbour in 1980 the access road on the site which had been enjoyed by Mr. Bundhoo was obstructed by Mr. Nazir who built a watt where the access road as then enjoyed debouched onto the public road. in 1983 Mr. Nazir built another watt where the access road enters the land of Mr. Bundhoo. Mr. Bundhoo applied to the Intermediate Court for an order directing Mr. Nazir to remove the obstructing watts which he had built and for damages. The magistrates (Mrs. P. Balgobin and Chui Yew Cheong) dismissed the application.

It appears that Mr. Bundhoo had built a house on his land and he gave evidence that following the obstructions by Mr. Nazir:-

"I had many difficulties. Police had even to bring my letters to my residence. Î have a neighbour Suchita and 1 obtained his permission to pass on his land. Suchita gave me permission to pass on his land. Suchita said to me that he would henceforth obstruct his road. if Suchita refuse his permission 1 would be encircled and have no access to the road."

It also appears that sometime or other the neighbour built a wall intended to mark the boundary between the neighbour's land and the access road. A surveyor called by Mr. Nazir testified as follows:-

"(The neighbour) has erected a watt outside Mr.

Nazir's land and there is no indication why the watt should be round there and not much further ... l know that in the title deed of Nazir between the property of Nazir and the neighbour) there is a 6 feet wide road over a length of 175 feet ... and if we measure 175 feet from that road it finishes with the land of (Mr. Bundhoo). In my opinion that 6 feet wide road should not be on the land of (Mr. Nazir)."

When asked whether in his opinion the access road mentioned in Mr. Nazir's title deeds should be round on the land of the neighbour he said he could not answer yes or no. He had read the description of the land of Mr. Nazir and understood that there was a road 6 feet wide between his land and the land of the neighbour. "in my opinion the road is not in the land of Mr. Nazir. The road is between the two lands."

In their judgment the magistrates considered the evidence of a surveyor called on behalf of Mr. Bundhoo who said that:-

"... it is the custom in Mauritius that when the words 'un chemin entre' are mentioned in a title deed, the road should be taken from the land to which the title deed relates. in the present case therefore, the road of 6 ft should be taken from [Mr. Nazir's] land which should therefore be reduced to a width of 26 feet instead of 32 feet."

The magistrates preferred the evidence of Mr. Nazir's surveyor that the word "entre" meant "between" and rejected the evidence of Mr. Bundhoo's surveyor that the word "entre" meant "within". They concluded in the light of ail the evidence adduced that Mr. Bundhoo did not have a right of way over Mr. Nazir's land by title.

On appeal the Supreme Court (Moollan C.J. and Proag J.) set aside the order of the magistrates and granted injunctions and damages to Mr. Bundhoo. The judges of the Court criticised the evidence of Mr.Nazir's surveyor and preferred the evidence of Mr.Bundhoo's surveyor. The Court observed that there was no mention of any access road in the title deeds of the neighbour (which title deeds have been inspected) and no mention of any access road in the title deeds of the vendor until 2nd April 1958 when the access road was mentioned for the first time in bath the transfers of Mr. Nazir's land and Mr. Bundhoo's land. The Court pointed out that the vendor could not create a right of way over land belonging to the neighbour. In these circumstances the word "entre" could not mean "between". Their Lordships do not overlook that the latter proposition is a non sequitur. The Court said that when one finds that the access road starts from the public road and stops with the land of Mr. Bundhoo it becomes obvious that it was meant to give to Mr.Bundhoo a right of access to the public road, an essential requisite to enable him to enjoy his land. in 1958 the vendor caused to sell simultaneously a portion of land to Mr. Bundhoo and to Mr. Nazir with a mention in each deed of sale of a road of 6 feet wide on the length of one of their boundaries. "No doubt the object was to give a right of way to the immediate neighbour or neighbours".

Their Lordships would be reluctant to interfere with the conclusions of the Supreme Court dealing with documents and oral evidence in the language of Mauritius and with conveyancing law and practice of Mauritius. The Board would be reluctant to be driven to a conclusion which would result in the land of Mr. Bundhoo being landlocked. On behalf of Mr. Nazir counsel submitted that Mr. Bundhoo could in that case sue Mr. Nazir for a right of way of necessity, offering compensation or could sue the neighbour for a declaration that there was an access road which had been enclosed by the neighbour. But Mr. Bundhoo is only claiming to exercise the rights which he formerly exercised. if the neighbour's watt encroaches on Mr.Nazir's land then it is for Mr. Nazir to sue and prove the encroachment. in ail jurisdictions a discrepancy between boundaries as described in title deeds and their accompanying plans and maps on the one hand and the boundaries as they appear on the ground frequently leads to doubts and difficulties and in many, if not most cases, the best course is to uphold the status quo on the ground prior to any challenging obstruction or trespass. In the present case the Supreme Court has, for the reasons which they have set out disapproved of the action taken by Mr. Nazir forcibly to interfere with the access enjoyed by Mr. Bundhoo to the public road in 1980 and their Lordships see no reason for interfering.

Their Lordships w111 humbly advise Her Majesty that this appeal ought to be dismissed.

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Pradeep Heeramun v The Queen

Pradeep Heeramun

Appellant

v.

The Queen

Respondent

Appeal from the Supreme Court of Mauritius

Composition of the Board:

Lord Keith of Kinkel

Lord Brandon of Oakbrook

Lord Templeman

Lord Ackner

Lord Jauncey of Tullichettle

Judgment delivered on the 23rd May 1990

by Lord Keith of Kinkel

______________________________________________________________

Criminal law - Privy Council jurisdiction - Not a court of criminal appeal

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Cases referred to in judgment

Badry v. Director of Public Prosecutions [1983] 2 A.C. 297

Buxoo v. The Queen [1988] 1 W.L.R. 820

Legislations referred to in judgment

Courts Act, section 70

Criminal Code, section 100

Firearms Act, sections 3, 24

The following judgment was delivered by the Board:

This appeal comes before the Board by virtue of 70A of the Courts Act, which was added to the Act by section 7 of the Courts (Amendment) Act 1980 and which provides for an appeal from the Supreme Court to Her Majesty in Council as of right in all criminal cases.

The appellant was on 10th December 1987 convicted by the Intermediate Court upon an information containing three charges. The first charge was on of possessing a mould for the making of bank notes, contrary to section 100(3)(d) and (4) of the Criminal Code. The second charge was one of possessing firearms without a licence, contrary to sections 3(1) and 24(1) of the Firearms Act, and the third was one of possessing ammunition without a licence, contrary to the same enactments.

The evidence before the court disclosed that on 9th January 1986 the appellant's dwelling house was raided by police officers acting under a warrant. The house consisted of two floors. The appellant lived on the lower floor, and his mother and sister-in-law, with the latter's children, lived on the upper floor. The appellant's brother had died in 1984 and before then he too had lived on the upper floor. In a locked drawer in a desk in a room on the upper floor the police officers found two wooden blocks, one of which bore an effigy of Queen Elizabeth II and the other of which bore the characters "£50" and "Bank of England". The blocks were wrapped in a newspaper bearing a date in 1985. A search was then made of the yard surrounding the house, and under a grinding stone (a construction used for the grinding of spices) there were found two pistols, a silencer, a quantity of ammunition and some firearm accessories. The appellant did not have a licence to possess firearms or ammunition. The appellant denied knowledge of the presence of the incriminating articles. He said that he never entered the upstairs room and that the blocks belonged to his deceased brother (though according to police evidence he had said, when they were found, that a friend had given them to him). He denied that the blocks had been found wrapped in a newspaper dated 1985. He was unable to explain the presence of pistols and ammunitions under the grinding stone, but produced a document showing that the piece of ground in question had been conveyed to his brother, and in a statement to the police said that he was on bad terms with some of his neighbours. The grinding stone was situated 4 to 5 feet from the house and about 10 feet from the boundary of the property, which had a bamboo fence on three sides.

The magistrates expressed the view that the appellant was an unsatisfactory witness. They found that he was in possession of the articles mentioned in the charges and that he knew what they were. Having convicted the appellant they sentenced him to twelve months' imprisonment on the first charge and to three months' imprisonment on each of the second and third charges, to run concurrently. An appeal by the appellant to the Supreme Court was dismissed on 7th June 1988.

As was made clear in Badry v. Director of Public Prosecutions [1983] 2 A.C. 297 and Buxoo v. The Queen [1988] 1 W.L.R. 820, this Board, when dealing with an appeal as of right in a criminal case under section 70A of the Courts Act, applies the same principles as it has traditionally applied in criminal cases. Such leave is granted only in exceptional circumstances, where the Board consider that a really serious miscarriage of justice may have occurred.

Their Lordships are satisfied that there has been no miscarriage of justice in this case. There was ample evidence upon which the magistrates could properly convict the appellant on all three charges. The only issue was whether or not the appellant was knowingly in possession of the wooden blocks and the pistols and ammunition. The appellant was the only man living in the premises where the incriminating articles were found. He was in control of and had access to the whole of these premises. No suggestion was made that his mother or sister-in-law was in any way concerned, and the evidence about the wooden blocks being wrapped in a newspaper dated in 1985, as to which the magistrates were fully entitled to accept the police evidence and reject that of the appellant, ruled out any involvement by the deceased brother with these articles.

As regards the pistols and ammunition, the extreme improbability of anyone other than the appellant having chosen the particular hiding place where they were found was a factor pointing strongly to his guilt. The magistrates had inspected the scene of the concealment and were able to form a view about this. It was suggested on his behalf that the magistrates, having found that the appellant had lied about the wooden blocks, should have put that entirely out of their minds when considering the evidence about the pistols and ammunition. It is of course true that the evidence against the appellant on each charge fell to be considered separately, as though each charge was contained in a separate information. A careful reading of the magistrates' judgment does not, however, indicate that they allowed their adverse view of the credibility of the appellant's evidence on the first charge to colour their consideration of the second and third charges. There is no reason to doubt that the magistrates had in mind that the evidence of a particular witness may lack credibility and reliability on one matter but may not do so upon another matter. In the whole circumstances of the case the inference that the appellant was knowingly in possession of the pistols and ammunition, as well as of the wooden blocks, was an entirely legitimate one.

Their Lordships will humbly advise Her Majesty that the appeal should be dismissed.

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Samad Ramoly v The Queen

Samad Ramoly

Appellant

v.

The Queen

Respondent

Appeal from the Supreme Court of Mauritius

Composition of the Board:

Lord Bridge of Harwich

Lord Brandon of Oakbrook

Lord Templeman

Lord Oliver of Aylmerton

Lord Goff of Chieveley

Judgment delivered on the 26th March 1990

by Lord Bridge of Harwich

______________________________________________________________

Criminal law - Smuggling - District and Intermediate Courts jurisdiction - Duty not to quash conviction for defect in substance or in form unless appellant is prejudiced -Substitution of appellant in the proceedings before Her Majesty's Privy Council

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Case referred to in judgment

Ah Kam Ah Yam v. The Queen [1973] M.R. 133

Legislations referred to in judgment

Customs Act, sections 2, 167

District and Intermediate Courts (Criminal Jurisdiction) Act, section 97

The following judgment was delivered by the Board:

Mr. B.S. Ramoly was convicted by the Intermediate Criminal Court at Rose-Hill of 29 offences of smuggling contrary to section 167 of Customs Act. His appeal against conviction was dismissed by the Supreme Court of Mauritius, but he was granted leave to appeal to Her Majesty in Council. Mr. B.S. Ramoly has since died. Pursuant to a certificate granted by the Supreme Court it was ordered by Her Majesty in Council that Mr. Samad Ramoly, the personal representative of Mr. B.S. Ramoly, be substituted as the appellant on the record. For convenience their Lordships will refer to the late Mr. B.S. Ramoly as the defendant.

The subject of each count in the indictment was a consignment of textiles which had been imported into Mauritius subject to the restriction that they were to be stored in a bonded warehouse and to be re-exported to the Comores Islands. As the trial court found, the defendant "knowingly and deliberately and in bad faith evaded this restriction in each case" by obtaining possession of the goods from the bonded warehouse on the strength of forged documents and putting them into circulation for home consumption, so that they were not re-exported to the Comores Islands.

The offence of smuggling enacted by section 167 of the Customs Act depends on the following definitions in section 2:-

"'Smuggling' means any importation, introduction, exportation or attempted importation, introduction, exportation of goods with intent to defraud the revenue, or to evade any prohibition of, restriction on, or regulation as to, the importation, introduction, exportation of any goods;

'Import' means bring or cause to be brought into Mauritius;

'Time of importation' means the time at which the aircraft or ship importing goods actually lands in Mauritius or comes within 12 nautical miles of the coast."

The point raised by the appeal is purely technical. It relates to the form in which the offence of smuggling charged in each count in the indictment was expressed and the way in which the case was presented by the prosecution in the courts below. Each count was framed in the following form:-

"... that on (a specified date) (the defendant) did wilfully and unlawfully smuggle (the relevant goods), the importation of which was subject to a restriction, to wit:-

that the said goods should be re-exported in a bonded warehouse to be re-exported to the Comores Islands, with which the (defendant) failed to comply."

In Ah Kam Ah Yam v. The Queen [1973] M.R. 133 it was held by the Supreme Court of Mauritius that a distinction was to be drawn in the definition of "smuggling" between the meanings of the words "importation" and "introduction". "Importation" refers to the bringing of goods into Mauritius; "introduction" refers to the removal of goods from Customs control after importation.

The appellant's complaint is that the date of the offence in each count of the indictment was the date of the importation of the relevant consignment, not the date when the goods were removed from Customs control by the defendant and, it is said and appears to be correct, that the prosecution was presented and argued in the courts below, on the footing that the importation was a continuous process. Instead, it is objected, the defendant should have been charged with the introduction of the goods on the date in each case when he obtained possession of them from the bonded warehouse.

Their Lordships are content to assume that the technical objection is well-founded. But it does not assist the appellant's case. Section 97(2) of the District and Intermediate Courts (Criminal Jurisdiction) Act provides:-

"No conviction shall be quashed on the ground of any defect in substance or in form in the information, warrant and summons, or for any variance... unless the court is satisfied that the appellant has thereby been misled or deceived and prejudiced in his defence."

The defendant was undoubtedly guilty of smuggling by removing the goods from the Customs control with intent to evade the restriction subject to which they had been imported. Neither the form of the counts in the indictment nor the way in which the case was presented for the prosecution can have misled or deceived him or prejudiced him in any way.

Their Lordships will humbly advise Her Majesty that the appeal should be dismissed. The appellant must pay the respondent's costs.

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