Marday Curpen v The Queen

Marday Curpen

Appellant

v.

The Queen

Respondent

Appeal from the Supreme Court of Mauritius

Composition of the Board:

Lord Bridge of Harwich

Lord Templeman

Lord Goff of Chieveley

Lord Browne-Wilkinson

Sir Maurice Casey

Judgment delivered on the 11th November 1991

by Lord Goff of Chieveley

______________________________________________________________

Constitutional law - Fundamental principle of justice - Fair hearing - Composition of a court - Magistrate replaced during trial - Guidelines and propositions to the legislature

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Case referred to in judgment

Ng (alias Wong) v. Regina [1987] 1 W.L.R. 1356

Legislations referred to in judgment

Constitution of Mauritius, section 10

Courts Act 1945, section 85

Criminal Code, section 100

Criminal Justice Act 1967 (United Kingdom), section 9

The following judgment was delivered by the Board:

On 24th February 1987 in the Intermediate Court of Mauritius (Magistrates Mr. P. Lam Shang Leen and Mrs. P. Balgobin) the appellant, Marday Curpen, was convicted of offences of counterfeiting bank notes contrary to section 100(2)(a)(1) and (4) of the Criminal Code of Mauritius, and of knowingly having in his possession moulds for producing counterfeited banknotes contrary to section 100(3)(b) and (4) of the Code. He was sentenced to three years' penal servitude. He appealed against his conviction and sentence to the Supreme Court of Mauritius; on 28th October 1987 that court (A.G. Pillay and R. Proag JJ.) dismissed his appeal. It is against that decision on his appeal against conviction that the appellant appealed to Her Majesty in Council. At the conclusion of the hearing their Lordships agreed humbly to advise Her Majesty that the appeal ought to be allowed, the convictions quashed and the orders for costs in the lower courts set aside. The appellant is entitled to his costs before the Board. Their Lordships now give their reasons.

In his grounds of appeal before the Supreme Court, dated 25th March 1987, the appellant based his appeal against conviction on the ground that the case against him had not been proved beyond reasonable doubt. However, on 20th July 1987 the advice of the Judicial Committee in Ng (alias Wong) v. Regina [1987] 1 W.L.R. 1356 was delivered. That case was concerned with an appeal from the Supreme Court of Mauritius and arose from the fact that one of the two magistrates who convicted the appellant had not heard any of the evidence in the case. The Privy Council, allowing the appeal, held that it is a fundamental principle of justice in a criminal case for those who return a verdict to see and hear all the witnesses, and that that principle had been broken.

In the present case, the trial of the appellant and his co-accused had begun before two magistrates, Mr. Basset and Mrs. Balogbin, who heard part of the evidence; it then continued before Mr. P. Lam Shang Leen and Mrs. Balgobin, who convicted the appellant and one of his co-accused. Accordingly, the appellant submitted to the Supreme Court that the fundamental principle stated in Ng had also been broken in his case; but the Supreme Court dismissed his appeal, distinguishing Ng. Before their Lordships, Mr. Ollivry Q.C. for the appellant, submitted that the Supreme Court had erred in distinguishing Ng and that on the principle in that case the appeal should be allowed and the appellant's conviction quashed.

Their Lordships turn first to the course of the proceedings before the Intermediate Court. The information was laid against the appellant on 10th December 1984. On 14th January 1985 the appellant, and two others who were charged with him, pleaded not guilty to the offences with which they were charged. After four adjournments, the case came on for trial on 28th November 1985. The court consisted of Mr. Basset and Mrs. Balgobin. Evidence was given by a number of witnesses. Two witnesses gave evidence of statements said to have been made by first two accused, Jacques Lafolle and Panden Curpen. Provost Sergeant Rampersad of Flacq CID then put in two statements said by him to have been made by the appellant, who was the third accused. He was cross-examined by counsel for the appellant. In the course of cross-examination, he gave an account of the events which occurred at the time of the raid which led to the prosecution, with particular reference to the activities of the appellant on that occasion. It is plain from the notes of the evidence of Mr. Rampersad that the statements which he had put in as having been given by the appellant were being challenged by his counsel. The relevant part of the note of Mr. Rampersad's evidence reads as follows:

"I have given a statement. It is not true that what I have read does not emanate from Accused N° 3. I cautioned Accused N° 3 and recorded what he said. Accused N° 3 is Marday."

After the evidence of Mr. Rampersad, further evidence was given to prove photographs, measurements and the provenance of four sealed boxes.

Next, Mr. Parianen, the manager of a bank at St. Pierre, began to give evidence concerning the verification of foreign currency notes, but his credentials as an expert were then challenged by the defence. Finally, Chief Inspector Soobadar of Moka CID gave evidence of a search of the premises raided by the police on 23rd March 1984, identifying the contents of the four sealed boxes as being what was found on that occasion, and spoke to certain other matters. He was cross-examined by counsel for the first accused, and then re-examined. The question of the expertise of Mr. Parianen was adjourned to the next hearing. After two more adjournments, the hearing was resumed on 20th June 1986, the court then consisting of Mr. P. Lam Shang Leen and Mrs. Balgobin. They ruled that, on the evidence given on 28th November 1985, Mrs. Parianen could not give evidence as an expert. After four more adjournments, the hearing was resumed before the same two magistrates on 16th January 1987, and at the next hearing, on 24th February 1987, they delivered their judgment convicting the appellant together with the first accused, and imposed sentence.

From this brief account, it is evident that the appellant's complaint relates to the hearing which took place on 28th November 1985, when evidence was given before a court which did not include Mr. P. Lam Shang Leen, though he was one of the two magistrates who, on 24th February 1987, convicted the appellant.

Their Lordships turn text to Ng (alias Wong) v. Regina [1987] 1 W.L.R. 1356. In that case, the evidence for the prosecution was heard by two magistrates, Mr. S. Moosun and Mr. A. Parsad, on four separate dates, after which the prosecution closed their case. On two further dates, the same two magistrates heard submissions of no case to answer, and reserved judgment on those submissions. About five months later a differently constituted court, consisting of Mrs. V. Narayen and Mr. A. Parsad, gave a short judgment rejecting the submission, Mrs. Narayen having heard none of the evidence nor indeed the submissions themselves. About a month later, the same two magistrates heard evidence called on behalf of the defendants and closing speeches. Six months later, another differently constituted court, consisting of Mrs. P. Balgobin and Mr. A. Parsad, gave judgment convicting the defendants, Mrs. Balgobin having heard none of the evidence or the submissions. The defendants complained that they had been denied the fair hearing guaranteed to them by section 10(1) of the Constitution of Mauritius, which provides as follows:

"Where a person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law."

The advice of the Privy Council was delivered by Lord Griffiths. He said (at 1358-1359):

" Their Lordships consider the defendant's complaint to be unanswerable. It should be said at once that the Solicitor-General very properly did not seek to uphold their convictions. The Courts Act 1945, as amended, provides that proceedings before the Intermediate Court shall be heard and determined by not less than two nor more than three magistrates and that where the court is composed of two magistrates the decision must be unanimous: see section 85. In a criminal trial, whether before a jury or before magistrates, it is a fundamental requirement of justice that those called upon to deliver the verdict must have heard all the evidence. The evaluation of oral evidence depends not only upon what is said but how it is said. Evidence that may ultimately read well in a transcript may have carried no conviction at all when it was being given. Those charged with returning a verdict in a criminal case have the duty cast upon them to assess and determine the reliability and veracity of the witnesses who give oral evidence, and it is upon this assessment that their verdict will ultimately depend. If they have not had the opportunity to carry out this vital part of their function as judges of the facts, they are disqualified from returning a verdict, and any verdict they purport to return must be quashed."

In the present case, the Supreme Court of Mauritius sought to distinguish Ng. The court referred to the statement of Lord Griffiths that "it was a fundamental requirement of justice that those called upon to deliver the verdict must have heard all the evidence." They next described certain practical difficulties which occur in Mauritius, and asserted that literal application of the passage from Ng quoted above would cause innumerable administrative problems and inordinate delays. They said:

"... a situation has already been reached in our Courts where the completion in a single day of a contested case involving Counsel is the exception rather that the rule.

If every single case, in which a magistrate who has sat alone in a district like Port-Louis for say, 18 months, has heard some evidence, whether the evidence has been contested or not, and is subsequently transferred to another distant district like Flacq before the completion of all those cases, must be governed by the fundamental principle of justice relating to the requirement of hearing all the evidence as laid down by the Judicial Committee of Privy Council , this is what will happen. Either the magistrate who follows in the former's footsteps will have to start all those cases all over again or the magistrate who has now moved to Flacq (when, in any event, either magistrate is hard-pressed for time) would have to literally 'make' time to go back to Port-Louis every now and then to complete all his cases. Either way result will be unsatisfactory."

Against that background, they turned to consider Ng and sought to draw the following distinction:

"It seems to us that a useful distinction could be drawn between, first, formal and material witnesses and, secondly, between formal witnesses whose evidence is contested on the one hand and formal witnesses whose evidence is uncontested on the other.

At a criminal trial in which an accused party pleads not guilty, the evidence of material witnesses is always contested whereas the evidence of formal witnesses may or may not be contested. We are of opinion that it is only in the case of material witnesses and that of formal witnesses whose evidence is in effect contested that a district magistrate or the two magistrates constituting the Intermediate Court must inevitably hear all their evidence."

They then expressed the opinion that where formal witnesses are not cross-examined at all or are not seriously cross-examined, a mere reading of the transcript of their evidence will, more often than not, be sufficient; into that category they placed the evidence of Mr. Rampersad and Mr. Soobadar. They continued:

"It would have made no difference, in our opinion, whether that testimony had been considered by the substituted or substitute Magistrate. Its effect would have been the same since the reliability and veracity of those witnesses was not seriously questioned or questioned at all by the appellant. Likewise, with regard to the statements given by the appellant to the Police, the substitute magistrate was in as good as a position as the substituted magistrate to consider those statements."

Before their Lordships, Mr. Ollivry submitted that the reasoning of the Supreme Court was open to serious criticism. He referred to the conclusion of the Supreme Court that it is only in the case of material witnesses and of formal witnesses whose evidence is in effect contested that the magistrates who decide the case must hear all the evidence, and he submitted that this conclusion could not be derived from the principle stated in Ng. In this connection, he directed particular criticism to the treatment by the Supreme Court of the evidence given on 28th November 1985, which they dismissed as evidence of formal witnesses who were not cross-examined at all or who were not seriously cross-examined. Mr. Ollivry referred especially to the evidence of Mr. Rampersad, which had been plainly challenged by counsel for the appellant. Finally, Mr. Ollivry informed their Lordships that the practical difficulties which had troubled the Supreme Court had now been overcome as a result of new arrangements made in Mauritius; this was confirmed by Mr. Leung Shing Q.C. for the respondent.

Their Lordships are of the opinion that Mr. Ollivry's criticisms are well-founded. The difficulties inherent in the approach of the Supreme Court are amply illustrated by the fact that their category of formal witnesses, whose evidence is uncontested, proved to be difficult to control since it was allowed to expand to include formal witnesses who were not seriously cross-examined, a category of witnesses which is amorphous and not easily defined. Furthermore the court placed within this category the evidence of Mr. Rampersad, which their Lordships consider should plainly have been heard, together with the other evidence, by all the magistrates who had to decide the case. The true answer, in their Lordships' opinion, is that section 10(1) of the Constitution requires that the principle in Ng should be complied with. There was a significant breach of that principle in the present case.

Their Lordships wish to conclude with the following observation. In the course of argument, Mr. Leung Shing informed their Lordships that some anxiety was being felt in Mauritius about the breadth of the statement of principle in Ng, in that it requires that those called upon to deliver the verdict must have heard all the evidence; it is apparently feared that this precludes any provision that certain evidence might be given otherwise than orally before those who decide the case. Their Lordships are concerned to dispel this fear. It would in their opinion, be possible for such provision to be made, in an appropriate case, consistently with section 10(1) of the Constitution of Mauritius. Examples of provisions of this kind are to be found in section 9 of the Criminal Justice Act 1967 applicable in England, concerned with the admissibility of written statements in evidence, and section 10 of the same Act, concerned with formal admissions; though attention should be directed to the conditions specified in the Act under which such evidence is admissible. In circumstances such as these, the tribunal will hear the evidence in the form authorised by the statute, and that would be in accordance with the statement of principle in Ng.

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S. M. A. Goolfee v The Queen

S.M.A. Goolfee

Appellant

v.

The Queen

Respondent

Appeal from the Supreme Court of Mauritius

Composition of the Board:

Lord Bridge of Harwich

Lord Templeman

Lord Goff of Chieveley

Lord Browne-Wilkinson

Sir Maurice Casey

Judgment delivered on the 11th November 1991

by Lord Goff of Chieveley

______________________________________________________________

Constitutional law - Criminal law - Privy Council jurisdiction - Not a second court of criminal appeal - Courts of Mauritius have better knowledge of local conditions

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Cases referred to in judgment

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

Buxoo v. Regina [1988] 1 W.L.R. 820

Ibrahim v. Rex. [1914] A.C. 599

Legislations referred to in judgment

Dangerous Drugs Act 1986, sections 28, 37

Courts Act 1945, section 70

Other authority referred in judgment

Privy Council Practice Direction by Viscount Dunedin (1932) 48 T.L.R. 300

The following judgment was delivered by the Board:

On 9th May 1988 the appellant, S.M.A. Goolfee, together with a co-defendant, was convicted by the Intermediate Court of Mauritius of three offences contrary to the Dangerous Drugs Act 1986, viz. (1) possession of heroin (2) possession of a pipe, and (3) possession of utensils, both for use in connection with the smoking of heroin. The quantity of powder found in the possession of the defendants, in which heroin was detected, was 1.2 grams. On 2nd September 1988 the court sentenced the appellant to two years' imprisonment with hard labour, and to pay a fine of Rs 1000/- under each of the three counts; and sentenced his co-defendant to pay a fine of Rs3000/- under each count. The appellant appealed to the Supreme Court of Mauritius against the sentence of two years' imprisonment, by on 2nd May 1989 the Supreme Court dismissed his appeal. He now appeals from that decision to Her Majesty in Council.

Having regard to the view which their Lordships have formed of this appeal, it is not necessary for them to set out the factual background of the case in any detail. In brief, both defendants were found smoking heroin on the appellant's premises; and the magistrates of the Intermediate Court, rejecting the defence of the co-defendant that he was only watching, found that both defendants were engaged in a joint venture and were in possession of the heroin, the pipe and the other utensils which were the subject-matter of the three counts. However, the magistrates differentiated between the two defendants when they came to impose sentence, taking into account that, whereas his co-defendant had a clean record, the appellant had a previous conviction for being in possession of heroin, having been sentenced for that offence about a year before (on 27th September 1985) to a period of four weeks' imprisonment with hard labour.

In his appeal to the Supreme Court against his sentence of imprisonment, the appellant relied upon three grounds - that the magistrates failed to have regard to the relevant circumstances; that his sentence was manifestly harsh and excessive; and that he was in possession of the heroin for his own use, i.e. he was not trafficking in drugs. It was suggested that a probation order, or an order for treatment, should have been imposed rather than a custodial sentence. This latter submission was founded upon section 28 of the Dangerous Drugs Act, the offences of which the appellant and his co-defendant were convicted being contrary to subsection (1)(a) of that section. Subsections (3), (4) and (5) of the section provide as follows:-

"(3) Notwithstanding section 37, the probation of Offender's Act shall apply to a conviction under subsection (1)(a).

(4) Where a person is convicted of an offence under subsection (1)(a), the Court may also order that the person shall undergo such treatment, education, after care, rehabilitation or social reintegration as the Court thinks appropriate at such institution as may be prescribed and for such period not exceeding 5 years as the Court may specify.

(5) Where the Court makes an order under subsection (4), the Court may also order that any sentence of imprisonment not exceeding 12 months shall be suspended."

However, the appellant's submissions were rejected by the Supreme Court. The Court said:-

"Given the quantity of heroin found with the appellant and his recent previous conviction he could not expect to be treated with leniency. A sentence of two years imprisonment was not, in the circumstances, either wrong in principle or manifestly excessive."

Before their Lordships, Mr. Ollivry Q.C. advance three submission on behalf of the appellant. First he submitted that, since the magistrates in the Intermediate Court did not call for a social enquiry report, they failed together to exercise the discretion under section 28(4) of the Act, since in the absence of such a report they could not have considered whether they should make an order that the appellant should undergo treatment rather that impose a custodial sentence. Second, the Supreme Court must likewise have failed to deal with the appellant's submission that an order should have been made under section 28(4). Third, the discrepancy between the sentences imposed on the two defendants was so great as to be unreasonable and unfair, and indeed to provoke a real sense of grievance on the part of the appellant. Mr. Ollivry further submitted, in the course of argument before their Lordships, that the magistrates in the Intermediate Court had given such undue weight to the previous conviction of the appellant as to be, in effect, sentencing the appellant twice for his previous offence.

However, Mr. Leung Shing Q.C., for the respondent, while submitting that the appellant's argument should in any event be rejected on the merits, took the preliminary objection that this appeal was one which, on well-established principles, their Lordships should not entertain. He referred to Badry v. Director of Public Prosecutions [1983] 2 A.C. 297, an appeal from Mauritius in which the advice of the Board was delivered by Lord Hailsham of St. Marylebone L.C. In the course of their advice, Lord Hailsham repeated and reaffirmed the well-known statements of principle by Lord Sumner in Ibrahim v. Rex. [1914] A.C. 599, 614-15, and by Viscount Dunedin in the Practice Direction reported in (1932) 48 T.L.R. 300, setting out the practice of the Board in relation to criminal appeals. In the former Lord Sumner stated that, for leave to appeal to be granted:-

"There must be something which, in the particular case, deprives the accused of the substance of fair trial and the protection of the law, or which, in general, tends to divert the due and orderly administration of the law into a new course, which may be drawn into an evil precedent in the future".

And in the latter, Viscount Dunedin said:-

" Their Lordships have repeated ad nauseam the statement that they do not sit as a Court of Criminal Appeal. For them to interfere with a criminal sentence there must be something so irregular or so outrageous as to shake the very basis of justice."

Subsequently, in Buxoo v. Regina [1988] 1 W.L.R. 820, where the advice of the Board was delivered by Lord Keith of Kinkel, it was stated that the same principles continued to apply following the enactment of section 70A of the Courts Act of Mauritius (introduced by amendment in 1980), under which it was enacted that an appeal lay from the Supreme Court or the Court of Criminal Appeal of Mauritius to Her Majesty in Council as of right in all criminal cases.

Their Lordships are in no doubt that these principles apply with full force in the present case, and they are satisfied that, on these principles, the present appeal cannot be entertained. In truth, the appellant is seeking to do more that use the Privy Council as a second court of criminal appeal. This is not only wrong in principle, but would require their Lordships to perform a function which the courts of Mauritius, with their knowledge and experience of local conditions and local needs, are far better equipped to perform.

Their Lordships are therefore satisfied that the preliminary objection taken by the respondent is well founded. They will humbly advise Her Majesty that the appeal should be dismissed.

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Pierre Nelson Manon v The Queen

(1) Pierre Nelson Manon

(2) Luc Hervé Manon

(3) Désiré Clency Georgini and

(4) Marie Désiré Bernard Nicolas Pierrus

Appellants

v.

The Queen

Respondent

Appeal from the Supreme Court of Mauritius

Composition of the Board:

Lord Bridge of Harwich

Lord Templeman

Lord Goff of Chieveley

Lord Browne-Wilkinson

Sir Maurice Casey

Judgment delivered on the 11th November 1991

by Lord Bridge of Harwich

______________________________________________________________

Criminal law - Rape - Corroboration - Whether the complainant's distress amounts to corroboration - Technical misdirection but no miscarriage of justice

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Case referred to in judgment

Budlwan v. Regina [1987] M.R. 50

The following judgment was delivered by the Board:

The appellants, Pierre and Luc Manon, were charged with rape. The appellants, Georgini and Pierrus, were charged with the offence of attempt upon chastity. Together with a fifth man, Sooriah, who was also charged with rape, they were tried in the Intermediate Court by two professional magistrates and convicted as charged. Their appeal to the Supreme Court was heard before Sir V.J.P. Glover C.J., Proag and Ahnee JJ. and dismissed by a majority (Ahnee J. dissenting). They now appeal to Her Majesty in Council. At the conclusion of the hearing their Lordships announced that they would humbly advise Her Majesty that the appeal ought to be dismissed for reasons to be given later. They now give their reasons.

The evidence of the complainant, Doris Joseph, was, in summary, to the following effect. She had known the appellant, Pierrus, since she was 19 years old. She had had an intimate relationship with him involving a large degree of sexual familiarity, but stopping short of actual sexual intercourse. At the end of 1984 she sought to break off the relationship, but he continued to press her with attentions. On 24th March 1985 Pierrus induced her by a subterfuge, which it is unnecessary here to examine in detail, to go to his home. His parents were away, but there was a maid in the house. His parents were away, but there was a maid in the house. Pierrus took her to his room and went out closing the door. Shortly afterwards the other three appellants and Sooriah, who were strangers to her, came into the room followed by Pierrus. While Pierrus stood watching, Georgini held her mouth to stop her screaming, Sooriah threatened her with a knife and, aided by the Manons, they undressed her. Pierre Manon then raped her while the others held her legs. Afterwards they told her they had come to teach her a lesson for leaving Pierrus. They offered her the choice of submitting to each in turn or of sucking Pierrus. When she refused, they held her nose to make her open her open her mouth and Pierrus put his penis into her mouth. He then tried unsuccessfully to have intercourse with her. After this she was raped in turn by Luc Manon, by Pierre Manon a second time and by Sooriah while the others held her arms and legs. Georgini fondled her body, put his finger in her anus and tried to put his penis in her mouth. Only then did Pierrus call a halt. They brought a bucket of water and made her wash herself. They gave her back her clothes and she left the house.

Sometime later that day she told a frined named Nombro what had happened to her and he told her to go to the police, which she did. Nombro gave evidence of her complaint and said that when he saw her she was crying and seemed very distressed.

The complaint was cross-examined at great length by counsel for all the accused but none of the accused was called to give evidence. They relied on the statements they had given to the police.

The accounts given in the statements by the four accused other than Pierrus agreed substantially with each other. All said that some weeks before 24th March 1985 Pierrus had severally told them that he would arrange for them to have sexual intercourse with a woman at his house, but that they would have to pay him for the service. On the morning of 24th March he told them they should come to his house that afternoon. When they did so they were admitted by Pierrus to his room where the woman, whom they did not know, was waiting for them naked. They then recounted how each of them except Georgini had had sexual intercourse with her, which they claimed was with her full consent and with her obvious enjoyment. Their account of the sequence of events and of some of the sexual familiarities practice accorded to a large extent with the complainant's evidence save, of course, that they denied that any coercion had been used. Afterwards they said that when the woman was in the bathroom washing Pierre Manon handed over to Pierrus the money which he had collected from the others.

The account given by Pierrus in his statement was strikingly different. He said that he had known the complainant since June 1984 and had a relationship with her which involved frequent and full sexual intercourse. On 24th March 1985 she met him by appointment and they went to his house where they had sexual intercourse together. Afterwards, while he was dressing, the other four accused, who were his friends, arrived at the house quite unexpectedly. He told the complainant to get dressed, but she refused. He said:-

"When I saw Doris was not willing to get dressed I asked my four friends to come in because Doris' attitude towards my friends has vexed me."

He then described how the complainant agreed to have sexual intercourse with his friends, but required to be paid for her services. He said that this surprised him. The money was collected for her and she then had intercourse in turn with Pierre and Luc Manon and Sooriah.

The magistrates said of the complainant in their judgment:-

"We saw ourselves listening to a witness whose candid deposition in a case where Counsel spared no limit in cross-examination as to her character and past conduct, was beyond all comparison. We believe that very few witnesses in cases of such could have stood such cross-examination without a blink. We find, without the slightest hesitation that her evidence is in substance a true account of what took on that day."

The word "deposition" in this passage is clearly used to describe the way in which the complainant gave her oral evidence.

The complainant's statement to the police had been recorded in the Creole vernacular and in cross-examination she had denied using some of the words attributed to her in those statements. Commenting on this cross-examination, the magistrates said:-

"... the short answer to that is that we believe her when she said that she did not choose those words when relating to the Police what took place but it was the Police who thought fit to introduce them as coming from her. We do not believe Inspector André... on this score. We must add that this witness impressed with her good and fluent French which was quite removed from the vulgar and crude style evidently appearing in her statements."

The magistrates referred to the evidence of the witness Nombro as demonstrating the consistency of the complainant's evidence with the account she gave to him soon after the incident.

A submission had been made on behalf of the accused that a fatal the flaw in the prosecution case arose from their failure to call the maid at the Pierrus house, since the complainant, in cross-examination, had claimed that the maid could support her account in some respects. The defence relied in supports of this submission on a decision of the Supreme Court of Mauritius in Budlwan v. Regina [1987] M.R. 50. The point was quite misconceived. Budlwan was a case of murder by shooting where identity was in issue. The prosecution put in evidence the statements to the police which had been made by a number of eye witnesses of the shooting, but did not call them to give evidence. Delivering the judgment of the court, Lallah J. said:-

"... the appeal must be allowed because of a gross irregularity consisting in the admission of clearly irreceivable evidence most prejudicial to the particular defence put forward by the appellant."

Later in the judgment he added:-

"... the prosecution having decided to adduce evidence of what three alleged witnesses had seen and said on an issue which struck at the very root of the defence, the prosecution was in duty bound to call those witnesses in order to ensure that the appellant could cross-examination them and benefit from a fair trial."

This decision gave no support whatever to the submission for the defence in the instant case. Here the police had taken a statement from the maid which was not put in evidence but had been furnished to the defence. They could have called her as a witness or required that she be tendered for cross-examination. They took neither course.

However, referring to counsel's submission, the magistrates said in their judgment:-

"We have considered their submission on the point and we find that Budlwan is plainly distinguishable from the facts of this case: the more so when we find sufficient corroboration in the testimony of witness Nombro when he described the state in which he saw the girl that evening: she 'devidait...pleurait, causait en même temps... she looked très boulversée."

One ground of appeal before the Supreme Court and the only ground which requires consideration by the Board is founded on this passage. The submission which found favour with the dissenting judge, Ahnee J., was that Nombro's evidence of the distressed condition of the complainant when recounting to him what had happened to her was incapable of amounting to corroboration. The majority of the Supreme Court rejected this submission on two grounds. Their first ground appears from the following passage from their judgment:-

"The judgment of the trial Court, looked at as a whole, clearly indicates that the magistrates were, notwithstanding that these are sexual offences, fully alive to the rules regarding corroboration and perfectly satisfied that they could rely on the evidence of the complainant coupled with the proof of consistency indicated by the substance and details of her complaint to Nombro. As opposed to that they were faced with the mere statements of the appellants according to whom the girl had graciously submitted to their lust. And we are left in no doubt as to the choice the trial Court made. They were not, in our view, even looking for corroboration before deciding whether to rely on that evidence."

They went on to conclude that the magistrates had assumed that a complainant's distressed condition could always amount to corroboration and rightly held this to be erroneous. But they further held that on a proper self-direction the magistrates must have concluded that Nombro's evidence of a complainant's distress did amount to corroboration.

Their Lordships feel considerable doubt whether the evidence given by Nombro of amounting to corroboration in the technical sense of affording confirmation of the complainant's evidence from an independent source. But it is unnecessary to examine this issue further since their Lordships fully agree with the majority of the Supreme Court that the magistrates' judgment, read as a whole, makes it clear that their acceptance of the complainant's evidence was not dependent of any element of corroboration. The stark issue at the trial was quite unlike that at most trials for rape arising from a one to one encounter between a man and a woman. There was certainly no room for mistake or misunderstanding or for self-deception on the complainant's part. If the complainant had, as the unsworn and untested statements of the appellants alleged, cheerfully prostituted herself in a sexual orgy with four strange men, her evidence was grossly perjured. If her evidence was accepted as honest, she had been the victim of a peculiarly nasty gang rape. The glowing terms in which the magistrates commended her as a witness make it abundantly clear that they fully accepted her honesty.

Their Lordships are accordingly satisfied that, if there was a technical misdirection in the reference to corroboration, it occasioned no miscarriage of justice.

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Mungroo v The Queen

Mungroo

Appellant

v.

The Queen

Respondent

Appeal from the Supreme Court of Mauritius

Composition of the Board:

Lord Bridge of Harwich

Lord Templeman

Lord Goff of Chieveley

Lord Browne-Wilkinson

Sir Maurice Casey

Judgment delivered on the 11th October 1991

by Lord Templeman

______________________________________________________________

Constitutional law - Criminal procedure - Fundamental rights - Delay - Right to be tried within a reasonable time - Reasonable time runs as from the arrest of the accused - Also proper to take into account time before arrest of the accused - Duty of the prosecution

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Cases referred to in judgment

Barker v. Wingo (1972) 407 U.S. 514

Bell v. Director of Public Prosecutions [1985] A.C. 937

Police v. Labat [1970] M.R. 214

Legislations referred to in judgment

Constitution of Jamaica

Constitution of Mauritius, section 10

The following judgment was delivered by the Board:

Section 10 of the Constitution of Mauritius provides that:

"(1) Where any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law."

The right to a trial 'within a reasonable time' secures, first, that the accused is not prejudiced in his defence by delay and, secondly, that the period during which an innocent person is under suspicion and any accused suffers from uncertainty and anxiety is kept to a minimum.

In the present case the appellant, B. Mungroo, complained that he was deprived of his right to a trial 'within a reasonable time'. In 1981 the Mauritius Meat Authority ("MMA") reported to the police some twenty cases of suspected false claims, payments and forgeries. On 17th July 1981 the appellant who was an executive officer employed by the MMA was arrested and served with a provisional charge of forgery of a cheque for Rs4,890. The appellant was given bail. The information relating to the charge was not laid until 4th May 1983; the delay was attributed by the prosecution to the complexity of the investigation into the affairs of the MMA reported to the police and made necessary by the number of incidents reported and by the complexities of each allegation. On 15th September 1983 the Director of Public Prosecutions filed a nolle prosequi and indicated that a new charge would be laid. The appellant and the magistrate were so informed. In 1984 the investigation of the affairs of the MMA was taken over by an Inspector Basset who made further inquiries and inter alia decided that the original charge of forgery against the appellant was inappropriate and that he should be charged with employing a fraudulent pretence by presenting a forged document and thereby swindling the MMA out of a sum of Rs4,890.

A new charge was laid on 15th February 1985. The delay between 15th September 1983 and 15th February 1985 was attributed to the complexity of the charge which involved a number of witnesses and the examination and production of a number of documents and records.

On 15th March 1985 the appellants pleaded not guilty to the second charge. Counsel on behalf of the appellant moved to stay the second charge of the proceedings on the grounds that the delay between 17th July 1981 and 15th March 1985 infringed the right of the appellant to trial within a reasonable time. The motion was argued on 13th December 1985 and Inspector Basset endeavoured to give evidence of the complexities of the investigation into the affairs of the MMA but counsel on behalf of the accused objected. The inspector said that when he came to take over the inquiry he "came to know different documents and new witnesses and was inquiring mainly on a case involving an offence of swindling". The magistrate dismissed the motion and the trial of the new charge proceeded. The grounds on which the motion was dismissed are not now supported, but in the course of his ruling the magistrate said this:-

"I cannot agree with counsel there has been an 'unconscionable' delay in the institution of the present proceedings against the accused. The D.P.P. was obviously right in filing a 'nolle prosequi' in relation to the forgery case... Inspector Basset only stepped in the Enquiry in 1984, and the D.P.P. decided to prosecute the accused on the present information now before this Court.

Any delay which has resulted in the presentation of the present information stems from the complex nature of the enquiry conducted by the police. One officer took a 'forgery' line and another took one of 'swindling'. The accused cannot complain that this delay (i) will jeopardise him in any way in the conduct of his defence or (ii) has caused a misuse of the process of this Court. It is not even suggested that the police have manipulated the rules for bringing the present prosecution, albeit with some delay."

The appellant had been "charged with a criminal offence" within section 10 of the Constitution when he was arrested on 17th July 1981. The change in the charge from forgery to swindling related to the same sum of Rs4,890 alleged to have been unlawfully extracted form the MMA and in these circumstances the appellant was entitled to a trial within a reasonable time after 17th July 1981. The magistrate reserved judgment and convicted the appellant on 29th July 1987 and sentenced him to nine months' imprisonment with hard labour. The appellant appealed against conviction on various hopeless grounds and also contended that his right to a trial within a reasonable time had been infringed by the delay which occurred between 17th July 1981 and 15th March 1985. The appeal was dismissed by the Supreme Court (Ahnee and Proag JJ.) on 14th December 1988 and the appellant now appeals to Her Majesty in Council.

In dealing with the question of delay the court said this:-

"The police no doubt took time to investigate. They cannot be expected to investigate the most difficult cases within a fixed period of time. If it were so, police work would suffer, law and order would go out of hand and crimes would increase to an alarming degree. It is indeed not the aim of section 10(1) of the Constitution to clog the police machinery.

It is therefore not correct to submit that the prosecution of the appellant was unconscionable, oppressive and against the Constitution of Mauritius just because police took a lot of time to complete their enquiries."

The magistrate and the Supreme Court were referred to the decision of the Supreme Court in Police v. Labat [1970] M.R. 214 in which it was held that in section 10 a person "charged" when he is "arraigned" and must be tried within a reasonable time after the preferment of the information. No reference was made to the advice of the Board in Bell v. Director of Public Prosecutions [1985] A.C. 937, dealing with the provision in the Constitution of Jamaica which is indistinguishable from section 10 of the Constitution of Mauritius. In that case it was made clear that a trial must take place within a reasonable time after arrest. Indeed it may be that in some cases, in considering whether a reasonable time has elapsed before the conclusion of the hearing of criminal proceedings, it would be proper to take into account the period before the accused was arrested. For present purposes it is sufficient to say that the decision in Police v. Labat (supra) can no longer be relied upon in any respect.

In Bell's case, at page 951, the Board adopted the approach of the Supreme Court in the United States in Barker v. Wingo (1972) 407 U.S. 514, both with regard to the difficulty of applying the concept of a "reasonable time" to any particular case and with regard to the factors relevant to any decision. In the present case the appellant cannot pray in aid any of the relevant factors except one. He complains, truly, that he had a serious criminal charge hanging over his head for four years. Therefore, it is submitted, his constitutional right to a hearing within a reasonable time must have been infringed. Their Lordships reject this submission as being too simplistic. When delay amounting to an infringement of a constitutional right is alleged, the courts must have regard to the reasons for the delay and to the consequences of the delay. In Bell's case, at page 953, the Board expressed the view that the delay must also be considered in the context of the prevailing system of legal administration and in the prevailing economic, social and cultural conditions to be found in the country concerned.

In some cases, lack of resources, shortage of skilled staff and pressure of work cause delays which are not avoidable in practice and could only be avoided in theory by vast expenditure on sophisticated facilities and equipment and by an instance improvement in the number and quality of skilled professionals and administrators. In one country investigations may be made and decisions taken at a level, in a manner, and within a time scale which could not be achieved elsewhere. Problems which are considered to be complex in one administration may be dealt with more expeditiously and with greater certainty and understanding in another. At the same time the constitutional rights of the individual must not be placed at the mercy of inefficiency. The expressed constitutional right contained in section 10 to a hearing of a criminal case within a reasonable time injects the need for urgency and efficiency into the prosecution of offenders and demands the provisions of adequate resources for the administration of justice but, in determining whether the constitutional rights of an individual have been infringed, the courts must have regard to the constraints imposed by harsh economic reality and local conditions.

In the present case the local courts have concluded that the delay resulted from the complexity of the affairs of the MMA which required all their allegations to be investigated, the complexity of the facts of the present case, the complexity of the law as applied to those facts and the complexity of the manner of proof. To prove their case, the prosecution were obliged to call thirteen witnesses. The trial spanned nine sittings and involved the production and analysis of commercial documents. There is no material before the Board to contradict the view of the local courts that the complexity of the problems with which the prosecution authorities were faced accounts for the substantial delays which occurred.

Their Lordships consider that, in any future case in which excessive delay is alleged, the prosecution should place before the court an affidavit which sets out the history of the case and the reasons (if any) for the relevant periods of delay. In the present case Inspector Basset was prevented by the defence from giving relevant evidence on this point and his evidence of complexity was not challenged in detail or at all. Ironically enough, the appellant who now complains of delay before the trial began was himself responsible for considerable delay in the time taken by the trial itself. The prosecution witnesses were subject to lengthy, hostile and unsuccessful cross-examination although the defence then called no relevant witnesses and the appellant himself did not give evidence. Owing to the clear and thorough manner in which the prosecution case was presented it became abundantly plain that the appellant was guilty of a serious, deliberate and ingenious fraud.

Their Lordships have reached the conclusion, with some hesitation, that in the circumstances of the present case the lapse of four years in not sufficient in itself to justify the Board in rejecting the views of the Supreme Court and the magistrate. The appellant suffered no specific prejudice from the delay and it is right that he should serve a sentence which he richly deserved. Their Lordships will accordingly humbly advise Her Majesty that this appeal should be dismissed.

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