Wednesday 17 December 1997

D. Hurnam v S.S.V. Parathian

D. Hurnam

Appellant

v.

S.S.V. Paratian

Respondent

Appeal from the Supreme Court of Mauritius

Composition of the Board:

Lord Lloyd of Berwick

Lord Steyn

Lord Hope of Craighead

Lord Saville

Mr Justice Gault

Counsels

For the Appellant

Guy Ollivry Q.C.

Antoine Domingue

For the Respondent

Patrice D. De Spéville

Solicitors

For the Appellant: Edwin Coe

For the Respondent: Sheridans

Judgment delivered on the 17th December 1997 (Reasons delivered on the 29th January 1998)

by Lord Lloyd of Berwick

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Cases referred to in judgment

Reg. v. Philips (1844) 1 Cox C.C. 17

Legislations referred to in judgment

Constitution, sections, 3, 10

Courts Act, section 12

Rules of the Supreme Court of Mauritius, rule 60

Other authorities referred to in judgment

English and Empire Digest vol. 3, page 355, para. 472

Halsbury's Laws of England, vol. 3, 4th ed.

The following judgment was delivered by the Board:

The appellant, Mr. Dev Hurnam, is a barrister with chambers in Port Louis, Mauritius. He is the defendant in defamation proceedings brought against him by Mr. Siva Paratian, a Superintendent of Police with over 35 years' service in the Mauritius Police Force. According to the statement of claim the defendant addressed a public meeting at Tombeau Bay on 6th September 1991 in the course of which he described the plaintiff as being a thief and as having taken bribes. The defence is justification and fair comment.

The case came on for hearing on 21st February 1995 before Forget J., the Senior Puisne Judge. He round in favour of the plaintiff, and awarded Rs. 250,000 damages. The defendant appealed. The first and main ground of appeal was that he did not receive a fair hearing at the trial in breach of his rights under the Constitution of Mauritius. For reasons which will appear later, it is unnecessary to refer to the other grounds of appeal. The Court of Civil Appeal upheld the judge's decision. They dealt with the first ground of appeal in a single brief paragraph.

With the leave of the Supreme Court of Mauritius the defendant was granted leave to appeal to the Privy Council. At the conclusion of that hearing their Lordships allowed the appeal and indicated that they would give their reasons later. Their Lordships' reasons for their decision now follow.

Before their Lordships the defendant repeated the arguments which he had advanced below. The ground on which it is said that he did not receive a fair hearing is as follows. At the Stan of the trial the defendant sought leave to conduct his own defence. He had informed the judge of his intentions by letter dated 20th February 1995. Mr. Sauzier on behalf of the plaintiff objected. He submitted that it would be most improper for a barrister to conduct his own defence. The judge ruled as follows:-

"The defendant, Mr. D. Hurnam is praying for leave to defend the statement of claim in his own proper person.

This is how I propose to deal with the matter. I think that Mr. Hurnam cannot wear two bats. He is allowed to appear as counsel for defendant Hurnam in which case he would take his Seat normally as a barrister does; he must be properly dressed but defendant D. Hurnam will disappear and make default. On the other hand, defendant D. Hurnam, as a layman, is, I think, entitled to defend the statement of claim against him. He will then be acting as the defendant and represented by counsel (sic).

In the circumstances defendant D. Hurnam will not be allowed to take his Seat in the Bench reserved for Counsel; he will not be dressed up as a Counsel; he will make no opening speech, he will offer no argument in law and he will make no submission in law and on facts but he will be authorised to cross-examine, to give evidence in his own name and call witnesses.

In my personal opinion, I find the situation rather unusual and rather embarrassing, but then I have to do it."

Their Lordships will refer to this as the first ruing. There was then a short break, at the end of which the defendant indicated that he would conduct his own case in the light of the judge's ruling. The plaintiff then gave evidence-in-chief. He and other witnesses were cross-examined by the defendant. At the close of the plaintiff's case, the defendant gave evidence and called a number of witnesses. It was then for Mr. Sauzier to make his closing submission on behalf of the plaintiff. The defendant intervened. He sought leave to address the court at the end of Mr. Sauzier's submission. Mr. Sauzier again objected. He said it would be most improper, and would go against the earlier ruling. "Only plaintiff's counsel should be allowed to submit".

The judge then gave a second ruling as follows:

"Since the question is cropping up now I may as well tackle it once and for all. Mr. Hurnam has intimated his wish to address the Court at the end of the day now that ail the witnesses have been examined and cross-examined. Mr. Hurnam bas drawn my attention to Section 12 of the Courts Act which indeed lays down that any party to proceedings may address the Court with leave of the Court.

My reading of Section 12 is that in certain circumstances when a party to proceedings is represented by Counsel or even when he is net represented by Counsel certain matters may have to be elucidated and the Court may very well call upon the party to say certain things to take a certain stand but to my mind Section 12 does not open the door to a party at the end of the day when he is not represented by Counsel but where he bas been allowed to defend in his own name to stand up and address the Court and make submissions or to enlighten the Court. In this particular case the choice was wide open to the defendant to have counsel to assist him with ail the privileges which Counsel enjoys before our Courts but he chose deliberately with the leave of the Court to defend in his own name. The case bas lasted several days and not once the Court interfered to prevent the defendant from calling his witnesses, from examining his witnesses, from re-examining his witnesses and produce ail documents. I would say that in those circumstances the defendant having made his choice not to be represented by Counsel would be precluded from addressing the Court any more.

On the other hand if there is any document which still bas to be filed or information which the defendant may provide in defence of the claim against him he is of course entitled to furnish and to produce such documents but I should think that there is none to come since the case bas been going on for quite some time."

So the defendant was shut out from addressing the court altogether.

When the case reached the Court of Civil Appeal, the defendant was represented by counsel. Counsel addressed a full argument in support of the main ground of appeal, citing, inter alia, section 10 of the Constitution and section 12 of the Courts Act. But the Court of Civil Appeal did not deal with any of counsel's arguments. What the court said was as follows:-

"This ground is, in our opinion, misconceived. The appellant had the choice to be represented by counsel of his choice or to represent himself during the course of the trial. Having elected to conduct his own case and having been granted full latitude to cross-examine the respondent and his witnesses and to depone himself and call his own witnesses, the appellant could not claim the rights of Counsel and make submissions to the court as he could be granted only those rights enjoyed by a member of the public - Vide Halsbury's Laws of England, 4th ed. vol. 3 page 601, para. ll17 and the English and Empire Digest vol. 3 (1920) at page 355, para. 472."

Their Lordships regret that they can derive little assistance from the reasoning of the Court of Civil Appeal. The questions for decision were whether, having elected to conduct his own defence, the defendant ought (1) to have been allowed the same rights as any other litigant in person and (2) if so, whether those rights included the right to address the court. The reference to Halsbury's Laws, vol. 3, 4th ed. page 601 answers question (1) in favour of the defendant. It does not touch question (2). The English and Empire Digest vol. 3, page 355, para. 472 cites a ruling of the Recorder of London in Reg. v. Philips (1844) 1 Cox C.C, 17 as authority for the proposition that a barrister conducting a criminal prosecution on his own behalf will not be allowed to comment on the evidence or address the jury. But the case was decided over 150 years ago, and is very scantily reported. It can hardly be regarded as carrying much authority today. It was not suggested that in England today a barrister, acting on his own behalf in a civil case, would not be entitled to address the court like any other litigant in person.

And so their Lordships come to the relevant Mauritius legislation. Chapter II of the Constitution provides as follows:-

"3. Fundamental rights and freedoms of the individual.

It is hereby recognised and declared that in Mauritius there have existed and shall continue to exist .., the following human rights and fundamental freedoms -

(a) the right of the individual to lire, liberty, security of the person and the protection of the law;

...

10. Provisions to secure protection of law...

(8) Any court or other authority required or empowered by law to determine the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial, and where proceedings for such a determination are instituted by any person before such a court or other authority the case shall be given a fair hearing within a reasonable time. "

The Courts Act provides as follows:-

"12. Rights of audience.

In any proceedings before the Supreme Court, any of the following persons may address the court-

(a) any party to the proceedings, with leave of the court;

(b) a barrister... "

Rule 60 of the Rules of the Supreme Court of Mauritius provides:-

"Any party may make application to the Court by motion, or to a judge, praying leave to prosecute, or defend, a suit in his own proper person; and the Court or judge may, on sufficient cause shown to its, or his, satisfaction by such party, make order that such party may sue, or defend, as the case may be, in such Court, in person, without the assistance of an attorney, subject to such conditions as the said Court or judge may think fit in each particular case to impose on such party. "

Mr. De Spéville for the plaintiff points out, correctly, that whereas a barrister under section 12 of the Courts Act bas an unfettered right to address the court on behalf of his client, a litigant in person requires the leave of the court. Under rule 60 of the Rules of the Supreme Court the court may impose on a litigant in person such conditions as the court may think fit.

How did the judge apply these provisions when he came to make his first ruling? He was clearly right to rule that the defendant should not appear robed, or sit in counsel's row: see Halsbury's Laws 4th ed. (Reissue) (1989) vol. 3, page 313, para. 402, footnote 13. But he gives no reason for prohibiting the defendant from making an opening speech, or from offering any argument on the law or the facts. Indeed, he may even have thought that he had no discretion in the matter. This may be the explanation for his curious comment "I find the situation rather unusual and rather embarrassing, but then I have to do it".

Similarly, in his second ruling, the judge said:-

"... but to my mind Section 12 does not open the door to a party at the end of the day when he is not represented by Counsel but where he bas been allowed to defend in his own name to stand up and address the Court and make submissions or to enlighten the Court."

This again suggests that the judge may have been under some misapprehension as to the scope and effect of section 12 of the Courts Act.

But it is unnecessary to enquire too closely into the judge's reasoning, since section 12 on its face clearly confers a discretion, but a discretion which, in their Lordships' opinion, the judge was bound to exercise in such a way as to secure the defendant a fair hearing in accordance with the overriding requirements of section 10 (8) of the Constitution. A trial in which one party bas the opportunity to address the court on the facts and the law, and the other party is denied that opportunity, cannot be a fair trial. It makes no difference whether one or other or both parties are litigants in person.

Of course there may be occasions when a litigant in person abuses his right to address the court. In such a case the court may do what is necessary to prevent an abuse of its process, without being in danger of infringing the litigant's rights under section 10(8) of the Constitution. Mr. De Spéville suggested that it may have been for reasons of that kind that the judge denied the defendant the opportunity to address the court in the present case. But this is mere speculation. There is not a hint of any such reason in either of the judge's rulings.

Nor would such a reason be consistent with allowing the defendant to cross-examine the plaintiff and his witnesses. If there was a risk of the proceedings becoming acrimonious, or of some other abuse of the courts' process, it would surely have occurred during the defendant's lengthy cross-examination of the plaintiff, a cross-examination which started on 21st February 1995 and continued throughout the whole of 22nd February 1995. Yet the cross-examination appears to have been conducted with propriety. The court never round it necessary to restrain or rebuke the defendant at any stage.

Their Lordships consider that there was no justification for the judge's initial ruling whereby the defendant was denied the right to address the court; but even if there had been some legitimate concern at that stage, the judge should certainly have reconsidered the question in the light of the defendant's conduct of his defence before giving his second ruling. The conclusion is inescapable that the defendant did not have a fair hearing, contrary to the requirements of section 10(8) of the Constitution.

The only other argument advanced by Mr. De Spéville was as follows. The defendant was offered a choice at the beginning of the trial whether to appear by counsel or to conduct his defence in person on terms imposed by the court. Since he chose the latter course, he is bound by his election. This seems to have been the argument which was accepted by the Court of Civil Appeal. But for the reasons already discussed, the court was not entitled to impose terms which deprived the defendant of his constitutional right to a fair trial. It follows that he should never have been forced to make the choice as presented.

It was for these reasons that their Lordships allowed the appeal and set aside the orders of the Court of Civil Appeal and the trial judge. It will be open to the plaintiff to apply for a fresh trial which, in the circumstances, should be before a different judge. The respondent must pay the appellant's costs before their Lordships' Board and in the Court of Civil Appeal. He must also pay any costs thrown away at the trial.

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Director of Public Prosecutions v Dharmarajen Sabapathee

Director of Public Prosecutions

Appellant

v.

Dharmarajen Sabapathee

Respondent

Appeal from the Supreme Court of Mauritius

Composition of the Board:

Lord Mustill

Lord Nicholls of Birkenhead

Lord Hoffman

Lord Clyde

Lord Hutton

Judgment delivered on the 17th February 1997

by Lord Hoffman

______________________________________________________________

(1) Constitutional law - Supreme Court - Scope of Appellate jurisdiction in criminal and civil matters

(2) Criminal law - Conviction on uncorroborated evidence of an accomplice

(3) Comparative law - India Penal Code - South African law

(4) Privy Council - Powers and jurisdiction - Appeal

___________

Cases referred to in judgment

Boyjonauth v. The Queen [1961] M.R. 171

Powell v. Streatham Manor Nursing Home [1935] A.C. 243

The Alice (1868) L.R. 2 P.C. 245

Legislations referred to in judgment

Constitution of Mauritius, section 82

Courts Act 1945, section 197

Criminal Appeal Act 1907 (United Kingdom)

Criminal Appeal Act 1955

Criminal Appeal Act 1966 (United Kingdom)

Criminal Procedure Code of 1882 (India)

District and Intermediate Courts (Criminal Jurisdiction) Act 1888, sections 92, 96

Inferior Courts Law N° 22 of 1889 (Natal)

Magistrates' Court Act 1917

The following judgment was delivered by the Board:

This is an appeal by leave of the Supreme Court of Mauritius (Glover C.J. and Sik Yuen J.) from a decision of the Supreme Court (Proag and Bolell JJ.) allowing an appeal by the defendant against his conviction before the Intermediate Court of six offences of supplying or possessing drugs and one offence of possessing ammunition. The Supreme Court allowed the appeal because they were not persuaded that the prosecution had proved the guilt of the defendant beyond reasonable doubt. The Director of Public Prosecutions says that the power of the Supreme Court to interfere with the findings of the magistrates is a narrow one and that they should not have set aside the convictions unless they considered, after allowing for the advantages which the magistrates had in seeing and hearing the witnesses, that no reasonable court have convicted. The importance of this question for the administration of justice in Mauritius could hardly be exaggerated but the arguments lie within a narrow compass. Their Lordships are greatly indebted to counsel for their conduct and pertinent submissions.

Their Lordships were quite properly not invited to consider whether on the facts they would have arrived at the same conclusion as the Supreme Court. This is not a matter for their Lordships' Board. For the purpose of explaining how the point arises it is therefore not necessary to give more that a brief outline. The defendant was the proprietor of the Gold Gym Club and D.S. Guest House in Rose-Hill. The principal witness against him was a self-confessed drug dealer named Finiss, who had been doing casual work for the defendant for some months before his arrest. On 18th July 1992 the police searched the premises, found Finiss in possession of drugs and arrested him. After making a statement which did not implicate the defendant, Finiss made a second statement in which, as he put it in French, he "denounced" him and said that he, Finiss, had sold drugs merely as a reluctant agent of the defendant. He then took the police to an unoccupied house next to the gym, showed them drugs and ammunition were concealed and said that he and the defendant had put them there. The defendant gave evidence and denied any involvement in Finiss's drug dealing or knowledge of the ammunition.

The magistrates noted that the prosecution was relying on the uncorroborated evidence of an accomplice and said that they were treating his evidence with great caution. Nevertheless, they said that they had not the slightest doubt that he was telling the truth. They compared his demeanour favourably with that of the defendant and drew attention to a number of matters which in their view, though not amounting to corroboration, supported Finiss's version.

The Supreme Court were unimpressed with Finiss's evidence. They said that it was so contradictory and full of lies that the magistrates should not have relied upon it. The matters which the magistrates had regarded as confirmatory tended rather in their view to support the evidence of the accused. Accordingly they concluded that although the magistrates had correctly recited the need for caution in dealing with accomplice evidence, they had misdirected themselves in the way in which they actually dealt with it.

The right of appeal from an Intermediate or District Court to the Supreme Court is conferred by section 92 of the District and Intermediate Courts (Criminal Jurisdiction) Act. The Act has been amended a number of times since it was originally passed in 1888 but the language of the provisions relevant for the purposes of this appeal has remained substantially unchanged. The powers of the Supreme Court hearing an appeal are contained in section 96:

"(1) On hearing an appeal, no new evidence shall be admitted, and the information, depositions and other evidence and conviction before the Intermediate or District Court shall be revised by the Supreme Court.

(2) ... the Supreme Court may affirm or reverse, amend or alter the conviction, order or sentence..."

Their Lordships consider that this section confers a full right of appeal by way of rehearing in the Supreme Court. The court will "revise", i.e. go over again, the "information, depositions and other evidence and conviction before the Intermediate or District court" and after such revision may "affirm or reverse, amend or alter" the conviction, order or sentence.

The reference to affirming the conviction, rather than dismissing the appeal, shows that the Supreme Court is not concerned merely to decide whether the lower court acted within its powers. If it affirms the conviction after revising the evidence, it makes that verdict its own. This requires that the Supreme Court should itself be satisfied that the prosecution has proved the guilt of the defendant beyond reasonable doubt.

The great difference between the hearing in the District or Intermediate Court and the revision of those proceedings in the Supreme Court is that the former court hears oral evidence and is able to observe the demeanour of the witnesses. The Supreme Court has only the written record, which is seldom verbatim and often translated. It follows that in hearing an appeal the Supreme Court is ordinarily entitled to assume that the findings of the lower court on questions of credibility were properly founded upon their assessment of the merits of the witnesses. It will therefore be unusual for such findings to be set aside merely because on a reading of the record the Supreme Court would have been inclined to form a different view. But this observation is not based on any rule of law restricting the revising jurisdiction of the Supreme Court. Acknowledgment of the advantages enjoyed by the magistrates in assessing credibility is no more than a matter of common sense. On the other hand, the facts may be such that the court of appeal is nevertheless left with a genuine doubt about the guilt of the defendant; a feeling that the magistrates may have made a mistake in accepting the prosecution evidence. Much depends upon the nature of the case. If, however, the court is not satisfied that the prosecution have proved the guilt of the defendant beyond reasonable doubt, it is their duty to allow the appeal.

Their Lordships think that, in the elucidation of this simple principle, no assistance can be obtained from decisions by courts hearing criminal appeals in England or civil appeals in any jurisdiction. The reluctance which English law has always shown to interfere with a verdict of a jury has meant that the right of appeal created by the Criminal Appeal Act 1907, even as enlarged by the Criminal Appeal Act 1966, is much narrower than the full right to a hearing which their Lordships think was conferred by sections 92 and 96. A serious practical obstacle to an appeal from a jury is that it gives no reasons. But the magistrates of the District or Intermediate Courts are obliged to give reasons which can be examined, weighed and criticised: see section 197 of the Courts Act 1945. The nature of the appeal is therefore quite different. In making these comments, their Lordships are of course confining themselves to the jurisdiction under section 96. The jurisdiction of the Court of Criminal Appeal constituted by the Criminal Appeal Act 1955 to hear appeals from convictions in the Supreme Court appears to be based upon an English model.

As for civil appeals, there are a number of emphatic statements in the English cases about the reluctance of a court of appeal to interfere with finding of fact by the trial judge. Perhaps one of the best known is that of Viscount Sankey L.C. in Powell v. Streatham Manor Nursing Home [1935] A.C. 243, 250, where he said that the appellant must satisfy the Court of Appeal that the findings of the court below were "plainly wrong". But this deference to the advantages of the trial judge is largely based upon a recognition of the fact that in a civil case, the court of appeal is not merely setting aside a finding in favour of one party but making a finding in favour of the other: see The Alice (1868) L.R. 2 P.C. 245, 252. In a criminal case, the court of appeal does not feel the same inhibition about setting aside a finding in favour of the prosecution: it is making no positive finding but saying only that the trial court was wrong in not holding that there was reasonable doubt.

Their Lordships were referred to a number of cases in the Supreme Court which illustrated the exercise of the appellate jurisdiction under section 96. There is occasional reference in the judgments to dicta in civil or criminal appeals in England, which their Lordships respectfully regard as misplaced, but these citations do not appear to have affected the outcome of the decisions, which their Lordships think have been uniformly in accordance with the overriding principle that the Supreme Court will confirm the conviction only if it is satisfied that the defendant was guilty. Thus in Boyjonauth v. The Queen [1961] M.R. 171, Glover J. scrutisinsed the evidence with great care and concluded, at pp. 183-184:

"On the whole therefore having regard to the various features of the evidence to which we have referred, we do not think that it was safe for the magistrates to have convicted the appellants on the uncorroborated testimony of (an accomplice)... the uncorroborated evidence of an accomplice should be accepted where it commands complete trust and confidence. In our opinion (the accomplice's) evidence falls short of that high standard and we have therefore reached the conclusion that the two appellants should have given the benefit of the doubt."

Their Lordships would in passing observe that while English law provides no useful guidance, a full right of appeal such as exists in Mauritius was common in the judicial systems of the former colonies. Such a right was conferred in somewhat more elaborate terms by the Indian Criminal Procedure Code of 1882 and has been repeated in subsequent versions of the Code. Likewise, section 46 of the Inferior Courts Law N° 22 of 1889 of Natal gave a right of appeal from a magistrate to the Supreme Court and provided that the latter might "reverse, alter, vary or confirm the judgment or sentence of the magistrate". After the union of the South African colonies in 1910, section 95 of the Magistrates' Court Act 1917 said that the Supreme Court might "affirm, alter or reverse" a conviction by a magistrates' court. It may therefore be of interest to cite a comment by a judge of the South African Appellate Division (Davis A.J.A.) on the exercise of the jurisdiction in Rex v. Dumma, 1945, A.D. 410, 419:

"an appeal of this nature is a rehearing... and that the Appeal Court has to satisfy itself that there is no reasonable doubt as to the guilt of the accused... I do not propose to repeat what has been laid down in... many other cases, as to the weight which will be attached to the fact that the court below has had the great advantage of seeing and hearing the witnesses in the flesh and not merely of reading their evidence on paper. That weight must be considerable, and may be decisive. But even when questions of credibility have been directly involved, this court has upon a number of occasions quashed a conviction, when it has felt that, giving due weight to the finding of the court below, there still, in its opinion, remained a doubt as to the guilt of the accused."

The Supreme Court of India and the colonies exercised a much closer supervision over the lower criminal courts that the High Court or Court of Criminal Appeal in England and this supervisory role is still today reflected in section 82(1) of the Constitution of Mauritius:

"The Supreme Court shall have jurisdiction to supervise any civil or criminal proceedings before any subordinate court and may make such orders, issue such writs and give directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by any such court."

Accordingly their Lordships think that the Supreme Court was acting within the powers conferred by section 96(2), dismiss the appeal and direct that the Director should pay the defendant's costs before their Lordships Board.

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