Wednesday, 17 December 1997

Director of Public Prosecutions v Dharmarajen Sabapathee

Director of Public Prosecutions



Dharmarajen Sabapathee


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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