Dharmarajen Sabapathee
Appellant
v.
The State
Respondent
FROM
THE SUPREME COURT OF MAURITIUS
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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL OF THE
Delivered the 21st July 1999
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Present at the hearing:-
Lord Nicholls of Birkenhead
Lord Jauncey of Tullichettle
Lord Cooke of Thorndon
Lord Hope of Craighead
Lord Hobhouse of Woodborough
[Delivered by Lord Hope of Craighead]
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The appellant was convicted in the Supreme Court on 22nd September 1995 by Lam Shang Leen J. sitting without a jury of two offences under the Dangerous Drugs Act 1986. He was sentenced to eighteen years penal servitude together with a fine of Rs100,000 on each count. His appeal to the Court of Criminal Appeal of Mauritius (Yeung Sik Yuen Senior Puisne Judge, Balgobin and Peeroo JJ.) was dismissed on 10th October 1997. He was granted final leave to appeal to their Lordships’ Board by the Supreme Court of Mauritius on 18th January 1999.
The offences of which the appellant was convicted were those mentioned in count V, which was that on 26th December 1994 at 393 Royal Road, Rose Hill he unlawfully and knowingly had in his possession 395 grams of heroin contained in 35 small plastic sachets, in breach of sections 28(1)(a)(i) and (2)(b), 38(1) and (2) and 40(a) of the Act; and in count VIII, which was that on or about the month of July 1994 at Royal Road, Rose Hill he unlawfully, knowingly and wilfully offered to buy heroin, in breach of sections 28(1)(b) and 2(b), 38(1), (2) and (3) and 40(a) of the Act. It was averred in respect of both counts that it could reasonably be inferred that the appellant was engaged in the trafficking of drugs. The judge made a finding in these terms in respect of each of the two offences which he held to have been proved against him.
The grounds on which the appellant was granted leave to appeal all relate to the judge’s findings that it could reasonably be inferred that the appellant was engaged in trafficking in drugs when he committed the offences. These findings were made under section 38 of the Dangerous Drugs Act 1986, which provides as follows:-
“(1) The court which tries a person for an offence under section 28, 29, 30, 32 or 34 shall … make a finding whether the accused person is a trafficker in drugs.
(2) 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.
(3) Subject to subsection (4), any person who is found to be a trafficker in drugs under subsection (1) shall be liable in the case of –
(a) a first conviction, to a fine which shall not exceed 100,000 rupees together with penal servitude for a term which shall not exceed 20 years.
(b) a second or subsequent conviction, to a fine which shall not be less than 100,000 rupees or more than 250,000 rupees together with penal servitude for a term of 30 years.
(4) Any person who is convicted of an offence under section 28(1)(c) before a Judge without a jury and who is found to be a trafficker in drugs shall be sentenced to penal servitude.”
The first two of the four grounds on which leave to appeal was granted relate to the provisions of section 38(2) of the Act. The appellant submits that the provision that trafficking can reasonably be inferred from all the circumstances of the case has had the effect of lowering the burden of proof in a criminal case. He submits that for this reason it offends against section 10(2) of the Constitution of Mauritius. He also submits that it offends against that section of the Constitution because it has failed to define the expression “trafficking”.
The other two grounds depend upon the proposition that the correct approach to the provisions of section 38 is to regard a finding of trafficking not as an ingredient of the offence but as relating only to penalty. The first of these two grounds raises a further constitutional point. The appellant submits that the view which the Court of Appeal has taken of section 38, which is that a finding of trafficking may lawfully be made before conviction, shows that the section offends against the right to silence which is enshrined in section 10(7) of the Constitution. The second raises the same point as one of procedure. It is submitted that the trial judge ought not to have made his finding that the appellant was engaged in trafficking at the same time as he made his finding that he was guilty of the offences alleged against him in counts V and VIII. What he should have done was decide this point after he had convicted the appellant of the offences. This would have enabled the appellant to dispute the averment of trafficking without being compelled to give evidence in the course of his trial for those offences.
As these grounds relate only to the averment of trafficking, and as their Lordships were not persuaded that the appellant should be granted special leave to argue several other grounds relating to his conviction on the substantive offences, it is necessary to mention only briefly the evidence which was led at the trial in support of the two counts of which he was convicted.
The case against him on count V was that on 26th December 1994 police officers conducted a search at the appellant’s house following the arrest on 19th December 1994 of the appellant’s co-accused Ramla Juna Khamis, who pled guilty at the trial to two offences of importing heroin into Mauritius, at the airport. When he was asked to open the door by a police officer who had climbed up to an open window, the appellant picked up a green packet from the living room and ran out of the room. Other police officers were then ordered to break down the door and a search was carried out. The green packet which the appellant had had in his possession earlier was found concealed in the utility room. When it was opened it was found to contain 35 sealed plastic sachets, each of which held a quantity of powder which a forensic officer later confirmed to contain heroin. There were 11 larger sachets and 24 smaller ones, and inside another sachet were 50 open and empty plastic bags. The appellant refused to give a statement to the police after he had been arrested.
The case against him on count VIII related to a conversation which the appellant had in July 1994 with a man named Karima, recently arrived in Mauritius, who had been brought to him from his hotel to a car parked in a nearby street. He asked Karima whether he had something for him, to which he replied that he had not. He then took Karima to his house, where Karima told him that a man in Dubai named Leonidas had not succeeded in obtaining the stuff which he was supposed to be sending. The appellant asked Karima what had happened to the heroin which Leonidas was to send him, to which the man replied that he did not know. The appellant then told Karima that the heroin was not strong and that when people consumed it they did not get high. He asked Leonidas to send him a strong heroin. The judge inferred from this evidence that the appellant was guilty of the offences alleged against him and that he was engaged on both occasions in trafficking in drugs.
Standard of proof and the meaning of trafficking
Section 10 of the Constitution contains various provisions to secure the protection of the law for a person charged with a criminal offence. They are similar to those which are to be found in Articles 5, 6 and 7 of the European Convention on Human Rights. Among those which are set out in subsection (2) of this section are the following:-
“(2) Every person who is charged with a criminal offence –
(a) shall be presumed to be innocent until he is proved or has pleaded guilty;
(b) shall be informed as soon as reasonably practicable, in a language that he understands and, in detail, of the nature of the offence.”
Section 10(4) provides:-
“(4) No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed.”
The effect of section 10(2)(a) is to enshrine in the Constitution the basic right of every person charged with a criminal offence to the presumption of innocence. The common law requires that this presumption can only be overcome by evidence which is relevant to the crime with which he has been charged. It also requires that the burden of proof lies with the prosecutor, and that the standard of proof which must be discharged by that evidence is proof beyond reasonable doubt. Although these common law rules are not mentioned expressly in section 10(2), they are fundamentally bound up with the presumption of innocence. They are, by necessary implication, part of what paragraph (a) of that subsection means when it uses the word “proved”.
Mr. Ollivry Q.C. for the appellant submitted that the effect of section 38(2) of the Dangerous Drugs Act 1986 was to reduce the standard of proof from that of proof beyond reasonable doubt. He drew their Lordships’ attention to a passage in the judgment of the Court of Appeal where the Court observed that the law of Mauritius gives to those responsible for the exercise of judicial power “a wide discretion in finding whether a particular accused person is, or is not, a trafficker”. He accepted that section 38(2) should be read, so far as possible, in a way which was consistent with the Constitution as the presumption was that Parliament did not intend to enact laws which were in conflict with it. But he maintained that the words used in section 38(2) were only capable of one meaning, which was that a person could be found to have engaged in trafficking by means simply of a reasonable inference. This meant that something less than proof beyond reasonable doubt was permissible in order to establish trafficking.
Their Lordships can find no substance in this argument. The rule which is laid down in section 38(2) amounts to nothing more than a restatement of the ordinary common law rule that, where direct evidence is not available to prove any fact which requires to be proved, the court may find that fact established by inference from other facts which have been proved. The inference must, of course, be a reasonable one having regard to all the circumstances. But the standard of proof remains, as in the case of proof by means of direct evidence, that of proof beyond reasonable doubt. In order to satisfy that standard the court must be sure that the inference is the right one to draw in all the circumstances. There is nothing in the language of section 38(2) which indicates an intention on the part of Parliament to depart from these fundamental rules.
In Amasimbi v. The State (1992) S.C.J. 178 the Court of Criminal Appeal rejected the suggestion that section 38(2) might be interpreted as having placed a lesser burden on the State than that of proof beyond reasonable doubt on the ground that this would offend section 10 of the Constitution, adding that was clearly not how the trial judge had dealt with the matter. In the present case the trial judge said, in regard to his decision on count V, that he found it “established beyond doubt” that the appellant was a drug trafficker. In regard to his decision on count VIII, he found it “established” that it could reasonably be inferred that the appellant was a drug trafficker. It appears that he also was applying the usual standard of proof beyond reasonable doubt in regard to the appellant’s position on both counts. There is nothing in his judgment which indicates that he was under the impression that a lower standard of proof was permissible. The Court of Criminal Appeal said in its judgment that, having regard to the fact that the “circumstances” must first be proved beyond reasonable doubt, it was confident that the mode of proof of trafficking did not transgress any constitutional protection under section 10 of the Constitution.
It is clear, both from the observations of the trial judge and those of the Court of Appeal, that section 38(2) has been applied by them throughout on the correct basis, namely that the standard of proof which must be satisfied is that of proof beyond reasonable doubt that the accused was engaged in trafficking.
Mr. Ollivry’s next point was that the expression “trafficking” was too vague. The fact that it was not defined in the Act, when taken with the provision that trafficking could be established by the drawing of reasonable inferences, was likely to lead to decisions which were arbitrary and unfair. No yardstick had been given in regard to matters such as the quantity of the drugs which would justify the inference of trafficking, or whether the expression was intended to cover the supply of the drugs to a friend in circumstances which lacked any commercial element. He referred in support of his argument to the principle of legality which is embodied in section 10(4) of the Constitution. He said that section 38(2) was in breach of that principle, because it did not define with sufficient precision the conduct which was liable to attract the severe penalties which that section prescribes for drug trafficking.
There is no difficulty in understanding what is meant by the word “trafficking”. It is a familiar expression in the context of transactions which are tainted by immorality or illegality. It has the same meaning as “dealing” or “trading”, except that it has a pejorative element. The essence of the complaint is that the statute has failed to define with sufficient clarity the transactions which fall within, and those that fall outside, the ordinary meaning of the expression which the section has used to describe the nature of the activity.
The principle of legality requires that an offence against the criminal law must be defined with sufficient clarity to enable a person to judge whether his acts or omissions will fall within it and render him liable to prosecution on the ground that they are criminal. But the jurisprudence of the European Court of Human Rights shows that the requirement for clarity must be seen in the light of what is practicable, and that it is permissible to take into account the way in which a statutory provision is being applied and interpreted in deciding whether or not the principle has been breached.
In The Sunday Times v. United Kingdom (1979) 2 E.H.R.R. 245 the Court had occasion to consider the meaning of the expression "prescribed by law” in Article 10(2) of the European Convention, which provides that the exercise of the right to freedom of expression in Article 10(1) may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and necessary in a democratic society. At paragraph 49 of the judgment the Court said:-
“In the court’s opinion, the following are two of the requirements that flow from the expression ‘prescribed by law’. First, the law must be adequately accessible: the citizen must be able to have an indication that it is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows that this may be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.”
A similar approach has been taken by the Court to Article 7(1) of the European Convention, which contains provisions which are similar to those in section 10(4) of the Constitution of Mauritius. In Kokkinakis v. Greece (1993) 17 E.H.H.R. 397 the Court recognised in paragraph 40 of its judgment that the wording of many statutes is not absolutely precise and that the need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which are, to a greater or lesser extent, vague. In paragraph 52 of the judgment the Court said:-
“Article 7(1) of the Convention is not confined to prohibiting the retrospective application of the criminal law to an accused’s disadvantage. It also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) and the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy; it follows from this that an offence must be clearly defined in law. This condition is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him liable.”
As the Board held in Ahnee v. Director of Public Prosecutions [1999] 2 W.L.R. 1305 there is to be implied in section 10(4) the requirement that in criminal matters any law must be formulated with sufficient precision to enable the citizen to regulate his conduct. So the principle of legality applies, and legislation which is hopelessly vague must be struck down as unconstitutional. But the precision which is needed to avoid that result will necessarily vary according to the subject matter. The fact that a law is expressed in broad terms does not mean that it must be held to have failed to reach the required standard. In an ideal world it ought to be possible to define a crime in terms which identified the precise dividing line between conduct which was, and that which was not, criminal. But some conduct which the law may quite properly wish to prescribe as criminal may best be described by reference to the nature of the activity rather than to particular methods of committing it. It may be impossible to predict all these methods with absolute certainty, or there may be good grounds for thinking that attempts to do so would lead to undesirable rigidity. In such situations a description of the nature of the activity which is to be penalised will provide sufficient notice to the individual that any conduct falling within that description is to be regarded as criminal. The application of that description to the various situations as they arise will then be a matter for the courts to decide in the light of experience. In this way the law as explained by its operation in practice through case law will offer the citizen the guidance which he requires to avoid engaging in conduct which is likely to be held to be criminal.
Against this background their Lordships are not persuaded that the wording of section 38(2) offends against the principle of legality. Experience has shown that trafficking in drugs takes many forms, which vary according to the nature and quality of the drug and the market in which the trafficker seeks to operate. Attempts to penalise the activity by reference to such yardsticks as value or quantity may be counterproductive, or at least ineffective, as individual transactions can be so easily adjusted to avoid the penalty. In any event, it is artificial to set limits on an activity which is infinitely variable. The policy of Parliament in enacting section 38 was to strike at the heart of the problem by penalising the act of dealing in dangerous drugs, whatever form this might take and whatever the quantities. This is a legitimate approach, as there is a clear distinction between the handling of drugs for personal use and trading in drugs by buying and selling them, which is the essence of trafficking. In the Board’s view the Court of Appeal put the matter correctly in its judgment in the present case when it said:-
“As we have already adverted to, the term ‘trafficking’ cannot be defined with any degree of precision. The multifarious forms which trafficking can take, can be measured only by the degree of human ingenuity which, as yet, is unfathomable. No exhaustive list of instances of trafficking can be enumerated, or defined, so that the legislator has left it to the good sense of the Courts to decide what amounts to trafficking in a given set of facts.”
The only point on which their Lordships would wish to take issue with the Court of Appeal before leaving this chapter is in regard to its observation in a later passage of the judgment that the law gives to those responsible “a wide discretion” in finding whether a person is, or is not, a trafficker. It is not clear whether this observation was intended to relate to the standard of proof or to the circumstances from which an inference could properly be drawn that the accused was engaged in trafficking. On either view however it would not be right to use the word “discretion” to describe the nature of the task which a judge must face when applying his mind to the evidence. His task is to decide what facts have been proved to the required standard and, having done so, to decide what inferences, if any, can reasonably be drawn from those proved facts. The exercise is one of judgment, and the question whether trafficking has been proved beyond reasonable doubt is to be answered in the light of all the circumstances. No limit is set by the statute as to the circumstances which may be taken into account. But the decision which the judge takes must be reached upon a consideration of the facts which have been established beyond reasonable doubt by the evidence.
As for the facts of the present case, there can be no doubt that the judge was entitled to draw the inference that the appellant was engaged in trafficking. The quantity of the heroin which was found in his house, the numbers of packages into which it was divided and the presence of bags to enable it to be divided up into smaller quantities indicate that he was involved in the business of supplying drugs to others as a dealer, and that his activities fell well within the ordinary meaning of trafficking. The words used by him in his conversation with Karima were plainly capable of bearing the inference that he had received complaints from customers about the strength of the heroin which had been supplied to them, and that by his use of the words “send stronger heroin” he was not only offering to buy heroin but intending to supply it to others as a dealer in a strength which they would find acceptable. Here again the inference that the appellant was engaged in trafficking within the ordinary meaning of the word was plainly justified. The appellant cannot have been in any doubt on either occasion that his conduct was of that character.
The right to silence – whether finding of trafficking relevant only to penalty
Section 10(7) of the Constitution, which includes the right to silence among the provisions which are designed to secure the protection of the law to those accused of criminal offences, provides:-
“(7) No person who is tried for a criminal offence shall be compelled to give evidence at the trial.”
Mr. Ollivry submitted that the appellant had been deprived of his right to silence because section 38, as it had been interpreted by the Courts in Mauritius and applied in the procedure which had been adopted by the trial judge, made it necessary for him to give evidence at the trial if he wished to dispute the averment that he was engaged in trafficking. He had elected to remain silent at his trial. The trial judge found him guilty on counts V and VIII and then made findings, as part of his verdict, that on each occasion the appellant was engaged in trafficking in drugs. He did so before giving the appellant’s counsel an opportunity to make submissions and lead evidence in mitigation of penalty. In the result the appellant had been deprived of the opportunity of giving evidence to challenge the averment that he was engaged in trafficking. That question had already been decided against him by the trial judge on the evidence which had been led on the question whether he was guilty of the offences alleged against him in these two counts.
Their Lordships had occasion to consider the effect of section 38, although in a different context, in Mohammed Mukhtar Ali v. The Queen [1992] 2 A.C. 93. In the course of the Board’s judgment mention was made of a passage in the judgment of the Supreme Court in that case, in which the Supreme Court interpreted the decision in Heerah v. The Queen (1988) M.R. 249 as being to the effect that the correct approach to section 38 was to treat it as having introduced an aggravating circumstance which had to form part of the charge and to be averred in the information. The Board then went on to make this comment at page 99:-
“Their Lordships cannot accept this reasoning as being altogether correct. Section 38 does not create any separate offence. What it does is to prescribe more severe penalties, if a certain state of affairs is found to exist, for offences found proved under any of the enactments mentioned in subsection (1). It is true in a sense to say that the fact of the accused being a trafficker constitutes an aggravating circumstance, but the effect of the aggravation is that the accused is liable to a more severe penalty, not that he has committed a separate and different offence from that created by any of the enactments referred to in subsection (1) of section 38. Heerah is, of course, undoubtedly correct in holding that it is not open to the court to make a finding of trafficking if that has not been alleged in the information.”
Mr. Ollivry sought to find support in this passage for his proposition that the averment that the appellant had been engaged in trafficking was not part of the offence to which it related but was concerned only with penalty. He also drew their Lordships’ attention to Kingswell v. Reg. [1986] L.R.C. (Crim) 165, where Gibbs C.J., Wilson and Dawson JJ., giving the judgment of the majority in the High Court of Australia, said at p. 178:-
“There is a close analogy between those cases in which the existence of the circumstances of aggravation converts the offence from a lesser to a greater one and those in which the existence of the circumstances of aggravation renders the accused liable to a penalty greater than that which could have been imposed if the circumstances did not exist. In cases of the first-mentioned kind, the circumstances of aggravation become elements of a distinct offence and, therefore, must be specifically alleged in the indictment. Where the circumstances of aggravation do no more than increase the maximum penalty, they do not alter the nature of the charge although they do affect, sometimes very materially, the legal consequences that may flow from a conviction. The rule of practice in R. v. Bright is consistent with the fundamental principle that questions of fact affecting the liability of the accused to punishment should be decided by the jury when the trial is on indictment. The position is different when the circumstances said to aggravate the offence are relevant only to the exercise of the sentencing discretion of the judge.”
The rule of practice to which reference was made in that passage is to be found in The King v. Bright [1916] 2 K.B. 441. The appellant in that case pleaded guilty to two counts of contravening regulations made under the Defence of the Realm Consolidation Act 1914. He was sentenced by the trial judge to penal servitude for life on the basis that he had committed these offences with the intention of assisting the enemy. He appealed against his sentence on the ground that no mention had been made in the charges to which he had pleaded guilty that it was to be alleged against him that this was his intention when he committed the offences. In the course of his judgment in the Court of Appeal at p. 444 Darling J. said:-
“A judge has a perfect right to consider whether the prisoner’s motive is good or bad, so that he may decide whether to pass a severe or a lenient sentence, but if the case be such that the prisoner’s motive in committing the offence is one of the questions which the jury have to decide the judge must not attribute to the prisoner a motive which has been negatived by the verdict of the jury, and he must not attribute to the prisoner that he is guilty of an offence with which he has not been charged – nor must he assume that the prisoner is guilty of some statutory aggravation of the offence which might, and should, have been charged in the indictment if it had been intended that the prisoner was to be dealt with on the footing that he had been guilty of that statutory aggravation.”
Their Lordships consider that the correct view of section 38 of the Dangerous Drugs Act is that it lays down what Darling J. described in that passage as a statutory aggravation of the offences mentioned in subsection (1). As the Board observed in Mukhtar Ali v. The Queen, the Supreme Court in Heerah were right to insist that it was not open to the court to make a finding of trafficking if that had not been alleged in the information. That was in accordance with the rule in Bright’s case. But the point goes further than that. The reason why the aggravation requires to be alleged in the information is that the question whether the accused was engaged in trafficking in drugs is a question of fact which must be established at the trial. It is a question which, if the case is being tried by a jury, must be decided by the jury before the judge proceeds to deal with the question of sentence. The position is the same where, as in the present case, the offence is one which under section 10 of the Criminal Procedure Act is triable before a judge without a jury in the Supreme Court and the Director of Public Prosecutions decides to prosecute the offence in that Court. The burden of proving the allegation beyond reasonable doubt lies with the prosecutor.
In Kingswell v. Reg. the circumstances of aggravation were that the applicant had previously been convicted of an offence of a kind which, in terms of the relevant statute, rendered him liable to a sentence of life imprisonment. The majority view at pp. 178-179 was that, although this was not an ingredient of the offences charged but was relevant only to the sentencing discretion of the judge, the previous conviction should nevertheless have been specified in the indictment. Although it would not have been proper to bring the fact of the previous conviction to the notice of the jury until the guilt of the accused had been established, the jury should, if the accused was convicted and did not admit the previous conviction, have been asked to find whether he was previously convicted of the earlier offence charged. Mason J. dissented on this point at p. 181, on the ground that the determining of facts relating to previous convictions was part of the routine function of a judge in the course of the sentencing exercise and that there was no reason why the jury rather than the judge should determine these issues. Their Lordships prefer the view of Mason J. on this issue. It should be noted that the majority view, as was recognised at p.178, goes beyond what is required by a strict application of the rule in Bright’s case. It is not in accordance with the practice which is still followed in the English courts, by which questions as to the accused’s previous convictions are left to the decision of the trial judge.
But the more important point is that the distinction which the majority in Kingswell v. Reg. drew between those aggravations which convert the offence from a lesser offence to a greater one and those which render the accused liable to a greater penalty must be seen in the light of the facts which were before the court in that case. A relevant previous conviction is a good example of an aggravation which may render the accused liable to a greater penalty under the statute but does not convert the offence from a lesser offence to a greater one. But the distinction which the court drew between these two types of aggravation is not well suited to solving the problem presented by the present case where, as the Board held in Mukhtar Ali v. The Queen, the effect of section 38 is not to create a separate and distinct offence but is an aggravation rendering the accused liable to a more severe penalty.
Their Lordships consider that the distinction which is relevant to the present case is between those kinds of aggravation which form part of the facts which constitute the offence charged and those which are independent of those facts. Where the aggravation forms part of the offence charged the aggravation must be alleged in the information. It must then be proved as part of the case made against the accused by the prosecutor relating to his guilt of the offence charged. Where it is independent of those facts the evidence to establish it cannot form part of the evidence against the accused relating to his guilt of the offence charged. It must be laid before the judge after conviction, if necessary by the leading of oral evidence, at the stage when he is considering sentence. An aggravation which relates to the circumstances in which the offence was committed, to the nature or degree of the violence used or to the accused’s purpose or motive in committing it will normally form part of the facts relating to the offence charged. That kind of aggravation will need to be established at the same time as the question whether the accused is guilty of the offence. It is an aggravation of a different kind from that which depends upon the proof or admission of facts which do not relate in any way to the circumstances of the offence charged, of which an allegation of previous convictions is the typical example.
As for the situation in the present case, it is plain that the question whether the accused was engaged in the trafficking of drugs within the meaning of section 38(2) must be answered by examining the facts relating to the offence which the accused is alleged to have been committing at the time when he is alleged to have been engaged in trafficking. The answer to the question must be found in the facts which have been led to establish guilt by the prosecutor. Section 38(1) has recognised that this is so, because it provides that the court “which tries” the person for the offences listed there must make a finding whether the accused is a trafficker in drugs. Subsections (3) and (4), which set out the increased penalties, provide for their imposition on a person “who is found to be a trafficker”. The language of the section envisages that a finding to that effect will be made at the stage of the accused’s conviction by the trial court. It would obviously be unsatisfactory for the question whether the accused was engaged in trafficking in drugs at the time when he committed the offence charged against him to have to be considered as a separate question after the accused had been convicted of that offence. That would require the prosecutor, on whom the burden of proof lies, to lead all over again much of the evidence relating to the offence of which the accused has just been found guilty. The facts of the present case demonstrate how closely, in a typical case of trafficking, the facts relating to the offence are bound up with the question whether the accused is a trafficker in drugs.
The argument that the appellant was deprived of his right to silence by the procedure which was adopted by the trial judge must be held therefore to have been based upon an unsound view of the nature of the aggravation which is provided for by section 38. If the accused wishes to challenge the allegation that he is a trafficker in drugs he must do so during the course of the trial. The purpose of including the allegation in the information is to put him on notice that he must do so before the trial court proceeds to consider its verdict. He is not deprived by that allegation of his right to remain silent. But if he decides to remain silent he takes the risk that the trial court will make the finding against him that he was engaged in trafficking if it holds that he is guilty of the offence with which he has been charged.
Conclusion
