Monday, 10 July 2000

Sooriamurthy Darmalingum v The State

Sooriamurthy Darmalingum



The State







22nd May 2000, Delivered the 10th July 2000


Present at the hearing:-

Lord Steyn

Lord Hope of Craighead

Sir Patrick Russell

Sir Andrew Leggatt

Mr. Justice Blanchard

[Delivered by Lord Steyn]


At the conclusion of the hearing before their Lordships on 22nd May 2000 the appeal of the appellant was allowed and the convictions and sentences on all counts quashed. Their Lordships indicated that they would give their reasons later and this they now do.

On 13th May 1993 an Intermediate Court (Mr. Domah and Mrs. Matadeen, Magistrates) in Mauritius found the appellant guilty on one count of aggravated embezzlement and fourteen counts of forgery and sentenced him to a total term of four years’ imprisonment. On 2nd July 1998, some five years after the conviction of the appellant, the Supreme Court of Mauritius (Balancy J. and Lam Shang Leen J.) gave a judgment dismissing the appeal of the appellant against his convictions. On 22nd May 2000 the Privy Council heard the appellant’s appeal, which by direction of their Lordships was confined to grounds of appeal relating to delay, namely the delay of 8½ years between the time of the appellant’s arrest in 1985 and his conviction May 1993 as well as the delay of a further 5 years between his conviction and the final disposal of the appeal in the Supreme Court of Mauritius.

A Narrative

In 1980 the appellant started work as a cashier in the Savings Department of the Indian Ocean International Bank Ltd. at Port Louis in Mauritius. On 7th November 1985 the manager of the Bank reported alleged irregularities affecting the appellant’s work to the Police. The irregularities covered the period between January and October 1985. The appellant resigned from his post. In early December 1985 the appellant was arrested on provisional charges of forgery. He was held in custody for 17 days. Since then he has been on bail. During the period 3rd to 17th December 1985 the appellant made a series of seven statements which the prosecution alleged contained comprehensive and specific admissions of all the charges in due course brought against him. There was therefore no reason for substantial delay in the prosecution. But the case went to sleep in the hands of the Police and in the office of the Director of Public Prosecutions (D.P.P.).

The chronology of events before conviction is as follows. Only at the end of 1986 or early 1987 did the Police transfer the file to the office of the D.P.P. In September 1988 the decision was taken to prosecute the appellant on 90 charges. In 1991 the provisional charges were struck out. In January 1992 an Information containing 20 counts was served on the appellant and another defendant. Pausing here, the position is that between December 1985 to January 1992 there was a complete silence from the authorities. Over this period of seven years the appellant was in the dark as to the intentions of the authorities. In any event on 7th April 1992 the charges against the other defendant, who was no longer in Mauritius, were struck out.

On 30th April 1992 the appellant served a notice of motion seeking a stay of the Information on the grounds of delay. The Intermediate Court heard the motion in May 1992 and dismissed it in June 1992. Then followed a delay of about 2½ months during which the defence considered seeking immediate relief from the Supreme Court but eventually abandoned the idea.

The trial

The trial date was fixed for 10th November 1992. The appellant indicated that he was challenging the admissibility of his statements. On 10th March 1993 the voire dire was held. On 30th March 1993 the Intermediate court ruled that the statements were admissible. On 7th April 1993 the trial continued. The prosecution case depended on documentary evidence and the appellant’s statements to the Police. The appellant did not testify. Instead he made a brief statement from the dock saying that he made the statements under pressure. Final submissions were made on the same day. The trial only lasted one day. On 13th May 1993 the Intermediate Court gave judgment. The appellant was convicted on all counts and sentenced to a total term of 4 years’ imprisonment. He was granted bail pending appeal.

The Appeal to the Supreme Court

On 31st May 1993 the appellant lodged grounds of appeal. The appeal was set down for hearing on 15th November 1993. At the request of the prosecution that date was vacated and the appeal came on for hearing in the Supreme Court before Boolell J. and Balancy J. on 28th March 1994. On that occasion the Supreme Court heard argument on only one ground of appeal, namely the argument that by reason of the inordinate pre-trial delay the proceedings were an abuse of process. The court reserved judgment. The two judges disagreed. This impasse then caused a delay of about three years. The rehearing before the bench of three judges (Boolell J., Balancy J. and Lam Shang Leen J.) only took place on 10th March 1997. The argument was confined to the ground of appeal alleging abuse of process. On 3rd September 1997, about six months later, the court dismissed this ground by a majority (Boolell J. dissenting). The majority agreed that time may run from the time a person is charged (in this case December 1985) but treated the appellant as bound by an argument advanced before the Intermediate Court based on the effect of delay from the time of the decision of the D.P.P. to prosecute (September 1988). The majority concluded that the delay caused no prejudice. They were “not surprised that the charges in relation to this voluminous file which had to move to and from the D.P.P’s office were only finalised three years later”. They acknowledged an argument “that there had been delay since the time that this appeal had been argued before two Judges of this court in March 1994”. At that time the delay in the disposal of the appellate proceedings had been 3½ years. They observed:-

“Although we do take note that this is so, we do not consider it either proper or pertinent for us to go into the reasons for that delay, especially as it relates to a post-trial period, such that it cannot in our view, have, per se any real bearing upon the question whether the appellant has been denied a fair trial.” (Emphasis supplied.)

The majority was satisfied that there had been no breach of the constitutional right in question “having regard to all the circumstances of the case, including its complexity and ... ‘systemic delays’ in respect of which one has to accept as normal and inevitable a period of delay”. In his dissenting judgment Boolell J. concluded that the long delay might have been prejudicial to the appellant and he would have quashed the conviction. On 22nd January 1998 argument on the remaining grounds took place. In June 1998 Boolell J. retired. On 2nd July 1998, about 12½ years after the appellant was arrested and more than 5 years after the lodging of the grounds of appeal, Balancy J. and Lam Shang Leen J. gave final judgment dismissing the appeal. While the judgment is mainly concerned with other grounds of appeal, the issue of delay resurfaced. The following ground of appeal was before the court:-

“Because the delay which has elapsed between the arrest of the appellant in December 1985 and the final hearing of the appeal on 22 January 1998 i.e. 12 years and one month constitutes a breach of section 10(1) of the Constitution resulting in a miscarriage of justice. In the result, the conviction must be quashed.”

The court dismissed this argument in the following terms:-

“It is at once apparent that the appellant is here invoking the same point as in ground A1 – which was rejected in our interlocutory judgment – but in relation, to, so to say, an updated period. Considering that –

(i) in relation to the interlocutory judgment earlier delivered, this Court had to be reconstituted by the addition of a third judge in view of the conflicting views of the two judges who initially heard the grounds of appeal relating to delay, and arguments had to be heard anew before the Court thus re-constituted;

(ii) the appellant is merely relying on delay per se at appeal stage, without relying on any facts – which could, for instance have been averred by affidavit – to ‘suggest that the delay was not a systemic one’; and

(iii) the appellant has thus invoked no new fact of such significance as to lead to change our conclusion that “there has not been in the present case a breach of the constitutional right of the appellant, having regard to all the circumstances of the case, including its complexity and ...“systemic delays” in respect of which “one has to accept as normal and inevitable a period of delay”,’

we find that ground A6 is also devoid of merit.”

At the same time the court rejected an argument that, in view of the delay of more than 12 years since the arrest of the appellant, a custodial sentence was no longer right.

On 25th February 1999 the Supreme Court by a majority (Narayen and Seetulsingh JJ.; Lam Shang Leen J. dissenting) granted leave to appeal to the Privy Council. An important reason why the Supreme Court granted leave to appeal was doubt whether the constitutional right to a fair trial within a reasonable time under section 10(1) of the Constitution extends to appellate proceedings.

The Issues

Apart from a number of points directed to the issues of delay, the grounds of appeal before the Privy Council contained points on the voluntariness of the statements and the question whether Balancy and Lam Shang Leen JJ. (who had heard the appeal with Boolell J.) acted irregularly in giving judgment without his participation. While their Lordships were prima facie unimpressed with these grounds, it would be wrong to state a firm conclusion since their Lordships have heard no oral argument on these points. Instead these reasons will, as already foreshadowed, be confined to the issues of delay.

The Constitution

The starting point is the Constitution of Mauritius. Chapter 2 contains a Bill of Rights securing to the people of Mauritius fundamental rights and freedoms. It is substantially modelled on the European Convention of Human Rights. Section 10 contains detailed provisions to secure the protection of the law to the people of Mauritius. The relevant provision is section 10(1). It reads as follows:-

“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.”

It will be observed that section 10(1) contains three separate guarantees, namely (1) a right to a fair hearing; (2) within a reasonable time; (3) by an independent and impartial court established by law. Hence, if a defendant is convicted after a fair hearing by a proper court, this is no answer to a complaint that there was a breach of the guarantee of a disposal within a reasonable time. And, even if his guilt is manifest, this factor cannot justify or excuse a breach of the guarantee of a disposal within a reasonable time. Moreover, the independence of the “reasonable time” guarantee is relevant to its reach. It may, of course, be applicable where by reason of inordinate delay a defendant is prejudiced in the deployment of his defence. But its reach is wider. It may be applicable in any case where the delay has been inordinate and oppressive. Furthermore, the position must be distinguished from cases where there is no such constitutional guarantee but the question arises whether under the ordinary law a prosecution should be stayed on the grounds of inordinate delay. It is a matter of fundamental importance that the rights contained in section 10(1) were considered important enough by the people of Mauritius, through their representatives, to be enshrined in their constitution. The stamp of constitutionality is an indication of the higher normative force which is attached to the relevant rights: see Mohammed v. The State [1999] 2 W.L.R. 552, at 562G.

On the other hand, in point of form this matter comes before the Privy Council not by way of a constitutional motion under section 17 of the Constitution but as an appeal with the leave of the Supreme Court of Mauritius.

The pre-trial delay

Counsel for the appellant relied singly and in combination on the pre-trial delay as well as the delay during the appellate proceedings. Counsel for the respondent objected that no leave had been given to appeal on pre-trial delay. It would have been quite unrealistic for their Lordships to bifurcate the consideration of this case in such a way. Given the constitutional guarantee the case had to be considered in the round. Their Lordships permitted the issue of pre-trial delay to be argued.

The argument before the Intermediate Court led it to believe that the relevant period of delay was not from the time that the appellant was arrested but from September 1988 when the Solicitor-General took the decision to prosecute the appellant. Acting on this assumption the Intermediate Court mistakenly assumed the relevant period after September 1988 to have been 2 years and 4 months whereas the period was about 3 years and 4 months. This misapprehension does not matter greatly because the Supreme Court was entitled to review the matter afresh. So their Lordships turn to the judgment of the Supreme Court. In considering the period of pre-trial delay the Supreme Court felt compelled to approach the matter on the basis that the relevant period started when the Solicitor-General decided to prosecute. It was common ground on the present appeal, and rightly so, that the relevant period would have commenced upon the arrest of the appellant: Deweer v. Belgium [1980] 2 E.H.R.R. 439. Given this position, and the constitutional nature of the guarantee in question, their Lordships do not consider that the Supreme Court was inhibited by the shape of the case previously presented from grappling with the real issues. And their Lordships certainly do not feel so inhibited. In the result it is necessary to consider a delay of 6 years and 9 months between the arrest of the appellant in December 1985 and the ruling of the Intermediate Court on this point in June 1992. This delay was caused by the inaction of the Police and D.P.P.’s office.

This is an inordinately long delay, taking into account the nature of the charges, the documentary records available, what the prosecution described as comprehensive confessions on all counts, and the duration of the eventual trial. The decision of the Intermediate Court on this issue was flawed for the reasons explained. The decision of the Supreme Court was also too narrowly based for the reasons set out. In these circumstances their Lordships had to consider the matter afresh. Objectively considered there is a strong argument that the pre-trial delay by itself amounted to a breach of the constitutional guarantee. On balance, however, their Lordships have found it unnecessary to rule on this matter as an independent ground of appeal.

The delay in the appellate proceedings

It is now necessary to consider the delay in the disposal of the appellate proceedings. Here the threshold question arises whether the guarantee in section 10(1) of the Constitution is wide enough to cover such post-conviction delay. The guarantee applies where “any person is charged with a criminal offence”. Literally it may be said that a convicted person, who seeks to appeal against his conviction, is no longer a person “charged”. Accordingly the guarantee could be said to be inapplicable. Their Lordships observe immediately that this is a technical interpretation inappropriate to the construction of a Bill of Rights in a Constitution such as that of Mauritius. It would be strange if a defendant was afforded protection in a Bill of Rights against undue delay in his trial but left wholly unprotected in respect of oppressively delayed appellate proceedings. A purposive and generous interpretation, which avoids “the austerity of tabulated legalism”, is necessary: Minister of Home Affairs v. Fisher [1980] A.C. 319, at 328E-329A, per Lord Wilberforce. On these grounds alone their Lordships would hold that the guarantee in section 10(1) extends to appellate proceedings. This view is, however, strongly reinforced by the view which has prevailed on the interpretation of Article 6 of the European Convention on Human Rights and Fundamental Freedoms (1953) (Cmd. 8969). Article 6(1) provides as follows:-

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

In strict theory it could be said that under Article 6(1) an appeal involves a determination not of a criminal charge but the appropriateness of a conviction. Not surprisingly, the European Court of Human Rights has unambiguously ruled that Article 6(1) extends to appellate proceedings: see Wemhoff v. Federal Republic of Germany [1968] 1 E.H.R.R.; Eckle v. Federal Republic of Germany [1982] 5 E.H.R.R. 1. The difference in wording between the relevant provisions in the Constitution of Mauritius and the European Convention is not material. Their Lordships regard these decisions as directly in point. It is true that in Potvin v. The Queen [1993] 2 S.C.R. 880 a majority of the Canadian Supreme Court adopted the interpretation that a convicted person is no longer “charged with a criminal offence”. There was a cogently expressed dissent. Their Lordships do not consider it necessary to examine the merits of the reasoning of the majority. It is sufficient to say that the majority was strongly influenced by the detailed provisions of section 11 of the Canadian Charter of Rights and Freedoms which differ in material respects from section 10(1) of the Constitution of Mauritius and article 6(1) of the European Convention. The majority emphasised that “many of the rights found in section 11 cannot apply to appeals and are restricted to the pre-trial or trial process”: at 107a. This context was held to be decisive. The decision in Potvin does not therefore assist in regard to the interpretation of the Constitution of Mauritius. In their Lordships’ view section 10(1) of the Constitution of Mauritius must be construed like article 6(1) of the European Convention. It extends to appellate proceedings.

The delay in the disposal of the appellate proceedings was 5 years and 1 month. The delay between the hearing before two judges and the hearing before three judges was almost three years. Once it became clear that the two judges were unable to agree it was necessary as a matter of some urgency to arrange a new hearing before three judges. Alarm bells should have rung loudly. The fact that a delay of almost 7 years had taken place between the time of the arrest of the appellant and his conviction should have heightened this sense of urgency. The greater part of the delay in the appeal proceedings is entirely unexplained. The inference is unavoidable that there is no satisfactory explanation. Regrettably, their Lordships must record that the cause of the delay must be laid at the door of the Supreme Court of Mauritius. In the result the appellant has had the shadow of the proceedings hanging over him for about 15 years. There has manifestly been a flagrant breach of section 10(1).

The remedy

The normal remedy for a failure of this particular guarantee, viz. the reasonable time guarantee, would be to quash the conviction. That is, of course, the remedy for a breach of the two other requirements of section 10(1), viz. (1) a fair hearing and (2) a trial before an independent and impartial court. Counsel for the respondent argued however that the appropriate remedy in this case is to affirm the conviction and to remit the matter of sentence to the Supreme Court so that it may substitute a non-custodial sentence in view of the delay. The basis of this submission was that the guilt of the appellant is obvious and that it would therefore be wrong to allow him to escape conviction. This argument largely overlooks the importance of the constitutional guarantee as already explained. Their Lordships do not wish to be overly prescriptive on this point. They do not suggest that there may not be circumstances in which it might arguably be appropriate to affirm the conviction but substitute a non-custodial sentence, e.g. in a case where there had been a plea of guilty or where the inexcusable delay affected convictions on some counts but not others. But their Lordships are quite satisfied that the only disposal which will properly vindicate the constitutional rights of the appellant in the present case would be the quashing of the convictions.

For all these reasons their Lordships quashed the convictions and sentences of the appellant. The respondent is ordered to pay the costs of the appellant before their Lordships’ Board.