(1) The State of
(2) The Director of Public Prosecutions
THE SUPREME COURT OF
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 21st October 2004
Present at the hearing:-
1. At the time of the events which gave rise to this case the appellant was employed as a senior works inspector by a District Council in
3. The case against the appellant at his trial was that he had received the sum of Rs5,000 from Mrs Marie Anic Rosy Khedoo as a bribe in connection with her application for a development permit. There was undisputed evidence that it was part of the functions of a senior works inspector to report to the District Council’s engineer on every such application.
4. In his application to the Supreme Court the appellant gave the following brief account of the evidence which was led against him as it appeared from the record in the trial court.
5. It was not suggested to
6. The appellant’s counsel sought to raise this point during the hearing of the appeal by the appellate court. He submitted that it was notorious and within judicial knowledge that the Bank and the District Council’s offices were not open on Saturday afternoons. But counsel for the respondents took objection to this submission, of which there was no notice in the grounds of appeal. The objection was upheld, and the appellant’s counsel was prevented from developing the point as part of his argument. There is no mention of it in the judgment which the appellate court delivered on
7. The appellant claimed that in these circumstances he was denied a fair hearing of his appeal against his conviction by the appellate court. He sought redress under sections 1 and 3 of the Constitution on the ground that he was denied the protection of the law. He maintained that he had no statutory means of establishing that he had been the victim of a miscarriage of justice. This was because, on his interpretation of the relevant legislation, the appellate court did not have power to order a new trial or to re-open a criminal case which had already been adjudicated upon by the
8. Section 1 of the Constitution provides that
“(a) the right of the individual to life, liberty, security of the person and the protection of the law.”
Section 10(1) provides:
“Where any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.”
Section 17 provides, in subsections (1) and (2):
“(1) Where any person alleges that any of sections 3 to 16 has been, is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter that is lawfully available, that person may apply to the Supreme Court for redress.
(2) The Supreme Court shall have original jurisdiction to hear and determine any application made by any person in pursuance of subsection (1), and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of sections 3 to 16 to the protection of which the person concerned in entitled….”
Section 82(1) provides:
“The Supreme Court shall have jurisdiction to supervise any civil or criminal proceedings before any subordinate court and may make such order, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by any such court.”
9. Section 92 of the District and Intermediate Courts (Criminal Jurisdiction) Act 1888 provides that where any person is charged with an offence before a Magistrate or before the
“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.”
Section 96(5) provides:
“Where, on an appeal under section 92, the Supreme Court is of opinion that a serious irregularity has occurred, it may declare the trial to be a nullity and order a fresh hearing.”
The judgment of the Supreme Court
10. It is plain from the judgment which the Supreme Court delivered in the proceedings for constitutional redress on
11. The Supreme Court was equally unimpressed by the appellant’s argument that he had been dealt with unfairly when, after he had been convicted and lodged his grounds of appeal, it was realised that the cheque was alleged to have been handed over and encashed on a Saturday afternoon when the Bank and the District Council offices were not open. In its view there was no substance in the argument that he was dealt with unfairly in the hearing of his appeal. As the Court explained in the penultimate paragraph of its judgment:
“The plaintiff himself claims that that fact was only realised after trial. But the appellate court, which in the light of the decision in DPP v Sabapathee  MR 235 must have gone over all the evidence, was alive to the fact that
12. Mr Ollivry QC submitted that the appellant had been denied a fair hearing at two levels – in the appellate court when his counsel tried to advert to the fact that the Bank and the District Council’s office were closed on Saturday afternoons, and in the proceedings for constitutional relief from which this appeal has been taken as there too the Supreme Court refused to take this fact into account. He made it clear that he was not suggesting that there had not been a fair hearing in the trial court, or that there was anything unfair in the way the subsequent proceedings had been conducted. His point was that the law itself stood in the way of a fair hearing of the appeal by the Supreme Court in its appellate capacity and that this point had not been addressed as it should have been in the proceedings for relief under section 17 of the Constitution.
13. The starting point for an examination of these submissions is to be found in the Constitution of Mauritius. Mr Ollivry did not press the argument that the appellant was entitled to relief under section 1 of the Constitution, which declares that Mauritius is a sovereign democratic State beyond saying that it was for the State to provide the machinery for a new trial. The provisions on which he sought to rely as he developed his argument were the right to the protection of the law which is guaranteed by section 3 and the right to a fair hearing in section 10(1) which is designed to secure that protection. The right to a fair hearing is one of three separate guarantees contained in section 10(1): Darmalingum v The State  1 WLR 2303, 2307H. The other two guarantees which are set out there, the right to a hearing within a reasonable time and to a hearing by an independent and impartial court established by law, are not in issue in this case.
16. There is no doubt that the question whether the incident which Mrs Khedoo described could have taken place on a Saturday afternoon, as the appellant maintains was the import of her evidence, could and should have been raised at the trial. It is plain that evidence of the fact, if indeed it be the fact, that the Bank and the District Council’s office were both closed on the afternoon of
17. The appellant sought to overcome this difficulty by inviting the appellate court to take judicial notice of the fact that the Bank and the offices of the District Council were not open on Saturday afternoons in
18. Mr Ollivry did not seek to argue that the Supreme Court were in error when they held that it was not within judicial knowledge that the Bank and the offices of the District Council were not open on Saturday afternoons in Mauritius. Nor did he seek to argue that evidence to that effect was not available or could not with reasonable diligence have been made available at the appellant’s trial. He submitted instead that this test to the admission of additional evidence stood in the way of a fair trial, and that it was the duty of the Supreme Court under section 17 of the Constitution to hear the evidence. As he put it, the Supreme Court ought not to have decided that there should not be a new trial without having done so.
19. The test for the admission of fresh evidence which the Supreme Court laid down in Luchmeeparsad v The State  SCJ 19 ought not to be applied as if it were a rule of law which has to be followed rigidly and without exception. Every person charged with a criminal offence is entitled under section 10(1) of the Constitution to a fair hearing. So the fundamental question for the Supreme Court must always be whether the proceedings that are called into question were or were not fair. But common sense suggests that some limits must be set on the admission of additional evidence after the trial is over as a ground for setting aside a conviction or ordering that that there must be new trial. If that were not so, it would be impossible to achieve finality. As Edmund Davies LJ said in R v Stafford (1968) 53 Cr App R 1, 3, legal process would become indefinitely prolonged were it the case that evidence produced at any time were to be generally admitted when verdicts were being reviewed.
20. The test which was applied in Luchmeeparsad appears to have been modelled on the decision of the Court of Appeal in R v Beresford (1971) 56 Cr App R 143, 149, where Sachs J said with regard to the question whether the appellate courts in England and Wales should entertain additional evidence under section 23((2)(b) of the Criminal Appeal Act 1968, which required the court to be satisfied that there was a reasonable explanation for the failure to adduce it:
“The court has in general to be satisfied that the evidence could not with reasonable diligence have been obtained for use at the trial.”
But it has come to be recognised in England and Wales, and also in Scotland where the test prescribed by section 106(3) of the Criminal Procedure (Scotland) Act 1995 was whether the evidence was available or could with reasonable diligence have been made available at the trial, that there is a risk of a miscarriage of justice if these tests are applied too rigidly. In para 56 of its report the Royal Commission on Criminal Justice (the Runciman Commission) (1993, Cm 2263) urged that that court should in general take a broad, rather than a narrow, approach to this issue: see also, for Scotland, para 2.44 of the Report of the Committee on Appeals Criteria and Miscarriages of Justice (1996, Cm 3245); Church v H M Advocate 1995 SLT 604. So the law in these jurisdictions has been modified. Section 23(2) (d) of the Criminal Appeal Act 1968 as amended by the Criminal Appeal Act 1995, sections 4(1) and 29 and Schedule 3, now provides that the Court of Appeal shall, in considering whether to receive any evidence, “have regard to” whether there is “a reasonable explanation for the failure to adduce the evidence” in the proceedings from which the appeal lies. A similar change to the statutory test was introduced in
the 1995 Act. The Supreme Court may wish to consider whether the test which was applied in Luchmeeparsad should be modified in the same way.
22. Their Lordships are not persuaded that all that needs to be said in support of an application for an order for a new trial is that the additional evidence which is relied on might have made a difference to the result if it had been before the trial court. It has, of course, to be shown that the additional evidence was relevant to the issue which was before the trial court and that, if steps had been taken to lead the evidence at that stage, it would have been admissible. These tests are satisfied in this case. But this is not the only requirement. The court also has to be satisfied that it is in the interests of justice, having regard to the constitutional right of the accused person to a fair hearing, that the additional evidence should be taken into account at the stage of an appeal. This was what the Supreme Court very properly had in mind when it referred to the fact that the evidence was procurable at the trial stage itself and that the question did not arise ex improviso. In their Lordships’ opinion
23. But the matter does not end there. Mr Ollivry’s principal submission was that it would not have been open to the appellate court in any event to order a new trial because section 96(1) of the District and Intermediate Courts (Criminal Jurisdiction) Act, which sets out the powers of the Supreme Court on hearing an appeal, provides that no new evidence shall be admitted by that court on hearing an appeal. Section 96(5) provides that where, on an appeal under section 92, the Supreme Court is of opinion that a serious irregularity has occurred, it may declare the trial to be nullity and order a fresh trial.
24. Their Lordships cannot accept this argument. The right of appeal which is given to the convicted person by section 92 of the District and Intermediate Courts (Criminal Jurisdiction) Act is a right to a re-hearing of the case under section 96(1) of the Act in the light of the information, depositions and other evidence that were before the trial court. It is in that context that section 96(1) provides that no new evidence shall be admitted. This means that the appellate court must proceed upon the facts which were put in evidence before the trial court. But section 96 must be read together with section 82(1) of the Constitution, which provides that the Supreme Court may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by any such court. It is not necessary for proceedings for constitutional relief to be brought under section 17 of the Constitution to enable the Supreme Court to exercise this power. It is available to be exercised in any proceedings which are brought before that court, including those under section 92 of the Act. Section 82(1) is in the widest terms. Among the orders that may be made under it is an order remitting the case to the inferior court so that, if it thinks this appropriate, it may take account of additional evidence.
25. The appellate court also has power under section 96(5), if it is of the opinion that a serious irregularity has occurred, to declare the trial to be nullity and order a fresh hearing. It was open to the appellant to contend that there had been a serious irregularity at his trial if, as he contends, he was convicted on the false assumption that the incident which Mrs Kedhoo described could have happened on a Saturday afternoon as she said it did. The constitutional guarantee of a fair hearing in section 10(1) requires that a generous construction should be given to the expression “serious irregularity”. But the appellate court was not asked by the appellant in his grounds of appeal to exercise this power, so the point was not tested in that court. Mr Ollivry sought to avoid this objection to his argument by asserting that no serious irregularity had occurred in this case. But it is hard to see why this was so if, as he asserts, the appellant was convicted of participating in a transaction with Mrs Khedoo that on her own account of it could not have happened.
26. For these reasons their Lordships reject Mr Ollivry’s argument that the legislation under which the appeal was brought before the appellate court is defective in the way he has suggested. The appellate court did not lack the powers to deal appropriately with the case if it had been one which required the hearing of additional evidence. So it cannot be said that the appellant was denied the right to a fair hearing before that court on this ground. Furthermore, section 17(2) provides that the Supreme Court may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, the constitutional guarantee of a fair hearing. It was not the lack of the necessary powers that led the Supreme Court to decide this case as it did. It was because the appellant was unable to show on the facts that he had not had a fair hearing of his appeal, and because the appellate court had sufficient powers in any event to provide him with an appropriate remedy. So there were no grounds for granting him constitutional relief against his conviction.
27. Their Lordships are of the opinion that the Supreme Court was entitled to uphold the respondents’ preliminary objection and set aside the plaint for constitutional redress. The appeal will be dismissed. The appellant must pay the respondents’ costs before their Lordships’ Board.