Wednesday, 11 October 2006

Prakash Boolell v The State

Prakash Boolell



The State





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Delivered the 16th October 2006

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Present at the hearing:-

Lord Nicholls of Birkenhead

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe

Lord Carswell

Lord Brown of Eaton-under-Heywood

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Delivered by Lord Carswell]

The appellant Prakash Boolell was on 24 March 2003 convicted by the Intermediate Court of Mauritius (Magistrates Mr David Chan Kam Cheong and Mrs D Beesoondayal) on an information containing one count of swindling, sentenced to six months’ imprisonment and ordered to pay Rs 500 costs. His appeal to the Supreme Court of Mauritius (KP Matadeen and Peeroo JJ) was dismissed on 26 May 2004. He has appealed as of right, under section 81(1)(a) of the Constitution of Mauritius, to the Judicial Committee of the Privy Council against the judgment of the Supreme Court.

The charge arose out of a transaction entered into by the appellant, a Mauritius barrister, with Hong Kong Smooth Garments Ltd (“HKSG”) on 12 September 1990. His co-accused Harris Ramphul had on 11 August 1990 purchased fabrics from HKSG, tendering a cheque for Rs 132,000 (“the first cheque”) in payment, but the cheque was dishonoured. On 12 September the appellant went to the offices of HKSG and gave them another cheque for Rs 132,000 (“the second cheque”), drawn on the South East Asian Bank to the order of HKSG and signed by Balram Seewoodin, and a written undertaking to the effect that Harris Ramphul would pay the sum due by 14 September. At the appellant’s request Mr Tony Soo Lan Wah Yang Shing of HKSG gave the dishonoured first cheque to him on receipt of the second cheque. On 14 September 1990 HKSG paid the second cheque into its account, but it was returned because the drawer’s account had earlier been closed.

The prosecution case was that the appellant knew quite well that the bank account on which the second cheque was drawn had been closed and that the cheque was a dud, but nevertheless took this and another cheque, signed by Balram Seewoodin but otherwise blank, and used the second cheque in order to obtain the return of the first cheque which had been dishonoured. The case for the appellant was that the second cheque had been given to him by Harris Ranphul, who represented that it was a genuine cheque. The appellant denied that the first cheque was returned to him at his request when he gave the second cheque to HKSG and claimed that it was sent to Ramphul.

The Intermediate Court rejected the defence case and accepted the prosecution version as being a true account of events. The court held that the appellant was fully aware that Balram Seewoodin had already closed his bank account and that the second cheque would not be honoured, yet told Tony Soo that the second cheque was a valid instrument which could be cashed. The appellant also asked him to return the first cheque, which he did. The court rejected the suggestion that the appellant was merely acting under the instructions of his client Harris Ramphul and held that he was on the contrary masterminding events. The appellant succeeded in obtaining the return of the first cheque by giving the second cheque to HKSG.

The appellant appealed to the Supreme Court on a number of grounds, on all of which the court found against him. Before the Board the appellant relied only on one ground, that of breach of his constitutional rights to a fair trial within a reasonable time, as guaranteed by section 10(1) of the Constitution. The appeal was founded on the very long delay which took place between the date when the first statement under caution was taken from the appellant and the eventual disposition of the case by the finding of guilt by the Intermediate Court. It was conceded by counsel for the prosecution that the lapse of time, some twelve years, would without more give rise to a breach of the constitutional provision, but he submitted that the delay was largely the fault of the appellant and that he could not in the circumstances take advantage of it to claim a breach of his constitutional rights.

The complex and long drawn-out history of the prosecution has been fully set out in the judgment of the Supreme Court, and the Board is accordingly able to set out that history in this judgment in reasonably summary form. The offence was reported by Mr Tony Soo by a minor petition dated 26 November 1990. A police inquiry ensued and the appellant made three statements under caution on 19 February 1991. It was accepted by counsel before the Board that for the purposes of reckoning delay the time should start to run from that date.

The police inquiry was completed on 22 October 1991, but the Director of Public Prosecutions did not direct a prosecution until 11 December 1992. An information was laid before the Intermediate Court on 30 December 1992. Ramphul was charged on count 1 with issuing the first cheque in bad faith. The appellant was charged on count 2 with swindling HKSG out of the first cheque by his tender of the second cheque. On count 3 he was charged with embezzlement of the sum of Rs 10,000 delivered to him for the purpose of having Harris Ramphul released on bail.

Preliminary hearings commenced in early March 1993 and at a hearing on 22 March 1993 pleas were taken from the accused. Ramphul pleaded not guilty to count 1. It is clear that the appellant pleaded not guilty to count 3, but there was a dispute at a later stage whether he pleaded at all to count 2. It would be remarkable if he did not, but he subsequently claimed that the court record showed no entry of a plea to count 2 and that in consequence he could not properly be tried on it.

The trial was fixed for 28 October 1993; the prosecution stated, and the Supreme Court accepted, that this date was arranged to suit the appellant’s counsel, but before the Board counsel appearing for the appellant did not accept this. There was a long series of adjournments before evidence was first taken on 9 May 1996. The trial was adjourned to 28 March 1994 because of the illness of Ramphul’s counsel and the congestion of the court lists. There then followed the first of a series of moves by the appellant described by the Supreme Court as devices which constituted an abuse of the proceedings. On 28 March 1994 Ramphul’s counsel moved to withdraw from the case, while the appellant moved for a stay on the ground of abuse of process and delay, without having given notice of his intention to the prosecution or even to his own counsel. The sequence of events which followed is fairly typical of those which took place on later occasions. The prosecution wished to have time to prepare a reply to the appellant’s motion, and the matter was adjourned until 13 June 1994. On that date counsel presented submissions as to the procedure, which the prosecution suggested could be done partly on affidavit and partly by viva voce evidence. The appellant’s counsel said that he wished to cross-examine a police officer named Palawan, and it was arranged that he would be made available on 17 June. The appellant put in an affidavit, which he communicated to the prosecution late on 16 June, with the result that a further adjournment was sought and given to enable it to be considered. On 23 June the prosecution produced an affidavit from Palawan. Submissions were made on the motion, during which the appellant’s counsel stated that he did not now require to cross-examine Palawan. The court gave a ruling on 12 July 1994 dismissing the motion.

A recognisably similar pattern may be seen from the history of the case over the next three and a half years. The appellant made a number of applications, of which two major ones were brought without prior notice to the prosecution or the court. The first, brought on 11 November 1994, was an application for a separate trial. This was not resolved until a ruling dismissing the application was given on 14 February 1995, on which date the trial was relisted for 24 May. In the second application the appellant moved on 2 November 1995 to stay the prosecution on the ground that as he had been acting in a professional capacity in the transaction in question, the matter was one for a professional disciplinary body and the court had no jurisdiction. On 6 December 1995 the appellant’s counsel decided not to proceed with the jurisdiction motion, but on 4 September 1996 counsel then appearing for him revived the application, which the court on 30 September rejected as misconceived. On three occasions Ramphul’s counsel obtained leave to withdraw from the case, for varying reasons, necessitating the appointment of new counsel. On four occasions, 1 September 1995, 9 May 1996, 9 October 1997 and 14 January 1998, the appellant’s counsel withdrew, once because the appellant discharged him and on the other three occasions because they stated to the court that they could not accept the instructions which the appellant had given them.

On 9 May 1996 the hearing of the prosecution evidence at last commenced. After the first witness had given evidence Ramphul changed his plea on count 1 to guilty. The court subsequently imposed a fine on him of Rs 3000, with costs of Rs 300.

On three further days, 12 May, 15 October and 4 November 1997, evidence was taken by the court. On 12 May the appellant raised an issue about the sufficiency of the court record, from which the page relating to 22 March 1993, the date on which the pleas of the accused were taken, was found to be missing. The original page was never forthcoming, but two documents purporting to be photocopies of that page were produced to the court. One version contained the words “Accused No 2 [the appellant] pleads not guilty to count 3”, whereas the second, which is in all other respects identical to the first, reads “Accused No 2 pleads not guilty to count 2, 3”. It cannot be ascertained which version represented the original, or how two versions came into existence. It seems probable, however, that the first version was a copy of the original entry in the court record and that some person, seeking to cover up an error either in the proceedings or in the record of what had taken place on 22 March 1993, made an altered photocopy of the material page. It was accepted by Mr Cox QC, who appeared for the prosecution before the Board, that whatever irregularity may have occurred was not to be attributed to the appellant. The court proposed on 7 October 1997 that the appellant’s plea be recorded anew, but he refused to do so and contended thereafter that he had not pleaded to count 2 and so could not properly be tried on it.

On 19 January 1998 the prosecution decided to enter a nolle prosequi “in view of the problems encountered in the court record”. On the same day a new charge of swindling was filed against the appellant, the content being the same as the former count 2, and a fresh trial was commenced on that single count. The second trial proved to be just as long drawn-out as the first. The matter came into the court list on over 90 occasions (as against some 50 on the aborted first trial). It ended with the appellant’s conviction and sentence on 24 March 2003.

The taking of evidence did not commence until 5 May 1999, largely because of time taken to dispose of the appellant’s motions, first for a stay on the ground of delay and, secondly, for dismissal of the prosecution because it disclosed no offence in law (both brought with little or no notice). Prosecution evidence was taken on 17 August and 2 September 1999. On 16 November 1999 the appellant’s counsel yet again withdrew because he could not comply with his client’s instructions. On 16 December 1999 the appellant moved for a stay, but the motion was rejected. He then objected (without prior notice) to the participation in the trial of one of the magistrates on the ground of bias. This motion was rejected on 18 February 2000, whereupon on 21 March 2000 the appellant objected to the other magistrate on a similar ground. Prosecution evidence continued on that date and on 30 March, 24 May and 4 July 2000, when the prosecution closed its case.

Submissions of no case to answer followed, which were finally rejected on 31 August 2000. The appellant then on 10 November 2000 sought (again without giving notice) to challenge the validity of the trial, in reliance on the recent decision of the Board in Darmalingum v The State [2000] 1 WLR 2303, to which their Lordships will refer in more detail later in this judgment. This application was finally rejected on 16 January 2001 and after disposition of a further defence application the defence eventually opened on 2 March 2001.

Evidence was given by and on behalf of the appellant over some twelve court days, which because of adjournments stretched until 21 January 2002. On no occasion during either trial was evidence taken on successive days, and on the only two occasions when the case was listed on successive days during the second trial the proceedings were merely mentions. The Board was informed that the Intermediate Court in Mauritius was not geared to hearing a case of any length in a series of continuous sitting days, and that special arrangements would have had to be made to achieve this. The lengthening of the trial was exacerbated by the actions of the appellant in such matters as seeking adjournments to call witnesses whom he subsequently declared he did not require, all of which is set out in detail in the judgment of the Supreme Court. Be that as it may, the taking of evidence was allowed to occupy an inordinately long period of time.

The court was plainly becoming impatient with the appellant’s conduct of his case by 21 January 2002, when it dismissed his requests for further time to call witnesses and prepare submissions and closed his case for him. In the record of that day’s proceedings the statement appears:

“In view of the attitude of the accused and of his latest statement that he needs time to consider all his options and even consider filing a new list of witnesses in spite of our ruling refusing him a postponement in the absence of the witnesses, we are of the view that accused is making an abuse of the process of the court. We have no alternative than to close the case for the defence, which we do.”

The court on 15 March 2002 rejected a motion by the appellant that he should be permitted to reopen his case.

Further submissions were made over the next three months, then there followed a series of adjournments caused by claims on behalf of the appellant that he was incapacitated by illness from attending and pursuing his case. Medical certificates were submitted, but the court did not until 26 December 2002 require the attendance of a medical examiner to testify as to the appellant’s condition and his ability to deal with the case, nor was he examined by any doctor on behalf of the prosecution. The appellant made lengthy and extensive submissions on the facts and law relating to the case on four occasions between 12 June and 21 October 2002, but although he claimed on the last date to have almost completed them he did not attend the next day and telephoned to say that he was not feeling well. On 24 October he was again absent and the court issued a warrant for his arrest, on the ground that “accused is deliberately using dilatory tactics to prevent the present case from being over.” The case was fixed for judgment, but further adjournments took place over issues relating to the health of the appellant. On 21 January 2003 the court recorded its opinion that “accused is deliberately evading to appear in court for judgment.” A warrant for his arrest had been issued on 15 January, but he was not traced by police until March, when he was arrested and brought to the court, which remanded him in custody. Judgment was then given on 24 March 2003 and sentence was passed the same day.

The appellant appealed to the Supreme Court on a variety of grounds, all of which were rejected by the court. Since the appellant has relied before the Board on only one of these grounds, that of delay, their Lordships need not consider the others. The Supreme Court considered the issue with care in its written judgment given on 26 May 2004. It expressed the view that the appellant contributed to a large extent to the delay which occurred up to the time when the nolle prosequi was entered, and held that that delay by itself could not be said to amount to a breach of the constitutional guarantee of a hearing within a reasonable time. It then went on to consider the delay in completing the second trial and concluded (Record, p 528):

“If anything, the appellant was the cause, not the victim, of the delay. The history of the case shows that he has made an abuse of the proceedings, giving to counsel instructions which they found unable to execute, withdrawing instructions from counsel, changing counsel according to his whims and fancies, making a number of motions similar in content though not in form, absenting himself from court on several occasions, summoning new witnesses at every sitting. Indeed, the appellant has made use of every possible device to secure an adjournment and prevent the case from being heard within a reasonable time. We also note that the trial court has been unduly lenient despite the deliberately obstructive attitude on the part of the appellant.”

On the appeal to the Board the appellant’s appeal against conviction was founded solely on the issue of delay. He also raised a ground of appeal which had not been advanced before the Supreme Court, that he was deprived of an opportunity to address the Intermediate Court in mitigation before sentence was passed. In view of the conclusions which their Lordships have reached on the issue of delay, they do not propose to deal with the latter ground.

Section 10(1) of the Constitution of Mauritius contains a guarantee in familiar terms, that where a person is charged with a criminal offence “the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law”. As Lord Steyn pointed out in Darmalingum v The State [2000] 1 WLR 2303, 2307, 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. The application of these requirements in the decided cases has not been entirely consistent. Lord Bingham of Cornhill observed in Dyer v Watson [2002] UKPC D1, [2004] 1 AC 379, 394, para 29, that it may be questioned whether the reasoning of the preceding decisions can be fully reconciled. The academic commentators have been more forthright in pointing to an inconsistency between the decisions: see, eg, Ashworth, [2001] Crim LR 855, 860.

The point on which any difference between these cases turns is whether there is a breach of section 10(1) only if there is a sufficient element of prejudice or unfairness, or whether there is a breach if unreasonable delay without more has been established, notwithstanding that the trial itself may be regarded as having been fair.

In Bell v Director of Public Prosecutions [1985] AC 937, a Jamaican appeal, the Board inclined towards the former proposition. A period of some five years had elapsed, for various reasons, between the charging of the applicant with firearms and other offences in 1977 and the order of the court for a retrial in 1982. The applicant applied for a declaration of breach of his rights under section 20(1) of the Jamaican Constitution, which was in all material respects identical to section 10(1) of the Constitution of Mauritius. He was unsuccessful before the Supreme Court and the Court of Appeal, but the Board allowed his appeal against the refusal of the declaration. It is apparent that in considering the issue the Board did not approach the requirement of a hearing within a reasonable time as a freestanding constitutional guarantee. At pages 950-1 Lord Templeman, giving the advice of the Board, said:

“Their Lordships agree with the respondents that the three elements of section 20, namely a fair hearing within a reasonable time by an independent and impartial court established by law, form part of one embracing form of protection afforded to the individual. The longer the delay in any particular case the less likely it is that the accused can still be afforded a fair trial. But the court may nevertheless be satisfied that the rights of the accused provided by section 20(1) have been infringed although he is unable to point to any specific prejudice.”

At several other places in the judgment Lord Templeman referred to the requirements of fairness and at page 953 considered the problems of lack of judicial resources in that jurisdiction:

“Their Lordships accept the submission of the respondents that, in giving effect to the rights granted by sections 13 and 20 of the Constitution of Jamaica, the courts must balance the fundamental right of the individual to a fair trial within a reasonable time against the public interest in the attainment of justice in the context of the prevailing system of legal administration and the prevailing economic, social and cultural conditions to be found in Jamaica.”

Such considerations may of course be material in determining the reasonableness of the time taken to bring a case to hearing, but it is apparent from Lord Templeman’s remarks at page 954-5 that the requirement of fairness was prominent in his reasoning, a conclusion which is supported by his observations at page 954:

“The courts seek to prevent exploitation of the rights conferred by the Constitution and to weigh the rights of the accused to be tried against the public interest in ensuring that the trial should only take place when the guilt or innocence of the accused can fairly be established by all the relevant evidence. The Board will therefore be reluctant to disagree with the considered view of the Court of Appeal of Jamaica that the right of an accused to a fair hearing within a reasonable time has not been infringed.”

The Board also relied heavily on the judgments of the Supreme Court of the United States in Barker v Wingo (1972) 407 US 514, in which considerable emphasis was placed on the existence of prejudice to the accused.

A similar approach was adopted by the Board in Flowers v The Queen [2000] 1 WLR 2396, also an appeal from Jamaica. Almost six years had elapsed between the charging of the accused with capital murder and his conviction on a retrial. The Board had regard to those factors identified in Barker v Wingo and relied upon in Bell v Director of Public Prosecutions. Lord Hutton, giving the advice of the Board, pointed to the prevalence in Jamaica of murder in the course of robbery, which posed a serious threat to the lives of innocent persons, and the importance in the public interest that persons proved guilty of such crimes should be convicted. The Board specifically decided not to follow the dictum of Lord Steyn in Darmalingum v The State [2000] 1 WLR 2303, to which their Lordships have earlier referred, concerning the separate nature of the constitutional guarantees contained in section 10(1). Lord Hutton stated at pages 2414-5:

“The judgment of the Board [in Darmalingum] does not refer to the passage in the judgment of the Board in Bell v Director of Public Prosecutions [1985] AC 937 which recognises that the right given by section 20 of the Constitution of Jamaica must be balanced against the public interest in the attainment of justice or to the passage which states that the right to a trial within a reasonable time is not a separate guarantee but, rather, that the three elements of section 20(1) form part of one embracing form of protection afforded to the individual.”

One should at this point go back to the judgment of the Board in Darmalingum, which was decided before Flowers. The appellant was arrested in 1985 on provisional charges of forgery. After his being interviewed in custody at that time, the appellant heard nothing further about the matter until he was charged in 1992 and then convicted at a trial held in 1993. He appealed to the Supreme Court, which did not reach a final decision rejecting his appeal until July 1998. The Board held that the overall delay, much of which was unexplained, was a flagrant breach of section 10(1) and that the only disposal which would properly vindicate the constitutional rights of the appellant would be the quashing of the convictions.

Lord Steyn, giving the judgment of the Board, described the content of section 10(1) as being three separate guarantees and continued at pages 2307-8:

“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 AC 111, 123H.”

The inconsistencies between these cases were considered by the Privy Council in the Scottish devolution case of Dyer v Watson [2002] UKPC D1 [2004] 1 AC 379. It had to consider complaints of delay in two cases in the light of the application of article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which contains a provision virtually identical to that set out in section 10(1) of the Constitution of Mauritius. In the course of reaching their conclusions the members of the Board considered the Commonwealth cases of Bell, Darmalingum and Flowers. Lord Bingham of Cornhill pointed to the difficulty of reconciling the reasoning in those cases, but preferred to leave resolution of that question until it fell for authoritative decision.

Lord Hope of Craighead was, however, prepared to commit himself to supporting the views expressed by Lord Steyn in Darmalingum rather than those which prevailed in Bell and Flowers. He also agreed (para 73) with Lord Steyn’s opinion that section 10(1) contains three separate guarantees, adding (para 94):

“So the fact that a defendant was convicted after a fair hearing by a proper court could not justify or excuse a breach of his guarantee of a disposal within a reasonable time.”

Lord Hutton in paragraphs 120-1 of his judgment considered that Darmalingum and Flowers could be distinguished on their respective facts and pointed to the fact that the European Court of Human Rights had held in a number of decisions that a conviction after unreasonable delay in breach of article 6(1) does not necessarily have to be quashed. Lord Millett and Lord Rodger of Earlsferry also reserved their opinions on the question left open by Lord Bingham, though they regarded the rights guaranteed by article 6(1) as being distinct and independent.

The resolution of these issues is to be found in the decision of the House of Lords in Attorney General’s Reference (No 2 of 2001) [2003] UKHL 68, [2004] 2 AC 72. In that case the defendants were charged with offences arising out of prison riots in 1998. When they came to trial in early 2001 the judge stayed the indictment on the ground that there had been a breach of their right under article 6(1) of the Convention to have the charges heard within a reasonable time. The Attorney General referred to the Court of Appeal two questions, one of which was whether criminal proceedings could be stayed on the ground that there had been a violation of the reasonable time requirements in article 6(1) in circumstances where the accused could not demonstrate any prejudice arising from the delay. Having given its opinion the Court of Appeal referred the same questions for determination by the House of Lords.

The House sat in an Appellate Committee of nine members and decided by a majority that although through the lapse of time in itself there was a breach of article 6(1), the appropriate remedy would not necessarily be a stay but would depend on all the circumstances of the case. Lord Bingham of Cornhill, who gave the leading opinion for the majority, set out as two of the fundamental first principles applying to article 6(1), that (a) the core right guaranteed by the article is to a fair trial (para 10) and (b) the article creates rights which though related are separate and distinct (para 12). It does not follow that the consequences of a breach of each of these rights is necessarily the same. He quoted with approval the aphorism of Hardie Boys J in the New Zealand case of Martin v Tauranga District Court [1995] 2 NZLR 419, 432:

“The right is to trial without undue delay; it is not a right not to be tried after undue delay.”

Lord Bingham stated in paragraph 22 that the threshold of proving a breach of the reasonable time requirement is a high one, not easily crossed. He went on to summarise his conclusions at paragraphs 24 and 25:

“24. If, through the action or inaction of a public authority, a criminal charge is not determined at a hearing within a reasonable time, there is necessarily a breach of the defendant’s Convention right under article 6(1). For such breach there must be afforded such remedy as may (section 8(1)) be just and appropriate or (in Convention terms) effective, just and proportionate. The appropriate remedy will depend on the nature of the breach and all the circumstances, including particularly the stage of the proceedings at which the breach is established. If the breach is established before the hearing, the appropriate remedy may be a public acknowledgement of the breach, action to expedite the hearing to the greatest extent practicable and perhaps, if the defendant is in custody, his release on bail. It will not be appropriate to stay or dismiss the proceedings unless (a) there can no longer be a fair hearing or (b) it would otherwise be unfair to try the defendant. The public interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances. The prosecutor and the court do not act incompatibly with the defendant’s Convention right in continuing to prosecute or entertain proceedings after a breach is established in a case where neither of conditions (a) or (b) is met, since the breach consists in the delay which has accrued and not in the prospective hearing. If the breach of the reasonable time requirement is established retrospectively, after there has been a hearing, the appropriate remedy may be a public acknowledgement of the breach, a reduction in the penalty imposed on a convicted defendant or the payment of compensation to an acquitted defendant. Unless (a) the hearing was unfair or (b) it was unfair to try the defendant at all, it will not be appropriate to quash any conviction. Again, in any case where neither of conditions (a) or (b) applies, the prosecutor and the court do not act incompatibly with the defendant’s Convention right in prosecuting or entertaining the proceedings but only in failing to procure a hearing within a reasonable time.

25. The category of cases in which it may be unfair to try a defendant of course includes cases of bad faith, unlawfulness and executive manipulation of the kind classically illustrated by R v Horseferry Road Magistrates’ Court, Ex p Bennett [1994] 1 AC 42, but Mr Emmerson contended that the category should not be confined to such cases. That principle may be broadly accepted. There may well be cases (of which Darmalingum v The State [2000] 1 WLR 2303 is an example) where the delay is of such an order, or where a prosecutor’s breach of professional duty is such (Martin v Tauranga District Court [1995] 2 NZLR 419 may be an example), as to make it unfair that the proceedings against a defendant should continue. It would be unwise to attempt to describe such cases in advance. They will be recognisable when they appear. Such cases will however be very exceptional, and a stay will never be an appropriate remedy if any lesser remedy would adequately vindicate the defendant’s Convention right”.

Their Lordships accordingly consider that the following propositions should be regarded as correct in the law of Mauritius:

(i) If a criminal case is not heard and completed within a reasonable time, that will of itself constitute a breach of section 10(1) of the Constitution, whether or not the defendant has been prejudiced by the delay.

(ii) An appropriate remedy should be afforded for such breach, but the hearing should not be stayed or a conviction quashed on account of delay alone, unless (a) the hearing was unfair or (b) it was unfair to try the defendant at all.

In Dyer v Watson [2002] UKPC D1, [2004] 1 AC 379, 403-3, paras 52-5 Lord Bingham of Cornhill set out a series of propositions material to determining the reasonableness of the time taken to complete the hearing of a criminal case, in terms which their Lordships would adopt as relevant to cases such as the present:

52. In any case in which it is said that the reasonable time requirement (to which I will henceforward confine myself) has been or will be violated, the first step is to consider the period of time which has elapsed. Unless that period is one which, on its face and without more, gives grounds for real concern it is almost certainly unnecessary to go further, since the Convention is directed not to departures from the ideal but to infringements of basic human rights. The threshold of proving a breach of the reasonable time requirement is a high one, not easily crossed. But if the period which has elapsed is one which, on its face and without more, gives ground for real concern, two consequences follow. First, it is necessary for the court to look into the detailed facts and circumstances of the particular case. The Strasbourg case law shows very clearly that the outcome is closely dependent on the facts of each case. Secondly, it is necessary for the contracting state to explain and justify any lapse of time which appears to be excessive.

53. The court has identified three areas as calling for particular inquiry. The first of these is the complexity of the case. It is recognised, realistically enough, that the more complex a case, the greater the number of witnesses, the heavier the burden of documentation, the longer the time which must necessarily be taken to prepare it adequately for trial and for any appellate hearing. But with any case, however complex, there comes a time when the passage of time becomes excessive and unacceptable.

54. The second matter to which the court has routinely paid regard is the conduct of the defendant. In almost any fair and developed legal system it is possible for a recalcitrant defendant to cause delay by making spurious applications and challenges, changing legal advisers, absenting himself, exploiting procedural technicalities, and so on. A defendant cannot properly complain of delay of which he is the author. But procedural time-wasting on his part does not entitle the prosecuting authorities themselves to waste time unnecessarily and excessively. The third matter routinely and carefully considered by the court is the manner in which the case has been dealt with by the administrative and judicial authorities. It is plain that contracting states cannot blame unacceptable delays on a general want of prosecutors or judges or courthouses or on chronic under-funding of the legal system. It is, generally speaking, incumbent on contracting states so to organise their legal systems as to ensure that the reasonable time requirement is honoured. But nothing in the Convention jurisprudence requires courts to shut their eyes to the practical realities of litigious life even in a reasonably well-organised legal system. Thus it is not objectionable for a prosecutor to deal with cases according to what he reasonably regards as their priority, so as to achieve an orderly dispatch of business. It must be accepted that a prosecutor cannot ordinarily devote his whole time and attention to a single case. Courts are entitled to draw up their lists of cases for trial some time in advance. It may be necessary to await the availability of a judge possessing a special expertise or the availability of a courthouse with special facilities or security. Plans may be disrupted by unexpected illness. The pressure on a court may be increased by a sudden and unforeseen surge of business. There is no general obligation on a prosecutor, such as that imposed on a prosecutor seeking to extend a custody time limit under section 22(3)(b) of the Prosecution of Offences Act 1985, to show that he has acted ‘with all due diligence and expedition.’ But a marked lack of expedition, if unjustified, will point towards a breach of the reasonable time requirement, and the authorities make clear that while, for purposes of the reasonable time requirement, time runs from the date when the defendant is charged, the passage of any considerable period of time before charge may call for greater than normal expedition thereafter.”

While conceding that but for the appellant’s contribution to the delay there would be a breach of the reasonable time in section 10(1) of the Constitution, Mr Cox QC submitted on behalf of the State that the Supreme Court was quite justified in holding that that contribution was such as to prevent a breach from occurring. Mr Guthrie QC for the appellant, on the other hand, contended that (a) the delays were basically the fault of the prosecution and the court system and in particular the decision of the Director of Public Prosecutions to enter a nolle prosequi (b) most, if not all, of the applications made by the appellant during the course of the proceedings were justifiably made and it was wrong to stigmatise them as devices (c) the trial of the appellant was unfair.

In their Lordships’ opinion it is undeniable that the delay in completing the trial was caused to a considerable extent by the actions of the appellant. It is quite apparent from consideration of the history of the proceedings that he deliberately made numerous attempts to exploit and abuse the legal system, making inappropriate use of his legal knowledge and experience. In that respect the observations of the Supreme Court at page 528 of the Record were fully justified. It is objected on the appellant’s behalf that some at least of the applications were justifiably made, even if they were rejected. But this is not a sufficient answer. If a defendant makes a large number of applications which hold up the completion of a trial, even if all were made in good faith and based on sufficient grounds to be justifiable, he cannot properly complain that there was unreasonable delay, provided that there was has been due expedition on the part of the prosecution and the court.

It is plain, however, from the propositions set out by Lord Bingham of Cornhill in Dyer v Watson at paragraphs 52-4 that it is necessary to consider an amalgam of factors before reaching a conclusion on the reasonableness of the time taken to complete a trial. The defendant’s contribution to the delay may be an important factor, but before dismissing his complaint of delay as a breach of his constitutional rights the appellate tribunal is obliged to look at the whole picture.

It is not in dispute that the time taken overall, between February 1991 and March 2003, gives grounds for real concern and is prima facie unreasonable, even setting the threshold at the appropriate height. There has been no material before the Board which would suggest that the case was unusually complex for a prosecution of this type, which is confirmed by the relatively small number of witnesses called for the prosecution and the fairly limited nature of the issue which the Intermediate Court had to decide. The conduct of the defendant was altogether reprehensible and contributed very largely to the lapse of time. The Board is willing to accept that the court lists in Mauritius were congested and that it was not easy or straightforward to arrange speedy trial of such a case before the Intermediate Court. Their Lordships consider, however, that when it became clear that time was dragging on and that the appellant was bent on dislocating the course of the trial and prolonging the proceedings by every means within his power, it was incumbent on the court to take such steps as it could to expedite matters and reach a conclusion. This should have led to the injection of an element of urgency after the nolle prosequi was entered and the trial had to begin afresh. Certainly from that point onwards, the court should have explored more effectively ways of conducting the trial without gaps between sitting days and of moving it quickly on after the disposal of attempts by the appellant to delay it. Their Lordships are impelled to the view that much more could have been done to hasten matters between the commencement of the second trial in March 1998 and its completion in March 2003. They accordingly cannot escape the conclusion that, however reprehensible the conduct of the appellant, the trial was not completed within a reasonable time and that there was in that respect a breach of section 10(1) of the Constitution.

There remains the question of the remedy which should be afforded to the appellant. Mr Guthrie submitted that the trial was unfair in a number of respects. These included the length of the protracted trial and the intermittent nature of the hearings, together with such matters as the magistrates’ treatment of the appellant’s illness in the latter stages of the trial, the reference of matters to the judge in chambers, the closing down of the appellant’s defence, disclosure and the degree of bias evidenced by the magistrate Mr Chan’s statement to the police. The Supreme Court dealt with a number of these complaints in its judgment, and in those respects their Lordships consider that their decision was correct. They do not consider that the several matters on which the appellant relies, taken either singly or cumulatively, satisfy the test laid down by Lord Bingham of Cornhill in Attorney General’s Reference (No 2 of 2001) [2003] UKHL 68, [2004] 2 AC 72, 90, para 25. They accordingly did not give rise to sufficient prejudice to him to justify a conclusion that the trial was unfair.

The Board must therefore determine the remedy which is to be afforded to the appellant. In the light of its finding that the trial was not unfair, the Board does not consider that the conviction should be set aside. On the other hand, their Lordships would not regard it as acceptable that the prison sentence imposed by the Intermediate Court should be put into operation some 15 years after the commission of the offence unless the public interest affirmatively required a custodial sentence, even at this stage. This is not such a case, and their Lordships will set aside the prison sentence and substitute for it a fine of Rs 10,000.

The Board will accordingly allow the appeal and make a declaration that the appellant’s rights under section 10(1) of the Constitution of Mauritius to a trial within a reasonable time have been infringed. A fine of Rs 10,000 will be substituted for the sentence of imprisonment. The order for costs made against the appellant by the Intermediate Court will stand. There will be no order as to the parties’ costs in the Privy Council proceedings.