The Director of Public Prosecutions
THE COURT OF APPEAL OF
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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
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Present at the hearing:-
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The respondent was contacted that night by another Bholah brother, Kaylashing, and attended Nouvelle
Bholah appeared along with other suspects in the District Court at on 5 May, with the respondent present, and was remanded. A record appears in the court note:
“Accused 1 [Bholah] and 2 states that they have given their statement/s. Accused 3 – states he wishes to give statement in presence of Counsel.”
About on 5 May Bholah gave a statement to Inspector Lisette, who recorded it in writing. The respondent was present during the taking of the statement. In that statement Bholah stated that on
The respondent obtained from
The respondent continued to represent Bholah at three hearings in the
The respondent was charged on a provisional information on three charges, two of receiving stolen property (which appear to have related to fees received by him, allegedly paid out of the proceeds of the robbery) and one of conspiracy to hinder police. The prosecution entered a nolle prosequi on the receiving charges on
“That on or about the 5th of May in the year two thousand at Nouvelle France in the District of Grand Port, the said Devendranath Hurnam did wilfully and unlawfully agree with another person, to wit one Soobashing Bholah to do an unlawful act to wit: to hinder Police in an enquiry regarding a larceny committed at the Grand Bois State Bank on the 4th May 2000 by fabricating an alibi for the said Soobashing Bholah to mislead the enquiring officers.”
It is convenient at this point to set out the statutory provisions on which the charge was based. Section 109 of the Criminal Code (Supplementary) Act 2000 makes it an offence to agree with one or more other persons to do an act which is unlawful. The unlawful act relied on by the prosecution was that contained in section 3 of the Public Officers’ Protection Act 1982, the material portion of which provides:
“3(1) Any person who by force or violence resists, opposes, molests, hinders, or obstructs a –
(a) public officer in the performance of his duty;
* * * *
shall commit an offence and shall, on conviction, be liable to a fine not exceeding 10,000 rupees and to imprisonment for a term not exceeding 3 months.
(2) In the absence of force or violence, the penalty shall be a fine not exceeding 3000 rupees and in the case of a second or subsequent offence, the penalty shall be as provided in subsection (1).”
The trial took place in the
The respondent gave evidence in his defence, to the effect that his instructions from Kaylashing Bholah and from Bholah himself had been all along that Bholah had been at the fitness centre on 4 May at the time of the hold-up. Bholah had not confessed to him his complicity in the robbery and the respondent had not fabricated any alibi for him. In the course of his cross-examination of the respondent prosecuting counsel put a number of matters to him concerning a previous conviction and also his suspension from practice in 2001 for a disciplinary offence.
Following further evidence and counsel’s closing submissions the
At a sentencing hearing on
The respondent gave immediate notice of appeal, and execution of the judgment was stayed, pending a decision of the Supreme Court. The respondent filed a number of grounds of appeal in three separate notices, totalling
In presenting the case in the Supreme Court counsel for Mr Hurnam confined his submissions to four main grounds: first, that the Intermediate Court should have acceded to the submission of no case to answer at the close of the prosecution case; secondly, the issue whether the false alibi had already been raised by Bholah on
The Supreme Court rejected the third ground and it was not in issue before the Board. Since they allowed the appeal against conviction, the issue of sentence was not considered. The court considered the submissions advanced on behalf of the respondent on the second ground, centring round the time when Bholah’s false alibi was first put forward, setting out in detail (Record, p 708) the items of evidence relied upon by the respondent’s counsel in support of his contentions. It examined the conclusions of the
“S. Bholah had not given any statement whether written or verbal to the effect that he had been to the Fitness Centre and that the alibi was concocted by the [respondent] in the course of the private interview he had with S. Bholah.”
The court expressed its opinion (Record, p 710) that:
“We find no warrant to disturb their findings on these purely factual aspects.”
The main focus of the judgment of the Supreme Court was on the submission of no case and in particular that there was insufficient evidence of the specific intention which the prosecution was required to prove. It commenced by rejecting the first point taken by counsel, which was that the information failed to disclose any offence, as the particulars did not describe an act which was unlawful under any provision of Mauritian law. This point did not figure to a significant extent in the arguments addressed to the Board, but they will mention it briefly later in this judgment. The court held that there was sufficient prima facie evidence of an agreement between the respondent and Bholah, as distinct from the mere giving and following of legal advice by counsel and client respectively.
The issue on which the Supreme Court allowed the respondent’s appeal was that of the specific intention which had to be proved. It held that it was necessary for the prosecution to prove that the object of the agreement between the respondent and Bholah was to hinder the police in the conduct of the enquiry, as distinct from an intention to fabricate an alibi for Bholah. The fact that this hindrance may have been a foreseeable result of the fabrication of the alibi was insufficient to establish the necessary specific intention. The court held (Record, p 722) that:
“the evidence on record showed a conspiracy to raise a false alibi but not a conspiracy to hinder the police in their enquiry: there was not an iota of evidence suggesting that the [respondent] and Bholah had in mind such hindrance as the object of their conspiracy and this consideration could not be affected by the mere fact that the raising of the false alibi would bring such a result.”
The Supreme Court accordingly held on this ground that the
Their Lordships consider that the Supreme Court was unquestionably correct in its conclusion on the first point, whether the information disclosed an offence. It expressed the view that the legislature intended by enacting section 3(2) of the Public Officers’ Protection Act, which was added at a later date to the previous provision consisting only of subsection (1), to create an offence of hindering a public officer in the performance of his duty without the use of force. Such hindering without the use of force is therefore a freestanding offence, with its own penalty, and constitutes an unlawful act.
They do not agree, however, with the court’s conclusion on the specific intention which has to be proved. The ultimate object may have been to provide an effective false alibi for Bholah in order to assist him to escape conviction, but it was undoubtedly the intention of the parties to the conspiracy to achieve this object by misleading the police and putting them off the scent, which would have hindered them in their enquiries into the robbery. The Supreme Court was in their Lordships’ view wrong to have regard only to the ultimate object or intention of the parties. A conspiracy may have several objects (cf the discussion in Williams, Criminal Law, The General Part, para 217) and one of the objects may constitute a means of achieving the ultimate object. As Webster J said in Lewis v Cox  QB 509,
“ … a court is not obliged … to assume that a defendant has only one intention and to find what that intention was, or even to assume that, if he has two intentions, it must find the predominant intention. If, for instance, a person runs into the road and holds up the traffic in order to prevent an accident, he clearly has two intentions: one is to hold up the traffic, and the other (which is the motive of that intention) is to prevent an accident. But motive is irrelevant to intention in the criminal law …”
In this case the parties intended to assist Bholah to escape criminal liability, and they did so by means of fabricating an alibi, which would have the foreseeable and intended result of diverting the police from investigating his actions, so hindering their enquiry into the commission of the robbery. The immediate intention of their agreed course of conduct was to hinder the police in the accomplishment of their ultimate aim of exculpating Bholah. That in their Lordships’ view was an agreement to hinder the police, sufficient to constitute the conspiracy with which the appellant was charged. The fact that the respondent and Bholah had an ultimate aim of exculpating the latter does not invalidate that conclusion.
Their Lordships accordingly consider that the appellant has made out the ground on which leave to appeal was obtained and that the Supreme Court was wrong to allow the respondent’s appeal against conviction. At the hearing before the Board Mr Guthrie QC for the respondent sought to raise a number of matters which he submitted vitiated the correctness or safety of the conviction, and their Lordships permitted him to develop these in argument. Some can be shortly disposed of. The complaint of delay in the lengthy process of trial and appeal was not raised in the courts below. There has been little or no material placed before the Board for it to make a judgment on the type of question discussed by Lord Bingham of Cornhill in Dyer v Watson  UKPC D1, 
The topic which occupied the major part of Mr Guthrie’s argument before the Board was an attempt to discredit the findings of fact made by the
Their Lordships consider that it is of importance in this context to bear in mind two cardinal principles governing appeals to the Judicial Committee of the
With these principles in mind, the Board has carefully considered all of the points raised by Mr Guthrie in his attack upon the validity of the findings of fact of the
After their Lordships had reserved their judgment on this appeal, the Privy Council Office received a letter dated
The solicitors for the DPP point out in response that Bholah does not in his new statement state when he gave the false alibi. In particular, he does not state that he gave the false alibi on the day he was arrested.
Their Lordships have considered this further material, but have reached the view that there is no occasion to re-open the hearing of this appeal to the Board.
There remains only the matter of sentence. Their Lordships appreciate the force of the contention that it may bear harshly on the respondent to have to serve a prison sentence after such a lapse of time since the commission of the offence. They are conscious, however, of the content of the practice direction issued by Viscount Dunedin (1932) 48 TLR 300 and accepted as still correct by the Board in the Mauritian appeal of Badry v Director of Public Prosecutions 
Their Lordships allow the appeal with costs and restore the conviction and sentence of the