The Director of Public Prosecutions
Appellant
v.
Devendranath Hurnam
Respondent
FROM
THE COURT OF APPEAL OF
MAURITIUS
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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
Delivered the 25th April 2007
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Present at the hearing:-
Lord Bingham of Cornhill
Lord Hope of Craighead
Lord Scott of Foscote
Lord Carswell
Lord Brown of Eaton-under-Heywood
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[Delivered by Lord Carswell]
The respondent Devendranath Hurnam, a well-known barrister practising in Mauritius, was on 11 August 2003 convicted by the Intermediate Court of Mauritius on a charge of conspiring with his client Soobashing Bholah (“Bholah”) to do an unlawful act, namely, to hinder police in an enquiry into a larceny by fabricating an alibi for Bholah to mislead the enquiring officers. He was sentenced to six months’ imprisonment and ordered to pay costs of 500 rupees. On appeal the Supreme Court of Mauritius set aside the conviction on the ground that the prosecution had not proved an intention on the respondent’s part to hinder the police in their enquiry, which in the view of the court required proof of a specific intention directed to achieving that result as the object of the conspiracy, even if it was a likely result which could be foreseen. The court accordingly held that the Intermediate Court should have accepted the respondent’s submission of no case based on the contention that there was no prima facie evidence of the conspiracy charged. The appellant, the Director of Public Prosecutions for Mauritius, has appealed to the Privy Council, pursuant to final leave granted by the Supreme Court, under the provisions of section 81(2)(b) of the Constitution of Mauritius and section 70A of the Courts Act, which permit an appeal by the prosecution.
On 4 May 2000 about 2 pm an armed robbery involving a number of persons was carried out at the State Commercial Bank in Grand Bois. About 6 pm that day two brothers were arrested on suspicion of complicity in the robbery, Bholah and his brother Gangaramsingh Bholah. Bholah was taken to Rose Belle police station, arriving about 7.30 pm, and there he was questioned during the evening. According to the evidence given by Bholah, although interviewed for a period put at some two hours in all, he declined to answer questions that evening, stating that he had a headache and would make a statement later. He was transferred in the late evening to Nouvelle France station, where he arrived at 12.25 am on 5 May.
The respondent was contacted that night by another Bholah brother, Kaylashing, and attended Nouvelle France station about 12.10 pm on 5 May, together with two colleagues, Messrs Hawaldar and Hurhangee. The respondent saw Bholah between 12.37 pm and about 1 pm. Bholah said in his evidence that he told the respondent that he had committed the robbery with other persons. He told the respondent during part of this interview, when, as the Intermediate Court found, he and the respondent were alone together, that his brother Gangaramsingh had taken a lorry for a “fitness test” at Curepipe the previous day, whereupon the respondent, according to Bholah, told him not to relate anything to the police about the hold-up, or he would be sentenced for a long period, and said that he would free all of them, “tire zotte tout”. The respondent’s case, on the other hand, as set out in his police statement and his evidence at trial, was that Bholah at that first interview denied committing the robbery and instructed him that he had been at the NTA fitness centre at the material time. According to the respondent’s account Bholah also said that he had told the police this on the previous evening 4 May.
Bholah appeared along with other suspects in the District Court at 2.45 pm 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 6 pm 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 4 May 2000 he and his brother Gangaramsingh took a lorry for a fitness test at the NTA Curepipe. He arrived at the test centre at about 1.45 pm and left at about 2.0 to 2.15 pm. After returning home he was called out to help with another brother’s bus, which had broken down on the road and had to have a part obtained. He obtained the part and eventually arrived home about 5 pm. The police came about 6.30 pm and took Gangaramsingh and himself to Rose Belle station. He was questioned about his movements that day and “mo ti explique zottes pareil couman mo fine dire”, “I explained to them just as I said.”
The respondent obtained from Kaylashingh Bholah the certificate of fitness relating to the lorry examined at the test centre on 4 May and brought it to the police station. The certificate confirmed that the lorry had been at the centre on 4 May, but it did not state the precise time or the names of any persons who had brought it there.
On 8 May 2000 Bholah was released on bail and he was interviewed by police officers again on 12 and 16 May. On 14 June he made another written statement, which he followed by further statements on subsequent dates. In his statement of 14 June he said that his previous statements did not contain the whole truth and that he now wished to tell the truth. He claimed that a co-accused Meetoo had threatened to kill his family if he told the truth to the police. He confessed to taking part in the robbery at the bank at Grand Bois, his function being to drive one of the getaway vehicles. He went on to say that when the respondent came to see him on 5 May he related to him all about his participation in the hold-up. He said that the respondent told him to lie and to tell the police that his brother Fadoo (a name by which Gangaramsingh was known) and he went together to have the lorry tested.
The respondent continued to represent Bholah at three hearings in the Intermediate Court, but on 24 July 2000 Bholah told the court that he would no longer retain his services. On 27 June 2001 he pleaded guilty to aiding and abetting the robbery and was sentenced to four years’ penal servitude.
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 1 April 2002. The particulars of the conspiracy charge on which he was tried were:
“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 Intermediate Court before three magistrates, Mrs R Mungly-Gulbul, Mr D Chan Kan Cheong and Mr D Vellien. After some preliminary skirmishes the respondent was arraigned on 13 November 2001 and pleaded not guilty to all three charges. Following some postponements the taking of evidence began on 1 April 2002 and the trial continued sporadically over many hearing days until judgment was given on 11 August 2003. The main prosecution witness was Bholah, who was cross-examined at length. At the close of the prosecution case the defence made a submission of no case to answer, based mainly on the proposition that Bholah had told the police on 4 May 2000 about his supposed alibi, and therefore the respondent could not have fabricated it on 5 May. That submission was rejected by the magistrates.
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 Intermediate Court gave a written judgment on 11 August 2003. In the judgment the magistrates considered submissions advanced by the respondent alleging unfairness in a number of respects, which they rejected, then went on to consider the evidence in detail. They accepted the evidence given by Bholah as being truthful, giving themselves a proper direction and warning about the danger of acting on the uncorroborated evidence of an accomplice. They rejected the defence contention that Bholah had already raised the alibi on 4 May when questioned by the police. They rejected the respondent’s version as untrue, notwithstanding the “skill and aplomb”, as they described his evidence, with which he gave his answers in court. They accordingly found the elements of the charge established beyond reasonable doubt.
At a sentencing hearing on 11 August 2003 the Intermediate Court in a considered judgment expressed the opinion that the conspiracy of which the respondent had been found guilty was different from and more serious than the substantive offence of hindering the police, which only carried the penalty of a fine, except in the case of a second or subsequent offence. The court therefore imposed a sentence of six months’ imprisonment and ordered the respondent to pay 500 rupees as costs.
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 28 in all. The Supreme Court (Balancy and Peeroo JJ) heard the appeal on 3, 4 and 9 February 2004 and gave a written judgment on 6 April 2004.
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 4 May 2000; thirdly, the failure of the prosecution to call or tender certain witnesses; and, fourthly, an appeal against the sentence imposed.
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 Intermediate Court on this topic that:
“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 Intermediate Court should have acceded to the submission of no case and allowed the respondent’s appeal against conviction, quashing the conviction and sentence.
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 [1985] QB 509, 517 in the context of obstructing a police constable in the execution of his duty:
“ … 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 [2002] UKPC D1, [2004] 1 AC 379, 402-3, paras 52-5 (see also Boolell v The State [2006] UKPC 46). The Board accordingly declines to go into this complaint. Mr Guthrie relied on the question of delay in his submissions on sentence, to which their Lordships will return. Similarly, the issue of unfairness in the cross-examination of the respondent as to his character was not in issue in the arguments presented to the Supreme Court. Their Lordships are not minded to permit reliance on it now, but in any event they do not consider that it has been shown that there is substance in it. One of the principles underlying the rule allowing the admission of evidence of bad character is that where a defendant has attacked the character of a prosecution witness, with the object of impugning his veracity, he cannot then put himself forward as a man of unblemished character whose word is to be accepted: see, eg, R v Cook [1959] 2 QB 340, 348, per Devlin J. It is a matter then for the discretion of the trial court to determine whether any evidence of bad character which the prosecution proposes to adduce should be excluded. The Board would ordinarily be very slow to interfere with the exercise of such a discretion. Nor did it receive any argument as to the ambit of the evidence of bad character which may be admitted in Mauritius under this principle. Prosecuting counsel attacked the respondent vigorously, but in their Lordships’ judgment his conduct did not exceed permissible bounds or come near equating with the type of behaviour exemplified by that portrayed in Randall v The Queen [2002] UKPC 19, [2002] 1 WLR 2237 or Benedetto v The Queen [2003] UKPC 27, [2003] 1 WLR 1545, both of which were relied on by the respondent.
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 Intermediate Court and affirmed by the Supreme Court. In support of his contention he relied on the matters set out in detail in the judgment of the Supreme Court at page 708 of the Record, to which their Lordships have referred and which they do not propose to rehearse seriatim. The Intermediate Court unequivocally rejected the respondent’s version of the discussion between Bholah and himself in the police station in his first interview on 5 May 2000 and accepted the truthfulness of Bholah’s account. The Supreme Court considered this finding in the light of the matters set out at page 708, upon which the respondent relied in order to cast doubt on the validity of the Intermediate Court’s findings of fact on this issue. The Supreme Court found no warrant to disturb their findings.
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 Privy Council. The first is the rule relating to concurrent findings of fact. It was stated by the Judicial Committee in Devi v Roy [1946] AC 508, 521-2, after examination of the previous case-law, and is still the practice of the Board today. The general rule is that the Board will not re-examine the concurrent findings of fact of two lower courts in the case under appeal. It was suggested on behalf of the respondent that this rule of practice did not apply in criminal appeals, but although it is true that all of the previous cases considered in Devi v Roy were civil appeals, no such limitation appears in the judgment. The rule is, however, subject to the exception that it will not be applied if there has been some miscarriage of justice or violation of some principle of law or procedure. The Board will ordinarily be particularly conscious of the importance of this exception in a criminal appeal. The second, and more general, principle is that in criminal appeals brought as of right to the Judicial Committee from Mauritius, the Board will follow the long established practice, originally formulated to govern special leave to appeal in criminal cases, that “some clear departure from the requirements of justice” must be shown to exist. The practice was regarded as the usual rule as far back as 1885: Riel v The Queen (1885) 10 App Cas 675, 677, per Lord Halsbury LC, and was reaffirmed in Ibrahim v The Queen [1914] AC 599, 614-5, per Lord Sumner. It was adopted and followed by the Board in Badry v Director of Public Prosecutions [1983] 2 AC 297 in deciding the first appeal as of right from Mauritius under section 70A of the Courts Act. The Board again accepted the applicability of the rule in Buxoo v The Queen [1988] 1 WLR 820.
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 Intermediate Court and the safety of the conviction. Its conclusion is that a sufficient case has not been made out for it to disturb the concurrent findings of fact. It will accordingly not dismiss the appeal on any of the grounds relied on by the respondent.
After their Lordships had reserved their judgment on this appeal, the Privy Council Office received a letter dated 19 March 2007 from the solicitors acting for the respondent, asking that certain additional and very recent evidence be brought to the attention of the Board. It was suggested that the Board might need to re-open the hearing of the respondent’s cross-appeal. The additional evidence consists of a signed statement made by Bholah to the police on 10 March 2007 in connection with police inquiries into a robbery at the State Bank at Rose Belle on 8 December 2006. In this statement Bholah referred to his earlier arrest in connection with the hold-up at the State Bank of Grand Bois and said that he had “told the CID officers that on the day and at the time the hold-up took place, we took our lorry for fitness test at Curepipe”. This, it is suggested, shows that Bholah had fabricated the false alibi when he was first arrested, before he spoke to with the respondent, and refutes the charge that the respondent was involved in concocting the false alibi. There is nothing on the face of this additional evidence which necessarily undermines Bholah’s oral evidence given against the respondent at his trial. Nor would their Lordships readily draw an inference from Bholah’s recent statement that he is now in fact admitting to having given the false alibi on the very day of his arrest and before, therefore, he saw the respondent. This would necessarily involve him in admitting perjury throughout the long course of the proceedings against the respondent and would need to be stated very plainly indeed.
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 [1983] 2 AC 297, 303. That laid down that for the Board to interfere with a criminal sentence there must be something “so irregular or so outrageous as to shake the very basis of justice.” Their Lordships do not consider that this test is satisfied in the present case. The charge on which the respondent was convicted was one of great seriousness, for it is vital that the standards of probity of practitioners in the criminal courts should be maintained and falsification of an alibi is a most reprehensible attempt to interfere with the proper administration of criminal justice. The delay since May 2000 has undoubtedly been considerable, but to a large extent it has been occupied by the process of trial and appeals, and it would in their Lordships’ view be undesirable if a defendant who has engaged unsuccessfully in a series of appeals could then claim that the passage of time entitled him to relief against a sentence which was correctly imposed by the trial court.
Their Lordships allow the appeal with costs and restore the conviction and sentence of the Intermediate Court.
