Privy Council Appeal No 75 of 2007
THE STATE OF
THE COURT OF APPEAL OF
SUPREME COURT OF
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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
Delivered the 25th February 2009
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Present at the hearing:-
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1. In January 1997 four men conspired together to counterfeit Bank of Mauritius banknotes by means of computers. The four men were
2. The appeal accordingly is something of a curiosity. Section 10(1) of the Constitution provides that “Where any person is charged with a criminal offence, then . . . the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law”. Their Lordships are here concerned, as was the Board in Boolell, only with the reasonable time guarantee under section 10; there was no dispute that the hearing was fair and the court independent and impartial. Unlike the position in Boolell, however, there was in this case no suggestion of any breach of the reasonable time guarantee until long after the proceedings in
3. With that introduction their Lordships must now return to the facts although it is quite unnecessary to set these out at any length. This was in truth a comparatively straightforward case of no particular complexity and, unlike the position in Boolell, it involved no delays for which the appellant himself could properly be said to be reprehensibly responsible.
4. The idea of counterfeiting banknotes was hatched by Ramful in the company of Ragoobur and the appellant. The appellant was at the time working as a clerk for Ramful’s attorney and in that capacity had assisted and become friendly with Ramful whom he knew to be in serious financial difficulty. The appellant assisted Ramful in the purchase of computers, printers and scanners required for the project, by introducing him both to the supplier, a
5. When the police raided the bungalow on 27 April 1997 they arrested Ramful and Ragobur and seized various articles including a computer, scanner, printer, counterfeit banknotes and other computer books and documents as well as a pair of sandals belonging to the appellant. A number of statements were then taken from Ramful which deeply incriminated both the appellant and Khodabaccus. The appellant himself then made a series of incriminating statements.
6. The information having been sworn on 8 April 1998, on 15 June 1998 the trial was fixed for 29 October 1998 but on that date was adjourned and refixed for 2 March 1999 because of the late service on the defendants of some 300 pages of statement by the prosecution’s chief witness, Ramful. The trial duly began on
7. The major evidence against the appellant consisted of Ramful’s detailed oral evidence fully implicating him in the conspiracy, of admissions made in the appellant’s own statements to the police, and of his presence at the bungalow. No evidence was called by either defendant.
8. As stated, judgment was given by the
The appeal to the Supreme Court
9. Notice of appeal against conviction was promptly given, the effect of this being automatically to suspend the operation of the sentence, and on 9 July 2001 the Supreme Court Registry notified all counsel that the case would be mentioned on 13 September 2001 for a date to be fixed. On 13 September 2001 the appeal was duly fixed for hearing on 27 May 2002. Successively, however, the appeal was three times removed from the list and refixed for hearing at the request of the appellant’s counsel (on the first two occasions Mr Guy Ollivry QC, who eventually appeared for the appellant on the appeal, on the third occasion, Mr Pyaneandee), delaying the appeal hearing by a total of just over two years: on
10. Eventually, on 21 June 2004, the appeal was heard. On
11. The judgment further noted that “the learned magistrates expressed their awareness of the fact that witness Ramful’s testimony was that of an accomplice and had to be viewed with utmost caution. They were however satisfied that he had spoken the truth in Court in view of the convincing manner in which he deponed and especially as they found no motive on his part to lie and level false allegations against the two appellants after he had already been prosecuted and sentenced for offences in connection with the counterfeit notes.” As to Mr Ollivry’s submission that the magistrates were wrong to have preferred the appellant’s admissions in his earlier police statements to his subsequent denial, the Court observed that it “overlooks the elementary consideration that an admission which is a statement made against interest constitutes evidence whereas a self-serving out of court statement does not”.
12. So far as
13. The appeal against conviction in this case was, quite frankly, hopeless and one wonders why it was not disposed of, as so easily it could have been, by a brief ex tempore judgment.
14. In his application for leave to appeal to the Privy Council settled shortly after the Supreme Court’s dismissal of his appeal, the appellant merely reaffirmed the selfsame hopeless grounds that had just been rejected. For whatever reason, this application only came before the (differently constituted) Supreme Court for hearing on 13 June 2007. Their Lordships were offered no explanation whatever for this further sixteen month delay in the disposal of the case. By then, as already noted, Boolell had been decided and, armed now with this authority,
15. In their judgment refusing leave to appeal, the Supreme Court said, first, that no question was being raised as to the “interpretation” of the Constitution (such as would have given rise to an appeal to the Judicial Committee as of right under section 81(1)(a) of the Constitution) as opposed merely to the application of the Constitution to the particular facts of the case, and, secondly, that there was no relevant “adjudication or final decision of the Supreme Court against which an appeal would lie to the Judicial Committee”. Their Lordships have already indicated (at para 2 above) how they propose to overcome these apparent difficulties in the appellant’s path.
16. On 24 January 2008 the Board granted special leave to appeal. Once again, however, circumstances forced a delay in the final disposal of this case and the appeal hearing had to be postponed from 30 June 2008 to 16 December 2008, this time because the appellant could no longer afford Mauritian counsel and English counsel had to be found to represent him pro bono. The Board are most grateful to
Was there a breach of section
17. Boolell itself, drawing as it does on the Board’s decision in Dyer v Watson 2004
18. If one asks the fundamental question, does the period which elapsed here between the appellant’s arrest in April 1997 and the dismissal of his appeal to the Supreme Court on 20 January 2006 give ground for real concern as to whether this case has been heard and completed within a reasonable time, there can surely be only one answer: yes. Thus it is necessary for the respondent state to explain and justify what appears overall to be an excessive lapse of time. As Boolell makes clear, the Board is concerned particularly with, first, the complexity of the case, secondly, the conduct of the defendant, and thirdly, the manner in which the case has been dealt with by the state’s administrative and judicial authorities. As already stated, this case involved absolutely no complexity; it was about as straightforward as any serious conspiracy can be. As for the conduct of the defendant, whilst it is plain that the appellant was entirely content for these proceedings to take their own leisurely course from beginning to end, there was no question of his engaging in the sort of reprehensible conduct which the Board found had contributed so largely to the even longer lapses of time in Boolell’s case. There, as the Board observed at para 37, “the appellant was bent on dislocating the course of the trial and prolonging the proceedings by every means within his power”.
19. As to the third matter for the Board’s consideration, the way the case has been dealt with by the Mauritian authorities, it is necessary here to consider the various stages of this lengthy criminal process. Their Lordships see no particular reason to criticise the conduct of the case up to the point of the appellant’s conviction and sentence on 31 May 2001. True, the proceedings before the
20. Overall their Lordships feel driven to conclude that the judicial authorities here cannot sensibly be regarded as having honoured the reasonable time guarantee provided for by section 10 of the Constitution. True, the appellant was wholly complaisant in every successive delay which occurred: never once does he appear to have sought to hasten matters, for example by enquiring when he might finally expect to hear the result of his appeal. He was, of course, on bail at all times since 17 June 1998 and he seems to have been entirely content to postpone the final day of judgment, about which he can hardly have been optimistic. That, however, can provide no answer to the constitutional challenge. If it was no answer in Boolell (where the Board found “the conduct of the defendant was altogether reprehensible and contributed very largely to the lapse of time”), it certainly provides none here. It is to be acknowledged that the delay in Boolell was significantly longer even than in the present case—12 years elapsed between Boolell’s statements to the police under caution and his conviction by the
21. What, if any, remedy should be afforded to the appellant for this constitutional breach? There can be no question here of setting aside the conviction and rightly, indeed, no such result is contended for. Rather the appellant asks that a fine be substituted for his custodial sentence, the course taken in Boolell itself. The Board in Boolell (at para 39) thought it “[un]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”. Holding that was not such a case, the Board set aside the sentence of six months’ imprisonment and substituted for it a fine of Rs10,000.
22. The present case, however, involves altogether greater criminality than Boolell, a member of the Mauritian Bar, was guilty of: essentially the passing of a worthless cheque. As was observed by
“The issue of counterfeit notes undermines the whole economy of the country and is likely to result in great loss being sustained by innocent people who find themselves in possession of these notes only to discover that they are worthless.”
Such sentences as were passed upon the four conspirators in the present case are routinely passed in equivalent cases in the
23. The Board recognises that a total of 12 years has now passed since the appellant’s offence (compared to the 15 years referred to in Boolell). Their Lordships, however, would certainly not think it right to set aside the appellant’s four-year sentence, not least because of the plain injustice that such a course would inevitably represent in the eyes of the appellant’s co-conspirators (two of whom pleaded guilty and have long since served their six-year terms in full, and one of whom, Khodabaccus, rightly accepted the dismissal of his appeal against conviction in January 2006 and, presumably, has since served his three-year term). Frankly, the very fact that the Board is prepared to entertain this appeal and find a breach of the reasonable time guarantee could well be thought redress enough: anything beyond this from the appellant’s standpoint may be regarded as essentially fortuitous. All that said, however, their Lordships on balance think it right to mark the undoubted constitutional breach in this case by making a modest reduction in the sentence to be served. In the result they quash the four-year term and substitute for it a term of three and a half years’ penal servitude, such sentence now to be served without further delay. To this extent and to this extent only the appeal is allowed. There will be no order for costs.
24. In the light of the Board’s recent opinion in Callachand v The State  UKPC 49, Mr Casey additionally sought to pray in aid the length of time (thirteen and a half months) spent by the appellant in custody before his trial. As to this, however, the Board see no reason why the appellant’s position should be any different from, or better than, that of the presumably countless other serving prisoners in