Haroon Rashid Elaheedoccus v. The State of Mauritius

Privy Council Appeal No 75 of 2007

HAROON RASHID ELAHEEBOCUS

Appellant

v.

THE STATE OF MAURITIUS

Respondent

FROM

THE COURT OF APPEAL OF

SUPREME COURT OF MAURITIUS

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL

Delivered the 25^th February 2009

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Present at the hearing:-

Lord Phillips of Worth Matravers

Lord Scott of Foscote

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe

Lord Brown of Eaton-under-Heywood

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[Delivered by Lord Brown of Eaton-under-Heywood]

Introduction

1. In January 1997 four men conspired together to counterfeit Bank of Mauritius banknotes by means of computers. The four men were Harris Ramful, Maheshwar Ragoobur, Mamode Ally Khodabaccus and the appellant. Ramful and Ragoobur were arrested on 27 April 1997 and both later pleaded guilty and were sentenced to six years’ penal servitude. The appellant was arrested, provisionally charged and remanded in custody on 29 April 1997. On 8 April 1998 he and Khodabaccus were charged before the Intermediate Court. On 17 June 1998 (after thirteen and a half months in custody) he was bailed. On 31 May 2001 the appellant and Khodabaccus were convicted by the Intermediate Court, the appellant being sentenced to four years’ penal servitude, Khodabaccus to three years’ penal servitude. Both appealed against conviction (not sentence). Their appeals were heard by the Supreme Court (Balancy and Caunhye JJ) on 21 June 2004 and nineteen months later, on 20 January 2006, dismissed. On 9 February 2006 the appellant (but not Khodabaccus) sought conditional leave to appeal to the Privy Council (again, only against conviction). On 16 October 2006 the Board delivered judgment in Prakash Boolell v The State of Mauritius [2006] UKPC 46 (Boolell). Prompted by Boolell, at the hearing of the application before the Supreme Court (Balancy and Domah JJ) on 13 June 2007, the appellant sought leave to appeal, not to challenge his conviction, but rather to argue that, because of the delay in concluding his appeal, his custodial sentence should be set aside and replaced by a fine. That application failed. On 24 January 2008, however, the Board granted the appellant special leave to appeal.

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 Mauritius had ended with the dismissal of the appellant’s appeal against conviction. As stated, the argument was first advanced on the application, some fifteen months later, for leave to appeal to the Privy Council. What is now submitted is that the Supreme Court should themselves have recognised the breach of section 10 by the time they came to deliver their judgment dismissing the appellant’s (and Khodabaccus’s) appeals on 20 January 2006 and should of their own motion have substituted fines for the custodial sentences by way of redress. Their Lordships reject this submission as misconceived. They are, however, prepared to regard the application to the Supreme Court on 13 June 2007 for leave to appeal to the Privy Council as if it had been (as plainly it should have been) a constitutional motion asserting as at that date a breach of the reasonable time guarantee under section 10, and to regard the appeal presently before the Board as an appeal from the Supreme Court’s decision on 13 June 2007 rejecting such a (notional) constitutional motion.

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.

The conspiracy

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 Mr Muttylall, who provided credit facilities for the Rs 20,000 outlay. Khodabaccus was known to both Ragobur and the appellant and he too joined the conspiracy, in turn bringing in a friend, Salim, who was to help finance the scheme. Salim was to provide 75,000 French francs in return for counterfeit notes amounting to Rs5 million. The appellant assisted also by renting a bungalow at Flic en Flac where the counterfeiting operation took place and by sometimes fetching in a technician when there was a computer breakdown.

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.

The Intermediate Court trial

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 2 March 1999 when three witnesses were called by the prosecution—two police officers whose evidence included a description of the bungalow search and details of the appellant’s subsequent arrest and written statements to the police, and a computer salesman—and ended two years later on 28 March 2001 when Ramful gave his evidence. Between those dates the case was before the Court on seven other occasions, on only two of which however were further witnesses called: 30 October 2000 when other police evidence was given. On the other hearing days the proceedings were adjourned for this or that reason, usually the convenience of counsel on one side or the other, invariably without objection.

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 Intermediate Court on 31 May 2001 convicting the appellant and Khodabaccus and sentencing them respectively to four years and three years penal servitude (together with a costs order against each for Rr500). In sentencing the appellant the Court observed that this was “indeed a serious offence which calls for a severe custodial sentence” and noted that it was “not [the appellant’s] first encounter with justice in connection with offences involving fraud and dishonesty” (whereas Khodabaccus had only one previous conviction, already spent). The appellant indeed had five previous convictions, variously for swindling, embezzlement and forgery between 1990 and 1995, for one of which he had served a two year sentence of imprisonment.

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 23 May 2002 it was adjourned from 27 May 2002 and on 13 June 2002 refixed for hearing on 10 March 2003; on 5 March 2003 it was adjourned from 10 March 2003 and on 13 May 2003 refixed for hearing on 20 October 2003; and on 13 October 2003 it was adjourned from 20 October 2003 and on 23 October 2003 refixed for hearing on 21 June 2004.

10. Eventually, on 21 June 2004, the appeal was heard. On 6 September 2005 a transcript of the appeal proceedings was produced, presumably at the Supreme Court’s own request, over a year having already by then elapsed since the actual appeal hearing and the court’s memory doubtless having faded. Finally, on 20 January 2006 the appeal was dismissed. The Court’s judgment stretches to just under six pages. It records that only two grounds were raised by the appellants, identical grounds in each case: first, that there was “no evidence on record that the appellant conspired to commit the alleged offence” and, second, that the prosecution had failed to call Mr Muttylall. The judgment pointed out that in the appellant’s first three statements to the police he had “substantially confirmed his involvement in the project as per Ramful’s version” albeit in his fourth statement he had said that he had no intention to counterfeit banknotes and was not involved in the operation.

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 Mr Muttylall was concerned, the Court said that the prosecution evidence was sufficient without it, that there was no indication that his testimony would have assisted the appellants, and that anyway it was open to them to have called him if they wished.

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.

Post-appeal proceedings

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, Mr Ollivry wisely abandoned all thought of appeal against conviction (for which leave could never have been given) and sought instead to assert a breach of the reasonable time guarantee enshrined in section 10 of the Constitution. In oral argument he invoked “the delay which has elapsed between the commission of the offence (January 1997) and the date of the judgment of the Supreme Court (20 January 2006) and in particular the delay between the hearing of the appeal (21 June 2004) and the judgment of the Supreme Court (20 January 2006)”.

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 Mr Aidan Casey for undertaking that task.

Was there a breach of section 10 in this case?

17. Boolell itself, drawing as it does on the Board’s decision in Dyer v Watson 2004 1 AC 379, provides a convenient (and for present purposes sufficient) statement of the relevant principles which apply to a constitutional challenge of this character. It is quite unnecessary to rehearse them here. Their Lordships proceed instead to apply them to the facts of this case.

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 Intermediate Court took a leisurely course but at that stage there was no particular urgency about the case and doubtless there were numerous other calls upon the Court’s time. The subsequent passage of three years until the appeal against conviction came to be heard by the Supreme Court becomes more difficult to justify. Given, however, that two of those three years passed because of successive adjournments of the appeal hearing for the convenience of the appellant’s own counsel, their Lordships would not regard section 10 as having been breached had the matter even at that late stage proceeded satisfactorily. What, however, is really quite impossible to justify is the final nineteen month delay between the actual hearing of the appeal and its ultimate dismissal by the comparatively brief and straightforward judgment eventually given on 20 January 2006. Whatever pressures the Supreme Court may have been under during that time, there can simply be no logical explanation or excuse for this final 19 month period of delay. Their Lordships call this the “final” period of delay, but there remained, of course, the further 17 month delay until 13 June 2007 when finally the Supreme Court refused leave to appeal to the Judicial Committee (the decision the Board are treating as the Supreme Court’s rejection of a constitutional challenge for breach of the reasonable time guarantee under section 10).

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 Intermediate Court (his subsequent appeal to the Supreme Court being dismissed just 14 months later). It was, indeed, that quite extraordinary delay which impelled the finding there of a constitutional breach notwithstanding earlier authority that the defendant cannot ordinarily complain of delay of which he himself was the author. Again, however, the yet longer delay in Boolell’s case obviously cannot serve to justify the passage of nearly nine years between this appellant’s arrest and the dismissal of his appeal against conviction.

Redress

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 Lord Lane CJ in R v Howard (1985) 7 Crim App R (S) 320:

“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 UK. The appellant, indeed, having contested his guilt, may consider himself fortunate not to have been subject to a longer sentence than the four-year term imposed.

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 [2008] 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 Mauritius who have also previously spent time in custody. Whether, consequent on Callachand, their position is to change is now entirely a matter for the Supreme Court of Mauritius. The Board on this appeal has nothing further to say on the point.