[2012] UKPC 32
Privy Council
Appeal No 0042 of 2011
JUDGMENT
Joseph Stewart
Celine (Appellant)
v
The State of
Mauritius (Respondent)
From the Supreme
Court of Mauritius
before
Lord Hope
Lord Kerr
Lord Dyson
Lord Reed
Sir Anthony
Hooper
JUDGMENT
DELIVERED BY
LORD KERR
ON
16 August 2012
Heard on 18 July
2012
Appellant
Yanilla Moonshiram
(Instructed by S B Solicitors)
Respondent
Edward Risso-Gill
Sulakshna Beekarry
(Instructed by Royd Solicitors)
LORD KERR:
1. Mr Joseph Celine applies for an extension of time in order
to prosecute an appeal against the decision of the Supreme Court of Mauritius
which upheld his conviction for forgery and making use of forged
documents. The Intermediate Court of
Mauritius had found him guilty on four counts on 2 March 2006. The offences were alleged to have been
committed in October 2005. Mr Celine was
sentenced to three years’ penal servitude.
On 12 February 2008 the Supreme Court dismissed his appeal against
conviction but reduced his sentence to eighteen months’ imprisonment.
2. On 20 February 2008, Mr Celine applied to the Supreme Court
for leave to appeal to the Judicial Committee of the Privy Council. Leave to appeal was finally granted on 10
August 2009. Mr Celine was given leave
to appeal on a number of grounds. The
deadline for filing his Notice of Appeal was 4 October 2009. As Mr Celine also sought permission to appeal
on grounds other than those for which he had been granted leave, he was
required to lodge a Notice of Appeal. In
this connection rule 11(2) of the Judicial Committee (Appellate Jurisdiction)
Rules Order 2009 (“the 2009 Rules”) provides:
“An application for
permission to appeal must be filed within 56 days from the date of the order or
decision of the court below or the date of the court below refusing permission
to appeal (if
later).”
3. Mr Celine was also required by rule 18(2) of the 2009 rules
to lodge a Notice of Appeal within 56 days in respect of those grounds on which
he had been granted leave. His Notice of
Appeal was not filed in time. It was
lodged on 29 June 2011. The Board
directed that the application for extension of time should be listed for an
oral hearing before five members of the Judicial Committee, with the appeal
itself to follow if the Board was satisfied that it was in the interests of
justice that it should proceed to a full hearing.
4. Having heard submissions from counsel on Mr Celine’s behalf
and on behalf of the State in relation to his application to have time
extended, the Board announced its decision that it would extend time in
relation to one ground only, namely, “whether, in view of the delay which has
elapsed since the alleged commission of the offence, the Supreme Court was
right to maintain a custodial sentence against the appellant in breach of
section 10 of the Constitution”. This
was one of the grounds on which leave had been
granted by the Supreme Court
and the Board heard further submissions from counsel and reserved its
decision. This judgment gives the
Board’s decision on the appeal.
5. Section 10(1) of the Constitution (1968) provides:
“(1) Where any person is
charged with a criminal offence, then, unless the charge is withdrawn, the case
shall be afforded a fair hearing within a reasonable time by an independent and
impartial court established by law.”
6. The respondent accepts that there has been a breach of the
reasonable time requirement in this case.
It is submitted, however, that the State was by no means responsible for
all of the very considerable delay in the case and that the appellant must bear
some blame in relation to a number of periods.
Moreover, it is said, the appellant was complaisant about the State’s
inaction and did not oppose the frequent applications for adjournments.
7. The appellant does not accept that he should be penalised
for what might be regarded as passivity on his part in relation to the State’s
recurrent applications for adjournments.
He claims that such applications are almost always granted by the courts
of Mauritius and that any opposition to adjournments would have been pointless.
8. The Board is not in a position to make any judgment on these
claims. It observes, however, that an
appellant who seeks to challenge the propriety of a sentence passed on the
ground that there has been delay in the prosecution of offences must expect to
have his attitude to the postponement of proceedings closely examined. Even if success in opposing applications for
adjournment is unlikely, one would expect to see evidence of representations on
a defendant’s behalf protesting about delay before accepting that he was truly
anxious for the case to be completed.
9. The Board received extensive submissions from Miss
Moonshiram on behalf of Mr Celine and from Mr Risso-Gill on behalf of the State
about the various periods of delay and the reasons for them. It would not be profitable to rehearse those
at great length. A chronology of events
has been helpfully prepared by the respondent and it is annexed to this
judgment. It is sufficient to say that
between the time that the appellant was first cautioned about the offences (on
29 November 1996) and the final disposal of his appeal, there were substantial
periods of delay which were either unexplained or inexcusable. The respondent accepts that, for the purposes
of calculating the period of delay, time began to run from the date on which
the appellant was cautioned.
10. In fairness to the appellant it should be pointed out that in
September 2000 an application was made on his behalf to stay the case on the
ground that too great a period had elapsed from the date of his alleged
offending and trial. As Mr Risso-Gill
pointed out, that application was withdrawn on 7 December 2000, it having been
conceded that the inquiry into the case had been completed within a reasonable
time and that the Director of Public Prosecutions had advised timeously. But as counsel was quick to accept, whether
that concession was correctly made or not, in light of the subsequent delay in
the case, the period up to December 2000 must come again into the reckoning
because it is the effect of the overall period of delay that must be considered
in deciding whether this should have any impact on the sentence passed.
11. The respondent accepts responsibility for the following periods
of post2000 delay in proceedings before the Intermediate Court: from 21 January
2003 to 20 February 2004 due to the loss of prosecution papers (14 months); the
adjournment from 20 January 2004 to 6 April 2004 (2 months); and a proportion
of the periods of delay occasioned by subsequent adjournments before the
Intermediate Court, although it claims that some of these would have been
necessary in any event. The case was
adjourned on successive occasions for the twelve months between July 2004 and
July 2005.
12. During the appellate proceedings below the respondent accepts
that it was responsible for a 12 month delay due to the late filing of the
record and an additional 5 month delay from 26 June 2008 to 24 November 2008
caused again by the absence of the relevant record before the Supreme Court on
the application for leave to appeal to the Judicial Committee.
13. It is suggested that the prosecution was therefore responsible
for delay of more than three years in the overall period of 15 years. The Board does not accept that the State’s
responsibility for delay can be confined to so short a period. The appellant was cautioned and charged on 29
November 1996 but an information was not filed until 16 June 1999 and pleas
were not taken nor was the trial date set until 26 July 1999. While some of this period would undoubtedly
be required for the assembly of evidence, it does seem an inordinately long
time to pass without any proceeding before a court.
14. When finally the trial before the Intermediate Court was
completed on 2 August 2005, judgment was due to be delivered on 15 September
2005. It was not delivered on that date
because, apparently, the defence had failed to submit authorities on which it
intended to rely. Judgment was fixed for
31 October 2005 but was again adjourned because the court then decided that it
needed to hear submissions from the prosecution on matters of law. This legal argument did not take place until
8 February 2006. While some of the delay
during this time was due to defence counsel being abroad, other reasons for
postponements (such as the magistrate being on leave on a day which had been
fixed for the resumed hearing) must be laid firmly at the door of the
respondent. Moreover, much delay was
occasioned in arranging the hearing of the application for leave to appeal to
the Judicial Committee before the Supreme Court and the respondent must accept
responsibility for that.
15. The Board has therefore concluded that the State has been
responsible for delay well beyond the three years that counsel for the
respondent suggested.
16. It is accepted that the Supreme Court did not take account of
delay in reducing the sentence that had been imposed by the Intermediate
Court. The section of the judgment
dealing with sentence merely states:
“Considering the sums
involved, we consider that the sentence passed was in the circumstances of the
case manifestly harsh and excessive and that the appropriate sentence would
have been one of 18 months’ imprisonment.”
17. In light of the fact that delay played no part in the Supreme
Court’s decision on sentence, Mr Risso-Gill accepts that some adjustment to the
period of eighteen months is warranted.
Miss Moonshiram argues that the sentence should be quashed.
18. In Darmalingum v The State [2000] 1 WLR 2303, at 2310 D Lord
Steyn, delivering the judgment of the Board, said that the normal remedy for
failure of the reasonable time guarantee would be to quash the conviction. At 2310 E, however, he went on to say:
“Their Lordships do not wish
to be overly prescriptive on this point. They do not suggest that there may not
be circumstances in which it might arguably be appropriate to affirm the
conviction but substitute a non-custodial sentence, e.g. in a case where there
had been a plea of guilty or where the inexcusable delay affected convictions
on some counts but not others.”
19. This issue has been considered more recently by the Board in
Boolell v The State [2006] UKPC 46 where reference was made to the decision of
the House of Lords in Attorney General’s Reference (No 2 of 2001) [2003] UKHL
68, [2004] 2 AC 72 which had held that although through the lapse of time in
itself there was a breach of article 6(1) of the European Convention on Human
Rights and Fundamental Freedoms, the appropriate remedy would not necessarily
be a stay of proceedings but “would depend on all the circumstances of the
case”. In light of that decision,
delivering the judgment of the Board in Boolell, Lord Carswell said at para 32:
“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.”
20. Miss Moonshiram submitted that the appellant’s trial was
rendered unfair because the delay which had occurred made it difficult for
various prosecution witnesses to remember essential details that were necessary
to sustain the charge and a number of witnesses had to inspect documents in
order to refresh their memory. But it is
not suggested that having their memory refreshed in this way was inadmissible
or unfair, nor was it claimed that the evidence that they gave was not
relevant. And the plain fact is that
this evidence was considered to be sufficient to establish the appellant’s
guilt and all challenges to the safety of the conviction have failed. Unlike the case of Dahall v The State (1993)
MR 220, where a conviction was quashed because the appellant had only a vague
recollection of the events surrounding the offences with which he was charged,
it was not suggested in this appeal that the appellant had suffered from any
lapse of memory. The Board is therefore
satisfied that no unfairness of the type described in Boolell has been established
and that it would not be appropriate to quash the appellant’s conviction.
21. Counsel referred the Board to a number of decisions where
sentences of imprisonment were reduced or substituted by a fine. The Board intends no discourtesy to counsel
by its decision not to review those authorities. The choice of an appropriate sentence is
highly dependent on the view that one takes of the particular circumstances of
an individual case and the assistance to be derived from comparison with other
cases where the facts may be very different from those under consideration is
bound to be limited.
22. It is relevant, however, to refer to the observation of the
Board in Boolell at para 39 to the effect that it was not acceptable to put
into operation a prison sentence some 15 years after it had been imposed
“unless the public interest affirmatively required a custodial sentence, even
at this stage”. Although the period of
time between sentence and the hearing of the appellant’s appeal is much less (6
years and 4 months), it is still appropriate to consider whether the public
interest requires that a custodial sentence be imposed.
23. All the indications are that the appellant was content to
postpone the day of judgment and while this cannot excuse the failure to adhere
to the reasonable time guarantee (see Boolell at para 32 and Elaheebocus v The
State [2009] UKPC 7 at para 20), it is relevant to the selection of the proper
sentence. Moreover, the offences of
which the appellant was convicted were serious.
They involved the perpetration of a significant fraud on a government
department. It is also relevant that the
appellant has three previous convictions for offences of dishonesty, albeit of
a much less serious character than those involved in this appeal. The Board is satisfied, in view of these
circumstances, that the public interest does indeed require the imposition of a
custodial sentence notwithstanding the delay that has occurred.
24. That delay was grossly excessive, however, and the appellant
has had to confront the prospect of imprisonment when he is much older than he
would have been if the trial had been conducted expeditiously. To reflect this and the serious failure of
the State to fulfil the important constitutional guarantee of trial within a reasonable
time, the Board has concluded that a sentence of nine months’ imprisonment
should be substituted for that imposed by the Supreme
Court.
25. The parties should make written submissions on the question of
costs within 28 days.
ANNEX
Interlocutory Proceedings
29 November 1996 Applicant first charged (see evidence of
witness 21)
16 June 1999 Information filed
26 July 1999 Pleas taken & trial set for 17
January 2000
17 January 2000 Accused absent
15 June 2000 Defence adjournment application –
they said they did not receive the “brief” requested 14.03.00. Trial refixed
for 19 September 2000.
19 September 2000 The Defence applied to stay the case
arguing that 5 years from offence to trial was too long – Argument adjourned to
7 December 2000.
7 December 2000 The Defence withdrew their application to
stay the case – they conceded both that the enquiry into this case was
completed with a reasonable time and that the DPP gave advice within a
reasonable time. Trial
re-fixed 12 July 2001
apparently to counsels’ convenience.
12 July 2001 The Defence applied for an
adjournment as his counsel had passed away and he needed to retain the services
of another. Trial re-fixed for 22 January 2002.
23 January 2002 Cyclone Dina appears to have interrupted
the proceedings. Pre Trial Hearing listed for 18 February 2002.
18 February 2002 &
5 March 2002 &
8 April 2002
Applicant absent and had to
be traced by Police. 13 May 2002 trial fixed for 10 October 2002.
10 October 2002 Defence applicant for adjournment – counsel
says he
didn’t get the brief until
the day before (although it was available the previous week). He pleaded
inability to obtain the brief from previous counsel. Case adjourned to 21
January 2003.
21 January 2003 Prosecution application for adjournment –
Inspector Najeer says that one of the enquiring officers has passed away and as
a result original documents which were in his possession have been mislaid – an
adjournment is requested and no objection is made – adjourned to 30 June 2003.
30 June 2003 The Prosecution explained that the
documents in relation to all but counts 1-2 & 5-6 had been lost and that
the deceased PS Ramchurn never handed them to the clerk of CID South.
The Prosecutor only obtained
this information on the day before the trial listing. Adjourned for mention on
2 September 2003 for Prosecution to take a stand.
9 September 2003 Mention for the Prosecution to take a stand –
the Prosecution said it would only proceed with counts 12 and 5-6.
16 September 2003 Mention to Fix – trial re-fixed for
20 February 2004.
Trial
20 February 2004 1st Day of Trial (Opening & Witnesses 21,
17, 16 and 11 called). Adjourned due to Court difficulties. Adjourned for
Mention for Prosecution to take a stand on photocopied documents on which they
sought to rely.
24 February Trial
re-fixed for 6 April 2004.
6 April 2004 The learned Magistrate was unwell.
Case re-fixed for 27 July 2004.
27 July 2004 2nd Day of Trial (No Evidence
Called). Prosecution application to adjourn – witnesses 1-7 were all absent and
it appears that they had not been summonsed. No objection from the Defence.
Case re-fixed for 1 October 2004.
1 October 2004 3rd Day of Trial (Witnesses 2&4
called) adjourned to 9 November 2004 lack of Prosecution Witnesses. No Defence
objection.
9 November 2004 4th Day of Trial (Witnesses 1,3,6 & 7
called) adjourned to 8 March 2005 due to absence of additional Prosecution
witnesses (witnesses 5 & 10). Defence did not object but warned that they
would do on the next occasion. Adjourned to 8 March 2005.
9 March 2005 It was realised that the 8 March 2005
was a public holiday. Mention to fix arranged for 15 March 2005 and on that
date the continuation was re-fixed for 4 May 2005.
1 May 2005 5th Day of Trial (Witness 5 called) but
adjourned to 13 June 2005 due to the absence of witness 10 no objection by the
Defence.
13 June 2005 6th Day of Trial (No evidence Called)
Witness 10
was absent again –
Prosecution application to adjourn no Defence objection. Adjourned to 13 July
2005.
13 July 2005 7th Day of Trial (No Evidence Called)
Witness 10 was absent again despite having been waned personally – Prosecution
application to adjourn no Defence objection adjourned to 2 August 2005.
2 August 2005 8th Day of Trial. (Witness 10,
Prosecution Case
Closed, No Evidence for the
Defence, Closing Submissions) Judgment fixed for 15 September 2005.
13 October 2005 9th Day of Trial (No Judgment). Judgment
postponed as Defence late with their authorities – Judgment now 31 October
2005.
31 October 2005 10th Day of Trial (No Judgment) Court
requests submissions from the Prosecution on 3 matters of law to be argued on
15 November 2005.
15 November 2005 11th Day of Trial (No legal argument on the 3
Points of Law) Prosecution Application to adjourn – Legal Argument re-fixed for
30 November 2005.
30 November 2005 12th Day of Trial (No legal argument on the 3
Points of Law) Defence application to adjourn as Defence counsel was abroad.
Legal Argument re-fixed for 16 January 2006.
16 January 2006 13th Day of Trial (No legal argument on the
3 Points of Law) learned Magistrate on leave submissions adjourned once more to
24 January 2006.
24 January 2006 14th Day of Trial (No legal argument on the
3 Points of Law) Defendant absent no message had been received – Submissions
adjourned to 8 February 2006. Defendant attends in the afternoon.
8 February 2006 15th Day of Trial (Legal Argument on the 3
Points of Law). Judgment fixed for 2 March 2006.
2 March 2006 16th Day of Trial (Judgment, Amendment
of
Charges, Conviction and
Appellant’s notification of intention to appeal).
Appeal Proceedings
2 & 16 March 2006 Grounds of Appeal lodged.
11 May 2006 Mention to Fix before the Registrar
of the Supreme Court, fixed for 20 February 2007.
13 February 2007 Record had not yet been received – Appeal to
be mentioned for re-fixing on 22 February 2007.
22 February 2007 Mention to Fix before the Registrar of the
Supreme Court, fixed for 14 January 2008.
14 January 2008 Supreme Court Appeal Hearing Cor:- Sik Yuen
CJ, Matadeen J
12 February 2008 Judgment on Appeal filed.
20 February 2008 Motion for leave to appeal to the Judicial Committee
filed.
10 March 2008 Supreme Court Mention Cor:-Sik Yuen CJ
Prosecution indicates will oppose the motion case to be mentioned to fix.
25 March 2008 Case fixed for 26 June 2008.
26 June 2008 Supreme Court Hearing Application for
Leave to Appeal to the Judicial Committee Cor: Sik Yuen CJ, Matadeen J.
Adjourned because the record of the proceedings in the Court of Appeal was not
available.
18 July 2008 The matter was listed for mention to
fix for continuation.
18 July 2008 The matter was re-fixed for 24
November 2008.
19 November 2008 The matter was to be re-fixed as the Chief
Justice was overseas on 24 November 2008.
13 January 2009 The matter was re-fixed for 8 May 2009.
8 May 2009
10 August 2009 Supreme Court Cor:-Sik Yuen CJ, Matadeen J
Order granting Conditional Leave to Appeal to the Judicial Committee (Grounds
(a) – (h)).
Supreme Court Order granting
Final Leave to
Appeal to the Judicial
Committee (Grounds 8(a)-(h)).
29 June 2011 Notice of Appeal Filed.
