Mungroo v The Queen

Mungroo

Appellant

v.

The Queen

Respondent

Appeal from the Supreme Court of Mauritius

Composition of the Board:

Lord Bridge of Harwich

Lord Templeman

Lord Goff of Chieveley

Lord Browne-Wilkinson

Sir Maurice Casey

Judgment delivered on the 11th October 1991

by Lord Templeman

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Constitutional law - Criminal procedure - Fundamental rights - Delay - Right to be tried within a reasonable time - Reasonable time runs as from the arrest of the accused - Also proper to take into account time before arrest of the accused - Duty of the prosecution

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Cases referred to in judgment

Barker v. Wingo (1972) 407 U.S. 514

Bell v. Director of Public Prosecutions [1985] A.C. 937

Police v. Labat [1970] M.R. 214

Legislations referred to in judgment

Constitution of Jamaica

Constitution of Mauritius, section 10

The following judgment was delivered by the Board:

Section 10 of the Constitution of Mauritius provides that:

"(1) Where any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law."

The right to a trial 'within a reasonable time' secures, first, that the accused is not prejudiced in his defence by delay and, secondly, that the period during which an innocent person is under suspicion and any accused suffers from uncertainty and anxiety is kept to a minimum.

In the present case the appellant, B. Mungroo, complained that he was deprived of his right to a trial 'within a reasonable time'. In 1981 the Mauritius Meat Authority ("MMA") reported to the police some twenty cases of suspected false claims, payments and forgeries. On 17th July 1981 the appellant who was an executive officer employed by the MMA was arrested and served with a provisional charge of forgery of a cheque for Rs4,890. The appellant was given bail. The information relating to the charge was not laid until 4th May 1983; the delay was attributed by the prosecution to the complexity of the investigation into the affairs of the MMA reported to the police and made necessary by the number of incidents reported and by the complexities of each allegation. On 15th September 1983 the Director of Public Prosecutions filed a nolle prosequi and indicated that a new charge would be laid. The appellant and the magistrate were so informed. In 1984 the investigation of the affairs of the MMA was taken over by an Inspector Basset who made further inquiries and inter alia decided that the original charge of forgery against the appellant was inappropriate and that he should be charged with employing a fraudulent pretence by presenting a forged document and thereby swindling the MMA out of a sum of Rs4,890.

A new charge was laid on 15th February 1985. The delay between 15th September 1983 and 15th February 1985 was attributed to the complexity of the charge which involved a number of witnesses and the examination and production of a number of documents and records.

On 15th March 1985 the appellants pleaded not guilty to the second charge. Counsel on behalf of the appellant moved to stay the second charge of the proceedings on the grounds that the delay between 17th July 1981 and 15th March 1985 infringed the right of the appellant to trial within a reasonable time. The motion was argued on 13th December 1985 and Inspector Basset endeavoured to give evidence of the complexities of the investigation into the affairs of the MMA but counsel on behalf of the accused objected. The inspector said that when he came to take over the inquiry he "came to know different documents and new witnesses and was inquiring mainly on a case involving an offence of swindling". The magistrate dismissed the motion and the trial of the new charge proceeded. The grounds on which the motion was dismissed are not now supported, but in the course of his ruling the magistrate said this:-

"I cannot agree with counsel there has been an 'unconscionable' delay in the institution of the present proceedings against the accused. The D.P.P. was obviously right in filing a 'nolle prosequi' in relation to the forgery case... Inspector Basset only stepped in the Enquiry in 1984, and the D.P.P. decided to prosecute the accused on the present information now before this Court.

Any delay which has resulted in the presentation of the present information stems from the complex nature of the enquiry conducted by the police. One officer took a 'forgery' line and another took one of 'swindling'. The accused cannot complain that this delay (i) will jeopardise him in any way in the conduct of his defence or (ii) has caused a misuse of the process of this Court. It is not even suggested that the police have manipulated the rules for bringing the present prosecution, albeit with some delay."

The appellant had been "charged with a criminal offence" within section 10 of the Constitution when he was arrested on 17th July 1981. The change in the charge from forgery to swindling related to the same sum of Rs4,890 alleged to have been unlawfully extracted form the MMA and in these circumstances the appellant was entitled to a trial within a reasonable time after 17th July 1981. The magistrate reserved judgment and convicted the appellant on 29th July 1987 and sentenced him to nine months' imprisonment with hard labour. The appellant appealed against conviction on various hopeless grounds and also contended that his right to a trial within a reasonable time had been infringed by the delay which occurred between 17th July 1981 and 15th March 1985. The appeal was dismissed by the Supreme Court (Ahnee and Proag JJ.) on 14th December 1988 and the appellant now appeals to Her Majesty in Council.

In dealing with the question of delay the court said this:-

"The police no doubt took time to investigate. They cannot be expected to investigate the most difficult cases within a fixed period of time. If it were so, police work would suffer, law and order would go out of hand and crimes would increase to an alarming degree. It is indeed not the aim of section 10(1) of the Constitution to clog the police machinery.

It is therefore not correct to submit that the prosecution of the appellant was unconscionable, oppressive and against the Constitution of Mauritius just because police took a lot of time to complete their enquiries."

The magistrate and the Supreme Court were referred to the decision of the Supreme Court in Police v. Labat [1970] M.R. 214 in which it was held that in section 10 a person "charged" when he is "arraigned" and must be tried within a reasonable time after the preferment of the information. No reference was made to the advice of the Board in Bell v. Director of Public Prosecutions [1985] A.C. 937, dealing with the provision in the Constitution of Jamaica which is indistinguishable from section 10 of the Constitution of Mauritius. In that case it was made clear that a trial must take place within a reasonable time after arrest. Indeed it may be that in some cases, in considering whether a reasonable time has elapsed before the conclusion of the hearing of criminal proceedings, it would be proper to take into account the period before the accused was arrested. For present purposes it is sufficient to say that the decision in Police v. Labat (supra) can no longer be relied upon in any respect.

In Bell's case, at page 951, the Board adopted the approach of the Supreme Court in the United States in Barker v. Wingo (1972) 407 U.S. 514, both with regard to the difficulty of applying the concept of a "reasonable time" to any particular case and with regard to the factors relevant to any decision. In the present case the appellant cannot pray in aid any of the relevant factors except one. He complains, truly, that he had a serious criminal charge hanging over his head for four years. Therefore, it is submitted, his constitutional right to a hearing within a reasonable time must have been infringed. Their Lordships reject this submission as being too simplistic. When delay amounting to an infringement of a constitutional right is alleged, the courts must have regard to the reasons for the delay and to the consequences of the delay. In Bell's case, at page 953, the Board expressed the view that the delay must also be considered in the context of the prevailing system of legal administration and in the prevailing economic, social and cultural conditions to be found in the country concerned.

In some cases, lack of resources, shortage of skilled staff and pressure of work cause delays which are not avoidable in practice and could only be avoided in theory by vast expenditure on sophisticated facilities and equipment and by an instance improvement in the number and quality of skilled professionals and administrators. In one country investigations may be made and decisions taken at a level, in a manner, and within a time scale which could not be achieved elsewhere. Problems which are considered to be complex in one administration may be dealt with more expeditiously and with greater certainty and understanding in another. At the same time the constitutional rights of the individual must not be placed at the mercy of inefficiency. The expressed constitutional right contained in section 10 to a hearing of a criminal case within a reasonable time injects the need for urgency and efficiency into the prosecution of offenders and demands the provisions of adequate resources for the administration of justice but, in determining whether the constitutional rights of an individual have been infringed, the courts must have regard to the constraints imposed by harsh economic reality and local conditions.

In the present case the local courts have concluded that the delay resulted from the complexity of the affairs of the MMA which required all their allegations to be investigated, the complexity of the facts of the present case, the complexity of the law as applied to those facts and the complexity of the manner of proof. To prove their case, the prosecution were obliged to call thirteen witnesses. The trial spanned nine sittings and involved the production and analysis of commercial documents. There is no material before the Board to contradict the view of the local courts that the complexity of the problems with which the prosecution authorities were faced accounts for the substantial delays which occurred.

Their Lordships consider that, in any future case in which excessive delay is alleged, the prosecution should place before the court an affidavit which sets out the history of the case and the reasons (if any) for the relevant periods of delay. In the present case Inspector Basset was prevented by the defence from giving relevant evidence on this point and his evidence of complexity was not challenged in detail or at all. Ironically enough, the appellant who now complains of delay before the trial began was himself responsible for considerable delay in the time taken by the trial itself. The prosecution witnesses were subject to lengthy, hostile and unsuccessful cross-examination although the defence then called no relevant witnesses and the appellant himself did not give evidence. Owing to the clear and thorough manner in which the prosecution case was presented it became abundantly plain that the appellant was guilty of a serious, deliberate and ingenious fraud.

Their Lordships have reached the conclusion, with some hesitation, that in the circumstances of the present case the lapse of four years in not sufficient in itself to justify the Board in rejecting the views of the Supreme Court and the magistrate. The appellant suffered no specific prejudice from the delay and it is right that he should serve a sentence which he richly deserved. Their Lordships will accordingly humbly advise Her Majesty that this appeal should be dismissed.

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G. R . Banymandhub v The Queen

G.R. Banymandhub

Appellant

v.

The Queen

Respondent

Appeal from the Supreme Court of Mauritius

Composition of the Board:

Lord Keith of Kinkel

Lord Brandon of Oakbrook

Lord Oliver of Aylmerton

Lord Jauncey of Tullichettle

Lord Lowry

Judgment delivered on the 6th March 1991

by Lord Lowry

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(1) Criminal law - Law of swindling

(2) Procedure - New grounds of appeal before the Privy Council - Grounds not pursued by counsel

(3) Privy Council jurisdiction - Authority of the Supreme Court on procedural points

(4) Fair trial - Obligation of a magistrate hearing a criminal case without a jury - Grounds for decision

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Cases referred to in judgment

Badry v. Director of Public Prosecutions [1983] 2 A.C. 297

Choolun v. Regina (1979) M.R. 291

Edwards v. Jones [1947] K.B. 659

Flacq Long Mountain Bus Service Co. Ltd. v. The Queen (1976) M.R. 208

Gaffoor v. The Queen (2nd October 1990 unreported)

Regina v. Greenfield (1973) 57 C.A.R. 849

Legislations referred to in judgment

Criminal Code, section 330

District and Intermediate Courts (Criminal Jurisdiction) Act 1888, section 97

Indictments Act 1915

The following judgment was delivered by the Board:

This appeal arises out of the conviction of the appellant, his wife and two other men on 21st January 1988 by the Intermediate Court of Mauritius on a charge of swindling contrary to section 330 of the Criminal Code. The offence occurred in September 1985 and consisted of obtaining a sum of money amounting to 13,000 rupees from two persons, Ahmad Noorally and Shyam Kowlessur, by fraudulently and falsely representing to them that in return for the money in the shape of 50 rupee notes representing a much larger sum than the amount paid over by the victims. The appellant (accused N° 1) and two other men were sentenced to 3 year's penal servitude and the appellant's wife (accused N° 2) was fined 3,000 rupees.

At the conclusion of the hearing their Lordships announced that they would humbly advise Her Majesty that the appeal ought to be dismissed for reasons to be given later. This they now do.

The appellant and his wife appealed to the Supreme Court of Mauritius on the following grounds:-

"1. Because the learned Magistrates should not have found witnesses Noorally and Kowlessur to be witnesses of truth and they were wrong to rely on the evidence of these witnesses to convict appellants (then accused Nos. 1 and 2).

2. Because the learned Magistrates were wrong to conclude that the alteration to RS20,000 in Doc. A lends colour to the version of witness Noorally.

3. Because the learned Magistrates should not have inferred that the appellant N°1 (then accused N°1) intended the pieces of paper found in his premises to be in shape of Rs 50 notes.

4. Because the learned Magistrates were wrong to find that the presence of appellant N° 2 (then accused N° 2) in the whole operation show that she was fully participating in fraud.

And for all other reasons to be given in due course."

The appeal was heard on 13th June 1988 and the only grounds relied on were the specific grounds mentioned in the notice of appeal. On 20th September 1988 the Supreme Court delivered a written judgment dismissing the appeals of both appellants. At the outset of the judgment they stated:-

"We must unfortunately agree with counsel for the appellants that the information was very unfelicitously drafted. The sum alleged to have been swindled is Rs20,000. Yet the particulars of the information and the evidence show that only a sum of Rs13,000 was involved. It is a matter for regret that the learned Magistrates of the Intermediate Court did not think it advisable to amend the information. Their failure to do so cannot, however, affect the appellants' conviction."

The judgment continued:-

"We have considered the first three grounds of appeal which challenge the Magistrates' findings of fact and their appreciation of the evidence in the light of the remarks of counsel for the appellant. We find it impossible to fault the reasoning of the learned Magistrates who, after hearing and seeing the two witnesses called by the Crown, accepted their explanations as to why they first tried to hide certain things to the Police and were satisfied that they could safely act to find proved the guilt of the four accused. The first three grounds of appeal must therefore fail."

The fourth ground of appeal concerned only the appellant's wife who has not challenged the dismissal of her appeal.

The judgment concluded with the observation:-

"Our attention has been drawn to an error in the formal conviction which recites that the appellants and the two other accused were convicted of 'CONSPIRACY' (breach of section 330 of the Criminal Code)'. We amend the conviction by substituting for the word CONSPIRACY the word SWINDLING."

From this judgment the appellant appealed to this Board, relying on entirely new and different grounds of appeal, which were as follows:-

"(A) The Appellant has suffered a gross miscarriage of justice inasmuch as his trial was vitiated by material irregularities in that -

(i) the information was bad for duplicity;

(ii) his conviction is bad for uncertainty and for duplicity;

(B) In view of the evidence on record, the Supreme Court of Mauritius was wrong to find that the discretion of the learned Magistrates ought not to be interfered with in as much as -

(i) they failed to give themselves a corroboration warning before acting on the evidence of witnesses Noorally and Kowlessur and were wrong to have acted on the uncorroborated evidence of the said witnesses; and/or

(ii) they failed in their obligation, as judges of law, to advise themselves, as the sole arbiters of fact, to proceed with caution because there was evidence indicating that witness Noorally had a purpose of his own to serve in giving false evidence; and/or

(iii) they failed to direct their mind properly or at all to the need for proceeding with that witness Noorally's evidence was or could be tainted with improper motive and/or that he has a 'substantial interest' of his own for giving false evidence; and/or

(iv) they failed to direct their mind properly or at all to the need for proceeding with that witness Noorally's evidence was or could be tainted with improper motive and/or that he had a 'substantial interest' of his own for giving false evidence; and/or

(v) they failed to assess witness Noorally's evidence with the requisite degree of caution in the light of the fact that this evidence was or could be tainted with improper motive because he had a substantial financial interest in the outcome of the proceedings."

Before their Lordships the appellant's case was presented with admirable brevity by Mr. Guy Ollivry Q.C., who had not been instructed in the Intermediate Court of the Supreme Court. He confined his submissions to Ground A.

The information was headed:-

Charge of Swindling

Breach of Sect. 330 of the Criminal Code."

and the statement of the charge was as follows:-

"That on or about the ninth day of September year one thousand nine hundred and eighty five at Pointe-aux-Sables in the district of Black River, one Gawtam Rishi Banymandhub, aged 41, Insurance Agent, and Renuka Banymandhub born Rambochun, aged 33 years, no calling, both residing at La Pointe, Pointe-aux-Sables, one Premchand Kissoondoyal also called Prem, aged 27, labourer and one Narainduth Kissoondoyal also called Narain aged 28, labourer, both residing at Letord Street, Rose Belle, by employing fraudulent pretences to create the expectation of a chimerical event, obtain the remittance of a certain sum of money, to wit: Rs20,000 did by such means as aforesaid criminally, wilfully and fraudulently swindled other person out of his property."

The particulars of the charge occupied 78 lines of typescript and took the form of a summary of the evidence to be relied on by the prosecution rather that the form of particulars customarily found in an indictment under the Indictments Act 1915. They purport to narrate the criminal transaction in considerable detail, but their Lordships find if necessary to refer only to the concluding paragraphs:-

"Then the said Banymandhub informed them there was an amount of Rs180,000 in notes and he is prepared to hand over the whole sum to them provided they signed a stamped paper in which the said Shyam would be indebted to pay Rs20,000 and it was countersigned by the said Prem and Narain and the said Banymandhub left the place with the stamped paper.

On the same day at 21.00 hours, the said Banymadhub returned at his place escorted with two Policemen in uniform. They were frightened and left the place. On the following day, the said Jumeed and Narain went to see Banymandhub and they were told by the said Renuka Banymandhub that her husband is detained by the Police. He the said Ahmad Noorally also called Jumeed and the said Shyamlall Kowlessur also called Shyam had not received their money from the said Banymandhub.

Complain further avers that by acting as aforesaid, the said Gawtam Rishi Banymandhub, the said Renuka Banymandhub born Rambochun, the said Narainduth Kissoondoyal also called Narain and the said Premchand Kissoondoyal also called Prem swindled the said Ahmad Noorally also called Jumeed and the said Shyamlall Kowlessur also called Shyam out of their property namely the sum of Rs8,000 and Rs5,000 respectively as aforesaid."

The conviction was in the following form:-

"Be it remembered that on the 21st day of January in the year one thousand nine hundred and 88 in the Intermediate Court 1. Gawtam Rishi Banymandhub and 2. Renuka Banymandhub were convicted before the undersigned Magistrate for the said Court for that the said G.R. Banymandhub and R. Banymandhub committed the offence of Conspiracy (Breach of Section 330 of the Criminal Code).

And the Court adjudges the said G. R. Banymandhub for his said offence to be imprisoned for the space of three years penal servitude and the said Renuka Banymandhub to pay a fine of Rs3,OOO and the Court also adjudges each of the said G.R. Banymandhub and R. Banymandhub to pay the sum of Rs400 for costs, and if the said sum for costs be not paid forthwith, then the Court adjudges each of the G.R. Banymandhub and R. Banymandhub to be imprisoned for the space of 20 days, to commence at and from the termination of his imprisonment aforesaid, unless the said sum for costs shall be sooner paid."

Mr. Ollivry, addressing himself to ground A(i) cited the following authorities: Regina v. Greenfield (1973) 57 C.A.R. 849; Choolun v. Regina (1979) M.R. 291; Edwards v. Jones [1947] K.B. 659; Flacq Long Mountain Bus Service Co. Ltd. v. The Queen (1976) M.R. 208.

Their Lordships do not propose to analyse any of these cases, since they do not provide any assistance for the appellant. One only has to read the statement and particulars of the charge in order to appreciate that it is not bad for duplicity. The regrettable inconsistency between the allegations in the statement of charge that the defendants obtained 20,000 rupees from their victims and in the particulars that they swindled them out of two sums amounting to 13,000 rupees has already been the subject of adverse comment by the Supreme Court, but this discrepancy is beside the point when the question is one of duplicity. The, particulars of the offence allege that the victims signed a "stamped paper", which turns out to be a promissory note for 20,000 rupees, but this was not an accusation of an offence in addition to the offence of swindling the victims out of a sum of money. It was simply a recital of part of the evidence which went to show how the defendants' fraud was organised. The essence of the charge is that there was one fraudulent misrepresentation as a result of which 13,000 rupees were paid over by the victims to the defendants.

Turning to ground A(ii), which alleged that the appellant's conviction was bad for uncertainty and also for duplicity, their Lordships take note of the appellant's submission, to the effect that in finding the appellant "guilty charge", the learned Magistrates wrongly convicted him of more than one offence under a simple charge. That accusation clearly fails on reading the conviction, once it is clear, as their Lordships have held, that the charge is not bad for duplicity. As already noted, the Supreme Court had drawn attention in their judgment to the only defect in the formal conviction, namely the use of the word "conspiracy", which the Supreme Court amended to read "swindling".

Although counsel did not pursue ground B, their Lordships wish to refer to it, since the four heads which it embraces illustrate a point of general importance. The complaint made is that the Magistrate failed in four different ways properly to direct themselves as to the relevant law or the facts of the case, and therefore their Lordships wish to take the opportunity of saying that a court sitting to hear a criminal case without a jury has no obligation to include in either an oral or a written judgment any statement by which to confirm that it has given itself any direction or advice as to the law or the facts such as a trial judge would give to a jury in the same circumstances. The only exception to this rule is that, if a view has to be formed on a difficult or disputed point of law as a step preparatory to reaching a decision on the facts, the court ought in fairness to the accused to state the conclusion in point of law which it has reached.

For the sake of completeness, their Lordships refer to section 97 of the District and Intermediate Courts (Criminal Jurisdiction) Act 1888, which provides:-

"(1) No objection to a conviction shall be allowed or taken on the ground that there was some defect either in substance or in form in the information, warrant or summons, or on the ground that there was some variance between the information, warrant or summons and the evidence unless the objection was taken before the Magistrate or Intermediate Court.

(2) No conviction shall be quashed on the ground of any defect in substance or in form in the information, warrant, or summons, or for any variance unless the Magistrate or Intermediate Court has refused to amend the information and to adjourn the hearing, and unless the Court is satisfied that the appellant has thereby been misled or deceived and prejudiced in his defence."

Their Lordships have not failed to note that the grounds of appeal relied on before them, but not advanced in the Supreme Court, were exclusively concerned with procedural points, on which the courts of Mauritius could be expected to exercise an authoritative judgment.

Their Lordships conclude this judgment by pointing out that, at the time the appellant appealed, by virtue of section 70A of the Courts Act an appeal lay to Her Majesty in Council as of right in all criminal cases. It was clearly and emphatically stated in the judgment of the Board delivered by Lord Hailsham of St. Marylebon, L.C. in Badry v. Director of Public Prosecutions [1983] 2 A.C. 297, and repeated in the judgments delivered by Lord Keith of Kinkel in Buxoo v. The Queen [1988] 1 W.L.R. 820 and Gaffoor v. The Queen (2nd October 1990 unreported), that the Board would, when dealing with an appeal as of right, apply the principles traditionally in use as regards applications for special leave to appeal in criminal cases generally. Accordingly, an appeal will only be allowed if the Board are satisfied that they can properly advise Her Majesty that a really serious miscarriage of justice has occurred, by reason of misconduct of the trial or upon some other cogent ground. So far from that being the position in the present case, their Lordships are satisfied that this is an appeal which should never have been brought.

The appellant must pay the costs of the appeal.

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