S. M. A. Goolfee v The Queen

S.M.A. Goolfee

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 November 1991

by Lord Goff of Chieveley

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Constitutional law - Criminal law - Privy Council jurisdiction - Not a second court of criminal appeal - Courts of Mauritius have better knowledge of local conditions

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Cases referred to in judgment

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

Buxoo v. Regina [1988] 1 W.L.R. 820

Ibrahim v. Rex. [1914] A.C. 599

Legislations referred to in judgment

Dangerous Drugs Act 1986, sections 28, 37

Courts Act 1945, section 70

Other authority referred in judgment

Privy Council Practice Direction by Viscount Dunedin (1932) 48 T.L.R. 300

The following judgment was delivered by the Board:

On 9th May 1988 the appellant, S.M.A. Goolfee, together with a co-defendant, was convicted by the Intermediate Court of Mauritius of three offences contrary to the Dangerous Drugs Act 1986, viz. (1) possession of heroin (2) possession of a pipe, and (3) possession of utensils, both for use in connection with the smoking of heroin. The quantity of powder found in the possession of the defendants, in which heroin was detected, was 1.2 grams. On 2nd September 1988 the court sentenced the appellant to two years' imprisonment with hard labour, and to pay a fine of Rs 1000/- under each of the three counts; and sentenced his co-defendant to pay a fine of Rs3000/- under each count. The appellant appealed to the Supreme Court of Mauritius against the sentence of two years' imprisonment, by on 2nd May 1989 the Supreme Court dismissed his appeal. He now appeals from that decision to Her Majesty in Council.

Having regard to the view which their Lordships have formed of this appeal, it is not necessary for them to set out the factual background of the case in any detail. In brief, both defendants were found smoking heroin on the appellant's premises; and the magistrates of the Intermediate Court, rejecting the defence of the co-defendant that he was only watching, found that both defendants were engaged in a joint venture and were in possession of the heroin, the pipe and the other utensils which were the subject-matter of the three counts. However, the magistrates differentiated between the two defendants when they came to impose sentence, taking into account that, whereas his co-defendant had a clean record, the appellant had a previous conviction for being in possession of heroin, having been sentenced for that offence about a year before (on 27th September 1985) to a period of four weeks' imprisonment with hard labour.

In his appeal to the Supreme Court against his sentence of imprisonment, the appellant relied upon three grounds - that the magistrates failed to have regard to the relevant circumstances; that his sentence was manifestly harsh and excessive; and that he was in possession of the heroin for his own use, i.e. he was not trafficking in drugs. It was suggested that a probation order, or an order for treatment, should have been imposed rather than a custodial sentence. This latter submission was founded upon section 28 of the Dangerous Drugs Act, the offences of which the appellant and his co-defendant were convicted being contrary to subsection (1)(a) of that section. Subsections (3), (4) and (5) of the section provide as follows:-

"(3) Notwithstanding section 37, the probation of Offender's Act shall apply to a conviction under subsection (1)(a).

(4) Where a person is convicted of an offence under subsection (1)(a), the Court may also order that the person shall undergo such treatment, education, after care, rehabilitation or social reintegration as the Court thinks appropriate at such institution as may be prescribed and for such period not exceeding 5 years as the Court may specify.

(5) Where the Court makes an order under subsection (4), the Court may also order that any sentence of imprisonment not exceeding 12 months shall be suspended."

However, the appellant's submissions were rejected by the Supreme Court. The Court said:-

"Given the quantity of heroin found with the appellant and his recent previous conviction he could not expect to be treated with leniency. A sentence of two years imprisonment was not, in the circumstances, either wrong in principle or manifestly excessive."

Before their Lordships, Mr. Ollivry Q.C. advance three submission on behalf of the appellant. First he submitted that, since the magistrates in the Intermediate Court did not call for a social enquiry report, they failed together to exercise the discretion under section 28(4) of the Act, since in the absence of such a report they could not have considered whether they should make an order that the appellant should undergo treatment rather that impose a custodial sentence. Second, the Supreme Court must likewise have failed to deal with the appellant's submission that an order should have been made under section 28(4). Third, the discrepancy between the sentences imposed on the two defendants was so great as to be unreasonable and unfair, and indeed to provoke a real sense of grievance on the part of the appellant. Mr. Ollivry further submitted, in the course of argument before their Lordships, that the magistrates in the Intermediate Court had given such undue weight to the previous conviction of the appellant as to be, in effect, sentencing the appellant twice for his previous offence.

However, Mr. Leung Shing Q.C., for the respondent, while submitting that the appellant's argument should in any event be rejected on the merits, took the preliminary objection that this appeal was one which, on well-established principles, their Lordships should not entertain. He referred to Badry v. Director of Public Prosecutions [1983] 2 A.C. 297, an appeal from Mauritius in which the advice of the Board was delivered by Lord Hailsham of St. Marylebone L.C. In the course of their advice, Lord Hailsham repeated and reaffirmed the well-known statements of principle by Lord Sumner in Ibrahim v. Rex. [1914] A.C. 599, 614-15, and by Viscount Dunedin in the Practice Direction reported in (1932) 48 T.L.R. 300, setting out the practice of the Board in relation to criminal appeals. In the former Lord Sumner stated that, for leave to appeal to be granted:-

"There must be something which, in the particular case, deprives the accused of the substance of fair trial and the protection of the law, or which, in general, tends to divert the due and orderly administration of the law into a new course, which may be drawn into an evil precedent in the future".

And in the latter, Viscount Dunedin said:-

" Their Lordships have repeated ad nauseam the statement that they do not sit as a Court of Criminal Appeal. For them to interfere with a criminal sentence there must be something so irregular or so outrageous as to shake the very basis of justice."

Subsequently, in Buxoo v. Regina [1988] 1 W.L.R. 820, where the advice of the Board was delivered by Lord Keith of Kinkel, it was stated that the same principles continued to apply following the enactment of section 70A of the Courts Act of Mauritius (introduced by amendment in 1980), under which it was enacted that an appeal lay from the Supreme Court or the Court of Criminal Appeal of Mauritius to Her Majesty in Council as of right in all criminal cases.

Their Lordships are in no doubt that these principles apply with full force in the present case, and they are satisfied that, on these principles, the present appeal cannot be entertained. In truth, the appellant is seeking to do more that use the Privy Council as a second court of criminal appeal. This is not only wrong in principle, but would require their Lordships to perform a function which the courts of Mauritius, with their knowledge and experience of local conditions and local needs, are far better equipped to perform.

Their Lordships are therefore satisfied that the preliminary objection taken by the respondent is well founded. They will humbly advise Her Majesty that the appeal should be dismissed.

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Pierre Nelson Manon v The Queen

(1) Pierre Nelson Manon

(2) Luc Hervé Manon

(3) Désiré Clency Georgini and

(4) Marie Désiré Bernard Nicolas Pierrus

Appellants

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 November 1991

by Lord Bridge of Harwich

______________________________________________________________

Criminal law - Rape - Corroboration - Whether the complainant's distress amounts to corroboration - Technical misdirection but no miscarriage of justice

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Case referred to in judgment

Budlwan v. Regina [1987] M.R. 50

The following judgment was delivered by the Board:

The appellants, Pierre and Luc Manon, were charged with rape. The appellants, Georgini and Pierrus, were charged with the offence of attempt upon chastity. Together with a fifth man, Sooriah, who was also charged with rape, they were tried in the Intermediate Court by two professional magistrates and convicted as charged. Their appeal to the Supreme Court was heard before Sir V.J.P. Glover C.J., Proag and Ahnee JJ. and dismissed by a majority (Ahnee J. dissenting). They now appeal to Her Majesty in Council. 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. They now give their reasons.

The evidence of the complainant, Doris Joseph, was, in summary, to the following effect. She had known the appellant, Pierrus, since she was 19 years old. She had had an intimate relationship with him involving a large degree of sexual familiarity, but stopping short of actual sexual intercourse. At the end of 1984 she sought to break off the relationship, but he continued to press her with attentions. On 24th March 1985 Pierrus induced her by a subterfuge, which it is unnecessary here to examine in detail, to go to his home. His parents were away, but there was a maid in the house. His parents were away, but there was a maid in the house. Pierrus took her to his room and went out closing the door. Shortly afterwards the other three appellants and Sooriah, who were strangers to her, came into the room followed by Pierrus. While Pierrus stood watching, Georgini held her mouth to stop her screaming, Sooriah threatened her with a knife and, aided by the Manons, they undressed her. Pierre Manon then raped her while the others held her legs. Afterwards they told her they had come to teach her a lesson for leaving Pierrus. They offered her the choice of submitting to each in turn or of sucking Pierrus. When she refused, they held her nose to make her open her open her mouth and Pierrus put his penis into her mouth. He then tried unsuccessfully to have intercourse with her. After this she was raped in turn by Luc Manon, by Pierre Manon a second time and by Sooriah while the others held her arms and legs. Georgini fondled her body, put his finger in her anus and tried to put his penis in her mouth. Only then did Pierrus call a halt. They brought a bucket of water and made her wash herself. They gave her back her clothes and she left the house.

Sometime later that day she told a frined named Nombro what had happened to her and he told her to go to the police, which she did. Nombro gave evidence of her complaint and said that when he saw her she was crying and seemed very distressed.

The complaint was cross-examined at great length by counsel for all the accused but none of the accused was called to give evidence. They relied on the statements they had given to the police.

The accounts given in the statements by the four accused other than Pierrus agreed substantially with each other. All said that some weeks before 24th March 1985 Pierrus had severally told them that he would arrange for them to have sexual intercourse with a woman at his house, but that they would have to pay him for the service. On the morning of 24th March he told them they should come to his house that afternoon. When they did so they were admitted by Pierrus to his room where the woman, whom they did not know, was waiting for them naked. They then recounted how each of them except Georgini had had sexual intercourse with her, which they claimed was with her full consent and with her obvious enjoyment. Their account of the sequence of events and of some of the sexual familiarities practice accorded to a large extent with the complainant's evidence save, of course, that they denied that any coercion had been used. Afterwards they said that when the woman was in the bathroom washing Pierre Manon handed over to Pierrus the money which he had collected from the others.

The account given by Pierrus in his statement was strikingly different. He said that he had known the complainant since June 1984 and had a relationship with her which involved frequent and full sexual intercourse. On 24th March 1985 she met him by appointment and they went to his house where they had sexual intercourse together. Afterwards, while he was dressing, the other four accused, who were his friends, arrived at the house quite unexpectedly. He told the complainant to get dressed, but she refused. He said:-

"When I saw Doris was not willing to get dressed I asked my four friends to come in because Doris' attitude towards my friends has vexed me."

He then described how the complainant agreed to have sexual intercourse with his friends, but required to be paid for her services. He said that this surprised him. The money was collected for her and she then had intercourse in turn with Pierre and Luc Manon and Sooriah.

The magistrates said of the complainant in their judgment:-

"We saw ourselves listening to a witness whose candid deposition in a case where Counsel spared no limit in cross-examination as to her character and past conduct, was beyond all comparison. We believe that very few witnesses in cases of such could have stood such cross-examination without a blink. We find, without the slightest hesitation that her evidence is in substance a true account of what took on that day."

The word "deposition" in this passage is clearly used to describe the way in which the complainant gave her oral evidence.

The complainant's statement to the police had been recorded in the Creole vernacular and in cross-examination she had denied using some of the words attributed to her in those statements. Commenting on this cross-examination, the magistrates said:-

"... the short answer to that is that we believe her when she said that she did not choose those words when relating to the Police what took place but it was the Police who thought fit to introduce them as coming from her. We do not believe Inspector André... on this score. We must add that this witness impressed with her good and fluent French which was quite removed from the vulgar and crude style evidently appearing in her statements."

The magistrates referred to the evidence of the witness Nombro as demonstrating the consistency of the complainant's evidence with the account she gave to him soon after the incident.

A submission had been made on behalf of the accused that a fatal the flaw in the prosecution case arose from their failure to call the maid at the Pierrus house, since the complainant, in cross-examination, had claimed that the maid could support her account in some respects. The defence relied in supports of this submission on a decision of the Supreme Court of Mauritius in Budlwan v. Regina [1987] M.R. 50. The point was quite misconceived. Budlwan was a case of murder by shooting where identity was in issue. The prosecution put in evidence the statements to the police which had been made by a number of eye witnesses of the shooting, but did not call them to give evidence. Delivering the judgment of the court, Lallah J. said:-

"... the appeal must be allowed because of a gross irregularity consisting in the admission of clearly irreceivable evidence most prejudicial to the particular defence put forward by the appellant."

Later in the judgment he added:-

"... the prosecution having decided to adduce evidence of what three alleged witnesses had seen and said on an issue which struck at the very root of the defence, the prosecution was in duty bound to call those witnesses in order to ensure that the appellant could cross-examination them and benefit from a fair trial."

This decision gave no support whatever to the submission for the defence in the instant case. Here the police had taken a statement from the maid which was not put in evidence but had been furnished to the defence. They could have called her as a witness or required that she be tendered for cross-examination. They took neither course.

However, referring to counsel's submission, the magistrates said in their judgment:-

"We have considered their submission on the point and we find that Budlwan is plainly distinguishable from the facts of this case: the more so when we find sufficient corroboration in the testimony of witness Nombro when he described the state in which he saw the girl that evening: she 'devidait...pleurait, causait en même temps... she looked très boulversée."

One ground of appeal before the Supreme Court and the only ground which requires consideration by the Board is founded on this passage. The submission which found favour with the dissenting judge, Ahnee J., was that Nombro's evidence of the distressed condition of the complainant when recounting to him what had happened to her was incapable of amounting to corroboration. The majority of the Supreme Court rejected this submission on two grounds. Their first ground appears from the following passage from their judgment:-

"The judgment of the trial Court, looked at as a whole, clearly indicates that the magistrates were, notwithstanding that these are sexual offences, fully alive to the rules regarding corroboration and perfectly satisfied that they could rely on the evidence of the complainant coupled with the proof of consistency indicated by the substance and details of her complaint to Nombro. As opposed to that they were faced with the mere statements of the appellants according to whom the girl had graciously submitted to their lust. And we are left in no doubt as to the choice the trial Court made. They were not, in our view, even looking for corroboration before deciding whether to rely on that evidence."

They went on to conclude that the magistrates had assumed that a complainant's distressed condition could always amount to corroboration and rightly held this to be erroneous. But they further held that on a proper self-direction the magistrates must have concluded that Nombro's evidence of a complainant's distress did amount to corroboration.

Their Lordships feel considerable doubt whether the evidence given by Nombro of amounting to corroboration in the technical sense of affording confirmation of the complainant's evidence from an independent source. But it is unnecessary to examine this issue further since their Lordships fully agree with the majority of the Supreme Court that the magistrates' judgment, read as a whole, makes it clear that their acceptance of the complainant's evidence was not dependent of any element of corroboration. The stark issue at the trial was quite unlike that at most trials for rape arising from a one to one encounter between a man and a woman. There was certainly no room for mistake or misunderstanding or for self-deception on the complainant's part. If the complainant had, as the unsworn and untested statements of the appellants alleged, cheerfully prostituted herself in a sexual orgy with four strange men, her evidence was grossly perjured. If her evidence was accepted as honest, she had been the victim of a peculiarly nasty gang rape. The glowing terms in which the magistrates commended her as a witness make it abundantly clear that they fully accepted her honesty.

Their Lordships are accordingly satisfied that, if there was a technical misdirection in the reference to corroboration, it occasioned no miscarriage of justice.

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