Police v Rajandah Coomar Kristnamah

Police

Appellant

v.

Rajandah Coomar Kristnamah

Respondent

Appeal from the Supreme Court of Mauritius

Composition of the Board:

Lord Jauncey of Tullichettle

Lord Bridge of Harwich

Lord Lowry

Lord Slynn of Hadley

Mr. Justice Gault

Judgment delivered on the 12th July 1993

by Lord Slynn of Hadley

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Criminal law - Evidence - Involuntary statement - Inadmissibility - Common-sense - Inquisitorial and experimental power of the trial court

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Cases referred to in judgment

Kessowji Issar v. The Great Indian Peninsula Railway Company (1907) 23 T.L.R. 530

Paparo v. Joint Venture Cogefar-Spie Batignolles [1985] M.R. 236

Legislation referred to in judgment

Dangerous Drugs Act 1986, sections 28, 38

The following judgment was delivered by the Board:

On 29th November 1990 the respondent was convicted by the Intermediate Court of Mauritius of knowingly selling 14.93 grams of gandia to Imran Noordally in breach of section 28(1)(b) and (2)(b) of the Dangerous Drugs Act 1986. It was further found that he was a drug trafficker within the meaning of section 38 of that Act.

At the trial Noordally, called for the prosecution, whilst admitting that he had bought gandia for Rs2700 denied that he had bought it form the respondent; the respondent denied selling it to him. Evidence was, however, given by one police officer that the respondent had admitted orally that Rs2700 found at his house were the proceeds of selling the gandia and by another police officer that the respondent had made two written statements after caution. In the first statement, signed by the respondent, it was said to be admitted that the respondent had sold 47 packets of gandia to Noordally and that the proceeds of sale had been found at the respondent's house. The first statement of 180 lines was said to have been recorded between 6.50 a.m. and 7.40 a.m., a period of fifty minutes. In the second statement the respondent was said to have admitted showing the police the place where the gandia had been hidden and the place where the transaction had occurred.

At his trial the respondent denied having made the statements. He had signed them, though they were not read over to him, because he had been beaten and because threats were made to his family.

On his appeal to the Supreme Court the written statements were challenged and it was said that they were not voluntary. He was forced to sign the statements which had already been prepared. They were not corroborated by other evidence.

When counsel for the prosecution began to reply, the Court at once asked whether counsel believed that the statement of 180 lines was recorded in only fifty minutes, particularly when it took eight minutes to read the statement. Counsel conceded that it was impossible. He is recorded as saying "This goes to the root of the conviction because without the confession there is not case. It is obvious that the statement cannot be that of the accused because it is physically impossible".

Counsel was then asked by the Court to write one page of the statement and he was given a stop watch in order to record the time he took. Counsel took ten minutes to write one page. He conceded that the recording officer would have taken at least twice that time since the appellant would have had to be told of the facts alleged against him and would have had to dictate his answer.

Counsel accepted that since the prosecution case rested mainly on the first confession statement, which could not have been recorded in the time alleged, it was totally unsafe to rely on the confession.

The Court in its judgment quashing the conviction said:-

"We fully agree with learned Counsel for the Crown whose courageous and honest stand deserves the congratulations we are pleased to place on record."

The Police, represented by the Director of Public Prosecutions, appealed with leave of he Supreme Court. At the conclusion of the hearing, their Lordships dismissed the appeal, for reasons to be given later, and ordered the appellant to pay the respondent's costs before the Board. Their Lordships' reasons for their decision now follow.

The appellant relied on a number of different grounds but essentially they turn on two matters:-

(a) Could the Court presume or take judicial notice of the length of time needed to write a statement of this length ?;

(b) Was the Court entitled to "cause an experiment to be performed by Counsel for the Crown", when he was not sworn, was not an expert and could not be cross-examined ?

A main issue both at the trial and on the appeal was whether the two statements (and in particular the long one) really were the statements of the accused. The credibility of the witness who said that he had recorded that statement in fifty minutes was thus in issue.

It is abundantly plain from the record of the proceedings and from the judgment that the Court simply could not believe that the statement of this length could be taken down "in a painstaking handwriting" from an accused who was giving the information and who no doubt had to be questioned, and that the statement could also be read over to him, all in fifty minutes. This is not a matter of legal presumption or judicial notice in a formal sense. It was a matter of common-sense which the court was not required to abandon when deciding on credibility. It was obvious that the statement could not have been recorded in fifty minutes. That cast doubt on the validity of the whole statement as a voluntary statement of the respondent. When the Court asked counsel to time the writing of a page they were merely driving the point home. The time took only underlined what was clear from the beginning.

The appellant has relied on the advice of their Lordships' Board in Kessowji Issar v. The Great Indian Peninsula Railway Company (1907) 23 T.L.R. 530 where the Board expressed its strongest disapproval of the fact that the appellate Court had gone to a railway station to inspect a train in order to see whether a passenger of ordinary carefulness would have had difficulty in alighting safely from the train. He also relied on Paparo v. Joint Venture Cogefar-Spie Batignolles [1985] M.R. 236 where the Court of Civil Appeal of Mauritius criticised a judge who, in his judgment, referred to an experiment which he had conducted in the absence of the parties with an exhibit, using four pieces of string, a ring and a pair of scissors.

Without in any way departing from what was said by the Board in Kessowji Issar, their Lordships consider that this is an entirely different case. There the Court was relying on its own impression of the site rather than deciding the case exclusively, as it should have done, on the evidence adduced. In this case there was no experiment of the type criticised in Paparo. The Court merely tested in the presence of both parties the clear conclusion as to credibility dictated by common-sense. Counsel, in saying how long it had taken him, was not giving evidence as an expert witness and there was no need to tender him for cross-examination, if indeed there is any conceivable reason why, on what happened, the respondent's counsel should have wished to cross-examine him. Members of the Court could perfectly well have tested the time needed to write a page by doing it themselves. To get counsel to do it was no more objectionable.

The appellant contends next that the concession of counsel should have been disregarded and that the Court should have looked to see whether the oral confession or other evidence was enough to justify a conviction. Their Lordships do not agree. Once it was obvious that the statement (which the appellant consistently said had not been made by him but was prepared ready for him to sign) could not have been written in the time alleged, then it was right to disregard it. It was undoubtedly the bedrock of the prosecution case. Counsel was right to concede that without the statement the conviction could not stand, indeed he had no proper alternative.

In the circumstances their Lordships agree with the conclusion of the Supreme Court that the conviction had to be set aside. In those circumstances it is unnecessary to consider the objection raised by the respondent as to the Locus standi of the Police and as to the existence or otherwise of a right of appeal to their Lordships' Board.

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Goinsamy Chinien and Others v The State

Goinsamy Chinien and Others

Appellants

v.

The State

Respondent

Appeal from the Supreme Court of Mauritius

Composition of the Board:

Lord Templeman

Lord Jauncey of Tullichettle

Lord Lowry

Lord Mustill

Lord Slynn of Hadley

Judgment delivered on the 17 December 1992

by Lord Jauncey of Tullichettle

______________________________________________________________

(1) Criminal law - Conspiracy to export illegally foreign currency - Evidence - Corroboration - Evidence of an accomplice

(2) Criminal Procedure - Whether proceedings time-barred - Specificity in the charges

(3) Fundamental principles of criminal justice - Court cannot sentence for offence not charged - Sentence for conspiracy - Cannot be harder than maximum for substantive offence

(4) Privy Council - Jurisdiction to entertain argument as to criminal sentences passed by a court - Procedure before the Privy Council - Arguments only put forward in course of argument before the Board - Whether admissible

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Cases referred to in judgment

Regina v. Goswami [1969] 1 Q.B. 453

Regina v. Pipe (1966) 51 Cr.App.R. 17

Verrier v. Director of Public Prosecutions [1967] 2 A.C. 195

Legislations referred to in judgment

Criminal Code (Supplementary) Act, section 109

Customs Act 1988, section 158

Exchange Control Act 1947, sections 21, 22, 23, Schedule 5 (United Kingdom)

Exchange Control Act, sections 21, 22, Schedule 4

The following judgment was delivered by the Board:

By information dated 2nd November 1987, seven men were charged with a number of offences involving foreign currency which had been committed during 1985. This appeal is by three of those men and concerns two charges which are in the following terms:

"Counts 1. That in (or about) the month of March in the year 1985 at Bernardin de St. Pierre Street in the district of Port-Louis one Sattar Bacsoo, aged 32, fish merchant, residing at N° 1, Bernardin de St. Pierre, Port-Louis, (2) one Hassenally Moorbandoo also called Hassen, 29 years, fish merchant, residing at 7, Arab Lane, Cité Camp Yoloff, and one (3) Ahmad Yousouf Joghee also called Rashid, aged 30, lorry helper, residing at 4, Pont Rouge, together with an unknown person did wilfully and unlawfully agree with one another to commit an unlawful act, to wit: illegally exporting foreign currency."

"Count VI. Complainant further avers that in or about the month of May 1985 at Port-Louis in the said district the said Sattar Bacsoo, the said Ahmad Yousouf Joghee also called Rashid, one Goolam Ahmad Jaman also called Goolam Man, aged 35, taxi driver, residing at 9, Maharatta Street, Port-Louis, and one Goinsamy Chinien also called Amba, aged 35, barrister-at-law, residing at 42, Reverend Lebrun Street, Beau-Bassin, did wilfully and unlawfully agree with one another to commit an unlawful act, to wit: illegally exporting foreign currency."

It was stated at the top of the information that the conspiracy counts involved a breach of section 109 of the Criminal Code (Supplementary) Act, which section is the following terms:

"109. Conspiracy.

(1) Any person who agrees with one or more other persons to do an act which is unlawful, wrongful or harmful to another person, or to use unlawful means in the carrying out of an object not otherwise unlawful, shall commit an offence and shall, on conviction, be liable to penal servitude for a term not exceeding five years and to a fine not exceeding 1,000 rupees.

(2) Where the agreement is to commit murder or manslaughter, the person charged shall, on conviction, be liable to the same penalty as would have been applicable to an accomplice."

Until the enactment of this section there had been no general offence of conspiracy in the law of Mauritius. The appellants were convicted of the respective charges against them and were each sentenced to five years' penal servitude being the maximum penalty under the section. Their appeals against conviction were dismissed by the Supreme Court by a majority.

All three appellants raised a question of time-bar in their cases and at their Lordships' invitation, Sir Hamid Moollan who appeared for the first appellant dealt with this matter at the beginning of his speech. However, in order to understand his forceful and lucid submissions upon the matter it is necessary first to look at the statutory background against which these submissions were made. The Exchange Control Act which is an almost exact reproduction of the United Kingdom Exchange Control Act 1947 is divided into six parts namely Part I headed "Gold and Foreign Currency". Part II headed "Payments", Part III headed "Securities", Part IV headed "Import and Export", Part V headed "Miscellaneous" and Part VI headed "Supplemental". Part IV contains three sections dealing respectively with restrictions on import, restrictions on export and payments for export, of which section 22(1) provides, inter alia:

"The exportation from Mauritius of -

(a) any notes or coins of a class which are or have at any time been legal tender in Mauritius or any part of Mauritius or in any other territory;...

(c) any gold; ... is prohibited except with the permission of the Financial Secretary."

Section 21, which deals with importation, uses identical words of prohibition.

Schedule 4 to the Act contains three parts of which Part II is headed "General provisions as to offences" and Part III "Import and Export". Paragraphs 1 and 2(3) of Part II are in, inter alia, the following terms:

"1(1) Any person in or resident in Mauritius who contravenes any restriction or requirement imposed by or under this Act, and any such person who conspires or attempts, or aids, abets, counsels or procures any other person, to contravene any such restriction or requirement shall commit an offence punishable under this Part.

(2) An offence punishable by virtue of Part III shall not be punishable under this Part....

2(3) Any proceedings under a law establishing summary jurisdiction which may be taken against any person in respect of any offence punishable under this Part may, notwithstanding anything to the contrary in that law, be taken at any time within 12 months from the date of the commission of the offence or within three months from the date on which evidence sufficient in the opinion of the Financial Secretary to justify the proceedings comes to the knowledge of the Financial Secretary, whichever period expires last, or, where the person in question was outside Mauritius at the date last mentioned, within 12 months from the date on which he first arrives in Mauritius thereafter."

Paragraph 1(1) of Part III is in the following terms:

"1(1) The enactments relating to customs shall, subject to any modifications that may be prescribed to adapt them to this Act, apply in relation to anything prohibited to be imported or exported by Part IV of this Act except with the permission of the Financial Secretary as they apply in relation to goods prohibited to be imported or exported by or under any of those enactments, and any reference in them to goods shall be construed as including a reference to anything prohibited to be imported or exported by Part IV of this Act except with the permission of the Financial Secretary."

Finally section 158(1) of the Customs Act 1988 which, their Lordships were informed, was a consolidation Act, provides:

"158. Customs offences.

(1) Every person who -

(a) evades or attempts to evade payment of any duty, levy or taxes which are payable;

(b) obtains or attempts to obtain any drawback which is not payable; or

(c) smuggles out of Mauritius any goods or exports any prohibited or restricted goods, shall commit an offence."

Sir Hamid Moollan, whose argument on this matter was adopted by Mr. Ollivry, for the second and third appellants, argued that paragraph 2(3) of Part II of the Schedule 4 to the Exchange Control Act applied to the information with the result that the proceedings were time-barred, they having been initiated more than 12 months after the commission of the offences. Paragraph 1(1) was in quite general terms and the specific reference to conspiracy to contravene a restriction or requirement imposed by the Act applied to all contraventions of the Act and excluded the application of section 109 of the Criminal Code (Supplementary) Act to exchange control offences. In short the charges were bad from the outset since they should have been brought under paragraph 1(1) of Part II of Schedule 4 to the Exchange Control Act and not section 109 of the Criminal Code (Supplementary) Act. Their Lordships however consider that Mr. Guthrie for the Crown was correct in submitting that Part II of Schedule 4 to the Exchange Control Act relates solely to Parts I, II and III of the Act whereas Part III of the Schedule relates to Part IV of the Act.

In Regina v. Goswami [1969] 1 Q.B. 453 the Court of Appeal held that Part 3 of Schedule 5 to the Exchange Control Act 1947 contained a complete code for the enforcement of sections 21, 22 and 23 which comprised Part IV of that Act with the result that paragraph 1(1) of Part 2 of Schedule 5 did not cover a contravention of the provisions of Part IV of the Act. Schedule 5 to the Act of 1947 was for all practical purposes in terms identical to those of Schedule 4 to the Mauritius Exchange Control Act and section 21, 22 and 23 of the former Act corresponded similarly to the same sections in the latter Act. Their Lordships have no doubt that that case was correctly decided. Paragraph 1(1) of Part II of Schedule 4 to the Mauritius Exchange Control Act uses the words "any restriction or requirement imposed" whereas paragraph 1(1) of Part III of that Schedule uses the words "anything prohibited to be imported or exported by Part IV of this Act except with the permission of the Financial Secretary." The latter form of words is only to be found in Part IV whereas there are restrictions or requirements throughout Parts I, II and III of the Act. The use of different forms of words in the two paragraphs 1(1) suggests that they were each intended to apply to different contraventions of the Act. Had it been intended that paragraph 1(1) of Part II of Schedule 4 should be all embracing, it would have been simple so to provide. In their Lordships' view Part II of that Schedule was never intended to apply to Part IV of the Act, from which it follows that it would have been impossible to charge the appellants under paragraph 1(1) of Part II with conspiracy to export currency to section 22. The position at the time of enactment of the Act was that there came into existence an offence of conspiracy to contravene provisions in Parts II and III but that there was no such offence in relation to Part IV. Only when a general law of conspiracy was introduced by section 109 of the Criminal Code (Supplementary) Act did conspiracy to import or export currency become an offence. There are time-bar provisions neither in Part III of Schedule 4 of the Act of 1952, nor in relation to section 109 of the Criminal Code (Supplementary) Act, nor in the relevant part of the Customs Act 1988. It follows that the appellants' argument on time-bar fails.

Merits

One Peerbaccus was, on 12th June 1985, arrested at Plaisance Airport while attempting to smuggle to Bombay some U.S.$19,500 hidden in a sealed tin of Vita Ghee. He was later charged under the Customs Act and sentenced to a heavy fine in accordance with the relevant section. He was unable to pay this fine and was arrested for non-payment by obtained from time to time a respite from the Commission on the Prerogative of Mercy. Towards the end of 1986 he volunteered to give evidence before a commission of inquiry on the drug problem and for his own safety he removed from his house to live under police protection. The evidence which he gave to the commission implicated a number of persons, including the three appellants, in drug dealing and smuggling, which drug smuggling was the reason for his attempt to take to the United States dollars to Bombay. Peerbaccus had on a previous occasion in March 1985 successfully transported United States dollars to Bombay in a tin of Vita Ghee. Following upon Peerbaccus' disclosure the information was brought before the Intermediate Court. Count I related to Peerbaccus' trip to Bombay in March and the third appellant was an employee at the factory where the ghee tin was filled and sealed. Count VI related to the arbortive trip to Bombay in June. The second appellant was a taxi driver involved in taking the dollars to the factory for sealing in the tin, and the first appellant was a barrister and member of the Legislative Assembly who had advised Peerbaccus professionally and had become a friend of his.

At the trial the only evidence implicating the three appellants with the offences charged was that of Peerbaccus. The main grounds of appeal were advance before this Board namely (1) what may be conveniently described as inducement, (2) lack of corroboration and (3) lack of specificity in the charges.

(1) Inducement

Peerbaccus was still living under police protection at the time of the trial and it emerged in the course of the evidence of a senior police officer that he had from time to time received payments from the police informers' fund including a payment of 1,000 rupees which he had demanded a few days before he was due to give evidence. Receipt of this latter payment was denied by Peerbaccus. It was submitted that this payment was clearly an inducement to Peerbaccus to give evidence and that his evidence was thereby rendered inadmissible. It was argued that Peerbaccus was an accomplice who had not been fully dealt with in as much as he had not yet paid his fine and that in any event the ratio of Regina v. Pipe (1966) 51 Cr.App.R. 17 should be extended to cover this appeal. In Regina v. Pipe the prosecution called as a witness an accomplice against whom proceedings had been brought but had not been concluded and it was held that the conviction must be quashed. Lord Parker C.J. said, at page 21:

"In the judgment of this court, it is one thing to call for the prosecution an accomplice, a witness whose evidence is suspect, and about whom the jury must be warned in the recognised way. It is quite another to call a man who is not only an accomplice, but is an accomplice against whom proceedings have been brought which have not been concluded."

Their Lordships do not consider that the second sentence has any application to this case where a prosecution had been brought, a conviction obtained and sentence passed. Furthermore they see no justification for extending the ratio of that decision. The magistrates of the Intermediate Court gave careful consideration to the circumstances of the above payment and concluded that there was no inducement to Peerbaccus to give evidence. Peerbaccus' evidence was accordingly admissible and it was open to the Intermediate Court to accord to it such weight as they considered appropriate.

(2) Corroboration

It was submitted that if the evidence of Peerbaccus was admissible nevertheless having regard to the nature thereof it was unsafe to convict on that evidence alone. It is clear from the judgment of the Intermediate Court that very considerable criticism was levelled at the reliability of Peerbaccus' evidence by counsel for the defence. It is also clear that the court gave the most careful consideration to these criticisms and to the fact that there were no contradictions in his evidence. Nevertheless the Intermediate Court concluded that at the end of the day Peerbaccus was telling the truth. It is significant that none of the three appellants gave evidence to controvert that of Peerbaccus nor indeed they give any evidence at all. In all these circumstances their Lordships consider that the Intermediate Court were entitled to accept the evidence of Peerbaccus without corroboration thereof.

(3) Lack of specificity in the charges

At the beginning of the trial the defence sought particulars of the dates and places and amounts of currency involved in, inter alia, Counts I and IV. This request was refused although the prosecution deleted the words in square brackets. The appellants could point to no specific prejudice suffered by them as a result of the lack of particulars and although the Board considers that it would have been better if the prosecution had complied with the defence request it does not appear that at the end of the day the appellants have suffered prejudice thereby.

Sentence

In sentencing the three appellants the Intermediate Court stated "We are of the view that the charges before us, be it those of conspiracy or those of sequestration, revolve around drug trafficking". In rejecting the appeal against sentence by the first appellant Glover C.J. referred to the fact that the offence was connected to drug trafficking, referred to the ravages brought about by drugs to the health of citizens of all ages and to the nefarious influence of drugs on the crime rate, and concluded that there were compelling reasons for the trial court to impose the sentence under appeal. Ahnee J. who would have allowed the appeal on the ground of time-bar would in any event have held the sentence to be excessive on the ground, inter alia, that the maximum penalty for the substantive offence of export of foreign currency was merely a fine.

It is very unusual for this Board to intervene or even to entertain argument in relation to sentences passed by a court of competent jurisdiction. However in the present case it appears to their Lordships that two questions of principle are involved. In the first place it is axiomatic that a court can sentence only for the offence charged and not for what might have been charged. It would have been perfectly possible for the prosecution to have charged the appellants with the conspiracies to export currency and to import drugs. They chose, no doubt for good reasons, not to do so. It would in these circumstances be wrong in principle for the appellants to be sentenced in respect of such conspiracies when they had only been charged with conspiring to export currency. It may be that it is proper to take into account the purpose of the illegal export but it can be proper only to the extent of warranting a sentence which would be in the higher rather than the lower range of illegal export of currency. It appears that the Intermediate Court in sentencing the appellants to the maximum sentence available under section 109 of the Criminal Code (Supplementary) Act may have overlooked the necessity of concentrating upon the charges which were actually before them. In the second place:

"Normally it is not right to pass a higher sentence for conspiracy than could be passed for the substantive offence: it can be justified only in very exceptional cases": Verrier v. Director of Public Prosecutions [1967] 2 A.C. 195, 223F, per Lord Pearson".

In the absence of evidence that the first appellant had been involved in a series of illegal exports it does not appear to the Board that there here existed such exceptional circumstances as to warrant a departure from the normal rule, particularly where such departure involved so great a disparity between a fine, albeit substantial, and five years' penal servitude. The Board is therefore in general agreement with the views expressed upon this matter by Ahnee J.

Although the second and third appellants appealed against sentence neither to the Supreme Court nor in their cases to this Board, as questions of principle were involved it was clearly appropriate to consider the argument on sentence in relation to all three appellants. Their Lordships therefore gave them leave to appeal against their sentences. In the foregoing circumstances the Board considers that the proper course is to remit all three cases to the Supreme Court so that they may reconsider what would be appropriate sentences to impose in the light of the principles and observations referred to above.

For these reasons their Lordships dismiss these appeals against conviction but allow the appeals against sentence, quash the sentences of five years' penal servitude and remit the cases to the Supreme Court for sentence. There will be no order as to costs.

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