Devendranath Hurnam v The State

Devendranath Hurnam

Appellant

v.

The State

Respondent

FROM

THE SUPREME COURT OF MAURITIUS

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 15th December 2005

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Present at the hearing:-

Lord Bingham of Cornhill

Lord Scott of Foscote

Lord Carswell

Lord Brown of Eaton-under-Heywood

Lord Mance

[Delivered by Lord Bingham of Cornhill]

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1. In Mauritius, as elsewhere, the courts are routinely called upon to consider whether an unconvicted suspect or defendant should be released on bail, subject to conditions, pending his trial. Such decisions very often raise questions of importance both to the individual suspect or defendant and to the community as a whole. The interest of the individual is of course to remain at liberty, unless or until he is convicted of a crime sufficiently serious to justify depriving him of his liberty. Any loss of liberty before that time, particularly if he is acquitted or never tried, will inevitably prejudice him and, in many cases, his livelihood and his family. But the community has a countervailing interest, in seeking to ensure that the course of justice is not thwarted by the flight of the suspect or defendant or perverted by his interference with witnesses or evidence, and that he does not take advantage of the inevitable delay before trial to commit further offences. In this appeal the Board considers the principles which should guide the courts of Mauritius in exercising their discretion to grant or withhold bail.

The Constitution

2. The 1968 Constitution is, by virtue of section 2, the supreme law of Mauritius. Section 3, in Chapter II (“Protection of Fundamental Rights and Freedoms of the Individual”), provides (so far as relevant for present purposes):

“It is hereby recognised and declared that in Mauritius there have existed and shall continue to exist without discrimination by reason of race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, each and all of the following human rights and fundamental freedoms –

(a) the right of the individual to … liberty, security of the person and the protection of the law; ...

and the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of those rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest.”

3. Section 5, in the same chapter, is directed to protection of the right to personal liberty. So far as relevant for present purposes, it provides:

“(1) No person shall be deprived of his personal liberty save as may be authorised by law –

…

(d) for the purpose of bringing him before a court in execution of the order of a court;

(e) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence …

(3) Any person who is arrested or detained –

(a) for the purpose of bringing him before a court in execution of the order of a court;

(b) upon reasonable suspicion of his having committed, or being about to commit a criminal offence; or

(c) upon reasonable suspicion of his being likely to commit breaches of the peace,

and who is not released, shall be afforded reasonable facilities to consult a legal representative of his own choice and shall be brought without undue delay before a court; and if any person arrested or detained as mentioned in paragraph (b) is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including, in particular, such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial; and if any person arrested or detained as mentioned in paragraph (c) is not brought before a court within a reasonable time in order that the court may decide whether to order him to give security for his good behaviour, then, without prejudice to any further proceedings that may be brought against him, he shall be released unconditionally.”

It is unnecessary in this case, to recite the terms of subsection (3A), which was intended to derogate from subsection (3) in certain defined circumstances not applicable to the appellant. Section 10(2)(a) of the Constitution gives effect to the presumption of innocence.

4. Two points may be made on sections 3 and 5 of the Constitution. First, they reflect in very explicit terms the tension which may exist between the rights of the individual, viewed in isolation, and the wider interests of the community as a whole. The Constitution seeks to strike a judicious balance between the two. Secondly, sections 5(1) and (3) and section 10(2)(a) bear a very close resemblance to articles 5(1) and (3) and 6(2) of the European Convention on Human Rights. This is not surprising since, as has been pointed out, Chapter II of the Constitution reflects the values of, and is in part derived from, the European Convention: Neeyamuthkhan v Director of Public Prosecutions [1999] SCJ 284(a); Deelchand v Director of Public Prosecutions [2005] SCJ 215, para 4.14; Rangasamy v Director of Public Prosecutions (Record No 90845, 7 November 2005, unreported). It is indeed noteworthy that the European Convention was extended to Mauritius while it was still a Crown Colony, before it became independent under the 1968 Constitution: see European Commission of Human Rights, Documents and Decisions (1955-1957), p 47. Thus the rights guaranteed to the people of Mauritius under the European Convention were rights which, on independence, “have existed and shall continue to exist” within the terms of section 3. This is a matter of some significance: while Mauritius is no longer a party to the European Convention or bound by its terms, the Strasbourg jurisprudence gives persuasive guidance on the content of the rights which the people have enjoyed and should continue to enjoy.

Before 1989

5. Before 1989 the grant of bail in Mauritius was governed by local statutes but broadly followed, subject to exceptions, the practice established over the centuries in England. It was recognised

“that the proper test of whether bail should be granted or refused is, whether it is probable that the defendant will appear to take his trial, and that bail is not to be withheld merely as a punishment”: Noordally v Attorney-General [1986] MR 204.

In the same case it was recognised, on considering section 5 of the Constitution,

“that the suspect’s remaining at large is the rule: his detention on ground of suspicion is the exception and, even then, if he is not put on his trial within a reasonable time he has to be released.”

The court in Noordally rejected a submission that section 5 did not grant an accused party a right to be at large.

The Bail Act 1989

6. In June 1989 the Legislative Assembly passed the Bail Act 1989. Subject to a limited qualification designed to secure the person’s attendance at trial, section 4 required the release of a person arrested or detained for an offence punishable by fine only. Section 8, entitled “Circumstances in which bail may be refused”, provided:

“8. A detainee shall not be entitled to be released on bail where –

(a) he has broken any condition of bail;

(b) he has not complied with any other condition upon which he has been released;

(c) he is not likely to abide by the conditions of his bail, if released;

(d) his continued detention is necessary –

(i) for his own protection;

(ii) for the protection of the public or any likely witness or any evidence;

(iii) for his own welfare, if he is a child or a young person;

(iv) for the reason that it will not be practicable to complete the police inquiry if he is released;

(v) in view of the seriousness of the offence and the heavy penalty provided by law;

(vi) in view of his character and antecedents; or

(vii) in view of the fact that he is a fugitive from justice.”

7. The terms of section 8 prompt three observations. First, while specifying the circumstances in which a detainee shall not be entitled to be released on bail, the Act nowhere (save in section 4) provides an express entitlement to such release. That entitlement must be found in the general right to liberty protected by section 5 of the Constitution, and by implication from the negative terms of section 8, suggesting that bail must be granted in cases not falling within the prohibited categories. Secondly, the language of section 8(d)(v), read without regard to section 5 of the Constitution, appears to assume that the seriousness of the offence with which a detainee is charged, whether provisionally or otherwise, and the heavy penalty provided by law for that offence, may of themselves render continued detention “necessary” so as to disentitle the detainee from any right to be released on bail. Thirdly, the Act does not expressly identify the risk that a person may not attend to stand his trial, historically the pre-eminent ground for refusing bail, as a ground of disentitlement, although sub-paragraphs (vi) and (vii) may be understood to address that risk.

8. Following the 1989 Act a series of decisions treated the seriousness of the offence and the heavy penalty provided by law as enough, of themselves, to justify the refusal of bail in certain serious classes of case: see, for example, Jogessur v Director of Public Prosecutions [1992] SCJ 65; Bissessur v Director of Public Prosecutions [1993] SCJ 185; Dhooky v Director of Public Prosecutions [1993] MR 340; Boolaky v Director of Public Prosecutions [1995] MR 56; Soobratty v The State [1995] SCJ 277; Director of Public Prosecutions v District Magistrate of Port Louis [1997] MR 158. In a number of these cases (as also in Labonne (SDC) v Teeluck [1992] SCJ 373) it was recognised that the court had a discretion, but the grant of bail in such cases was said to be contrary to “invariable practice” (Jogessur), “well-established practice” (Dhooky) and “established practice” (District Magistrate of Port Louis). It was “never allowed” (Boolaky). Thus the court’s discretion, although acknowledged, was in practice all but emasculated. The judgments in these cases contain no reference to the general right to liberty protected by section 5 of the Constitution, or to that section, or to the presumption of innocence.

The Bail Act 1999

9. The Board was referred, without objection, to the speech of Mr Peeroo, the Attorney-General and Minister of Justice and Human Rights and Minister for Reform Institutions, when introducing the Bail Bill 1999 in the National Assembly. From this it appears that an important object of the Bill was to recognise the right to personal liberty as an important constitutional right and to re-establish the principle laid down in Noordally v Attorney-General [1986] MR 204 that the rule is that a suspect should remain at large, his detention on grounds of suspicion the exception. The Bail Act 1989, the Minister said, did not reflect the principle that the grant of bail should be the rule as opposed to the exception. The new Bill was to be a complete departure from the 1989 Act, so as to make liberty the rule. Subject to amendments moved by the Minister, the Bill was passed.

10. The 1999 Act followed the pattern (although not the terms) of the Bail Act 1976 applicable in England and Wales. Thus section 3 (comparable with section 4 of the English Act) conferred a qualified right to bail:

“Subject to section 4, every defendant or detainee shall be entitled to be released on bail.”

Section 4 (comparable with Part I of Schedule I to the English Act) specifies the cases in which bail may be refused:

“4. Refusal to release on bail.

(1) A Judge or a Magistrate may refuse to release a defendant or a detainee on bail where –

(a) he is satisfied that there is reasonable ground for believing that the defendant or detainee, if released, is likely to –

(i) fail to surrender to custody or to appear before a Court as and when required;

(ii) commit an offence, other than an offence punishable only by a fine not exceeding 1,000 rupees;

(iii) interfere with witnesses, tamper with evidence or otherwise obstruct the course of justice, in relation to him or to any other person;

(b) he is satisfied that the defendant or detainee should be kept in custody –

(i) for his own protection; or

(ii) in the case of a minor, for his own welfare;

(c) the defendant or detainee, having been released on bail, has –

(i) committed an act referred to in paragraph (a);

or

(ii) breached any other condition imposed on him for his release;

(d) the defendant or detainee is charged or is likely to be charged with a serious offence;

(e) there is reasonable ground for believing that the defendant or detainee has –

(i) given false or misleading information regarding his names or address; or

(ii) no fixed place of abode;

(f) a detainee has failed to comply with section 12(2).

(2) In making a determination under subsection (1), the Judge or Magistrate shall have regard to such considerations as appear to the Judge or Magistrate to be relevant, including

(a) the nature of the offence and the penalty applicable thereto;

(b) the character and antecedents of the defendant or detainee;

(c) the nature of the evidence available with regard to the offence.”

A “serious offence”, referred to in subsection 4(1)(d), is defined in section 2 to mean an offence punishable by penal servitude (meaning a prison term of some three years or more) or an offence under the Dangerous Drugs Act 1986. Of these exceptions, subsection (1)(a) corresponds closely with paragraph 2(1) of Part 1 of Schedule 1 to the English Act: these are the core reasons for refusing bail. Subsection (1)(b) corresponds closely with paragraph 3 of Part 1 of Schedule 1. Subsection (1)(c) corresponds with paragraph 6 of Part 1 as originally enacted. Subsections (1)(d) and (e) express, as grounds for the discretionary refusal of bail, some of the matters to which, under the English Act, the court is required (by paragraph 9 of Part I of Schedule 1) to have regard in making decisions to grant or refuse bail, so far as these matters appear to it to be relevant. This involves some difference of approach. But this is also the approach prescribed in section 4(2) of the 1999 Act, and some of the matters covered by paragraph 9 of Part I of Schedule 1 to the English Act are included. It would seem that an approach broadly similar to that under the English Act was intended.

11. The Supreme Court has had occasion to consider the interpretation and application of the 1999 Act in a series of cases, beginning with Maloupe v District Magistrate of Grand Port [2000] MR 264. Giving judgment in that case, Balancy J said:

“The wording of section 4(1) of the Bail Act 1999 makes it clear that release on bail at pre-trial stage is the release upon conditions designed to ensure that the suspect

(1) appears for his trial, if he is eventually prosecuted;

(2) in case he happens to be the author of the offence of which is he suspected, does no further harm to society whilst being at large; and

(3) does not interfere with the course of justice, should he be so minded.

The rationale of the law of bail at pre-trial stage is, accordingly, that a person should normally be released on bail if the imposition of the conditions reduces the risks referred to above – i.e. risk of absconding, risk to the administration of justice, risk to society – to such an extent that they become negligible having regard to the weight which the presumption of innocence should carry in the balance. When the imposition of the above conditions is considered to be unlikely to make any of the above risks negligible, then bail is to be refused.”

The judgment made clear that under section 4(2)(c) the court should assess the nature of the available evidence (as, for example, the evidence of an accomplice, to be treated with caution), but should not attempt to make a detailed evaluation of it. The presumption of innocence, guaranteed under the Constitution, should operate in the applicant’s favour. Up to this point the Board respectfully agrees with the judgment. But in its penultimate sentence the judgment concludes:

“As the charge levelled against the accused, albeit provisionally, is one of murder, we find no reason to depart from the standard practice of this court in such cases to refuse a release on bail.”

This sentence sits uneasily with the rest of the judgment, as if contributed by a different hand, and is a reversion to the discarded, pre-1999 Act, approach. It was later disowned by the Supreme Court: see paragraph 13 below. The case of Ramasamy v Director of Public Prosecutions [2002] SCJ 266 was, perhaps, close to the borderline. But the applicant was charged, on apparently cogent evidence, with a serious drugs offence, and there were fears that he might commit other offences and abscond. It was hoped that trial would not be long delayed, and bail was refused. There was no discussion of principle, as there was not in Director of Public Prosecutions v Seepersad [2002] SCJ 189, where the Magistrate was found to have considered the evidence in too detailed a manner and to have overlooked the seriousness of the offence and the severity of the penalty for a serious drugs offence. Coureuse v Director of Public Prosecutions [2003] SCJ 283, another drugs case, was again close to the borderline: bail was refused but the court encouraged an early trial.

12. Labonne (JV) v Director of Public Prosecutions [2005] SCJ 38, in which the judgment of the Supreme Court was again delivered by Balancy J (after the date of the judgment which is the subject of this appeal), contains a further discussion of principle. It was reiterated that, as held in Maloupe, above, the court should consider the nature of the evidence, as one of the considerations relevant to the court’s decision, but not make a detailed examination of it. It was further ruled, with particular reference to the use of the word “may” in section 4(1)(d) of the 1999 Act, to the wide definition of “serious offence” and to the terms of section 4(2)(a), that

“The seriousness of the offence or the likelihood of the suspect being charged with a serious offence is obviously just a consideration to be weighed in the balance and not by itself a ground for refusing bail … Clearly our law was never intended to mean that once a person is charged with a serious offence as defined in section 2 of the Act, he should be refused bail. Common sense is sufficient authority to hold that the seriousness of the offence charged or likely to be charged is only a consideration relevant to one of the risks, and not a ground by itself.”

In the event, a decision on bail was deferred. For different reasons, that was also the course adopted in Deelchand v Director of Public Prosecutions, [2005] SCJ 214.

13. In Deelchand v Director of Public Prosecutions [2005] SCJ 215, another case decided after the judgment subject to this appeal, Balancy J again considered the interpretation and application of the 1999 Act in a lengthy and careful judgment. He referred to section 5(3) of the Constitution, distinguishing between the right to be released on bail and the right to be released if not tried within a reasonable time. He cited the terms of section 4(1)(a) of the 1999 Act and observed (para 4.6):

“The word ‘may’ in the above section indicates that there is still a discretion to grant bail even where the judge is satisfied that one of the risks in (i), (ii) or (iii) above is likely to materialise, but common sense indicates that except where the imposition of conditions is likely to reduce those risks to an acceptable level, the circumstances at (i) and (iii) above will certainly provide adequate grounds for refusing bail; and that a similar analysis will apply in relation to (ii) above where an offence involving serious harm to one or more persons or to society in general, is concerned.”

By contrast, the consideration listed in section 4(1)(d) was not one which would by itself provide adequate ground for refusing bail, but was only one of the considerations to be taken into account, as held and explained in Labonne (JV) v Director of Public Prosecutions [2005] SCJ 38. As stated in that case, the function of the law is to reconcile (para 4.9)

“on the one hand the need to safeguard the necessary respect for the liberty of the citizen viewed in the context of the presumption of innocence and, on the other hand, the need to ensure that society and the administration of justice are reasonably protected against serious risks which might materialise in the event that the detainee is really the criminal which he is suspected to be.”

The rationale of the 1999 Act, as expounded in Maloupe v District Magistrate of Grand Port [2000] MR 264, was affirmed. The “nature of the offence and the penalty applicable thereto” and “the seriousness of the offence charged or likely to be charged” were not to be “viewed in isolation, but in conjunction with any relevant risk” (para 4.12). Attention was drawn (para 4.14) to the “striking similarity” between section 5(3) of the Constitution and article 5(3) of the European Convention, and reference was made to some of the Strasbourg authorities. On the facts of the case before the court, the Magistrate was held (para 10.2) to have erroneously treated the likelihood of the applicant being charged with a serious offence as a ground for refusal of bail rather than as a consideration whose significance had to be assessed in the context of all other relevant factors. In paragraph 10.12 the judge described the reference to “standard practice” in Maloupe (see para 11 above) as an incorrect statement “towards the end of a judgment which otherwise correctly explained the law of bail in Mauritius”. The Board would respectfully endorse that observation, and the reasoning of the court in Deelchand.

14. It does not, however, appear that the reasoning in Deelchand has been accepted wholly without question. The applicant in Rangasamy v Director of Public Prosecutions (Record No 90845, unreported, 7 November 2005) was suspected of committing a serious drugs offence and was refused bail by the magistrate. His application to the judge in chambers was referred to the Supreme Court. That court, in its judgment, acknowledged that section 5(3) of the Constitution was obviously derived from article 5(3) of the European Convention, and reference was made to Strasbourg authority. It held:

“It follows, therefore, that a detainee has a right to bail – vide also section 3 of the Act and Noordally v Attorney-General and DPP [1986] MR 204 at p 207 unless there are ‘relevant and sufficient’ – vide the case of Muller v France (1997) decided by the European Court of Human Rights at paragraph 45 – public interest reasons to justify interference with ‘the right to personal liberty of that person presumed to be innocent’ and also section 3 of our Constitution.”

The court referred to the public interest grounds held by the European Court to justify the withholding of bail (the danger of flight, interference with the course of justice, the prevention of crime and the preservation of public order), which it accepted as permissible grounds, but observed that there were other grounds of refusal provided in the 1999 Act which were compatible with the Constitution and could not be ignored. The court said:

“We consider that Labonne v D.P.P. and Anor and Deelchand, already cited, confused the issue by stating respectively that the grounds for refusal to release on bail are listed only in section 4(1)(a) of the Act, and that section 4(1)(d) of the Act is only a “consideration to be weighed in the balance” and is “not itself a ground for refusing bail”. As stated already, all the public interest grounds for refusing bail are provided in section 4 of the Act and must be weighed in the balance by the Court in the exercise of its discretion whether to grant bail or not to a detainee, as was ultimately done in Maloupe v The District Magistrate of Grand Port [2000 MR 264].

In other words, it is only in exceptional circumstances that a detainee provisionally charged with a serious offence like murder, attempted murder, conspiracy to commit murder or drug trafficking will be released on bail, the more so if, as is the case with a small jurisdiction like Mauritius, the Police, the prosecuting authorities and judges and magistrates (‘judicial officers’) are fully conscious of the fact that the law and order situation is everyday deteriorating and the scourge of drug consumption and trafficking is rampant. We consider that judicial officers in Mauritius who have first-hand knowledge of the prevailing local conditions regarding law and order and organised crime should have a margin of appreciation in exercising their discretion and deciding on the need for a detainee to be admitted to bail, taking into account all the public interest grounds for refusing bail listed in section 4 of the Act.”

Reference was then made to Hossen v District Magistrate of Port Louis [1993] MR 9, where the evils of drug consumption and trafficking were vividly described, and the court continued:

“The Court [in Hossen] then went on to consider that under section 8(d)(v) of the Bail Act 1989 which is the equivalent of section 4(1)(d) of the Act, the alleged commission of a serious crime, like possessing and selling drugs, involving a heavy penalty, is a ground for refusal of bail.

We take the view that these remarks also apply in the cases of serious offences like murder, attempted murder and conspiracy to commit murder since under sections 3 and 5(3) of the Constitution, already cited, the protection of the public and the preservation of public order are matters of public interest which must be taken into consideration by the Court in deciding whether to admit a detainee to bail or not.”

This did not, the court said (in Rangasamy), mean that judicial officers would fetter their discretion or refuse to admit to bail a detainee provisionally charged with murder in an appropriate case, if the evidence against him was inherently weak, a police investigation was not conducted with reasonable expedition and a time limit set by the court for an information to be laid was not observed. Citing Mauritian authority pre-dating the 1999 Act, and some Commonwealth authority, the court ruled that

“in the case of murder, attempted murder, drug-dealing and other cognate offences which are serious offences carrying a heavy penalty under section 4(1)(d) of the Act, there must be compelling reasons to justify admitting a detainee provisionally charged with such offences to bail …”

15. It is obvious that a person charged with a serious offence, facing a severe penalty if convicted, may well have a powerful incentive to abscond or interfere with witnesses likely to give evidence against him, and this risk will often be particularly great in drugs cases. Where there are reasonable grounds to infer that the grant of bail may lead to such a result, which cannot be effectively eliminated by the imposition of appropriate conditions, they will afford good grounds for refusing bail. The Board cannot, however, accept the criticism made of the earlier decisions in Labonne (JV) and Deelchand. The judgment in Rangasamy does not adequately recognise the general right to liberty enshrined in section 5(3) of the Constitution and reflected in section 3 of the 1999 Act. It seeks to reinstate, in part at least, the rule deliberately discarded in the 1999 Act. It puts an onus on the detainee where it should be on the party seeking to deprive him of his liberty. It elides the general right to be released on bail and the right to be released if not brought to trial within a reasonable time, which are both important rights but distinct and different rights. The seriousness of the offence and the severity of the penalty likely to be imposed on conviction may well, as pointed out at the beginning of this paragraph, provide grounds for refusing bail, but they do not do so of themselves, without more: they are factors relevant to the judgment whether, in all the circumstances, it is necessary to deprive the applicant of his liberty. Whether or not that is the conclusion reached, clear and explicit reasons should be given.

16. The reasoning of the Supreme Court in Noordally, Maloupe (save for the penultimate sentence), Labonne and Deelchand, all cited above, is consistent with the jurisprudence on the European Convention, which recognises that the right to personal liberty, although not absolute (X v United Kingdom (Application No 8097/77, unreported, E Comm HR)), is nonetheless a right that is at the heart of all political systems that purport to abide by the rule of law and protects the individual against arbitrary detention (Winterwerp v Netherlands (1979) 2 EHRR 387, para 37; Engel v Netherlands (No 1) (1976) 1 EHRR 647, para 58; Bozano v France (1986) 9 EHRR 297, para 54). The European Court has clearly recognised five grounds for refusing bail (the risk of the defendant absconding; the risk of the defendant interfering with the course of justice; preventing crime; preserving public order; and the necessity of detention to protect the defendant): see Clayton and Tomlinson, The Law of Human Rights (2000), p 501, para 10.138; Law Commission of England and Wales, Report on Bail and the Human Rights Act 1998 (Law Com No 269, 2001), para 2.29. But it has insisted that a person must be released unless the state can show that there are “relevant and sufficient reasons” to justify his continued detention: Wemhoff v Federal Republic of Germany (1968) 1 EHRR 55. As put by the Law Commission in its Report just cited, para 2.28, “Detention will be found to be justified only if it was necessary in pursuit of a legitimate purpose (or ground)”. The European Court has, realistically, recognised that the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or re-offending (see, for example, Ilijkov v Bulgaria (Application no 33977/96, 26 July 2001, unreported)), para 80, but has consistently insisted that the seriousness of the crime alleged and the severity of the sentence faced are not, without more, compelling grounds for inferring a risk of flight: Neumeister v Austria (No. 1) (1968) 1 EHRR 91, para 10; Yagci and Sargin v Turkey Series A No 319 (1995) 20 EHRR 505, para 52; Muller v France Reports of Judgments and Decisions 1997 – II, 374, para 43; IA v France Reports of Judgments and Decisions 1998 – VII, 2951, paras 105, 107. In Ilijkov v Bulgaria, above, para 81, the Court repeated

“that the gravity of the charges cannot by itself serve to justify long periods of detention on remand.”

It went on, para 84, to reiterate

“that continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty. Any system of mandatory detention on remand is per se incompatible with article 5(3) of the Convention …”

Thus a statutory prohibition on the grant of bail in a limited class of very serious cases was conceded by the United Kingdom in Caballero v United Kingdom (2000) 30 EHRR 643, para 20, to violate the Convention, a concession which the Court accepted in that case (para 21) and held in SBC v United Kingdom (2001) 34 EHRR 619, paras 22-24, to have been rightly made. The compatibility with the Convention of the amendment enacted to remedy this violation was considered by the Queen’s Bench Divisional Court in R(O) v Crown Court at Harrow [2003] 1 WLR 2756.

The appeal

17. The appellant is a barrister of some 30 years’ standing and was, until very recently, a member of the National Assembly. In 2000-2001, in the course of his practice, he represented a client, Antoine Chetty, in criminal proceedings. On 24 March 2004 Chetty and his partner were arrested for dealing in large amounts of drugs and a substantial quantity of heroin was seized at their home. Some three weeks later, Chetty made a statement implicating the appellant in very serious criminal activity. He alleged that in 2000-2001 the appellant had conspired with him (Chetty) and one Deelchand (Chetty’s employer) to maim a named judge and murder two police officers, one of them named. On 16 April 2004 the appellant was arrested and provisionally charged with two offences of conspiracy, one relating to the judge, the other to the two officers. He at once applied for bail. He consented to an order under section 14 of the 1999 Act, the effect of which was to prohibit him from leaving Mauritius.

18. On 23 April 2004 the Senior District Magistrate granted the appellant bail, subject to conditions, setting out his reasons in a judgment which it will be necessary to consider in more detail below. But the Director of Public Prosecutions, exercising a power conferred on him by section 4(4) of the 1999 Act, applied on 27 April 2004 to the Supreme Court for an order setting aside the Magistrate’s order for release and, the Magistrate having been duly notified on 23 April of this proposed application, was required to stay his order, which he did. The Director’s application duly came before the Supreme Court (Caunhye and Matadeen JJ), and on 18 June 2004 judgment was given, setting aside the Magistrate’s order and refusing the appellant bail. The appellant petitioned the Board for special leave to appeal against the decision of the Supreme Court and for the grant of bail pending the hearing of his appeal if leave were granted. On 19 July 2004 the Board granted special leave to appeal and admitted the appellant to bail, on the same terms as had been ordered by the Magistrate on 23 April 2004, apart from conditions for sureties, but subject to a prohibition order under section 14 of the 1999 Act.

19. The Board understands that the appellant was committed for trial on 26 May 2005 on two counts, one relating to the judge, and one to the named police officer. No date has been fixed for the trial, which may not be held for months or even a period of years.

20. The appellant’s application for bail was resisted before the Senior District Magistrate on three grounds: that he was likely to be charged with two serious offences (conspiracy to murder and conspiracy to commit serious assault with premeditation); that the police enquiry was not completed; and that the police apprehended that, if the applicant were released, he might interfere with witnesses and tamper with evidence. It was not resisted on the ground that he was likely to abscond or would not appear to stand trial.

21. In his judgment the Magistrate recited the terms of section 4(2) of the 1999 Act and acknowledged at the outset that the appellant had been charged with serious offences carrying a heavy penalty, a point to which he referred again on two occasions later in the judgment. He alluded to “the nature of the evidence” as a matter to be considered under section 4(2)(c), referred to the “well laid principle” that the court is not required at that stage to conduct a detailed assessment of the evidence, and cited Maloupe on that point. He summarised the facts alleged against the appellant, and observed that the nature of the police evidence appeared to be that of an accomplice (Chetty). He also referred to a statement made by a barrister formerly working in the appellant’s chambers who said he had been supposed to identify two police officers to Chetty, a fact not recalled by another witness said to have been present at the time. The barrister appeared to be related to Chetty’s partner, arrested with him. The Magistrate recorded that the barrister was said to have received death threats, but observed that he was already under police protection and there was nothing to connect the appellant with these threats. He considered that a risk of interfering with witnesses or tampering with evidence should be an identifiable risk, with evidence in support, if it was to carry weight.

22. The Magistrate then referred to the rationale of section 4(2) of the 1999 Act as expounded in Maloupe. He considered the proper test of whether bail should be granted or refused to be whether the defendant would appear to take his trial. He emphasised that in such cases the Magistrate always had a discretion, and pointed out that the appellant had a fixed place of abode, had reported to the police of his own volition and was the subject of a prohibition order. It was not clear how long the police enquiry would take or what bearing the release of the appellant would have on its conduct. A statement had yet to be taken from Deelchand, but his evidence also would be that of an alleged accomplice. He concluded:

“But after having weighed in the balance the nature of the evidence available which appears to be essentially that of accomplice evidence, which although being admissible needs to be treated with utmost caution, the Court believes that the presumption of innocence should weigh more heavily in favour of the [appellant’s] release on bail.”

Conditions as to the provision of sureties and a recognisance, as to the appellant’s availability to the police and as to reporting were imposed.

23. The grounds of resistance relied on in the Supreme Court were the same as before the Magistrate: no doubt was cast on the likelihood of the appellant appearing to stand his trial. After reference to sections 3 and 5 of the Constitution and the presumption of innocence, the Supreme Court referred to sections 3 and 4 of the 1999 Act, observing that

“section 4(1)(d) makes it clear that bail may be refused where the person detained is charged or is likely to be charged with a serious offence.”

The Supreme Court considered that although the Magistrate had acknowledged expressly “in no uncertain terms” that the appellant had been charged with a serious offence, carrying a heavy penalty, he had “utterly failed to consider this highly relevant factor in his final determination”. He had instead embarked on an analysis of the quality of the evidence, which he had weighed in the balance as soon as the appellant had been arrested. The court said:

“The seriousness of the offence, with which the detainee is charged or is likely to be charged and the penalty which it is likely to entail upon conviction, has always been, and continues to remain under our law relating to bail as set out under section 4 of the Act, an important consideration in determining whether bail should be granted or not. The cursus adopted by our Courts following a long line of decided cases and well-settled jurisprudence has led to the establishment of a consistent practice whereby in cases of murder and other serious offences akin to murder, the seriousness of the offence would invariably weigh heavily in the scale against the release on bail of the detainee or defendant.”

The court then cited a number of pre-1999 authorities. It held that the “Magistrate was manifestly wrong when he eminently omitted from his consideration the seriousness of the offence” and “instead wrongly chose to embark at that juncture into a premature and detailed assessment of the probative value of the evidence”. The court rehearsed some of the evidence, in more detail than the Magistrate had done, and found that although the Magistrate had rightly set out some of the principles laid down in that respect in Maloupe he had “utterly failed to observe the principle that it would not be appropriate for a Magistrate to examine the precise evidence available to the police at the stage of an application for bail”. It further held that

“The learned Magistrate was manifestly wrong in his assessment of the nature of the evidence when he completely overlooked the basic principle that the evidence emanating from an accomplice does not cease to be of a relevant and admissible nature for the purpose of establishing a criminal offence subject to the safeguards embodied in the rules of evidence”.

The Magistrate was “manifestly wrong” in failing to consider both the seriousness of the offence and the nature of the evidence, and the decision to grant bail was set aside. The court stressed the need for an early trial in order that the presumption of innocence should not be a vain concept, and thought it imperative that the case should be prepared without undue delay.

24. The argument before the Board was essentially simple. For the appellant, Mr Guthrie QC submitted that the Magistrate was guilty of no misdirection and had reached a correct, principled decision. The criticisms made by the Supreme Court were misplaced and contrary to principle. Mr Amlot QC, for the State, supported the judgment and reasoning of the Supreme Court.

Conclusion

25. The reasoned judgment of the Magistrate cannot be faulted. He did not overlook, minimise or discount the seriousness of the offences with which the appellant was charged. But he did not, rightly, treat this as a conclusive or all but conclusive reason for refusing bail. Instead he addressed, rightly, the wider question whether, given the seriousness of the alleged offences, it was necessary to refuse bail in order to serve one of the ends for which detention before trial is permissible. He concluded that it was not. In reaching that conclusion he did not undertake an over-elaborate dissection of the evidence. He took a broad approach which followed the guidance in Maloupe. The criticisms of the Magistrate’s judgment made by the Supreme Court, and strongly expressed, were not merited, and the Supreme Court fell into error in treating the seriousness of the offence as an all but conclusive reason for refusing bail. As shown above, this was the approach adopted when the 1989 Act was in force, but it is an approach inconsistent with the intent of the 1999 Act, with the rationale of that Act as expounded in Maloupe (save for the penultimate sentence) and with the Strasbourg jurisprudence, to which it is proper to have regard.

26. The appeal must be allowed, and the order of the Supreme Court set aside. Bail is continued on the same terms as those set out in the Board’s order dated 19 July 2004, subject to a temporary variation ordered by a District Magistrate on 28 October 2005. The respondent must pay the costs of this appeal.

Ramawat Dosoruth v The State of Mauritius

Ramawat Dosoruth

Appellant

v.

(1) The State of Mauritius and

(2) The Director of Public Prosecutions

Respondents

FROM

THE SUPREME COURT OF MAURITIUS

---------------

JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 21st October 2004

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Present at the hearing:-

Lord Nicholls of Birkenhead

Lord Hoffmann

Lord Hope of Craighead

Lord Brown of Eaton-under-Heywood

Sir Andrew Leggatt

[Delivered by Lord Hope of Craighead]

------------------

1. At the time of the events which gave rise to this case the appellant was employed as a senior works inspector by a District Council in Mauritius. On 30 September 1995 he was found guilty by the Intermediate Court of Mauritius of having wilfully and unlawfully received a reward for an act in the exercise of a function as an agent of a public department which was not liable to remuneration, contrary to section 126 of the Criminal Code. He was sentenced to twelve months imprisonment with hard labour and fined Rs10,000. He appealed against this judgment to the Supreme Court of Mauritius. This was in the exercise of his right of appeal under section 92 of the District and Intermediate Courts (Criminal Jurisdiction) Act. On 16 June 1997 the Supreme Court (Lam Shang Leen and Balgobin JJ) dismissed his appeal. He did not seek leave to appeal to the Judicial Committee of the Privy Council against the judgment of the appellate court.

2. On 3 July 1997 the appellant commenced proceedings by plaint with summons in the Supreme Court in which he sought constitutional redress under section 17 of the Constitution of Mauritius. He was represented in these proceedings by Mr Ollivry QC, who did not appear for him either at the trial or at the hearing in the appellate court. Mr Ollivry asked the Supreme Court to declare that a miscarriage of justice had occurred and to order a new trial of the case by the Intermediate Court or to revise the proceedings itself in the light of the facts averred by him in his application. On 30 June 1999 the Supreme Court (Matadeen and Seetulsingh JJ) upheld the respondents’ objection to these proceedings and set aside the plaint. On 19 June 2000 the appellant was granted leave to appeal to the Judicial Committee under section 81(1)(c) of the Constitution. Execution of the judgment of the trial court was stayed pending the decision of the Judicial Committee on the appeal. The appellant now seeks an order from the Board remitting his case to the Supreme Court for a further hearing of his appeal.

The facts

3. The case against the appellant at his trial was that he had received the sum of Rs5,000 from Mrs Marie Anic Rosy Khedoo as a bribe in connection with her application for a development permit. There was undisputed evidence that it was part of the functions of a senior works inspector to report to the District Council’s engineer on every such application. Mrs Khedoo had applied for a development permit in September 1991. Thereafter, in accordance with the normal procedure, the views of various authorities were sought. By December 1991 all the relevant reports had been received from these authorities. They were favourable to the proposed development. But a favourable report from the engineer was still needed before the appellant could prepare the permit for the development. It then had to be signed by the Secretary of the District Council before it was issued. The practice was for the engineer to rely on the senior works inspector’s site report when making his recommendation. This was a function for which the senior works inspector was not entitled to any remuneration by the applicant. But it was a function for which, according to Mrs Khedoo, the appellant had sought and been paid a reward by her for his services.

4. In his application to the Supreme Court the appellant gave the following brief account of the evidence which was led against him as it appeared from the record in the trial court. Mrs Khedoo, who was the complainant, gave evidence. She said that the alleged bribe was paid by means of a cheque for Rs5,000 drawn cash on 21 December 1991. She remitted the cheque to the appellant in return for the delivery to her of the development permit at the District Council’s office that afternoon. A bank official Mr Armand Lecordier gave evidence that Mrs Khedoo’s cheque for Rs5,000 was encashed at the main branch of the State Commercial Bank in Port Louis on 21 December 1991. The development permit was delivered to Mrs Khedoo by a clerical officer of the District Council. The appellant then averred that this incident could not have happened as alleged by these witnesses, as 21 December 1991 was a Saturday and it is a notorious fact that the Bank and the offices of the District Council are not open on Saturday afternoons.

5. It was not suggested to Mrs Khedoo at the trial that the incident which she described could not have happened on the afternoon of 21 December 1991 as both the District Council’s office and the Bank to which the cheque was taken for encashment were closed. Nor was this point mentioned in any of the twenty six grounds on which the appellant appealed against his conviction to the appellate court. The appellant explained that it was not until after his grounds of appeal had been filed that it was realised that 21 December 1991 was a Saturday and it was appreciated that it would have been impossible for him to have presented the cheque for payment or cause it to be so presented before the Bank closed on that day if it was not until the afternoon of that day that the cheque was handed to him by Mrs Khedoo.

6. The appellant’s counsel sought to raise this point during the hearing of the appeal by the appellate court. He submitted that it was notorious and within judicial knowledge that the Bank and the District Council’s offices were not open on Saturday afternoons. But counsel for the respondents took objection to this submission, of which there was no notice in the grounds of appeal. The objection was upheld, and the appellant’s counsel was prevented from developing the point as part of his argument. There is no mention of it in the judgment which the appellate court delivered on 16 June 1997.

7. The appellant claimed that in these circumstances he was denied a fair hearing of his appeal against his conviction by the appellate court. He sought redress under sections 1 and 3 of the Constitution on the ground that he was denied the protection of the law. He maintained that he had no statutory means of establishing that he had been the victim of a miscarriage of justice. This was because, on his interpretation of the relevant legislation, the appellate court did not have power to order a new trial or to re-open a criminal case which had already been adjudicated upon by the Intermediate Court. For the respondents it was submitted that, ex facie of the appellant’s own averments, there had been no breach of his constitutional right and that in any event there were adequate means of redress available to him.

The legislation

8. Section 1 of the Constitution provides that Mauritius shall be a sovereign democratic State to be known as the Republic of Mauritius. By section 3 it is recognised and declared that in Mauritius there have existed and shall continue to exist without discrimination each and all of the human rights and fundamental freedoms which it sets out, including

“(a) the right of the individual to life, liberty, security of the person and the protection of the law.”

Section 10(1) provides:

“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.”

Section 17 provides, in subsections (1) and (2):

“(1) Where any person alleges that any of sections 3 to 16 has been, is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter that is lawfully available, that person may apply to the Supreme Court for redress.

(2) The Supreme Court shall have original jurisdiction to hear and determine any application made by any person in pursuance of subsection (1), and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of sections 3 to 16 to the protection of which the person concerned in entitled….”

Section 82(1) provides:

“The Supreme Court shall have jurisdiction to supervise any civil or criminal proceedings before any subordinate court and may make such order, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by any such court.”

9. Section 92 of the District and Intermediate Courts (Criminal Jurisdiction) Act 1888 provides that where any person is charged with an offence before a Magistrate or before the Intermediate Court an appeal shall lie to the Supreme Court against any final decision of that court by the person charged against his conviction or sentence. Section 96(1) provides:

“On hearing an appeal, no new evidence shall be admitted, and the information, depositions and other evidence and conviction before the Intermediate or District Court shall be revised by the Supreme Court.”

Section 96(5) provides:

“Where, on an appeal under section 92, the Supreme Court is of opinion that a serious irregularity has occurred, it may declare the trial to be a nullity and order a fresh hearing.”

The judgment of the Supreme Court

10. It is plain from the judgment which the Supreme Court delivered in the proceedings for constitutional redress on 30 June 1999 that it was not persuaded that there was any substance in the appellant’s complaint. The Court rejected the argument that there had been a breach of section 1 of the Constitution, on the ground that all the rights and freedoms which are guaranteed to an accused person are set out in Chapter II of the Constitution. It rejected the contention that the absence of any provision in the law permitting a new trial or a revision of his trial in the Intermediate Court was a breach of section 3 as elaborated in section 10 of the Constitution, as this did not amount to the denial of a fair hearing. It pointed out also that the Supreme Court had power in the exercise of its appellate jurisdiction under section 92 of the District and Intermediate Courts (Criminal Jurisdiction) Act to declare a trial to be a nullity and order a fresh hearing if it was of opinion that a serious irregularity had occurred. Furthermore, it was not in dispute that the appellant had enjoyed the full protection of the law at his trial and that he was given a fair hearing in the Intermediate Court. Nor was it suggested that any of the provisions to secure protection of the law as enshrined in the express terms of section 10 of the Constitution had been breached in his case.

11. The Supreme Court was equally unimpressed by the appellant’s argument that he had been dealt with unfairly when, after he had been convicted and lodged his grounds of appeal, it was realised that the cheque was alleged to have been handed over and encashed on a Saturday afternoon when the Bank and the District Council offices were not open. In its view there was no substance in the argument that he was dealt with unfairly in the hearing of his appeal. As the Court explained in the penultimate paragraph of its judgment:

“The plaintiff himself claims that that fact was only realised after trial. But the appellate court, which in the light of the decision in DPP v Sabapathee [1997] MR 235 must have gone over all the evidence, was alive to the fact that 21 December 1991 was a Saturday and properly refused, on objection being taken, to allow the plaintiff to canvass on appeal the issue that judicial notice be taken of the fact that Banks and District Council Offices are not open on Saturday afternoons in Mauritius since such a fact is neither notorious, nor beyond serious dispute, nor of common knowledge. The plaintiff had ample opportunity to cross-examine the complainant on the fact that the event took place on a Saturday afternoon and his counsel’s failure to do so constitutes and acceptance of that part of the complainant’s evidence and it is not open now to the plaintiff, as it was not even on appeal, to challenge that evidence, the more so as the evidence was procurable at the trial stage itself, and did not arise ex improviso. As learned counsel for the first defendant aptly put it, evidence cannot be adduced by instalments.”

Discussion

12. Mr Ollivry QC submitted that the appellant had been denied a fair hearing at two levels – in the appellate court when his counsel tried to advert to the fact that the Bank and the District Council’s office were closed on Saturday afternoons, and in the proceedings for constitutional relief from which this appeal has been taken as there too the Supreme Court refused to take this fact into account. He made it clear that he was not suggesting that there had not been a fair hearing in the trial court, or that there was anything unfair in the way the subsequent proceedings had been conducted. His point was that the law itself stood in the way of a fair hearing of the appeal by the Supreme Court in its appellate capacity and that this point had not been addressed as it should have been in the proceedings for relief under section 17 of the Constitution.

13. The starting point for an examination of these submissions is to be found in the Constitution of Mauritius. Mr Ollivry did not press the argument that the appellant was entitled to relief under section 1 of the Constitution, which declares that Mauritius is a sovereign democratic State beyond saying that it was for the State to provide the machinery for a new trial. The provisions on which he sought to rely as he developed his argument were the right to the protection of the law which is guaranteed by section 3 and the right to a fair hearing in section 10(1) which is designed to secure that protection. The right to a fair hearing is one of three separate guarantees contained in section 10(1): Darmalingum v The State [2000] 1 WLR 2303, 2307H. The other two guarantees which are set out there, the right to a hearing within a reasonable time and to a hearing by an independent and impartial court established by law, are not in issue in this case.

14. Mr Dixon for the respondents did not dispute Mr Ollivry’s submission that the guarantee of a fair hearing extends to appellate proceedings as well as to the proceedings in the trial court. Their Lordships consider that he was right not to do so. If authority on this point is needed, it too is to be found in the decision of the Board in Darmalingum v The State, where it was held that section 10(1) extends to appellate proceedings. In that case the complaint was of a delay in the disposal of the appellant’s appeal. The guarantee which is given to “any person charged with a criminal offence” might be said, if taken literally, no longer to apply to a person who seeks to appeal against his conviction. But, as Lord Steyn explained at p 2309C-E, this is a technical interpretation which is inappropriate to the construction of a Bill of Rights in a Constitution such as that of Mauritius - a view which is strongly reinforced by the approach which has prevailed on the interpretation of article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms: see, for example, Mills v H M Advocate [2002] UKPC D2; [2004] 1AC 441 (PC).

15. Mr Ollivry’s argument was directed to what, as he submitted, were the limited powers of the Supreme Court as an appellate court under the District and Intermediate Courts (Criminal Jurisdiction) Act and to its powers in proceedings for constitutional relief under section 17 of the Constitution. But before they deal with that argument their Lordships wish to look more closely at the merits of the point that the appellant was seeking to raise in his appeal.

16. There is no doubt that the question whether the incident which Mrs Khedoo described could have taken place on a Saturday afternoon, as the appellant maintains was the import of her evidence, could and should have been raised at the trial. It is plain that evidence of the fact, if indeed it be the fact, that the Bank and the District Council’s office were both closed on the afternoon of 21 December 1991 as it was a Saturday could have been made available at that stage. In Luchmeeparsad v The State [1997] SCJ 19 the plaintiff sought constitutional redress in the Supreme Court against his conviction in the Intermediate Court for forgery on the ground that he had obtained fresh evidence which tended to establish his innocence. The Supreme Court recalled that in R D P de Boucherville v The State [1996] SCJ 237 it was held that the Supreme Court had power under section 17 of the Constitution to make an order directing a new trial on this ground “whenever the situation so requires”. But it rejected the plaintiff’s application for a new trial for the reason, among others, that he had failed to show that the evidence on which he sought to rely was not available at the trial or that reasonable diligence could not have made it so available.

17. The appellant sought to overcome this difficulty by inviting the appellate court to take judicial notice of the fact that the Bank and the offices of the District Council were not open on Saturday afternoons in Mauritius. The appellate court refused to entertain this argument, to which objection was taken by the respondents. This, it can be assumed, was because it was not mentioned in the appellant’s grounds of appeal. Even if it had been entertained, however, it would without doubt have been rejected for the reasons given by the Supreme Court in the passage from its judgment which their Lordships have quoted in para 11. Judicial notice could, of course, be taken of the fact that 21 December 1991 was a Saturday. But it was not open to the appellate court to deal with the appeal on the basis that it was within judicial knowledge that the Bank and the District Council’s offices were not open that afternoon. This was because, as the Supreme Court has explained, such a fact is neither notorious nor beyond serious dispute nor of common knowledge in Mauritius. In other words, this was a fact that would have had to be established by evidence.

18. Mr Ollivry did not seek to argue that the Supreme Court were in error when they held that it was not within judicial knowledge that the Bank and the offices of the District Council were not open on Saturday afternoons in Mauritius. Nor did he seek to argue that evidence to that effect was not available or could not with reasonable diligence have been made available at the appellant’s trial. He submitted instead that this test to the admission of additional evidence stood in the way of a fair trial, and that it was the duty of the Supreme Court under section 17 of the Constitution to hear the evidence. As he put it, the Supreme Court ought not to have decided that there should not be a new trial without having done so.

19. The test for the admission of fresh evidence which the Supreme Court laid down in Luchmeeparsad v The State [1997] SCJ 19 ought not to be applied as if it were a rule of law which has to be followed rigidly and without exception. Every person charged with a criminal offence is entitled under section 10(1) of the Constitution to a fair hearing. So the fundamental question for the Supreme Court must always be whether the proceedings that are called into question were or were not fair. But common sense suggests that some limits must be set on the admission of additional evidence after the trial is over as a ground for setting aside a conviction or ordering that that there must be new trial. If that were not so, it would be impossible to achieve finality. As Edmund Davies LJ said in R v Stafford (1968) 53 Cr App R 1, 3, legal process would become indefinitely prolonged were it the case that evidence produced at any time were to be generally admitted when verdicts were being reviewed.

20. The test which was applied in Luchmeeparsad appears to have been modelled on the decision of the Court of Appeal in R v Beresford (1971) 56 Cr App R 143, 149, where Sachs J said with regard to the question whether the appellate courts in England and Wales should entertain additional evidence under section 23((2)(b) of the Criminal Appeal Act 1968, which required the court to be satisfied that there was a reasonable explanation for the failure to adduce it:

“The court has in general to be satisfied that the evidence could not with reasonable diligence have been obtained for use at the trial.”

But it has come to be recognised in England and Wales, and also in Scotland where the test prescribed by section 106(3) of the Criminal Procedure (Scotland) Act 1995 was whether the evidence was available or could with reasonable diligence have been made available at the trial, that there is a risk of a miscarriage of justice if these tests are applied too rigidly. In para 56 of its report the Royal Commission on Criminal Justice (the Runciman Commission) (1993, Cm 2263) urged that that court should in general take a broad, rather than a narrow, approach to this issue: see also, for Scotland, para 2.44 of the Report of the Committee on Appeals Criteria and Miscarriages of Justice (1996, Cm 3245); Church v H M Advocate 1995 SLT 604. So the law in these jurisdictions has been modified. Section 23(2) (d) of the Criminal Appeal Act 1968 as amended by the Criminal Appeal Act 1995, sections 4(1) and 29 and Schedule 3, now provides that the Court of Appeal shall, in considering whether to receive any evidence, “have regard to” whether there is “a reasonable explanation for the failure to adduce the evidence” in the proceedings from which the appeal lies. A similar change to the statutory test was introduced in Scotland by section 17 of the Crime and Punishment (Scotland) Act 1997 in substitution for that laid down by section 106(3) of

the 1995 Act. The Supreme Court may wish to consider whether the test which was applied in Luchmeeparsad should be modified in the same way.

21. But Mr Ollivry did not seek to provide any explanation for the failure to lead evidence at the trial that the incident that Mrs Khedoo described could not have happened on the afternoon of 21 December 1991 as it was a Saturday. His criticism of the appellate court was that it was not willing to work on the assumption that what the appellant was asserting was true when they were examining the evidence. He made the same criticism of the Supreme Court when it was dealing with the application for constitutional relief. He said that if the magistrates had been aware of this additional fact it might have made all the difference, and that this was in itself a sufficient reason for ordering a new trial.

22. Their Lordships are not persuaded that all that needs to be said in support of an application for an order for a new trial is that the additional evidence which is relied on might have made a difference to the result if it had been before the trial court. It has, of course, to be shown that the additional evidence was relevant to the issue which was before the trial court and that, if steps had been taken to lead the evidence at that stage, it would have been admissible. These tests are satisfied in this case. But this is not the only requirement. The court also has to be satisfied that it is in the interests of justice, having regard to the constitutional right of the accused person to a fair hearing, that the additional evidence should be taken into account at the stage of an appeal. This was what the Supreme Court very properly had in mind when it referred to the fact that the evidence was procurable at the trial stage itself and that the question did not arise ex improviso. In their Lordships’ opinion Mr Ollivry was unable to show that the Supreme Court was not entitled to take this view. His argument that the appellant did not have a fair hearing of his appeal must be held to have failed on the facts.

23. But the matter does not end there. Mr Ollivry’s principal submission was that it would not have been open to the appellate court in any event to order a new trial because section 96(1) of the District and Intermediate Courts (Criminal Jurisdiction) Act, which sets out the powers of the Supreme Court on hearing an appeal, provides that no new evidence shall be admitted by that court on hearing an appeal. Section 96(5) provides that where, on an appeal under section 92, the Supreme Court is of opinion that a serious irregularity has occurred, it may declare the trial to be nullity and order a fresh trial. Mr Ollivry said that this power was not available to the court in its appellate capacity as no serious irregularity had occurred in this case. So it was the duty of the Supreme Court to hear the evidence in the proceedings for constitutional relief so that it could order a new trial in the exercise of its powers under section 17 of the Constitution.

24. Their Lordships cannot accept this argument. The right of appeal which is given to the convicted person by section 92 of the District and Intermediate Courts (Criminal Jurisdiction) Act is a right to a re-hearing of the case under section 96(1) of the Act in the light of the information, depositions and other evidence that were before the trial court. It is in that context that section 96(1) provides that no new evidence shall be admitted. This means that the appellate court must proceed upon the facts which were put in evidence before the trial court. But section 96 must be read together with section 82(1) of the Constitution, which provides that the Supreme Court may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by any such court. It is not necessary for proceedings for constitutional relief to be brought under section 17 of the Constitution to enable the Supreme Court to exercise this power. It is available to be exercised in any proceedings which are brought before that court, including those under section 92 of the Act. Section 82(1) is in the widest terms. Among the orders that may be made under it is an order remitting the case to the inferior court so that, if it thinks this appropriate, it may take account of additional evidence.

25. The appellate court also has power under section 96(5), if it is of the opinion that a serious irregularity has occurred, to declare the trial to be nullity and order a fresh hearing. It was open to the appellant to contend that there had been a serious irregularity at his trial if, as he contends, he was convicted on the false assumption that the incident which Mrs Kedhoo described could have happened on a Saturday afternoon as she said it did. The constitutional guarantee of a fair hearing in section 10(1) requires that a generous construction should be given to the expression “serious irregularity”. But the appellate court was not asked by the appellant in his grounds of appeal to exercise this power, so the point was not tested in that court. Mr Ollivry sought to avoid this objection to his argument by asserting that no serious irregularity had occurred in this case. But it is hard to see why this was so if, as he asserts, the appellant was convicted of participating in a transaction with Mrs Khedoo that on her own account of it could not have happened.

26. For these reasons their Lordships reject Mr Ollivry’s argument that the legislation under which the appeal was brought before the appellate court is defective in the way he has suggested. The appellate court did not lack the powers to deal appropriately with the case if it had been one which required the hearing of additional evidence. So it cannot be said that the appellant was denied the right to a fair hearing before that court on this ground. Furthermore, section 17(2) provides that the Supreme Court may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, the constitutional guarantee of a fair hearing. It was not the lack of the necessary powers that led the Supreme Court to decide this case as it did. It was because the appellant was unable to show on the facts that he had not had a fair hearing of his appeal, and because the appellate court had sufficient powers in any event to provide him with an appropriate remedy. So there were no grounds for granting him constitutional relief against his conviction.

Conclusion

27. Their Lordships are of the opinion that the Supreme Court was entitled to uphold the respondents’ preliminary objection and set aside the plaint for constitutional redress. The appeal will be dismissed. The appellant must pay the respondents’ costs before their Lordships’ Board.