Abdool Cader Abdool Gaffoor v The Queen

Abdool Cader Abdool Gaffoor

Appellant

v.

The Queen

Respondent

Appeal from the Supreme Court of Mauritius

Composition of the Board:

Lord Keith of Kinkel

Lord Roskill

Lord Templeman

Lord Goff of Chieveley

Sir Robin Cooke

Judgment delivered on the 2nd October 1990

by Lord Keith of Kinkel

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(1) Privy Council jurisdiction - Accept Supreme Court's statement on common public knowledge

(2) Criminal law - Drug trafficking

(3) Procedure - Supreme Court powers - Direction by the Supreme Court to the Intermediate Court

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Case referred to in judgment

Buxoo v. The Queen [1987] 1 W.L.R. 820

Legislations referred to in judgment

Courts Act, section 75

Dangerous Drugs Act 1986, sections 28, 38

District and Intermediate Courts (Criminal Jurisdiction) Act, section 105

The following judgment was delivered by the Board:

The appellant was charged upon an information alleging possession on 22nd January 1987 of 150 grams of heroin, in contravention of section 28(1)(a)(i) of the Dangerous Drugs Act 1986. The information averred that in the circumstances of the possession the appellant was a drug trafficker.

Section 28(1)(a)(i), as read with section 28(2)(b), makes it an offence for a person unlawfully to have in his possession inter alia heroin and provides for the penalty on conviction of a fine not exceeding 5000 rupees and of imprisonment for a term not exceeding 8 years. Section 38(1) of the Act enacts that the court which tries a person for an offence under inter alia section 28 shall make a finding whether the accused person is a trafficker in drugs, and section 38(2) provides that a person shall be a trafficker where having regard to all the circumstances of the case against him it can be reasonably inferred that he was engaged in trafficking in drugs. By section 38(3) a person who is found to be a trafficker under sub-section (1) is made liable on first conviction to a fine not exceeding 100,000 rupees together with penal servitude for a term not exceeding 20 years, and to more severe penalties on a second or subsequent conviction. The Act contains no definition of trafficking in drugs.

The appellant's trial took place before the Intermediate Court (P. Lam Shung Leen and Mrs. A.F. Chui Yew Cheong) on 14th August 1987. Evidence was led by the prosecution to the effect that on 22nd January 1987 the appellant's house was raided by the police officers acting under a warrant, and that there was found behind a sofa in the living room a blue plastic bag containing a white plastic bag containing a quantity of brownish substance. This substance was subsequently analysed by a scientific officer and found to weigh 150 grams and to contain some heroin. He did not, however, determine the weight of heroin in the substance, saying that this would have taken a long time and required a more sophisticated apparatus than was available in his laboratory. The appellant gave evidence denying all knowledge of the presence in his house of the package of brown substance and suggesting that someone might have planted it on him.

The Intermediate Court gave judgment on 22nd September 1987. They found that the appellant knew of the presence of the package of brown substance in his living room, disbelieving his evidence to the contrary. In the light of the scientific officer's testimony they found that the prosecution had not proved that the package had contained 150 grams of heroin, but only that the substance in it weighed 150 grams and that some heroin was present in that substance. They accordingly found the appellant guilty of possession of a certain quantity of heroin and further found that it had not been established that he was a trafficker in drugs. Observing that the appellant had no previous convictions for drug offences, they sentenced him to a fine of 1000 rupees and found him liable for 200 rupees of costs.

The Director of Public Prosecutions requested the Intermediate Court to state a case for the opinion of the Supreme Court, posing the question, among others, whether the Intermediate Court had erred in law in finding that the appellant was not a drug trafficker. None of the other questions is relevant for purpose of this appeal. At the same time the appellant appealed against his conviction for possession.

The Director's appeal by way of case stated was heard by the Supreme Court (Glover A.C.J. and Lallah J.) on 18th January 1988. On 1st July 1988 the Supreme Court delivered judgment quashing the sentence imposed on the appellant by the Intermediate Court and directing that Court to find that the appellant was a trafficker in drugs and to sentence him accordingly. Their view was, in effect, that no reasonable tribunal could properly, on the evidence, have reached a different conclusion. The Intermediate Court had failed to give any, or any proper, weight to the significance of the quantity of the substance in which heroin had been found to be present, it being within common, and hence judicial, knowledge in Mauritius that heroin was regularly sold there, not in pure form, but mixed with brown substance under the trade name of "brown sugar" or "brown". The precise amount of heroin in the brown substance was irrelevant to the question whether or not the appellant was a trafficker in drugs. The material circumstances were that the appellant was in possession of a substantial quantity of a substance which contained heroin and which was in the form commonly in use in the drug trade, that the appellant substance was concealed behind furniture and that the appellant offered no explanation of its presence apart from the suggestion, which was disbelieved, that it had been planted on him. On the same date the Supreme Court dismissed the appellant's appeal against his conviction for possession.

On 18th July 1988 consideration of the case was resumed by the Intermediate Court, which following the directions of the Supreme Court gave judgment finding the appellant to be a trafficker in drugs and sentencing him under section 38(3) of the Act of 1986 to penal servitude for a term of 8 years and to pay a fine of 50,000 rupees. The appellant appealed to the Supreme Court against this judgment. The grounds of appeal did not include a contention that the sentence was excessive. The appeal was dismissed on 21st October 1988. The appellant now appeals to Her Majesty in Council, as of right, under section 75A of the Courts Act.

This appeal is in substance against the decision of 18th January 1988 whereby the Supreme Court directed the Intermediate Court to find that the appellant was a trafficker in drugs and to sentence him accordingly. As this Board recently reaffirmed in Buxoo v. The Queen [1987] 1 W.L.R. 820, P.C., its practice, when dealing with an appeal as of right from the Supreme Court of Mauritius in a criminal case under section 75A of the Courts Act, is to apply the principles traditionally in use as regards applications for special leave to appeal in criminal cases generally. An appeal will only be allowed if the Board are satisfied that they can properly advise Her Majesty that a really serious miscarriage of justice has occurred, by reason of misconduct of the trial or upon some other cogent ground. There is no question here of any procedural irregularity. The Supreme Court in the exercise of its powers under section 105 of the District and Intermediate Courts (Criminal Jurisdiction) Act, had jurisdiction in disposing of the appeal by case stated to direct the Intermediate Court as it did. The Supreme Court took the view that in all the circumstances appearing form the evidence given at the trial the only reasonable inference capable of being drawn was that the appellant was a trafficker in drugs, and that the magistrates of the Intermediate Court were perverse in not drawing that inference. The only issue in the appeal is whether in taking that view the Supreme Court acted quite wrongly and so perpetrated a serious miscarriage of justice. Their Lordships are of opinion that they did not. The decision of the Supreme Court was to some extent based upon what they stated to be common public knowledge in Mauritius, namely that heroin is regularly traded there mixed in with a brownish substance known as "brown sugar" or "brown". Their Lordships must accept the Supreme Court's statement of what is common public knowledge in Mauritius, and hence within judicial knowledge here. It follows that what the appellant had in his possession, in a place of concealment, was a commodity of a nature which is the subject of trading among drug dealers and their customers in Mauritius. The quantity of that commodity of which the appellant was in possession was a substantial one. The precise amount of heroin in it was not of real significance. The appellant was, of course, under no obligation to give evidence. It was for the prosecution to prove its case against him. But the appellant did give evidence of lack of knowledge of the presence of the incriminating package and was disbelieved. Although it may have been possible to envisage some explanation for the presence of this substantial quantity of incriminating substance which was consistent with a purpose other than trafficking, no such explanation was in fact put forward. The Supreme Court was entitled to reach the decision it did.

Their Lordships will humbly advise Her Majesty that the appeal should be dismissed.

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Tricanipillay Canarapen v Jubilee Insurance Company Limited

Tricanipillay Canarapen

Appellant

v.

Jubilee Insurance Company Limited

Respondent

Appeal from the Supreme Court of Mauritius

Composition of the Board:

Lord Keith of Kinkel

Lord Templeman

Lord Griffiths

Lord Lowry

Sir Robin Cooke

Judgment delivered on the 25th July 1990

by Lord Griffiths

Cur. adv. vult.

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Cases referred to in judgment

Hornal v. Neuberger Products Limited [1957] 1 Q.B. 247

Jeffreys v. Jeffreys (1873) MR 36

Thomas v. Thomas [1947] A. C 484

Watkins and Davis Limited v. Legal and General Insurance company Limited [1981] 1 Lloyd's Rep. 675

Legislations referred to in judgment

The following judgment was delivered by the Board:

The appellant was the owner of a building at Avenue John Kennedy, Vacoas. The respondent insured the building and the appellant's stock in trade against fire. On 15th October 1977 at about 3.30 p.m. a fine started which destroyed the building and the stock in trade. The appellant claimed the sum of Rs100,000 from the respondent which was the sum for which the building and the stock in trade were insured under the policy of insurance issued by the respondent.

The respondent refused to pay and so the appellant commenced an action to recover the sum of Rs100,000 to which he claimed to be entitled under the policy. The loss was agreed between the parties at Rs98, 356.45; but the respondent disputed liability upon two grounds, first that the fine had been occasioned by the wilful act and/or with the connivance of the appellant and accordingly he was net entitled to any benefit under the policy, and second that the appellant had net commenced the action within three months of the rejection of his claim by the respondent and accordingly was net entitled to any benefit under the policy.

The judge rejected bath defences and gave judgment for the appellant for the agreed sum. The Court of Appeal allowed the appeal of the respondent insurance company holding that it had discharged the burden of proving that the appellant had at least connived at the setting of the fine. Having arrived at this conclusion the Court of Appeal did net consider it necessary to consider the second ground of defence based upon the alleged failure to commence proceedings timeously.

The appellant now appeals against the judgment of the Court of Appeal on the first ground of defence and the respondent does net now challenge the judge's rejection of the second ground of defence.

The appellant occupied part of the building as a furniture shop and he let part to a Mr. Coopamah as a bar restaurant on the ground floor with residential accommodation on the first floor. The respondent's case was that the appellant, in order to rid himself of Mr. Coopamah as a tenant, had instigated a young employee Idriss Gopal to burn down the building. It was net suggested that the motive was to defraud the insurance company with whom the defendant had insured ail his properties for the previous fifteen to twenty years without ever having made a prier claim; non was it disputed that the appellant, who was aged 61, was a man of previous good character.

There had been an earlier judicial enquiry into the cause of the fine conducted between 18th May 1978 and 9th May 1979 and a record of those proceedings was put in evidence at the trial. That report concluded: -

"From the evidence adduced at the hearing, I suspect that there has been foul play - and that it was Idriss Boodhoo Gopal who set fine to the premises in question."

However, no criminal proceedings were brought against Gopal or any other person.

The evidence called before the judge was very much a re-run of the evidence called at the enquiry seven years earlier. Perhaps net wholly surprisingly there were some discrepancies in the recollections of the witnesses. The judge found the following facts:-

"The Defendant company adduced evidence as to the circumstances in which this fine broke out and destroyed the building. From such evidence I find that the fine started and spread throughout the building at an alarming speed. It must have been what Scientific Officer Beeharry called 'an assisted fine'. I find also that the conduct of worker Idriss Gopal immediately prier to the fine was such that it can be reasonably inferred that he played an active part in setting it.

The name of Idriss Gopal was mentioned on the day of the fine itself, and later, on the same day the Plaintiff helped the police to trace him out. On the same evening he was arrested for purposes of the enquiry, by then he had had a bath, a shave and a hair cut. At the relevant time Gopal was working for the Plaintiff who had instructed him to repair the roof of the building, as such the Plaintiff had bought and had caused to be conveyed there, 100 shingles. According to the Plaintiff, Gopal had been working for him for 7 to 8 years ; and, earlier, on the day of the fine, between 12.00 noon and 1 p.m., he had checked the latter's work and talked to him. According to witness Coopamah, Gopal had started working for the Plaintiff when the latter bought the building, which would be around 1966.

The plaintiff denied having done the needful for the release of Gopal from police custody, but Assistant Superintendent of Police Ramjooawan said the plaintiff had contacted him for Gopal's release.

I find also from the evidence on record that the relationship between the plaintiff and his tenant Coopamah were difficult and that the plaintiff who, at a certain stage, wanted to self, or to erect a new building, would net have been free to do so without safeguarding the rights of his tenant.

Counsel for the Defendant submitted that upon those facts, the Court should draw inference that Gopal had set fire to the Plaintiff's building with the latter's connivance, to get rid of Mr.Coopamah's tenancy.

It may very well be that the Plaintiff wanted Mr. Coopamah to vacate his building but to go so far as to say that he gave secret approval to Gopal to set fine to his own building, with ail its consequences, is a proposition which, as the evidence stands, has net been proved; non would it be warranted on my part to draw such an inference. The second ground fails as well."

In arriving at his conclusion the judge had the advantage of seeing the appellant subjected to a long and searching cross-examination during which it was directly suggested to him that Gopal had set fine to the premises on his instructions to get rid of his tenant. This was an allegation of the utmost gravity for it involved setting fire to the building with petrol or a similar substance at a time when there were bath staff and customers in the bar. There was net a shred of direct evidence to support this allegation which was based upon the supposed motive to get rid of his tenant. There had been no proceedings between the appellant and his tenant for the last seven years and the judge had the chance to evaluate the sincerity of the appellant's denial of such a motive when it was put to him in the witness box. The judge also had the opportunity to evaluate the apparent credibility of the appellant in his denial of the charge of arson.

Despite these advantages enjoyed by the trial judge the Court of Appeal felt justified in drawing the inference of arson, that the judge refused to draw after seeing and hearing ail the witnesses.

The Court of Appeal accepted the primary facts found by the judge as set out in the extract from his judgment cited above. They commented upon the fact that the judge had apparently net accepted certain parts of the appellant's evidence, namely his opinion that Gopal had net set fine to the building and that he had net instructed him to repair the roof but only to repair a water closet outside the building. The judgment then continued:-

"In the light of the findings of fact, counsel for the appellant has urged that the learned Judge was wrong to draw the conclusion he did even on a balance of probabilities.

Counsel for the respondent has argued that the standard of proof applicable to the appellant in a case of this nature where a criminal act or else complicity in a criminal act is alleged against the respondent, the standard of proof which the appellant had to discharge would have been that which applies in a criminal prosecution. And counsel prayed in aid the case of Jeffreys v. Jeffreys (1873) MR 36 regarding proof of adultery in divorce cases. Divorce is a matter of public order and cannot be assimilated to other civil proceedings. We agree with counsel for the appellant that the standard of proof which lay on bath parties for their respective contentions always remained that applicable in civil proceedings, that is to say a standard that is based net on conclusive proof but rather on a balance of probabilities.

It seems to us that, given the fact that it was the appellant which had, either by cross-examination or else by independent testimony, elicited ail the facts found and which we have highlighted seriatim above and, further, given the nature of the burden of proof applicable in the proceedings, the balance of probabilities was clearly in favour of the appellant in his defence that the respondent had at least connived at the setting of the fire. It is difficult to imagine what kind of further proof the appellant could, in the circumstances, be reasonably expected to produce."

The Court of Appeal were right to reject the submission that the burden on the insurance company was the criminal standard of proof. But, nevertheless, bearing in mind the gravity of the allegation, which was arson of an occupied building, a high degree of probability was required to discharge the civil burden of proof see Hornal v. Neuberger Products Limited [1957] 1 Q.B. 247 and Watkins and Davis Limited v. Legal and General Insurance company Limited [1981] 1 Lloyd's Rep. 675. The Court of Appeal make no reference in their judgment to the higher degree of probability required before a court accepts so grave an allegation as proved non do they make any reference to the advantage that a trial judge enjoys in resolving such a dispute after having seen and heard the witnesses for himself , see Thomas v. Thomas [1947] A. C 484.

The Court of Appeal do net say what particular matters weighed with them in coming to a different conclusion from the judge and which justified disregarding the obvious advantage the judge enjoyed as a result of seeing and hearing the witnesses. It may perhaps be inferred that they doubted the credibility of the appellant because they commented that the judge did net accept his opinion that Gopal had net started the fine and his denial that he instructed Gopal to repair the roof. But it is a common experience in the courts that those accused of crime, even if innocent, will sometimes tell untruths in an attempt to distance themselves from the accusations. The judge heard this evidence and it was for him to decide upon its significance.

What else justifies the inference that the appellant told Gopal to set fire to the building? The fact that an employee commits an apparently motiveless act of arson on the employer' s premises is manifestly insufficient to justify the inference that he did it at the request of the employer. What else can support the inference in this case - only the suggested motive to get rid of the tenant? There are a number of obvious objections to this suggested motive. Firstly the fire would net achieve the objective, for the appellant would remain under an obligation to rehouse the tenant in any reconstructed building; secondly there had been no proceedings between the tenant and the appellant for seven years; and thirdly the inherent improbability that a man of good character and mature years would resort to such a wicked act as to order his employee to set fire to an occupied building for such a motive.

The judge was fully justified in refusing to find that the insurance company had discharged the burden of establishing arson on such evidence and their Lordships are unable to perceive any ground which would entitle an appellate court to interfere with his finding.

Accordingly their Lordships will humbly advise Her Majesty that this appeal should be allowed with costs in the Court of Appeal. The respondent must pay the appellant's costs before their Lordships' Board.

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