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Police v Paramaseeven Runghen (Ruling) - CN 765-2003 [2005] MUIntC 166 (27 April 2005)

IN THE INTERMEDIATE COURT OF MAURITIUS

Case CN 765\2003

Police v. Paramaseeven Runghen

RULING

The defence has moved that the present proceedings be stayed permanently on the ground that they constitute an abuse of process in as much as, the delay that the case took to come to trial before this present court namely that the offence took place in 1994 and the information was lodged some nine years later and as such accused would be denied with a fair trial in breach of section 10(1) of the Constitution. The prosecution has objected to the above motion

The prosecution called PS Sewothul who produced an affidavit (Doc A). According to the said affidavit, the offences are alleged to have been committed on or about the years 1993-1994. The enquiry involved complex banking procedures. The present case reached the State Law Office on 6 th June 1997. The case was advised on 23.01.03 and an information was lodged on 8 th July 2003. Accused was arrested on the 14.03.03 on a provisional charge of “making use of a forged bank document “ which was lodged against him before the District Court PL III Division. The latter was released on bail on the same day.

Under cross-examination, PS Sewothal stated that the accused was interviewed on 27.12.96 and he did not give any statement to the police.

The accused party did not adduce any evidence.

The Court has duly considered the affidavit on record, the version of PS Sewothul, the submissions of counsel on both sides as well as the authorities quoted. Section 10(1) of the Constitution provides that “Where any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial Court established by the law. ” What amounts to a reasonable time has not been defined by the Constitution and the matter has been left to the courts for determination on a case to case basis. What amounts to inordinate delay in one case may not be inordinate in another bearing in mind the complexity of the case, the availability of witnesses or the local context of the administration of justice amongst other factors.

In the case of The State v Bissessur and others (2001) SCJ 50 , the Supreme Court held that “there was no mathematical calculation for how long is too long. It differs from jurisdiction to jurisdiction and each case has to be decided on its own facts. ” In DPP v Humphyrs (1977) 1 A.C 26 Viscount Dilhome stated that proceedings are only stayed in “ exceptional circumstances” and Lane L.C.J stated in Attorney General Reference No1 of 1990, 95 Cr.App.R 302 “ Stays granted on the grounds of delay or for any other reasons should only be employed in exceptional circumstances “ and in R v Haringey Justices ex parte DPP (1996) 1 All E R 828, Stuart–Smith L.J. recognised that justices had a power to stay proceedings as an abuse of process, but that “it is a power that should be exercised sparingly and only if there is no alternative course ”

In the case of Jago v New South Wales District Court (1989) 168 CJR 23 , Deane J identified 5 reference points “for answering the question whether the effect of a delay in a particular case is such as to bring about a situation where any trial will necessarily be an unfair from the accused’s point of view or a situation where the continuation of proceedings would be so unfairly oppressive that it would constitute an abuse of process”. There 5 reference points were:

1. the length of the delay ;

2. the reasons given by the prosecution to explain or justify the delay;

3. the accused’s responsibility for and past attitude to the delay;

4. Proven or likely prejudice to the accused ;

5. The public interest in the disposition of charges of serious offences in the conviction of those guilty of crimes.

In the present case the enquiry took approximately four years to be completed. The Court notes that the information itself contains 29 counts and the list of witnesses contains in all 28 names. As highlighted by learned counsel from the State Law Office, the enquiry involved complex banking procedures and as such the police took some time to enquire into the matter.

Additionally in Mungroo v R (Privy Council Appeal no. 22 of 1990)(1991) 1 WLR 1351 , the Privy Council held that a delay of 4 years for an enquiry into cases of forgery and false claim did not amount to undue delay. The Law Lords citing Bell v DPP (1985) AC 937 pointed out that regard must be had to the local context of the administration of justice as well as the complexity of the case.

However, once the file reached the State Law Office, on 6 th June 1997, it was advised only on 8 th July 2003 namely some six years later. It is to be noted that six years to deal with a file be it one of a complex nature seems to be quite a long one. However, I wish at this stage to refer to the case of Ex Parte Bellsham (1992) 1All E R 394 , it was held that “a stay of criminal proceedings should no be ordered simply as a form of disciplinary disapproval of the Crown Prosecution Service”.

In the case of Darmalingum v The State [2000] MR 210 , it was stated that: “…This delay was caused by the inaction of the police and the DPP’s Office. This is an inordinately long delay, taking into account the nature of the charges, the documentary records available, what the prosecution described as comprehensive confessions on all counts, the duration of the eventual trial. ” The Board further remarked that “ The greater part of the delay in the appeal proceedings (was) entirely unexplained. The inference is unavoidable that there is no satisfactory explanation. ” However, in the case of Paton Mills v HM Advocate Privy Council DRA No1 of 2002 , Lord Steyn referred to Taito v The Queen (unreported) 19th March 2002 , where it was observed that: “ Delay for which the State is not responsible, present in varying degrees in all relevant cases, cannot be prayed for in aid by the appellants. Moreover , Darmalingum was a case where the defendant “had the shadow of the proceedings hanging over him for about 15 years: at 2310C. It was a wholly exceptional case.”

With regard to the question of prejudice, any accused party who has the shadow of a criminal case hanging over his head will inevitably suffer some sort of prejudice and the longer the delay the greater would be the prejudice. But in the present case as borne out on the affidavit the accused was arrested only on the 14 th of March 2003 on a provisional charge of “making use of a forged bank document “ which was lodged before the District Court PL III Division and he was released on bail on the same day. He did not have the shadow of a criminal trial hanging over his head for a number of years which would caused prejudice to him.

The contention of the defence is that due to the delay which has arisen since the occurrence of the alleged offences, the accused party cannot benefit from a fair trial as documents and witnesses are thus no longer available, thereby causing prejudice to the accused. I respectfully cannot endorse this proposition since it has been confirmed by the case law that in deciding whether the proceedings are instituted within a reasonable time, the relevant period commences at the earliest time at which a defendant is officially alerted to the likelihood of criminal proceedings against him i.e. the time at which the defendant is charged or served with summons (See Attorney General’s Reference (No.2 of 2001) 2004 2 All E R 1049).

The Privy Council in the case of Dharmalingum has also recognised that the relevant period would have commenced upon the arrest of the appellant following the case of Deweer v Belgium (1980) 2 All E R 439.

In Duval v District Magistrate of Flacq and DPP (1989) SCJ 382 , it is well settled that delay should be calculated from the time the accused has been made aware of the charge against him and not from the time the alleged offence was committed. In Duval’ s case, the offence was committed 17 years before the prosecution was initiated, the defence raised the point that proceedings should be stayed for abuse of process. It was clearly set out that a proper reading of section 10(1) of the Constitution should be considered and that delay runs from the time a person is faced with a criminal charge (P 169). Latour-Adrien CJ and Garioch (SPJ) defined the word “charge” in S10(1) of the Constitution as “whereby the accused is arraigned before a court of law by which the accused is to be tried”. In this case, it clearly spells out that the time factor does not start with the date the offence was committed but rather when the accused has been charged.

Learned counsel for the defence cited the case of Mungroo v R

(supra) at P.1751 wherein it was stated that “Indeed it may be that in some cases, in considering whether a reasonable time has elapsed before the conclusion of the hearing of criminal proceedings, it would be proper to take into account the period before the accused was arrested.” and he referred to documents and witnesses not being available due to the lapse of time which would cause prejudice to the accused. It is to be noted however that no evidence was adduced by the defence or in cross examination of the enquiring officer as to who were the witnesses that were no longer available and also what documents as well were not available in order to sustain his contention that the lapse of time between the commission of the offence and the trial will cause prejudice to the accused. The possibility of faltering memories of witnesses ought not in itself be a ground for stay. It is worth reminding that the Court can convict only upon being satisfied of the accused’s guilt beyond reasonable doubt. It is human nature that memories tend to fail with the passage of time but one should not overlook the fact that the practice in Mauritius is for the witnesses to give their versions of facts in the form of written statements which are enclosed in the police file and communicated to defence counsel in the form of a brief. It is not uncommon in our Courts to refresh the witness’s memory.

In any event, when balancing the length of the delay in the light of the other factors referred to above namely the nature of the charges, we find that the interests of justice demand that I exercise my discretion against the accused party in order not to undermine public confidence in the criminal justice system. In other words, the public interest that the accused party should be made to stand trial outweighs any prejudice which might have been caused by the lapse of time between the commission of the offence and the start of the trial.

For the reasons given above and in light of the authorities cited, I find that the lapse of time that has elapsed is not, in the circumstances of the present case and given the seriousness of the charges, such as to amount to an infringement of the provisions of section 10(1) of the Constitution. I also find that the present case does not fall within those exceptional circumstances in which a stay of proceedings is called for.
I accordingly set aside the motion of learned counsel for the defence for a stay the present proceedings. I however strongly urge learned counsel for the defence well as the prosecution to do their utmost for the trial to be disposed of without any further delay.

Ruling delivered on 27 th April 2005

R.D.Dabee (Mrs.)

Intermediate Court Magistrate.

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