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Police v Ahmad Reshad Imambaccus (Ruling) - CN 1633-04 [2005] MUIntC 450 (19 October 2005)

IN THE INTERMEDIATE COURT OF MAURITIUS

IN THE MATTER OF:

Police

V.

Ahmad Reshad Imambaccus

CN: 1633/ 2004

RULING

Accused stands charged for having on 4 October 1999 willfully smuggled into Mauritius 1987.40 grams of 18 kt gold in breach of Section 156 of the Customs Act 1988. It is further averred that the duty payable amounts to 1 014 587.34 MUR. He has pleaded not guilty and is assisted by Counsel.

On the day of trial, on 2 August 2005, counsel moved that the present proceedings be permanently stayed for abuse of process of the court on the grounds of undue delay in that the charge against the accused has been preferred more than 5 years after the alleged offence.

The prosecution is objecting to the motion and an affidavit (Doc. A) was filed by Inspector Murugesan in an attempt to explain the delay. He explained that according to the prosecutions case, the accused who was intercepted at the airport, was supposed to proceed the Reunion Island with a consignment of jewels which he had collected from the Freeport area. The jewels were meant to be in his possession for export but on the way to the plane Customs found that those jewels were not in accused’s possession. Inspector Murugesan stated that although the accused has confessed to Customs the enquiry took 11 months to be completed as it was a complex one and involved investigations on the various procedures obtaining at the Customs Department. It was also found that the case was far from being a straightforward one as there are other persons also involved in the chain of the commission of the offence. The information was lodged in 2004 and the outcome of the present case is being awaited before a decision is taken against the other persons involved. He further stated that all the witnesses are still available.

Under cross-examination Inspector Murugesan agreed that the case file remained at the office of the DPP for further consideration for 44 months between February 2001 and October 2004. He did not agree that W7 who is an Indian national residing in India is a key witness in the present case.

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(1) of the Constitution provides that “where any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial Court established by law”. In The State V. Bissessur and Others [2001] SCJ 50 , The Supreme Court held that “there is 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 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”. These 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 Darmalingum V. State (Privy Council Appeal no. 42 of 1999) [2000] MR 210 however the Privy Council took into account the time the accused was arrested until the final determination of his case. In the present case, the offence is alleged to have taken place in October 1999 and the information was lodged in October 2004 making a delay of 5 years. The affidavit (Doc.A) filed by the prosecution follows the direction given by the Privy Council in the case of Mungroo V. R (Privy Council Appeal no. 22 of 1990) [1991] 1 WLR 1351 . However the affidavit merely gives a chronology of the case and did not explain the reasons, for instance, for the delay of 44 months for the consideration of the office of the DPP. 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. It was also held that “when delay amounting to an infringement of a constitutional right is alleged, the courts must have regard to the reasons for the delay and to the consequences of the delay .”

Although there is on record evidence to the effect that the accused had allegedly confessed that the jewels were not in his possession but in that of his wife and that he had allegedly confessed to the charge to customs officers which suggest that the case was a simple and straightforward one yet Inspector Murugesan explained that the present case was far from being that straightforward as the investigation involved the procedures obtaining at the Customs Department. He has further explained that when the case file was submitted to the DPP, it was found out that there were other persons involved in the chain of the commission of the offence. Besides, Inspector Murugesan stated that the prosecution is waiting for the outcome of this present case so as to be in a position to take a final decision regarding these other persons involved. From the evidence adduced and the explanations given, it would seem that the inquiry continued only in respect of the accomplices who were discovered when the file was sent for advice to the DPP while that same case file remained at the office of the DPP. I am satisfied that that might account, at least partly, for the 44 ½ months taken for consideration of the case by the office of the DPP. Having had the explanations of the prosecution, the issue is to determine the consequences of the delay.

There is no evidence that the accused is being prejudiced by the delay. Under cross-examination it was suggested that one Mr. Anil Kumar Patani Jayantilal, an Indian National, is no longer in Mauritius and has left the country for good. It cannot be said that the defence will be prejudiced in that that person is a witness for the prosecution and his absence is more likely to be detrimental to the prosecution case rather than that of the defence. There is also nothing to suggest that the accused can no longer benefit from a fair trial or that he has been prejudiced in the preparation of his defence due to the delay. In R. v. Derby Crown Court ex p. Brooks. 80 Cr. App. R. 164 , Lord Roger Ormrod C.J., at 168 stated: "The power to stop a prosecution arises only when it is an abuse of the process of the court. It may be an abuse of process if either (a) the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by law or to take unfair advantage of a technicality, or (b) on the balance of probability the defendant has been, or will be, prejudiced in the preparation or conduct of his defence by delay on the part of the prosecution which is unjustifiable... The ultimate objective of this discretionary power is to ensure that there should be a fair trial according to law, which involves fairness both to the defendant and the prosecution". The lapse of time of nearly 5 years to prefer a charge and the information against the accused though amounting to a delay cannot be said to be so unreasonable or unconscionable. Having regard to the explanations given namely the complexity of the inquiry and the fact that after the enquiry it was found out that there were other accomplices involved forming a chain in the commission of the alleged offence.

In the present case there is no indication that the prosecution has either misused or manipulated the process of the court and on the authorities quoted it is for the defendant to show what form of prejudice he is likely to suffer by reason of the delay, either by adducing evidence or by making it a live issue, although there is a line of authorities which suggest that the longer the delay the more likely prejudice is to be presumed.

Indeed in the case of Darmalingum V. State (Privy Council Appeal no. 42 of 1999) [2000] MR 210 in which the Privy Council allowed an appeal in which the appellant was complaining of a delay of 12 years. Lord Steyn said, "It will be observed that section 10(1) contains three separate guarantees, namely (1) a right to a fair hearing; (2) within a reasonable time; (3) by an independent and impartial court established by law. Hence, if a defendant is convicted after a fair hearing by a proper court, this is no answer to a complaint that there was a breach of the guarantee of a disposal within a reasonable time. And, even if his guilt is manifest, this factor cannot justify or excuse a breach of the guarantee of a disposal within a reasonable time. Moreover, the independence of the 'reasonable time' guarantee is relevant to its reach. It may, of course, be applicable where by reason of inordinate delay a defendant is prejudiced in the deployment of his defence…it may be applicable in any case where the delay has been inordinate and oppressive. It is a matter of fundamental importance that the rights contained in section 10(1) were considered important enough by the people of Mauritius, through their representatives, to be enshrined in their Constitution. The stamp of constitutionality is an indication of the higher normative force which is attached to the relevant rights: see Mohammed v The State [1999] 2 AC 111, 123H.".

Once it is shown that there has been some form of delay, the court cannot, for that reason alone, grant a permanent stay of proceedings being given that such a measure is considered to be drastic and exceptional. In R. v. Haringey Justices ex p. 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 only be exercised sparingly and only if there is no alternative course". In Lutchmeeparsad V. State [1992] MR 271 , the Supreme Court ruled that a delay of 6 years for laying an information, even in the absence of any explanation from the prosecution did not amount to an undue delay (see Teeruth Gheenah V. The State [1998] SCJ 42). The Court quoted the case of Tan V. Cameron [1992] 3 WLR 249, [1993] 2 All ER 493 which itself referred to the Attorney General’s reference no. 1 of 1990 [1992] WLR 9 in which it was held that “no stay should be imposed unless the defendant shows on a balance of probabilities that owing to the delay he will suffer prejudice to the extent that no fair trial can be held.” It was also held that “in principle, therefore, even where the delay can be said to be unjustifiable, the imposition of a permanent stay should be the exception rather than the rule. Still more rare should be cases where a stay can properly be imposed in the absence of any fault on the part of the complainant or the prosecution…”

Additionally, a balancing exercise has to be carried out with public interest so that those who are suspect of criminal activities are answerable to the Criminal Justice system as that was the case in Flowers V. R. [2000] 1 WLR 2396 , in which the Privy Council stated that the offences of which Darmalingum had been convicted were not such as to pose a threat to the safety of the citizens of Mauritius unlike that in the case of Flowers . The Privy Council “recognises that the right given by section 20 of the Constitution of Jamaica must be balanced against the public interest in the attainment of justice…” which is a position already taken by the Supreme Court since 1989 in the case of Duval V. District Magistrate of Flacq and DPP [1989] SCJ 382 and in which it was held that that the right for a person not to be charged with an offence after an unreasonable lapse of time must be balanced with the right of society to seek justice. A case which started 18 years after the commission of the offence was held not to amount to undue delay (see also Dyer V. Watson and another [2002] 1WLR 1488).

In R. v. Martin [1998] 2 W.L.R. (I), at 25, Lord Clyde stated: "No single formulation will readily cover all cases, but there must be something so gravely wrong as to make it unconscionable that a trial should go forward, such as some fundamental disregard for basic human rights or some gross neglect of the elementary principles of fairness.". In DPP v. Humphrys [1977] I A.C ., at 26 Viscount Dilhome stated that proceedings are only stayed, in "exceptional circumstances" and Lane L.C.J. stated in Attorney General's Reference No.1 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. Beckford (1996) 1 Cr. App. R. 94 , Neill L.J observed that: “The jurisdiction to stay can be exercised in many different circumstances. Nevertheless two main strands can be detected in the authorities (a) Cases where the court concludes that the defendant cannot receive a fair trial, (b) Cases where the court concludes that it would be unfair for the defendant to be tried."

In Attorney General’s Reference no. 2 of 2001 [2004] 2 WLR 1 , Lord Bingham of Cornhill stated “It is accepted as axiomatic that a person charged with having committed a criminal offence should receive a fair trial and that, if he cannot be tried fairly for that offence, he should not be tried for it at all R V. Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 AC 42, 68….In such a case the court must stay the proceedings. But this will not be appropriate course if the apprehended unfairness can be cured by exercise of the trial judge discretion within the trial process…” (see also Boolell V. The State [2004] SCJ 119 )

Finally, simply because the office of the DPP took 44 months to reconsider the case cannot call for a stay of criminal proceedings as it has been a constant stand that a stay of proceedings should not be ordered simply as a form of disciplinary disapproval of the prosecution: R. v. Crown Court of Norwich, ex p. Belsham, 94 Cr.App.R. 382, DC.

In the light of the abundant authorities on this issue and having been satisfied with the explanations given by the prosecution, I am of the view that the delay is not as unreasonable as would cause unfairness or prejudice to the accused. It cannot be said also that the accused will not benefit from a fair trial. I am therefore of the view that there has been no violation of the constitutional rights of accused to benefit from a fair trial within a reasonable time in as much as the delay complained of is neither inordinate nor oppressive. There are thus no exceptional factors that would warrant a stay of the present proceedings as on the contrary the public interest demands that those who are suspected to be responsible for having committed criminal offences are made to stand trial.

The motion of the defence moving for a stay of proceedings is accordingly set aside and the trial is to proceed.

P.M.T.Kam Sing

October 19, 2005

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