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Police v Jugdish Boodhoo (Ruling) - CN 372/2004 [2005] MUIntC 472 (31 October 2005)

IN THE INTERMEDIATE COURT OF MAURITIUS

IN THE MATTER OF:

Police

V.

Jugdish Boodhoo

CN: 372/ 2004

RULING

Accused stands charged on an information containing four counts. Under counts 1, 2 and 3 he is charged with three counts of forgery in breach of Sections 108, 111 and 121 of the Criminal Code: two for forgery in a private writing (counts 1 and 2) committed in April and May 1995 and one for forgery in a public writing (count 3) committed in 1996. Under count 4 the accused is charged for making use of a forged document in May 1995 in breach of Sections 109, 111 and 121 of the Criminal Code. He pleaded not guilty under all 4 counts and is duly represented at his trial.

Counsel for the accused has now moved that the present proceedings be permanently stayed for abuse of process of the court and because the accused has not been tried within a reasonable time in breach of Section 10(1) of the Constitution.

The prosecution is objecting to the motion and an affidavit (Doc. A) was filed by SP Cooshneapa in which he explained the chronology of the case. It is averred that the present case is connected with case cause number CN387/97 against one Mohamad Mustapha Jeetun and one Beebee Naseeda Bundoo which was lodged in July 1997. The case was disposed of in February 1998 before the Intermediate Court but Mr. Mohamad Mustapha Jeetun appealed. The appeal was disposed of in January 1999 and advice was then tendered against the accused in February 2001 with the case being lodged on 01 October 2001 bearing case cause number CN860/01. The accused was charged for giving instructions to commit a crime and for making use of a forged document. By September 2003 the case against the accused could not be disposed of as Mohamad Mustapha Jeetun, now a witness against the accused, had remained untraceable. A nolle Prosequi had to be filed. However the said witness was traced in December 2003 and a new information was lodged in March 2004 against the accused. SP Cooshneapa also stated that the case was of a complex nature.

Under cross-examination SP Cooshneapa revealed that in the case against Mohamad Mustapha Jeetun, accused in the present case, was a witness for the prosecution but was not called as the said Mohamad Mustapha Jeetun had pleaded guilty. The officer further agreed that the accused stands now charged as a co-author and not as an accomplice.

Counsel for the accused is insisting that the delay of 9 years from the date of the offence is unconscionable. She insisted that the accused was made a witness in the case against Mohamad Mustapha Jeetun in 1997 and 3 years later he found himself to be an accused party. She further submitted that there has been an abuse of process of the court in that the accused is being made to stand trial a second time after that a nolle prosequi had been filed in the first case and, according to her, the accused is being placed in a situation akin to double jeopardy.

Counsel for the prosecution insisted that in the present case there has been a two-staged prosecution and the first one ended in 1999. It was in 2001 that the case had been lodged against the accused but the case against him had to be discontinued due to the fact that one witness had remained untraceable. She submitted that such a situation is not a result of the fault of the prosecution or that of the complainant and the court. She added that the fact that the DPP chose to file a nolle prosequi and did not have the case dismissed for want of prosecution gives the prosecution the right to lodge the case anew. She finally stated that the case being essentially based on documentary evidence, the evidence has remained the same. She was of the view that there has been no undue delay.

In Mauritius, Section 10 (1) of the Constitution specifically 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”. The issue of reasonable time was discussed in the case of The State V. Bissessur and Others [2001] SCJ 50 , where 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.”

It is now trite law since the landmark case of Connelly v DPP (1964) AC 1254 that the court has the inherent power to protect its own process from being abused and that proceedings may be stayed where the particular criminal proceedings amount to an abuse of the process of the court. This power includes the power to safeguard an accused party from oppression or prejudice.

This power was further explained in the case of R. v. Derby Crown Court ex p. Brooks. 80 Cr. App. R. 164 by Lord Roger Ormrod C.J. who identified two main situations where there is an abuse of process. He stated that "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 first issue relates to the delay of 9 years which is being complained of by the accused. 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 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 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.". It was held in the above case that the longer the delay the more prejudice is presumed.

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 .”

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". The reasons given by the prosecution to explain the delay has to be taken into account and the consequences of the delay has to be established. The delay must be such that the accused will not be entitled to benefit from a fair trial the more so as the trial process itself takes into account most of the complaints. The accused has not shown how he is likely to suffer prejudice 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.

However it is to be noted that the prosecution has explained that it had to wait for the outcome of the case against an accomplice before being in a position to call him as a witness against the accused, in the present case. The accomplice decided to exercise his right of appeal and it was not until 1999, that is 4 years after the commission of the offence, that the case against him was finally disposed. When the case against the accused was finally lodged in 2001, the accomplice, now a witness for the prosecution, had disappeared and had remained untraceable so that a nolle prosequi had to be lodged. It is further to be noted that that the accomplice was traced only three months later and a fresh information against the accused was lodged in another three months in March 2004. From those uncontested facts, it is apparent that the prosecution is not to be blamed wholly for the delay and that there have been circumstances which are outside its control. These explanations are reasonable and acceptable bearing in mind the local context of the administration of justice and its limited resources.

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 …”

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. The lapse of the delay cannot be said to be so unreasonable or unconscionable having regard to the explanations given namely the complexity of the inquiry and the two-staged prosecution and the fact that an accomplice who was to be called as a witness for the prosecution had remained untraced when his case was finally disposed 4 years later and it can be said that there has been no fault on the part of either the prosecution or the complainant.

Additionally, a balancing exercise has to be carried out with public interest so that those who are suspected 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).

The second situation where there is an abuse of process is where the prosecution has either misused or manipulated the process of the court. It is being complained that the prosecution has lodged a nolle prosequi and when the new case was lodged a few charges were different from the previous information. The defence was of the view that it has been prejudiced as in the previous information it could have benefited from an acquittal. Such a point of view cannot be adhered to in as much as, subject to prejudice towards the accused party, the prosecution was perfectly entitled to amend the information at any stage before the close of their case and it is trite law that the court has wide powers of amendment to such an extent that a new count may be added. In any case the accused was charged as being an accomplice in the first information (see Annexures) and now he is being prosecuted as a co-author. The charges are not so materially different as in most cases the difference between a co-author and an accomplice lies on the degree of participation in the commission of the offence and as explained by the prosecution it is on the same evidence that was available previously that the accused is now being charged for a different participant in the commission of the offence.

In the present case there is no evidence to the effect that the prosecution has misused the process of the court or has come back on a promise not to prosecute the accused any longer. As pertinently submitted by counsel for the prosecution, if the DPP had wished that all proceedings be permanently discontinued the prosecution would have moved that the case be simply dismissed for want of prosecution. By its very nature, a nolle prosequi is filed if the DPP is of the view that fresh proceedings may be instituted in the near future and which is the case here. One can find the following in Archbold 2004, §1-251, Nolle Prosequi , “A nolle prosequi puts an end to the prosecution… but does not operate as a bar or discharge or an acquittal on the merits…and the party remains liable to be re-indicted. It has been said that fresh process may be awarded on the same indictment but this dictum appears not to be law...”

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." It cannot be said that in the present case that by filing a nolle prosequi and lodging a new case 6 months later with a fresh information and new charges, the prosecution has been acting with fundamental disregard for basic human rights or 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 )

For all the reasons given above and 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 in bringing the present proceedings against the accused is not as unreasonable as would cause unfairness or prejudice to the accused. It cannot be said also that the prosecution has either manipulated or misused the process of the court simply to deprive the accused of his rights and I have not been convinced 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 not oppressive. There are thus no exceptional factors that would warrant a stay of the present proceedings. Quite the contrary the public interest demands that those who are suspected of having committed criminal offences are made to stand trial.

The motion of the defence moving for a stay of proceedings both on the grounds of unreasonable delay and for abuse of process is accordingly set aside and the trial is to proceed.

P.M.T.Kam Sing

October 31, 2005

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