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POLICE v COOWAR ANWAR HUSSEIN
2006 INT 183
IN THE INTERMEDIATE COURT OF MAURITIUS
Cause Number: 103/04
The accused is charged under several counts with larceny to the prejudice of his master, possession of stolen property, forgery and making use of forged private writings.
Mr Bhundoo who appears for him has moved that the present proceedings be stayed on the ground of inordinate delay between the alleged commission of the offence in 2000 and the lodging of the information in 2004, which constitutes a breach of the accused’s Constitutional right to a fair trial within a reasonable time.
The prosecution objects to the motion and filed an affidavit sworn by PC Rene.
The affidavit reveals the following:-
PC Rene stated that he was the only officer involved in the enquiry. He also revealed that the complainant and witness no. 8 were no longer in Mauritius.
Mr Bundhoo submitted that the inordinate delay between the time of the alleged offences and the lodging of the information constituted a breach of the accused’s right to be tried within a reasonable time since a period of 40 months had elapsed. As it was not the contention of the prosecution that this was a complex case, the fact that the enquiry took one year was an unreasonably long time. The DPP’s Office took 11 months to tender advice and it was another 9 months before the information was drafted. He also pointed out that there were no explanations given to justify the delay in the affidavit produced in Court. Defence counsel relied on the case of Darmalingum, especially the last paragraph at page 6 of the Judgement.
Mrs Varma for the prosecution argued that the affidavit spoke for itself and that it took three and a half years for the information to be lodged. The delay between the time advice was tendered and the date the information was lodged was of about one year. She referred to the case of T. Gheenah v The State [ 1998 SCJ 427 ] and Flowers [2001] 1 LRC 643, in support of her submissions and argued that the right to a fair trial within a reasonable time was not an absolute right since it had to be balanced with the public interest, especially when the charges against the accused were serious.
Article 10(1) of our Constitution 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Where any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.
It is now well-established that stays will only be imposed on the grounds of delay in exceptional circumstances, even where the delay is unjustifiable. [See: P. Boolell v The State [ 2004 SCJ 119 ] where the dictum from Lord Lane CJ in AG’s Reference (No. 1 of 1990) [1992 3 ALL ER 169] was followed].
The House of Lords recently had to decide in Attorney General’s Reference No. 2 of 2001 [2004 2 WLR 1], whether criminal proceedings could be stayed on the ground that there had been a violation of the reasonable time requirement in Article 6(1) of the European Convention for the Protection of Fundamental Rights and Freedoms in circumstances where the accused could not demonstrate any prejudice arising from the delay.
Lord Bingham of Cornhill observed that the European Court had recognised the need for a fair balance between the general interest of the community and the personal rights of the individual.
He explained that before imposing a stay the Court had to be satisfied that the prosecution had been guilty of serious delay
such as to cause
serious prejudice to the accused,
to the point that
no fair trial could be held, or if the authorities were shown to have acted in such a way as to render any trial of the defendant
unfair in the circumstances. [
AG’s Reference (No. 1 of 1990);
R v Horseferry Road Magistrates’ Court, Ex p Bennett
[
1994] 1 AC 42].
Lord Bingham therefore concluded that it would not be appropriate to stay or dismiss proceedings unless (a) there could no longer be a fair hearing or (b) it would otherwise be unfair to try the defendant.
He emphasized that cases like Darmalingum v The State [2000] 1 WLR 2303, were very exceptional and that a stay would never be an appropriate remedy if any lesser remedy could adequately vindicate the defendant’s Convention right.
The case of Attorney General’s Reference No. 2 of 2001 is therefore clear authority for the proposition that delay by itself cannot amount to sufficient ground to successfully invoke a stay of proceedings, especially when balancing the expectation of the community that those suspected of having committed criminal offences will be brought to trial with the rights of the individual standing trial.
The provisions contained in article 10(1) of our Constitution do not therefore simply guarantee an absolute right to a trial within a reasonable time but rather, they aim to ensure a fair hearing takes place within a reasonable time .
In cases where an unreasonable time has elapsed before the hearing, the Court should therefore ascertain whether such delay will make it impossible for the defendant to have a fair hearing or whether, for other compelling reasons, it will be unfair to try the defendant before contemplating a stay on its proceedings.
Mr Bundhoo rested his arguments on the following passage in Darmalingum :
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. But its reach is wider. It may be applicable in any case where the delay has been inordinate and oppressive.
The House of Lords in Attorney General’s Reference No. 2 of 2001 was however of the view that it should be shown that the delay, although unreasonable and unexplained, had the effect of tainting the hearing with such unfairness as to make the trial an abuse of process of the Court since failure to hold a trial within a reasonable time did not, by itself, cast doubt on the fairness of the hearing.
It is also apposite to mention that the Privy Council pointed out in Flowers v The Queen [2000] WLR 2396, that the Judgement of the Board in Darmalingum did not refer to the passage in the Judgement of the Board in Bell v DPP [1985] A.C., which recognises that the right given by section 20 of the Constitution of Jamaica should be balanced against the public interest in the attainment of justice or to the passage which states that the right to a trial within a reasonable time is not a separate guarantee but, rather, that the three elements of section 20(1) form part of one embracing form of protection afforded to the individual.
In view of the subsequent decisions to the case of Darmalingum, I have no difficulty in finding that no comparable exceptional circumstances were brought to light in the case under consideration.
It was further held in the case of Bell v DPP [1985] AC 937, that the delay must also be considered in the context of the prevailing system of legal administration and in the prevailing economic, social and cultural conditions to be found in the country concerned.
In Geenath v The State [ 1998 MR 109 ], our Supreme Court recognised that given the workload of the Officers attached to the DPP’s Office, it was likely that no proper track was kept of the follow up action which was required until two years after the dismissal of the appeal.
The affidavit produced by the prosecution in the present case shows that the police enquiry took about one year, that approximately another year elapsed before prosecution was advised, followed by a period of 11 months for the information to be submitted for vetting.
I find that such delay cannot be held to be inordinate or oppressive, especially when the defence has failed to show in what manner such delay may taint the trial process with unfairness.
Although it is regrettable that it took so long for the enquiry to be completed and for the file to be processed at the State Law Office, I find that there is nothing exceptional in the delay which would justify a permanent stay of proceedings, especially when bearing in mind the many constraints faced by our Police Force and by our prevailing system of legal administration.
It is also relevant to mention at this point that it has been held that a stay of proceedings should not be ordered simply as a form of disciplinary disapproval of the Prosecuting authorities. ( R v Crown Court at Norwich, ex p. Belsham [1992] 94 CR. App. R. 382.)
Indeed, the object of the remedy is to guarantee that a fair trial takes place, and not to punish the prosecution or the police for their lack of expeditiousness.
Having said so, it is clear from the record that the defence has failed to identify any specific form of prejudice or unfairness to the accused because of the delay incurred.
In such circumstances, since a stay of proceedings must remain the exception rather than the rule, and bearing in mind that the public interest in seeing that the accused stands trial must outweigh the imposition of a stay simply based on delay, I find that the motion cannot succeed.
The motion is therefore set aside and the trial is to proceed.
This 6 th April 2006
Magistrate
Intermediate Court
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URL: http://www.commonlii.org/mu/cases/MUIntC/2006/196.html