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POLICE v MALLOO CHANDRADEO
2006 INT 191
IN THE INTERMEDIATE COURT OF MAURITIUS
Cause Number: 950/03
The accused is charged under a single count with having in or about the month of December 1995 swindled another person of part of his property.
Mr R. Stephen who assists him during the trial has moved that proceedings be stayed since they amount to a breach of the accused’s right to be tried within a reasonable time and therefore constitute an abuse of process of the Court.
The prosecution resists the motion and submitted an affidavit solemnly affirmed by Police Sergeant Ramsurrun to explain the delay.
The affidavit reveals the following salient facts:-
Mr R. Stephen in his submissions confined his motion to the delay incurred from the start of the police enquiry to the time at which the information was laid before this Court.
He thus submitted that the offence was allegedly committed in December 1995 and that there was an unexplained delay between the time the file was sent to the DPP on the 12 th May 1997 and the time at which advice was tendered on the 25 th October 2001. The file remained at the DPP’s Office for more than 4 years and no explanations were given in that respect. He also argued that there was no requirement on the part of the accused to prove prejudice.
Ms N. Narayen for the prosecution replied that no prejudice had been outlined by the defence and that public interest demanded that those responsible for criminal offences should be brought to trial.
Article 10(1) of our Constitution bears the following provisions:
Where any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.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 2004 in the case of P. Boolell v The State [ 2004 SCJ 119 ], the following dictum from Lord Lane CJ in AG’s Reference (No. 1 of 1990) [1992 3 ALL ER 169], was cited with approval:
Stays imposed on the grounds of delay or for any other reason should only be employed in exceptional circumstances . If they were to become a matter of routine, it would only be a short time before the public, understandably, viewed the process with suspicion and mistrust. We adopt the reasoning of Brennan J in Jago v District Court of NSW (1989) 168 CLR 23.
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. …
It is therefore well established that only where exceptional circumstances prevail can a permanent stay be imposed on proceedings, even where the delay is unjustifiable. Moreover, the public interest in the attainment of justice is one of the considerations which this Court should not overlook when contemplating whether or not to halt proceedings.
One of the issues raised in the recent House of Lords decision in Attorney General’s Reference No. 2 of 2001 [2004 2 WLR 1], was 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.
(It is unchallenged, as reaffirmed in Boolell [supra], that Article 6(1) of the Convention is couched along the same lines as the provisions contained in Article 10(1) of our Constitution.)
Lord Bingham of Cornhill first 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 under what circumstances proceedings could be restrained by imposing a stay, namely [at paragraph 17 of the Judgement], if the Court were satisfied, before an impending trial, 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].
At paragraph 23 of the Judgement, Lord Bingham pointed out that the Strasbourg jurisprudence gave no support to the contention that there should be no hearing of a criminal charge once a reasonable time had passed.
Although if, through the action or inaction of a public authority, a criminal charge was not determined at a hearing within a reasonable time, and there was necessarily a breach of the defendant’s Convention right under article 6(1), he observed that for such breach there should be afforded such remedy as may be effective, just and proportionate.
The appropriate remedy would thus depend on the nature of the breach and on all the circumstances, including particularly the stage of the proceedings at which the breach was established. If the breach was established before the hearing, the appropriate remedy might be a public acknowledgement of the breach, action to expedite the hearing to the greatest extent practicable and perhaps, if the defendant was in custody, his release on bail.
Lord Bingham 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. The public interest in the final determination of criminal charges required that such a charge should not be stayed or dismissed if any lesser remedy would be just and proportionate in all the circumstances.
He emphasized that cases like Darmalingum v The State [2000] 1 WLR 2303, where the delay was of such an order as to make it unfair that the proceedings against a defendant should continue, 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.
Attorney General’s Reference No. 2 of 2001 is therefore clear authority for the proposition that delay in itself cannot be a sufficient ground to successfully invoke a stay of proceedings, especially when taking into account the legitimate public expectation that those reasonably suspected of having committed criminal offences will be brought to trial.
The Constitutional provisions entrenched in article 10(1) do not therefore simply guarantee an inalienable right to a trial within a reasonable time but rather, a fair hearing within a reasonable time .
Should an unreasonable time elapse before a hearing takes place, the Court should establish 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 imposing a stay on its proceedings.
Mr Stephen based his arguments on the assumption that unexplained delay by itself was presumptively prejudicial and that there was therefore no burden on the defence to prove further prejudice.
The House of Lords in Attorney General’s Reference No. 2 of 2001 clearly did not support the same reasoning.
It must instead be shown that the delay, although unreasonable and unexplained, has the effect of tainting the hearing with such unfairness as to make the trial an abuse of process of the Court. Failure to hold a trial within a reasonable time does not, by itself, cast doubt on the fairness of the hearing.
In the case of T. Gheenah v The State [ 1998 MR 109 ] , one of the grounds of appeal was that the learned Magistrates should have stayed the prosecution as being in breach of the appellant’s rights under section 10(1) of the Constitution, especially since there was no explanation on the part of the prosecution for the delay of two years to relodge the case against the appellant. It was submitted that the absence of explanation should have led the Court to presume prejudice.
The case of AG’s Reference (No. 1 of 1990) was cited, where Lord Lane CJ had referred to the observations of Lord Morris as far back as 1964 in the case of Connelly v DPP [1964] AC 1254, namely:
“… generally speaking a prosecutor has as much right as a defendant to demand a verdict of a jury on an outstanding indictment, and where either demands a verdict, a judge has no jurisdiction to stand in the way of it.”
Lord Lane was of the view that “no stay should be imposed unless the defendant shows on a balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held, in other words that the continuance of the prosecution amounts to a misuse of the process of the Court.”
This was considered by the Privy Council in
Tan v Cameron
[
1993] 2 All ER 493, where Lord Mustill had this to say:
Naturally the longer the delay the more likely it will be that the prosecution is at fault, and that the delay has caused prejudice to the defendant; and the less that the prosecution has to offer by explanation, the more easily can fault be inferred. But the establishment of these facts is only one step on the way to a consideration of whether, in all the circumstances , the situation created by the delay is such as to make it an unfair employment of the powers of the Court any longer to hold the defendant to account . This is a question to be decided in the round, and nothing is to be gained by the introduction of shifting burdens of proof, which serves only to break down into formal steps what is in reality a single appreciation of what is or is not unfair.”
The Supreme Court in Gheenah seemed to be in agreement with the Law Lords in Tan where it was held that that in deciding whether to exercise its exceptional jurisdiction to halt prosecution on the ground of delay the Court should take into account all the factors together, without reference to any burden of proof other than the “heavy burden which always rests on a defendant who seeks a stay on the grounds of delay”.
The decision in Gheenah is not incompatible with the subsequent reasoning in Attorney General’s Reference No. 2, since our Supreme Court had already asserted that delay by itself could not be sufficient ground to justify a stay of proceedings. It is only one of the factors to be considered, together with all the circumstances of a case, in determining whether the situation created by the delay is such as to render proceedings against an accused party unfair.
The burden therefore still rests on the defence to show that the trial should be stayed because of the negative effects the delay may have had on the case for the defence, thus making the hearing unfair.
After reviewing the authorities on the subject, and in spite of the fact that the prosecution was noticeably silent regarding the time it took for advice to be tendered on the file, I find that it has not been shown that the delay incurred warrants the exceptional remedy prayed for, especially when bearing in mind the interest and expectation which the public holds in bringing those suspected of having committed crimes to trial.
It is also worth pointing out that it has time and again been observed 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.)
I therefore find that although the delay in the present case is nowhere near desirable, it has not been shown that it is in itself of such a nature as to preclude the accused from the benefit of a fair trial. It has also not been demonstrated how the delay could have resulted in any significant prejudice to the accused.
As was suggested in the case of Gheenah, I however leave it to the Learned Director of Public Prosecutions to consider whether the particular circumstances revealed in the present case warrant his intervention to initiate an internal enquiry into the cause of delay at his office so that such delays are no longer considered as systemic within our jurisdiction.
Otherwise, and for the reasons just outlined, I find that it has not been shown that the delay in bringing the present proceedings to Court is so unreasonable as to have caused unfairness or prejudice to the accused. The motion to stay the present proceedings cannot therefore succeed and is set aside.
This 6 th April 2006
Magistrate
Intermediate Court
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URL: http://www.commonlii.org/mu/cases/MUIntC/2006/197.html