Intermediate Court of Mauritius Decisions

POLICE v BOODHOO MANOHAR & Anor

2006 INT 269

Cause No: 1036\2003

In the Intermediate Court of Mauritius

In the matter of

       Police

V.

1. Manohar Boodhoo

     2. Mrs Vimi Ramcheram

Ruling

Learned counsel for 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 there has been inordinate delay between the alleged offence dated 1999 and the information being lodged in 2004 taking up to now and as such accused would be denied with a fair hearing within a reasonable time in breach of section 10(1) of the Constitution.

The prosecution has objected to the above motion. Inspector Nassurally was called by the prosecution to produce an affidavit setting out the chronology of events in the present case (Doc A). The chronology of events in the present case is as follows:

• The alleged offence was reported in July 2002 against the two accused and it relates to a series of events starting in 1998 and continuing until 2002 when the alleged swindling was uncovered by the complainant.
• The enquiry was completed in April 2003 and the file was sent over to the DPP’s office for advice. Advice was tendered in August 2003 and the information charging both accused was lodged in March 2004 before the Intermediate Court.
• On 18\5\04, the case was called before the Intermediate Court and both accused were absent.
• On 22\6\04, both accused appeared before the Intermediate Court and they stated they would retain services of counsel.
• On 12\7\04, accused no1 pleaded not guilty to count 1 of the information and accused no2 pleaded not guilty to count 2 of the information.
• On 22\2\05, the case was postponed in the absence of witnesses nos 2 and 4 for the prosecution.
• On 14\6\05, the case was called anew and learned counsel for the defence moved for particulars as regards the exact date and month of the alleged offence and the prosecution moved for a postponement to contact the DPP for stand.
• On 12\7\05, prosecution stated that the information was sufficiently particularised and that particulars would not be provided. Learned counsel for the defence withdrew his motion for communication of particulars.
• On 19\9\05 the case came for trial and letter received from learned counsel for the defence moving for a postponement as he had to proceed abroad on medical grounds.
• On 14\2\06, the case came again for trial and learned counsel for the defence moved that the proceedings be stayed on the ground that it was an abuse of the process of the court and the case was then fixed for argument on 15\3\06

PS Nassurally has explained under solemn affirmation that no declaration was made in 1998,1999 ,2000 and 2001 but the declaration was in fact made in July 2002. The enquiry was completed in April 2003. The file was thereafter sent over to the DPP’s office and advice was tendered in Aug 2003, almost six months later. After August 2003, the file was sent anew to the DPP’s office for the vetting of the information and the file was sent over to the police with some amendments. The file was sent anew to the DPP’s office on 19\3\04 and the information was lodged.

The accused parties did not adduce any evidence.

The Court has duly considered the affidavit on record, the version of PS Nassurally, 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.

I will consider the delay which occurred in three limbs namely (a) the delay between the time the offence was committed and the completion of the police enquiry (b) the period covering the completion of the enquiry up to the time the case was lodged and (3) the delay as from the lodging of the case before the Intermediate Court up to now.

In relation to the first limb, the offence started in1998 but the matter was reported only in July 2002 against the two accused. The enquiry was completed in April 2003. Learned counsel from the State law Office has explained that the information against the accused parties as elaborated by the particulars show that there was a series of events ongoing between 1998 up to 2002 and all those events culminated in 2002 when the complainant realised that the said Reshma Seegoolam never existed and hence the matter was reported to the police. The defence is contending that due to the delay which has arisen since the occurrence of the alleged offences, the accused parties cannot benefit from a fair trial. I wish to point out at this stage that it has been confirmed by the case law that in deciding whether proceedings are instituted within a reasonable time, the relevant time 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 Darmalingum v The State of Mauritius [2000 UKPC 30] , has also recognised that the relevant period would commence upon the arrest of the appellant [vide Deweer v Belgium [1980 2 All E R 439.]

Furthermore, the enquiry took nine months to be completed and this has been explained by the affidavit on records which makes reference to a “series of events” starting from 1998 to 2002 which render the case a complex one. As such the Court is satisfied that there had been no inordinate delay on the part of the police to complete the enquiry in the present case which would justify a permanent stay of proceedings. I wish at this stage to refer to 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.

The second limb concerns the delay as from the time the enquiry was completed up to the time the case was lodged before the Intermediate Court. The enquiry was completed in April 2003 and the file was then sent over to the DPP’s office for advice. Advice was tendered in August 2003, some five months later. After August 2003, the file was sent anew to the DPP’s office for the vetting of the information and the file was sent over to the police with some amendments. The file was then sent anew to the DPP’s office on 19\3\04 and the information was lodged in March 2004 before the Intermediate Court. True it is that the advice was tendered after some five months but thereafter I find that the delay was explained by the fact that the information was vetted and amendments made which caused the movements of the file from the State law office to the police. It is to be noted that the accused parties are being charged with a complex and technical offence. 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. In Geenath v The State [ 1998 MR 109 ], our Supreme Court recognised that given the workload of the Of ficers attached to the DPP’s Of fice, 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. Moreover, in the case of R v Crown Court at Norwich, ex p. Belsham [1992] 94 CR. App. R. 382, it has been held that a stay of proceedings should not be ordered simply as a form of disciplinary disapproval of the Prosecuting authorities.

The evidence adduced revealed that the file took some time to be process ed at the State Law Of fice, but 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.

I shall now move on to the third limb which covers the delay as from the time the case was lodged before the Intermediate Court up to now. On 18\5\04, the case was called before the Intermediate Court and both accused were absent. On 22\6\04, both accused appeared before the Intermediate Court and they stated they would retain services of counsel. On 12\7\04, accused no1 pleaded not guilty to count 1 of the information and accused no2 pleaded not guilty to count 2 of the information. These form part of the formal proceedings before any court of law.

The case came for trial on 22\2\05 and was postponed in the absence of witnesses nos 2 and 4 for the prosecution. On 14\6\05, the case was called anew and learned counsel for the defence moved for particulars as regards the exact date and month of the alleged offence and the prosecution moved for a postponement to contact the DPP for stand. On 12\7\05, prosecution stated that the information was sufficiently particularised and that particulars would not be provided. Learned counsel for the defence withdrew his motion for communication of particulars. On 19\9\05 the case came for trial and letter received from learned counsel for the defence moving for a postponement as he had to proceed abroad on medical grounds. On 14\2\06, the case came again for trial and learned counsel for the defence moved that the proceedings be stayed on the ground that it was an abuse of the process of the court and the case was then fixed for argument on 15\3\06

I wish to refer to a pertinent remark found at paragraph 54 of the judgment of Lord Bingham in Dyer v Watson [DRA No 1 of 2001] wherein he stated the following: “The second matter to which the court has routinely paid regard is the conduct of the defendant. In almost any fair and developed legal system it is possible for a recalcitrant defendant to cause delay by making spurious applications and challenges, changing legal advisers, absenting himself, exploiting procedural technicalities and so on. A defendant cannot properly complain of delay of which he is the author…”

In the present case, it is to be highlighted that the case was postponed only once due to the absence of witnesses for the prosecution. On one occasion learned counsel for the defence made a request for particulars which he subsequently withdrew and on another occasion learned counsel for the defence had to proceed abroad on medical grounds and as such, the prosecution cannot be blamed for these postponements.

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. However, it is not just any prejudice, which will avail an accused party. The court must be satisfied that the accused has suffered trial-related prejudice. Taking into account, the nature of the charges, I find that the accused have failed to show that they would suffer trial-related prejudice namely that their defence would, in any way, be impaired. In any event, when balancing the length of the delay in the light of the other factors referred to above, I find that the interests of justice demand that I exercise my discretion against the accused parties in order not to undermine public confidence in the criminal justice system. In other words, the public interest that the accused parties should be made to stand trial outweighs any prejudice which might have been caused by the lapse of time between their arrest 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 counsel on both sides as well as the prosecution to do their utmost for the trial to be disposed of without any further delay.

Ruling delivered on:30 ^th May 2006

Ruling delivered by: Renuka.Devi.Dabee, Magistrate