Intermediate Court of Mauritius Decisions

POLICE v MOOS IBRAHIM

2006 INT 302

CN: 642/02

IN THE INTERMEDIATE COURT OF MAURITIUS

IN THE MATTER OF: -

Police

V.

Ibrahim Moos

RULING

Accused stands charged on one count of an information for willfully committing a forgery in an authenticated and public writing in breach of Sections 108(c) and 121 of the Criminal Code. It is averred that the accused, being the secretary of the Town and Country Planning Board (TCPB) has modified the acreage of land for rezoning in the plan of the town of Vacoas- Phoenix from the approved extent of 56 arpents to that of 82 arpents. The accused pleaded not guilty and is represented.

After successive postponements on the ground of non-communication of certain documents, counsel for the accused then moved, on 24 March 2006, that the present proceedings be stayed on the following grounds :-

(1) on account of inordinate delay that has elapsed since the day of the commission of the offence in November 1996 and since the arrest of the accused in December 1998 ; and

(2) on account of the failure of the prosecution to provide the defence with required documents so as to enable it to prepare its case adequately so much so that there cannot be a fair trial in the circumstances.

The prosecution is resisting the motion and Inspector Murugesan (W1) was called to produce an affidavit (Doc. C) setting out the history of the case from the day the matter was reported up to the lodging of the information. He further explained how the case is a complex one. W1 confirmed that the then Minister of Housing, Mr. A. Ganoo, has stated that he had requested Mr. Doorga (W19) to submit to him a brief which was discussed by a panel consisting of Mr. Ganoo (W18) himself, Mr. Lapierre (W20), Mr. Doorga (W19) and the accused following which there had been an amendment of the land to be rezoned before submission for approval to the President. Insp. Murugesan added that the said brief was not secured and does not form part of the prosecution’s file.

The power to stop a prosecution

It is trite law that once an information has been lodged before a court, the accused must be tried except in one of the following circumstances: (a) the information is defective (b) the accused pleads autrefois convict or autrefois acquit (c) a nolle prosequi is filed; or (d) the court has no jurisdiction to try the case ( R v Chairman of London County Sessions, ex. parte Downes (1954) 1 QB 1 ).   A fifth ground was added to the above in the landmark case of Connelly v DPP (1964) AC 1254 where the court held 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. It was stressed that the court has the inherent power to protect its own process from being abused. The matter was given much consideration in the case of R V. Horseferry Road Magistrates’ Court, ex parte Bennet [1994] 1 A.C. 42 Lord Lowry said that “…the court, in order to protect its own process from being degraded and misused, must have the power to stay proceedings which may have come before it and have only been made possible by acts which offend the court’s conscience as being contrary to the rule of law. Those acts, by providing a morally unacceptable foundation for the exercise of jurisdiction over the suspect, taint the proposed trial and, if tolerated will mean that the court’s process has been abused.”

Thus, the court may now stay proceedings where the issue before them directly affects the fairness of the trial of the accused such as unconscionable delay in instituting and disposing of the case against the accused or where there has been a misuse or a manipulation of the process of the court including but not limited to abusive decisions to institute prosecution, manipulation of procedures, cases where the prosecution went back on promises formerly made, cases of entrapment by investigators and cases where a fair trial had become impossible. These have been summarized by Lord Roger Ormrod C.J in R. v. Derby Crown Court ex p. Brooks. 80 Cr. App. R. 164 , at 168   who 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".

Delay

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”. No definition has been provided for as to what amounts to a reasonable time and the matter has been left to the courts to determine on a case by case basis such as the complexity of the case or the nature of the case. 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 are:

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 the case of   Darmalingum V. State [ 1999 PRV 42 ] [ 2000 MR 210 ] the Privy Council allowed an appeal in which the appellant was complaining of a delay of 12 years and 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, 123 h ." .

However the Privy Council made it a point to stress that they do not wish to be overly prescriptive and in a number of later cases the remedy applied in Darmalingum was said to be “very exceptional” and that a stay would never be an appropriate remedy if any lesser remedy were available (see Attorney General’s Reference no. 2 of 2001 [2004] 2 WLR 1)

In the present case, the offence is alleged to have taken place in November 1996 but the matter was reported to the police only in August 1998 and the information was lodged in June 2002 making a total period of 4 years from the time the case was reported to the police. The affidavit (Doc.C) filed by the prosecution gives a chronology of the case and indicated that that the office of the D.P.P requested for further enquiries on 5 occasions before final advice for prosecution was given in August 2001. The case was only lodged in June 2002. Although no explanation has been given as to the time gap between the date of advice and the date of the lodging of the information it is common knowledge that a draft information is usually sent to the office of the DPP for vetting before a final version is sent and the DPP would then give his authority for prosecution through what is called a “Reference to the Intermediate Court” without which the jurisdiction of this court is not seized (see Section 112 of the Courts Act ).

Further from the affidavit (Doc. C) produced it would appear that the issues of the case are complex and as explained by Inspector Murugesan(W1) in court the case involved technical matters which required study of a number of details such as plans, workings of technicians such as surveyors and cartographers including statements of witnesses, as admitted by counsel at the sitting of 23 June 2003. It can hardly be said that the office of the DPP slept on the case file as on no less than 5 occasions the case file was returned back to the police for further inquiries even if as a result some inevitable delay was caused. it is trite law that a stay of proceedings is not meant to be a form of sanction against the prosecution in cases where there have been certain shortcomings on the part of the prosecution( see R. v. Crown Court of Norwich, ex p. Belsham , 94 Cr.App.R. 382, (1992) 1 All ER 394 ); and in the Mauritian case of State v Bissessur and others [ 2001 SCJ 50 ] in which the Supreme Court confirmed the above principles and held: “The court should exercise its discretionary power to order a stay of the proceedings only in exceptional cases and a staying order is an exception rather than the rule. A stay of criminal proceedings should not be ordered simply as a form of disciplinary disapproval of the DPP’s office”.

I n Mungroo V. R   [ 1990 PRV 22 ] [1991] 1 WLR 1351 , which is a case of forgery, 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 the longer the delay, the more likely prejudice is to be presumed but in the present case the explanations given by the prosecution to account for the time taken before the information is brought before the court is plausible. Bearing in mind the local context of the administration of justice which includes the limited means available to those involved in the criminal justice system in general, the amount of time taken is neither inordinate nor oppressive unlike in the case of HM Advocate and another V. R [2003] 2 WLR 317 , where the prosecution itself had conceded that there had been unreasonable delay- which is not the case here. Delay by itself and without more is not a ground for a stay of proceedings. The delay has to be inordinate or oppressive or unreasonable. There is no evidence or anything suggesting that as a consequence of the delay the accused will not benefit from a fair trial. There is no evidence that witnesses for the defence are now unavailable to such an extent that the accused will be prejudiced in the preparation of his defence. The lapse of time of nearly 4 years to prefer a charge and the information against the accused though amounting to a delay cannot be said to be so unreasonable, unconscionable, inordinate or oppressive as to prejudice the accused.

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 very 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 ]); 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…”

Non Communication of documents

Although an undertaking was given by the defence, under the second limb of the motion (regarding non communication of documents) to inform the prosecution which specific document(s) have not been communicated, the court was not informed what those documents are or whether these documents have finally been communicated or not.

The court record indeed reveals that on a number of occasions the defence has been requesting for a complete brief of the case together with unused materials and certain documents. As from the 7 August 2003 it would appear that the brief has been communicated and that only certain “documents” were still unavailable. State Counsel stated that those documents would be provided as and when they are available and a letter from the Ministry of Housing was filed. On subsequent sittings counsel for the prosecution stated that some of those documents would have to be retrieved from the Town and Country Planning Board and that only one document remained to be traced. As for the plan, counsel remarked that it is so big that a photocopy cannot be made and finally regarding the brief prepared by Mr. Doorga, he has to ascertain whether such a document is available or not. However a few months later, on 14 December 2005, there was yet another motion from counsel for the defence for communication of other sets of documents including Occurrence Book (OB) entries and Diary Book (DB) entries and an Attendance Register (which were in the process of being communicated vide sitting of 7 August 2003). From the different stands taken by the prosecution there was no objection to communicate the complete brief of the case including the unused materials and that seemed to have been communicated to the defence. It would seem that the defence also has its share in delaying the matter by keeping on asking for new sets of documents at different sittings and it is now clear that the defence is looking for documents which do not form part of the prosecution case file and that is the reason why counsel for the prosecution pointed out that the Ministry of Housing and the Town and Country Planning Board had to be contacted and that the documents have to be traced there. Much emphasis however has been laid on two documents (1) an alleged brief prepared by witness Doorga which was submitted to the then Minister of Housing and on which a panel including the accused had a discussion and (2) a plan.

The duty of disclosure applies to all used materials and unused materials favourable to the defence forming part of the prosecution case file but do not extend to documents which are not part of the case file. The principle that there has to be equality of arms and that due access to documents to be given well in advance so as to enable the defence to prepare his case, as held by the European Court of Human Rights in Ocalan V. Turkey (2003) 37 EHRR 10, p. 243, apply to those documents forming part of the prosecution file only and it is not for the prosecution to prepare the case of the defence. The prosecution has been acting very fairly by making available documents which were at the Ministry of Housing and at the Town and Country Planning Board which they were not compelled to do. Moreover evidence has been adduced by the prosecution that the brief prepared by Mr. Doorga (W19) was not secured by the police. Mr. Doorga is on the list of witnesses and the defence would be in a position to cross-examine him on the existence of that brief and its contents so as to make its version a live issue for the prosecution to disprove.

It has not been established that the failure of the police to enquire into and secure the brief prepared by Mr. Doorga was motivated by ill will or bad faith so as to deprive the accused of a fair trial and the prosecution still bears the legal burden to establish the guilt of the accused notwithstanding the fact that the accused has the evidential burden to make his defence a live issue so as to raise doubts in the prosecution’s case. The prosecution has provided explanations that copy of the plan cannot be made either at the level of the Ministry or at the DPP’s Office but that there would be no objection for the defence to have a look at same and as for the brief of Mr. Doorga, the prosecution has explained that same is not in their possession nor in the possession of ‘relevant authorities’. It cannot be gainsaid that the prosecution is thus of bad faith or maliciously motivated as to constitute an abuse of process. The defence is still entitled to summon the relevant government department to produce or make available the brief.

It should be noted that unless it is shown that the prosecution has resorted to unlawful means such as abducting him from abroad to be tried before the national courts or that there is bad faith on their part that the court will grant a stay of proceedings but still then the court will have to carry out a balancing exercise between, on the one hand, the interest in allowing a serious case to proceed, and on the other hand, the public interest in staying proceedings so as not to allow the degradation of the system of justice such as where a fair trial is impossible but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place (R V. Latiff [1996] 1 WLR 104) ; acts which offend the court’s conscience as being contrary to the rule of law ( R V. Horseferry Road Magistrates’ Court, ex parte Bennet [1994] 1 A.C. 42); where to allow them to continue would bring the administration of justice into disrepute among right-thinking people ( Re Barings plc and Others (No. 2) Secretary of State for Trade and Industry V. Baker and Others [1999] 1 All E.R. 311; R V. Mullen [1999] 2 Cr. App. R 143, Archbold, Criminal Practice and Procedure, 2005 edition, at para 4-55 ) or where the judge considers that, as a matter of policy, a case ought not to have been brought ( R v Humphrys (1977) AC 146 )

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 the case of R V. Latiff [1996] 1 WLR 104 , which was referred to earlier, the court held that “Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of the process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed…it is possible to say that in a case such as the present the judge must weigh in the balance the public interest in ensuring that those who are charged with grave crimes should be tried and the competing interest in not conveying the impression that the court will adopt an approach that the end justifies any means”. (see also Flowers V. R. [2000] 1 WLR 2396 , in which the Privy “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…”)

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 “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 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).

Conclusion

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 ] )

I n the light of the abundant authorities above 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. 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 so that the first limb of the motion is set aside.

Further, after having carried out a balancing exercise between the impossibility of the prosecution to provide those two documents insisted upon by the defence and the public interest that those who are suspected to be responsible for having committed criminal offences of a serious nature be made to stand trial, the more so that such an offence could have affected the development of the town of Vacoas-Phoenix and its inhabitants in general. There is nothing to suggest that the accused would not benefit from a fair trial by not being provided with the documents sought. It would be most unfair towards the prosecution if this court was to sanction the prosecution for not providing documents which they themselves do not have. I find that there are no exceptional factors that would deprive the accused of a fair trial and which is so serious as to warrant a stay of the present proceedings. The second limb of the motion of the defence is also set aside.

For all the given reasons, the motion of the defence on both limbs cannot succeed and accordingly the trial is to proceed.

P.M.T. Kam Sing

20 June 2006