Intermediate Court of Mauritius Decisions

POLICE v SOOKUR PRESRAM

2006 INT 17

IN   THE   INTERMEDIATE   COURT   OF   MAURITIUS

CAUSE NO:- 764/05

Police

V/S

Presram Sookur

RULING

            Accused has offered a non-guilty plea for 4 counts; carrying on business of money lender without licence in breach of the Moneylenders Act under count I, knowingly agree to receive a cheque with no provision under count II, larceny under count III, possession of article obtained by means of misdemeanour under count IV.  

Before dwelling into the issue of abuse of process, I will first look at the background of the present case.   From the evidence on record, the offences took place from December 1998 to April 2001.   In fact, it has been gathered from sergeant Kaudeer, the main enquiring officer who deposed for the present matter that the alleged illegal money lending transaction took place on 22/12/98 but only reported in April 2001. for the completion of enquiry, it lasted for 2 years and the declarant is a police officer.   However, Accused first reported a case of issuing cheque without provision against the declarant on 6/03/01.   In August 2003, advice was tendered by the DPP’s office to prosecute both declarant and Accused.   The declarant was prosecuted first and case disposed of before the District Court of Curepipe on the 26 ^th May 2005.   the present information had been lodged on the 27 ^th July 2005 following disposal of the case before the district court of Curepipe.   A non guilty plea was recorded for Accused on the 24 ^th October 2005 and a motion of abuse of process was also raised.

Mr.Unnuth, learned counsel for Accused argued that proceedings against Accused should be stayed as there is an abuse of process in terms of delay and the fact that Accused is being deprived of a right to a fair trial under section 10 of the Constitution.   Learned counsel for Accused made reference to AG Ref 1999 of 2001.   Whereas learned counsel for Prosecution argued otherwise and stated that defence has failed to show in what manner he had been prejudiced in the delay and she added that even declarant is a police officer, the enquiry had been impartial as the latter had also been prosecuted.   She further argued that it is important to note that Accused himself reported the matter in year 2001.   she finally argued that the interest of the public at large should be considered so that offenders should answer charges that they had committed.

I have closely considered the argument submitted by both learned counsel.   In the case of Hui Chi-Ming 1992 1 AC 34, “ abuse of process ” was defined as “ something so unfair and wrong that the Court should not allow a prosecutor to proceed with what is in all other respects a regular proceeding”   This principle of staying proceedings on account of Accused being denied a fair trial and or unfair to be tried was reiterated in the case of R v Beckford 1996 1 CAR 94

True it is that the longer the delay, the less likely will Accused be afforded a fair trial as laid down in the case of Bell v DPP 1985 1 AC and in the case of Tan v Cameron 1992 3 WLR 249, at page 264 , it was held that the Court is to consider” whether in all circumstances, the situation created by the delay is such as to make it an unfair employment of the power of the court any longer to hold the defendant to account”

However, as laid down in the case of Re Barings plc ( No.2); Secretary of State for Trade and Industry v Baker 1999 1 ALL ER 311, I quote from par 4-54 ( c ) of the (2) Abuse of Process of Archbold Edition 2004 , I quote;

“A Court must stay proceedings where to allow them to continue would bring the administration of justice into disrepute among right thinking people and that this would be the case if the Court was allowing its process to be used as an instrument of oppression, injustice or unfairness”

As held in the case of R v Sheffield Stipendiary Magistrate, ex p Stephens 1992 CLR 873 , I quote from Archbold Edition 2004, at par 4-70 under the heading (2) Abuse of Process :

“ Each case depends on its own facts, the test to be applied in every case being that expounded originally by the Divisional Court inex p Badhan, ante 4-69 and restated by the Court of Appeal in Att-Gen’s Reference No.1 of 1990 i.e has the defendant shown on a balance of probabilities that a fair trial would be impossible?”

As laid down in the case of R v Cardiff Magistrates Court, exp Hole 1997 C O D 84, DC , it was held that the Court was to closely scrutinize the impossibility of a fair trial and to the precise prejudice relied upon in case of abuse of process of the Court.  

In the present case, Accused himself reported the matter in 2001 and since I am satisfied that prosecution had to await disposal of the connected case against declarant until May 2001, there is no delay.

As to the Accused being deprived of having a fair trial, as held in the case of   THE STATE v. VELVINDRON R. [ 2003 SCJ 319 ],  

“ One of the safeguards provided under section 10(1) of our Constitution is that any person who is charged with a criminal offence shall be afforded a fair hearing.   In that respect, the principle which underlines the jurisdiction to stay proceedings is that the Courts have the power and the duty to protect the law by protecting its own purposes and functions as was expressed in the words of Lord Devlin in Connelly v. D.P.P. (1964 A.C. 1254) “The Courts have an inescapable duty to secure fair treatment for those who come or are brought before them” and at page 1296 Lord Reid said   “……… there must always be a residual discretion to prevent anything which savours of abuse of process.” The views expressed in Connelly (Supra) were further considered in D.P.P. v. Humphrys [1977 A.C.1] where Lord Salmon stated the following at p. 46.

      “…… a judge has not and should not appear to have any responsibility for the institution of prosecutions; nor has he any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought.   It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has power to intervene .”   (Emphasis added).

This power to stay proceedings for abuse of process is considered to include a power to safeguard an accused from oppression or prejudice (Connelly (Supra ) ) and has been described as a formidable safeguard to protect persons from being prosecuted in circumstances where it would be seriously unjust to do so (Attorney-General of Trinidad and Tobago v. Philips [1995 1 A.C. 396]).

As matters stand, I fail to see how Accused is being deprived from a fair trial if proceedings are not stayed.  

In the case of Attorney-General’s Reference [No. 2 of 2001] [2004 2 WLR 1] it was held that criminal proceedings may be stayed on the ground that there has been a breach of the reasonable time requirement only (a) if a fair hearing is no longer possible or (b) if it is for any compelling reason unfair to try the accused person.   I am satisfied that in the present case neither item (a) or (b) exists.

      I therefore set aside the motion of learned counsel for defence to have proceedings stayed.

 

M J Ng Wong Hing

This 20 ^th January 2006