JUDGMENT OF THE LORDS OF THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, Delivered the 21st October 2004

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1 Dosoruth v. Mauritius (Mauritius) [2004] UKPC 51 (21 October 2004) Privy Council Appeal No. 49 of 2003 Ramawat Dosoruth v. Appellant (1) The State of Mauritius and (2) The Director of Public Prosecutions Respondents FROM THE SUPREME COURT OF MAURITIUS JUDGMENT OF THE LORDS OF THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, Delivered the 21st October Present at the hearing:- Lord Nicholls of Birkenhead Lord Hoffmann Lord Hope of Craighead Lord Brown of Eaton-under-Heywood Sir Andrew Leggatt [Delivered by Lord Hope of Craighead] At the time of the events which gave rise to this case the appellant was employed as a senior works inspector by a District Council in Mauritius. On 30 September 1995 he was found guilty by the Intermediate Court of Mauritius of having wilfully and unlawfully received a reward for an act in the exercise of a function as an agent of a public department which was not liable to remuneration, contrary to section 126 of the Criminal Code. He was sentenced to twelve months imprisonment with hard labour and fined Rs10,000. He appealed against this judgment to the Supreme Court of Mauritius. This was in the exercise of his right of appeal under section 92 of the District and Intermediate Courts (Criminal Jurisdiction) Act. On 16 June 1997 the Supreme Court (Lam Shang Leen and Balgobin JJ) dismissed his appeal. He did not seek leave to appeal to the Judicial Committee of the Privy Council against the judgment of the appellate court. 2. On 3 July 1997 the appellant commenced proceedings by plaint with summons in the Supreme Court in which he sought constitutional redress under section 17 of the Constitution of Mauritius. He was represented in these proceedings by Mr Ollivry [2004] UKPC 51

2 QC, who did not appear for him either at the trial or at the hearing in the appellate court. Mr Ollivry asked the Supreme Court to declare that a miscarriage of justice had occurred and to order a new trial of the case by the Intermediate Court or to revise the proceedings itself in the light of the facts averred by him in his application. On 30 June 1999 the Supreme Court (Matadeen and Seetulsingh JJ) upheld the respondents objection to these proceedings and set aside the plaint. On 19 June 2000 the appellant was granted leave to appeal to the Judicial Committee under section 81(1)(c) of the Constitution. Execution of the judgment of the trial court was stayed pending the decision of the Judicial Committee on the appeal. The appellant now seeks an order from the Board remitting his case to the Supreme Court for a further hearing of his appeal. The facts 3. The case against the appellant at his trial was that he had received the sum of Rs5,000 from Mrs Marie Anic Rosy Khedoo as a bribe in connection with her application for a development permit. There was undisputed evidence that it was part of the functions of a senior works inspector to report to the District Council s engineer on every such application. Mrs Khedoo had applied for a development permit in September Thereafter, in accordance with the normal procedure, the views of various authorities were sought. By December 1991 all the relevant reports had been received from these authorities. They were favourable to the proposed development. But a favourable report from the engineer was still needed before the appellant could prepare the permit for the development. It then had to be signed by the Secretary of the District Council before it was issued. The practice was for the engineer to rely on the senior works inspector s site report when making his recommendation. This was a function for which the senior works inspector was not entitled to any remuneration by the applicant. But it was a function for which, according to Mrs Khedoo, the appellant had sought and been paid a reward by her for his services. 4. In his application to the Supreme Court the appellant gave the following brief account of the evidence which was led against him as it appeared from the record in the trial court. Mrs Khedoo, who was the complainant, gave evidence. She said that the alleged bribe was paid by means of a cheque for Rs5,000 drawn cash on 21 December She remitted the cheque to the appellant in return for the delivery to her of the development permit at the District Council s office that afternoon. A bank official Mr Armand

3 Lecordier gave evidence that Mrs Khedoo s cheque for Rs5,000 was encashed at the main branch of the State Commercial Bank in Port Louis on 21 December The development permit was delivered to Mrs Khedoo by a clerical officer of the District Council. The appellant then averred that this incident could not have happened as alleged by these witnesses, as 21 December 1991 was a Saturday and it is a notorious fact that the Bank and the offices of the District Council are not open on Saturday afternoons. 5. It was not suggested to Mrs Khedoo at the trial that the incident which she described could not have happened on the afternoon of 21 December 1991 as both the District Council s office and the Bank to which the cheque was taken for encashment were closed. Nor was this point mentioned in any of the twenty six grounds on which the appellant appealed against his conviction to the appellate court. The appellant explained that it was not until after his grounds of appeal had been filed that it was realised that 21 December 1991 was a Saturday and it was appreciated that it would have been impossible for him to have presented the cheque for payment or cause it to be so presented before the Bank closed on that day if it was not until the afternoon of that day that the cheque was handed to him by Mrs Khedoo. 6. The appellant s counsel sought to raise this point during the hearing of the appeal by the appellate court. He submitted that it was notorious and within judicial knowledge that the Bank and the District Council s offices were not open on Saturday afternoons. But counsel for the respondents took objection to this submission, of which there was no notice in the grounds of appeal. The objection was upheld, and the appellant s counsel was prevented from developing the point as part of his argument. There is no mention of it in the judgment which the appellate court delivered on 16 June The appellant claimed that in these circumstances he was denied a fair hearing of his appeal against his conviction by the appellate court. He sought redress under sections 1 and 3 of the Constitution on the ground that he was denied the protection of the law. He maintained that he had no statutory means of establishing that he had been the victim of a miscarriage of justice. This was because, on his interpretation of the relevant legislation, the appellate court did not have power to order a new trial or to reopen a criminal case which had already been adjudicated upon by the Intermediate Court. For the respondents it was submitted that, ex facie of the appellant s own averments, there had been no

4 breach of his constitutional right and that in any event there were adequate means of redress available to him. The legislation 8. Section 1 of the Constitution provides that Mauritius shall be a sovereign democratic State to be known as the Republic of Mauritius. By section 3 it is recognised and declared that in Mauritius there have existed and shall continue to exist without discrimination each and all of the human rights and fundamental freedoms which it sets out, including (a) the right of the individual to life, liberty, security of the person and the protection of the law. Section 10(1) 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. Section 17 provides, in subsections (1) and (2): (1) Where any person alleges that any of sections 3 to 16 has been, is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter that is lawfully available, that person may apply to the Supreme Court for redress. (2) The Supreme Court shall have original jurisdiction to hear and determine any application made by any person in pursuance of subsection (1), and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of sections 3 to 16 to the protection of which the person concerned in entitled. Section 82(1) provides: The Supreme Court shall have jurisdiction to supervise any civil or criminal proceedings before any subordinate court and may make such order, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by any such court. 9. Section 92 of the District and Intermediate Courts (Criminal Jurisdiction) Act 1888 provides that where any person is charged

5 with an offence before a Magistrate or before the Intermediate Court an appeal shall lie to the Supreme Court against any final decision of that court by the person charged against his conviction or sentence. Section 96(1) provides: On hearing an appeal, no new evidence shall be admitted, and the information, depositions and other evidence and conviction before the Intermediate or District Court shall be revised by the Supreme Court. Section 96(5) provides: Where, on an appeal under section 92, the Supreme Court is of opinion that a serious irregularity has occurred, it may declare the trial to be a nullity and order a fresh hearing. The judgment of the Supreme Court 10. It is plain from the judgment which the Supreme Court delivered in the proceedings for constitutional redress on 30 June 1999 that it was not persuaded that there was any substance in the appellant s complaint. The Court rejected the argument that there had been a breach of section 1 of the Constitution, on the ground that all the rights and freedoms which are guaranteed to an accused person are set out in Chapter II of the Constitution. It rejected the contention that the absence of any provision in the law permitting a new trial or a revision of his trial in the Intermediate Court was a breach of section 3 as elaborated in section 10 of the Constitution, as this did not amount to the denial of a fair hearing. It pointed out also that the Supreme Court had power in the exercise of its appellate jurisdiction under section 92 of the District and Intermediate Courts (Criminal Jurisdiction) Act to declare a trial to be a nullity and order a fresh hearing if it was of opinion that a serious irregularity had occurred. Furthermore, it was not in dispute that the appellant had enjoyed the full protection of the law at his trial and that he was given a fair hearing in the Intermediate Court. Nor was it suggested that any of the provisions to secure protection of the law as enshrined in the express terms of section 10 of the Constitution had been breached in his case. 11. The Supreme Court was equally unimpressed by the appellant s argument that he had been dealt with unfairly when, after he had been convicted and lodged his grounds of appeal, it was realised that the cheque was alleged to have been handed over and encashed on a Saturday afternoon when the Bank and the District Council offices were not open. In its view there was no substance in the argument that he was dealt with unfairly in the

6 hearing of his appeal. As the Court explained in the penultimate paragraph of its judgment: Discussion The plaintiff himself claims that that fact was only realised after trial. But the appellate court, which in the light of the decision in DPP v Sabapathee [1997] MR 235 must have gone over all the evidence, was alive to the fact that 21 December 1991 was a Saturday and properly refused, on objection being taken, to allow the plaintiff to canvass on appeal the issue that judicial notice be taken of the fact that Banks and District Council Offices are not open on Saturday afternoons in Mauritius since such a fact is neither notorious, nor beyond serious dispute, nor of common knowledge. The plaintiff had ample opportunity to crossexamine the complainant on the fact that the event took place on a Saturday afternoon and his counsel s failure to do so constitutes and acceptance of that part of the complainant s evidence and it is not open now to the plaintiff, as it was not even on appeal, to challenge that evidence, the more so as the evidence was procurable at the trial stage itself, and did not arise ex improviso. As learned counsel for the first defendant aptly put it, evidence cannot be adduced by instalments. 12. Mr Ollivry QC submitted that the appellant had been denied a fair hearing at two levels in the appellate court when his counsel tried to advert to the fact that the Bank and the District Council s office were closed on Saturday afternoons, and in the proceedings for constitutional relief from which this appeal has been taken as there too the Supreme Court refused to take this fact into account. He made it clear that he was not suggesting that there had not been a fair hearing in the trial court, or that there was anything unfair in the way the subsequent proceedings had been conducted. His point was that the law itself stood in the way of a fair hearing of the appeal by the Supreme Court in its appellate capacity and that this point had not been addressed as it should have been in the proceedings for relief under section 17 of the Constitution. 13. The starting point for an examination of these submissions is to be found in the Constitution of Mauritius. Mr Ollivry did not press the argument that the appellant was entitled to relief under section 1 of the Constitution, which declares that Mauritius is a sovereign democratic State beyond saying that it was for the State to provide the machinery for a new trial. The provisions on which he sought to rely as he developed his argument were the right to

7 the protection of the law which is guaranteed by section 3 and the right to a fair hearing in section 10(1) which is designed to secure that protection. The right to a fair hearing is one of three separate guarantees contained in section 10(1): Darmalingum v The State [2000] 1 WLR 2303, 2307H. The other two guarantees which are set out there, the right to a hearing within a reasonable time and to a hearing by an independent and impartial court established by law, are not in issue in this case. 14. Mr Dixon for the respondents did not dispute Mr Ollivry s submission that the guarantee of a fair hearing extends to appellate proceedings as well as to the proceedings in the trial court. Their Lordships consider that he was right not to do so. If authority on this point is needed, it too is to be found in the decision of the Board in Darmalingum v The State, where it was held that section 10(1) extends to appellate proceedings. In that case the complaint was of a delay in the disposal of the appellant s appeal. The guarantee which is given to any person charged with a criminal offence might be said, if taken literally, no longer to apply to a person who seeks to appeal against his conviction. But, as Lord Steyn explained at p 2309C-E, this is a technical interpretation which is inappropriate to the construction of a Bill of Rights in a Constitution such as that of Mauritius - a view which is strongly reinforced by the approach which has prevailed on the interpretation of article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms: see, for example, Mills v H M Advocate [2002] UKPC D2; [2004] 1AC 441 (PC). 15. Mr Ollivry s argument was directed to what, as he submitted, were the limited powers of the Supreme Court as an appellate court under the District and Intermediate Courts (Criminal Jurisdiction) Act and to its powers in proceedings for constitutional relief under section 17 of the Constitution. But before they deal with that argument their Lordships wish to look more closely at the merits of the point that the appellant was seeking to raise in his appeal. 16. There is no doubt that the question whether the incident which Mrs Khedoo described could have taken place on a Saturday afternoon, as the appellant maintains was the import of her evidence, could and should have been raised at the trial. It is plain that evidence of the fact, if indeed it be the fact, that the Bank and the District Council s office were both closed on the afternoon of 21 December 1991 as it was a Saturday could have been made available at that stage. In Luchmeeparsad v The State [1997] SCJ 19 the plaintiff sought constitutional redress in the Supreme Court

8 against his conviction in the Intermediate Court for forgery on the ground that he had obtained fresh evidence which tended to establish his innocence. The Supreme Court recalled that in R D P de Boucherville v The State [1996] SCJ 237 it was held that the Supreme Court had power under section 17 of the Constitution to make an order directing a new trial on this ground whenever the situation so requires. But it rejected the plaintiff s application for a new trial for the reason, among others, that he had failed to show that the evidence on which he sought to rely was not available at the trial or that reasonable diligence could not have made it so available. 17. The appellant sought to overcome this difficulty by inviting the appellate court to take judicial notice of the fact that the Bank and the offices of the District Council were not open on Saturday afternoons in Mauritius. The appellate court refused to entertain this argument, to which objection was taken by the respondents. This, it can be assumed, was because it was not mentioned in the appellant s grounds of appeal. Even if it had been entertained, however, it would without doubt have been rejected for the reasons given by the Supreme Court in the passage from its judgment which their Lordships have quoted in para 11. Judicial notice could, of course, be taken of the fact that 21 December 1991 was a Saturday. But it was not open to the appellate court to deal with the appeal on the basis that it was within judicial knowledge that the Bank and the District Council s offices were not open that afternoon. This was because, as the Supreme Court has explained, such a fact is neither notorious nor beyond serious dispute nor of common knowledge in Mauritius. In other words, this was a fact that would have had to be established by evidence. 18. Mr Ollivry did not seek to argue that the Supreme Court were in error when they held that it was not within judicial knowledge that the Bank and the offices of the District Council were not open on Saturday afternoons in Mauritius. Nor did he seek to argue that evidence to that effect was not available or could not with reasonable diligence have been made available at the appellant s trial. He submitted instead that this test to the admission of additional evidence stood in the way of a fair trial, and that it was the duty of the Supreme Court under section 17 of the Constitution to hear the evidence. As he put it, the Supreme Court ought not to have decided that there should not be a new trial without having done so. 19. The test for the admission of fresh evidence which the Supreme Court laid down in Luchmeeparsad v The State [1997]

9 SCJ 19 ought not to be applied as if it were a rule of law which has to be followed rigidly and without exception. Every person charged with a criminal offence is entitled under section 10(1) of the Constitution to a fair hearing. So the fundamental question for the Supreme Court must always be whether the proceedings that are called into question were or were not fair. But common sense suggests that some limits must be set on the admission of additional evidence after the trial is over as a ground for setting aside a conviction or ordering that that there must be new trial. If that were not so, it would be impossible to achieve finality. As Edmund Davies LJ said in R v Stafford (1968) 53 Cr App R 1, 3, legal process would become indefinitely prolonged were it the case that evidence produced at any time were to be generally admitted when verdicts were being reviewed. 20. The test which was applied in Luchmeeparsad appears to have been modelled on the decision of the Court of Appeal in R v Beresford (1971) 56 Cr App R 143, 149, where Sachs J said with regard to the question whether the appellate courts in England and Wales should entertain additional evidence under section 23((2)(b) of the Criminal Appeal Act 1968, which required the court to be satisfied that there was a reasonable explanation for the failure to adduce it: The court has in general to be satisfied that the evidence could not with reasonable diligence have been obtained for use at the trial. But it has come to be recognised in England and Wales, and also in Scotland where the test prescribed by section 106(3) of the Criminal Procedure (Scotland) Act 1995 was whether the evidence was available or could with reasonable diligence have been made available at the trial, that there is a risk of a miscarriage of justice if these tests are applied too rigidly. In para 56 of its report the Royal Commission on Criminal Justice (the Runciman Commission) (1993, Cm 2263) urged that that court should in general take a broad, rather than a narrow, approach to this issue: see also, for Scotland, para 2.44 of the Report of the Committee on Appeals Criteria and Miscarriages of Justice (1996, Cm 3245); Church v H M Advocate 1995 SLT 604. So the law in these jurisdictions has been modified. Section 23(2) (d) of the Criminal Appeal Act 1968 as amended by the Criminal Appeal Act 1995, sections 4(1) and 29 and Schedule 3, now provides that the Court of Appeal shall, in considering whether to receive any evidence, have regard to whether there is a reasonable explanation for the failure to adduce the evidence in the proceedings from which the

10 appeal lies. A similar change to the statutory test was introduced in Scotland by section 17 of the Crime and Punishment (Scotland) Act 1997 in substitution for that laid down by section 106(3) of the 1995 Act. The Supreme Court may wish to consider whether the test which was applied in Luchmeeparsad should be modified in the same way. 21. But Mr Ollivry did not seek to provide any explanation for the failure to lead evidence at the trial that the incident that Mrs Khedoo described could not have happened on the afternoon of 21 December 1991 as it was a Saturday. His criticism of the appellate court was that it was not willing to work on the assumption that what the appellant was asserting was true when they were examining the evidence. He made the same criticism of the Supreme Court when it was dealing with the application for constitutional relief. He said that if the magistrates had been aware of this additional fact it might have made all the difference, and that this was in itself a sufficient reason for ordering a new trial. 22. Their Lordships are not persuaded that all that needs to be said in support of an application for an order for a new trial is that the additional evidence which is relied on might have made a difference to the result if it had been before the trial court. It has, of course, to be shown that the additional evidence was relevant to the issue which was before the trial court and that, if steps had been taken to lead the evidence at that stage, it would have been admissible. These tests are satisfied in this case. But this is not the only requirement. The court also has to be satisfied that it is in the interests of justice, having regard to the constitutional right of the accused person to a fair hearing, that the additional evidence should be taken into account at the stage of an appeal. This was what the Supreme Court very properly had in mind when it referred to the fact that the evidence was procurable at the trial stage itself and that the question did not arise ex improviso. In their Lordships opinion Mr Ollivry was unable to show that the Supreme Court was not entitled to take this view. His argument that the appellant did not have a fair hearing of his appeal must be held to have failed on the facts. 23. But the matter does not end there. Mr Ollivry s principal submission was that it would not have been open to the appellate court in any event to order a new trial because section 96(1) of the District and Intermediate Courts (Criminal Jurisdiction) Act, which sets out the powers of the Supreme Court on hearing an appeal, provides that no new evidence shall be admitted by that court on hearing an appeal. Section 96(5) provides that where, on an appeal

11 under section 92, the Supreme Court is of opinion that a serious irregularity has occurred, it may declare the trial to be nullity and order a fresh trial. Mr Ollivry said that this power was not available to the court in its appellate capacity as no serious irregularity had occurred in this case. So it was the duty of the Supreme Court to hear the evidence in the proceedings for constitutional relief so that it could order a new trial in the exercise of its powers under section 17 of the Constitution. 24. Their Lordships cannot accept this argument. The right of appeal which is given to the convicted person by section 92 of the District and Intermediate Courts (Criminal Jurisdiction) Act is a right to a re-hearing of the case under section 96(1) of the Act in the light of the information, depositions and other evidence that were before the trial court. It is in that context that section 96(1) provides that no new evidence shall be admitted. This means that the appellate court must proceed upon the facts which were put in evidence before the trial court. But section 96 must be read together with section 82(1) of the Constitution, which provides that the Supreme Court may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by any such court. It is not necessary for proceedings for constitutional relief to be brought under section 17 of the Constitution to enable the Supreme Court to exercise this power. It is available to be exercised in any proceedings which are brought before that court, including those under section 92 of the Act. Section 82(1) is in the widest terms. Among the orders that may be made under it is an order remitting the case to the inferior court so that, if it thinks this appropriate, it may take account of additional evidence. 25. The appellate court also has power under section 96(5), if it is of the opinion that a serious irregularity has occurred, to declare the trial to be nullity and order a fresh hearing. It was open to the appellant to contend that there had been a serious irregularity at his trial if, as he contends, he was convicted on the false assumption that the incident which Mrs Kedhoo described could have happened on a Saturday afternoon as she said it did. The constitutional guarantee of a fair hearing in section 10(1) requires that a generous construction should be given to the expression serious irregularity. But the appellate court was not asked by the appellant in his grounds of appeal to exercise this power, so the point was not tested in that court. Mr Ollivry sought to avoid this objection to his argument by asserting that no serious irregularity had occurred in this case. But it is hard to see why this was so if, as he asserts, the appellant was convicted of participating in a

12 transaction with Mrs Khedoo that on her own account of it could not have happened. 26. For these reasons their Lordships reject Mr Ollivry s argument that the legislation under which the appeal was brought before the appellate court is defective in the way he has suggested. The appellate court did not lack the powers to deal appropriately with the case if it had been one which required the hearing of additional evidence. So it cannot be said that the appellant was denied the right to a fair hearing before that court on this ground. Furthermore, section 17(2) provides that the Supreme Court may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, the constitutional guarantee of a fair hearing. It was not the lack of the necessary powers that led the Supreme Court to decide this case as it did. It was because the appellant was unable to show on the facts that he had not had a fair hearing of his appeal, and because the appellate court had sufficient powers in any event to provide him with an appropriate remedy. So there were no grounds for granting him constitutional relief against his conviction. Conclusion 27. Their Lordships are of the opinion that the Supreme Court was entitled to uphold the respondents preliminary objection and set aside the plaint for constitutional redress. The appeal will be dismissed. The appellant must pay the respondents costs before their Lordships Board.