Issue-70.pdfmay 2017 BC.pdf

Office of the Director of Public Prosecutions E-Newsletter Issue 70 May 2017 To No One Will We Sell, To No One Deny or Delay Right or Justice Chapter 40, Magna Carta 1215 May 2017 - Issue 70 IN THIS ISSUE: PAGE Editorial 1 Down Memory Lane with Sir Gaetan Duval QC 2-3 An insight on the decision of the Privy Council in Keramuth & ors vs The State of Mauritius 4-5 Criminal Process in a Nutshell 6-7 Team Building Activity of the ODPP 8-9 Training to Technical Officers of the Labour and Industrial Relations Division 10 Case summaries 11 - 12 EDITORIAL TEAM Ms Anusha Rawoah, State Counsel Ms Zaynah Essop, State Counsel Mrs Pooja Autar-Callichurn , State Counsel Mrs Shaaheen Inshiraah Dawreeawoo, State Counsel Miss Neelam Nemchand, Legal Research Officer Miss Pooja Domun, Legal Research Officer The views expressed in the articles are those of the particular authors and should under no account be considered as binding on the Office. May 2017 - Issue 70 EDITORIAL Dear Readers, If the court is pre-occupied with hopeless points, possibly meritorious cases where there are properly arguable issues will be delayed at best and may not receive the time which they deserve. Through these poignant words the Privy Council, in the recent case of Keramuth & ors vs The State of Mauritius [2017] UKPC 16, reminds us of the overarching duty of counsel towards court. After dismissing the said appeal, the Privy Council did not stop at that. It went on to devote the last part of the judgment to Case management and the role of counsel . The Board noted that although the professional duty of a counsel lies both to his client and to the court, the duty to the court is the overriding one. Part of the duty to the court is the duty not to advance grounds of appeal unless the point is properly arguable , the reason being to enable court to deal efficiently with matters involving properly arguable points. Recognising the need to ensure that court s crucial time is not wasted on unarguable arguments, the Board hammered on the duty of counsel to act responsibly in drafting and arguing grounds of appeal. Time of court cannot be spent unjustifiably on the unarguable at the detriment of possibly meritorious cases. The Privy Council in fact reiterates the ethical responsibilities already embodied in our Code of Ethics for Barristers, most specifically in paragraph 16, which sets out the role of both prosecuting and defence counsel. In fact, once a person has been admitted to practise law in Mauritius and his name has been entered on the roll of law practitioners in accordance with the Law Practitioners Act, it is on this occasion that his duty to the court is enlivened, a duty which springs out as a result of him being an integral participant in the administration of justice. True it is that a counsel has a duty to his client to fearlessly advance every argument, and ask every question, which he thinks will help the client s case. However, one should not be oblivious of the fact that the duty to fearlessly represent a client does not extend to slavishly following a client s every wish in presenting any kind of argument to court. Counsel is independent in presenting a client s case but must not misuse court s time. Counsel should thus refrain from pursuing submissions that are really unarguable, even though the client may wish to chase every rabbit down its burrow, as Mason CJ put it in Giannarelli v Wraith (1988) 165 CLR 543. It is hence incumbent upon counsel to bear in mind their role in the legal process and how the role might further the ultimate public interest in that process, that is, the proper administration of justice. This will ensure prompt and efficient adjudication of criminal cases as well as improve the efficiency of the criminal justice system. This is the foundation of a society governed by the rule of law. Anusha Rawoah State Counsel Page 1 May 2017 - Issue 70 Down Memory Lane with Sir Gaetan Duval QC The Bar Council has taken the initiative to organise inspirational talks on the contributions of five late learned senior members of the legal profession, namely Sir Gaetan Duval QC, Sir Guy Ollivry QC, Madun Gujadhur QC, Sir Marc David QC and Maxime Doger de Speville QC. The first talk took place on 2nd June 2017 at the seat of the Mauritius Bar Association to pay tribute to the contribution of late Sir Gaetan Duval QC to the legal profession. The Director of Public Prosecutions, Mr Satyajit Boolell, SC was one among the three guests invited to deliver the talk, the two other being defence counsel Mr Jacques Panglose and Mr Rama Valayden. The aim of the talk was to provide members of the bar, with an insight of the oratorical skills as well as the principles adopted by Sir Gaetan Duval QC while preparing and conducting cases. Mr Jacques Panglose gave an account of the enriching experiences he had with late Sir Gaetan Duval QC while preparing and conducting cases in court. He also explained the values and dedication with which Sir Gaetan Duval QC was working, as well as several interesting incidents which depicted the latter s powers of persuasion. Mr Rama Valayden, for his part, being the pupil of late Sir Gaetan Duval QC, shared his experience as to the manner in which the latter was laboriously preparing cases with his pupils. He also gave the audience an overview of the arduous background research carried out by late Sir Gaetan Duval QC in the preparation of assizes cases. Page 2 May 2017 - Issue 70 The Director of Public Prosecutions (DPP), on the other hand, shared his experience as prosecutor in cases where late Sir Gaetan Duval QC was defence counsel. He described late Sir Gaetan Duval QC as a staunch defender of the independence of the judiciary both in Parliament as a legislator and as a barrister. The DPP emphasized on the principles adhered to by Sir Gaetan Duval QC, who would conduct cases, without having recourse to dilatory tactics or defence by ambush. The DPP further emphasized on the minimalist approach adopted by the late senior when it came to defending his client and the manner in which he would cross-examine a witness only if it was necessary. Late Sir Gaetan Duval QC, he said, would never compromise his principles whether the client is the government or an institution or a rich client who wants counsel to act as its or his mouthpiece. The DPP further noted that, being a lawyer with a sharp mind and of great eloquence, late Sir Gaetan Duval QC also understood his duty to the court by refraining from pursuing unarguable points and rather focusing on the real issues, which he considered important so as not to waste the time of the court and consequently, to ensure the proper administration of justice. Anusha Rawoah State Counsel Page 3 May 2017 - Issue 70 An insight on the decision of the Privy Council in Keramuth & ors vs The State of Mauritius The fire which broke out at L Amicale gaming club on 23 May 1999 resulted in the death of seven people. The appellants were convicted before the Assizes in 2000 on a charge of arson causing death , under Sections 346(1) and 347 of the Criminal Code. They were found guilty by the jury on a verdict of 8:1 and they were sentenced to penal servitude for life. In 2005, an appeal before the Court of Criminal Appeal, based on 34 grounds found no reason for their conviction to be quashed. The subsequent appeal which was heard before the Judicial Committee of the Privy Council on 7 March 2017 did not equally succeed. The decision handed down by the Privy Council on 22 May 2017 resolves an interesting legal issue – the access to, and use of, digital recording of the trial. The Privy Council was asked to determine whether a convicted accused who wishes to consider an appeal against his conviction have a right to a copy of the digital recording of the summing up, or of any other part of the trial. Section 10(3) of the Constitution provides the following: (3) Where a person is tried for any criminal offence, the accused person or any person authorised by him in that behalf, shall, if he so requires, and subject to payment of such reasonable fee as may be specified by or under any law, be given within a reasonable time after judgment a copy for the use of the accused person of any record of the proceedings made by him or on behalf of the court . Does a digital recording fall under the purview of Section 10(3) of the Constitution? The answer is in the affirmative. One of the four reasons set out by the Board at paragraph 12 of the judgment was that Section 10(3) confers entitlement to any record of the proceedings and it will therefore encompass digital recording. That being said, if the appellants have been denied the right to a copy of the digital recording, it cannot be said to have infringed their rights under Section 10(1) of the Constitution. In its reasoned decision, the Privy Council found that A fair determination of an appeal may require the provision of a copy of the recording but it is not necessarily the same for all cases. The non-disclosure of the digital recording in the present case did not affect the overall fairness of the trial. The conclusion of the Privy Council to the effect that the digital recording falls under the ambit of Section 10(3) of the Constitution does not per se mean that on appeal, the Court of Appeal has an obligation to listen to the audio recording. All requests made must be justified. The court has discretion to decide whether or not it is going to spend time listening to the recordings. If, for instance, the summing up of the trial judge spanned over 2 hours, this will necessitate considerable court time to listen to the recording. Therefore, before devoting its precious time to listen to it, the court must be satisfied that the ground raised is strong and justifiable. The appellants contended that the trial judge used an inflammatory tone during his summing up. Generally, Page 4 May 2017 - Issue 70 whether the tone of the judge was inflammatory or not ought to be assessed by looking at the summing up as a whole and not merely by concentrating on individual points, R v Nelson [1997] Crim LR 234. Additionally, in the case of R. v Lunkulu (Blaize) & others [2015] EWCA Crim 1350, the Court of Appeal opined that it is useful for a judge to alter his tone, speed and style of delivery to maintain the attention of the jury. After listening to identified passages of the summing up, the Privy Council rejected the appellants submission. No prejudice ensued from the summing up because it was a carefully constructed one and well balanced in its treatment of the evidence. There was therefore no miscarriage of justice, even if the Court of Criminal Appeal did not entertain their request to listen to the audio recording. What is interesting, however, is that the Privy Council has proposed temporary measures to deal with applications when a request to listen to an audio recording has been granted, at least until we find ourselves with established principles or a statement of practice. Also, this judgment is significant for the useful reminder of raising properly arguable grounds of appeal, therefore ensuring that the court s time is not wasted on speculative arguments. Keshini Dhunnoo Legal Research Officer Page 5 May 2017 - Issue 70 CRIMINAL PROCESS IN A NUTSHELL A criminal process usually starts with a declaration to the Police that an offence has been committed. The Police would, then, record a statement from the complainant and investigate into the matter in accordance with the Police Standing Orders, which also empower them to make declarations themselves when the commission of an offence is brought to their knowledge (Order 113 Para.4). Thereafter, upon the person being reasonably suspected of having committed an offence, the Police would proceed to arrest him and at this stage; he is only a suspect for there is no formal charge lodged against him yet. Such an arrest may also be effected by a private person or by a police officer with or without arrest warrant where the law so provides. However, upon arrest, the suspect must be informed of the reasons of his arrest as per Section 5 of the Constitution unless inferences may be drawn from the circumstances of the offence (Gordon Gentil v State (1998)). Usually, after the arrest, the Police would start interrogating the suspect and this, whilst observing the Judges Rules such that the suspect would be informed of his constitutional rights, for instance, his right to silence (statement under warning) and his right to counsel. It needs to be highlighted, however, that the need to caution the person arises when evidence starts coming in, giving the Police grounds to suspect that the person may have committed an offence (State v Ruhumatally (2015)). When sufficient evidence has been gathered against the suspect, a provisional charge would be lodged against him to bring him under judicial supervision and control. That is to say, he should be brought before the Magistrate of the District Court where the offence was committed and this, without undue delay. After the provisional charge is lodged, there might be an objection to his departure and in drugs cases; a freezing order might also be made on the suspect s bank account. Should the suspect, then, wish to be released on bail, a bail motion should be made before the District Magistrate and upon there being no objection, bail would be granted. However, in case of objections by the Police, the record would be transferred to the Bail and Remand Court (BRC) where the bail hearing would take place. As per the case of Noordally v Attorney General (1986), bail is the rule and detention is the exception. Normally, after the provisional charge is lodged, the Police would send the file to the Office of the Director of Public Prosecutions (D.P.P) for advice so that the formal charge can be lodged. When the formal charge is lodged, it may not necessarily be the same as the provisional charge. It is lodged by way of an information and it is the process through which the charge is driven home to the accused. Such information must be drafted in accordance with Section 17 to 46 of the Criminal Procedure Act and must be signed by the Magistrate. At this stage, the suspect becomes an accused and his constitutional rights are guaranteed under Section 10 of the Constitution. At the start of the trial, the information would be read to the accused, he would be asked whether he pleads guilty or not guilty and whether he would retain the services of counsel. Should he elect to be represented, the case would be postponed for him to appoint a legal representative of his own choice. However, if he cannot afford the services of counsel, he may be granted legal aid subject to satisfying certain conditions. Page 6 May 2017 - Issue 70 In the event the accused pleads guilty, the Magistrate should proceed to convict him as per Section 72 of the District and Intermediate Courts (Criminal Jurisdiction) Act and should proceed to hear some evidence before sentencing him. However, should he plead not guilty, a full-fledged trial would ensue and all the rules of evidence would have to be followed. It should be pointed out that in a criminal case, the burden of proof is on the prosecution to prove its case beyond reasonable doubt. This flows from the presumption of innocence enunciated in Section 10(2)(a) of the Constitution. If at the close of the Prosecution s case, there is not enough evidence against the accused, defence counsel can make a submission of no case to answer. But at this stage, it would not be proper to say that the Prosecution has not proved its case beyond reasonable doubt since this is decided at the end of the case. When the Prosecution closes its case, the defence case opens and the accused has three choices: he may give evidence on oath from the witness box, in which case, he may be cross-examined by the Prosecution; he may give evidence from the dock or he may exercise his right to silence. In case the accused is inops concilii, the Court has a duty to offer him a certain amount of guidance so as to help him not to miss the important opportunities which are offered to him. However, the Court will not act as legal adviser of the accused to tell him the different avenues open to him as the case unfolds (Sunnassee v State (1998)). Should the Prosecution fail to prove its case beyond reasonable doubt, the case will be dismissed against the accused. However, if the guilt of the accused is proved, he will be convicted and sentenced. Conviction is a condition precedent to sentence and failure to convict the accused before sentence may lead to the sentence being quashed (Ally v State (2014)). After conviction but before sentence, the previous convictions of the accused would have to be laid down before the Court, save where the previous conviction is an associated element of the offence, in which case it must then be averred in the information. Section 211 of the Criminal Procedure Act provides the way through which a previous conviction is proved, that is, the accused will be asked whether he admits or denies his previous convictions. As a rule of practice, previous convictions dating back to more than 10 years are disregarded but there may be exceptions (Heerah v State (2012)). Furthermore, the Court is also entitled to take into account previous convictions which are subsequent to the current offence where they show the propensity and criminal disposition of the accused to commit such offences (Soyfo v State (2013); Ramdhun v State (2013)). Finally, it is a principle of procedural fairness for the Court to give the accused an opportunity to express himself in mitigation at sentencing stage, especially where the information is not sufficiently particularised or when the Court is about to inflict a custodial sentence or a heavy fine. However, there are cases where, despite such breach, the Court may find that no injury was caused to the accused (Choolun v State (2014)). In case of a conviction or a manifestly harsh sentence, it is open for the accused to appeal against his conviction and/or sentence within 21 days after the judgment. Jayaluxmi Somar Pupil Page 7 May 2017 - Issue 70 Team Building Activity of the ODPP 6th May 2017 at The Westin Turtle Bay Resort & Spa Page 8 May 2017 - Issue 70 Team Building Activity 6th May 2017 at The Westin Turtle Bay Resort & Spa Page 9 May 2017 - Issue 70 Training to Technical Officers of the Labour and Industrial Relations Division A two day training was organised by the Office of the Director of Public Prosecutions (ODPP) for the officers of the Labour and Industrial Relations on the 25th and the 26th of May 2017 at the Rajsoomer Lallah Lecture Hall. It was the second part of a training already organized by the Office of the DPP on the 26th and 28th of April 2017 (more details about the training can be found in the previous edition of the Newsletter, Issue 69). Page 10 May 2017 - Issue 70 SUMMARY OF SUPREME COURT JUDGMENTS: April 2017 GOORJHUN A K & ANOR v STATE 2017 SCJ 130 L ETOURDI J V S v STATE 2017 SCJ 127 Hon. N. Devat Judge & Hon G. Jugessur-Manna Judge Hon. D. Beesoondoyal Judge & Hon G. Jugessur-Manna Judge Magistrate s appreciation of evidence, when appellant court to intervene The appellants were prosecuted under separate counts of an information for the offence of insult in breach of section 296(a) of the Criminal Code. They pleaded not guilty to their respective count and were assisted by Counsel. After hearing evidence, the learned Magistrate found them guilty as charged and sentenced each of them to pay a fine of Rs.2000/and Rs.100/- as costs. The grounds of appeal which mainly questioned the learned Magistrate s appreciation of the evidence adduced before him, his assessment of the credibility of the complainant and the appellants who deposed under solemn affirmation, his findings of fact and his reliance on the complainant s version to find the guilt of the appellants established. It was submitted by Counsel for the appellant that in view of the inconsistencies in the evidence of the complainant, the learned Magistrate ought to have preferred the appellants versions or at least given them the benefit of doubt. It is well settled that an appellate Court will not lightly interfere with the findings of fact of a trial Court which has the advantage of seeing and hearing witnesses and is in a better position to assess their credibility. As was held in Mootaloo v The Queen [1958 MR 333], …an appellate court should not lightly reverse a finding of the trial judge on a question of fact unless there are sufficient indications that on trial the facts have not been well appreciated... On the whole, the appeal court concluded that the learned Magistrate s analysis of the evidence on record, his findings of facts and conclusions unassailable and fully warranted. Therefore there was no reason to interfere with his appreciation and assessment of the evidence for any of the reasons invoked by Counsel for the appellant. Appeal was dismissed with costs. Drink driving, previous conviction, strong signal The appellant was prosecuted before the District Court of Moka for the offence of driving a motor vehicle with alcohol concentration above prescribed limit, in breach of sections 123F (1) (a) (3), (5), 123H (1) (b) and 52 coupled with the 2nd Schedule of the Road Traffic Act. The appellant pleaded guilty and was inops consilii. Following a hearing for sentencing purposes, the learned Magistrate convicted the appellant and sentenced him to 6 months imprisonment and to pay a fine of Rs.20,000/ and Rs.100/ as costs. He was also disqualified to drive all types of vehicles for a period of one year. Appellant appealed against sentence which was as follows: • The sentence was wrong in principle and manifestly harsh and excessive in view of the circumstances of the case. Counsel for the appellant submitted that a serious irregularity had occurred inasmuch as the appellant was not given a chance to put forward any mitigating factors after his previous convictions were read over to him and, furthermore, that the learned Magistrate was wrong to have imposed the minimum mandatory sentence of 6 months imprisonment. Counsel also submitted that the Court has discretion not to impose the minimum sentence of 6 months imprisonment where special reasons or special circumstances not to do so exist. Counsel for the respondent has, on her part, submitted that the sentence is neither wrong in principle nor manifestly harsh and excessive because the appellant already had a previous conviction for the same offence dated 2013 for which he was fined Rs.10,000/ and as per section123F (4) of the Road Traffic Act, in the case of a second or subsequent conviction, the offender shall be liable to a fine of not less Rs. 20,000/ nor Page 11 more than Rs.50,000/ together with imprisonment for a term of not less than 6 months nor more than 12 months for a subsequent conviction for the same offence . Counsel cited the case of P. Shioulochand v The State [2014 SCJ 28] in support of her submission that, in the case of a second conviction under section 123F (1), the imposition of a minimum six months sentence becomes mandatory by virtue of section 123F (4). In the circumstances, she submitted that the trial Court correctly imposed the minimum mandatory sentence of imprisonment and that the said sentence is not manifestly harsh and excessive. Respondent s Counsel further submitted that the appellant was given full opportunity to mitigate his circumstances and there were no special mitigating circumstances in the present case to justify a lower sentence than the one inflicted by the Magistrate. The latter was alive to all the circumstances as he was in presence of the appellant s written statement he gave to the police, his statement from the dock, his prayer for excuse and his previous convictions which were explained to him and which he admitted. The Court record shows that indeed, at the hearing for sentencing purposes, the appellant was explained his rights and given an opportunity to adduce evidence and he elected to make a statement from the dock. The appellant admitted that he had committed a mistake and begged for excuse. The record of his previous convictions was read over and explained to him. He admitted all the previous convictions including that of 2013, which is termed as a cognate offence but which is in fact for the same offence of driving a motor vehicle with alcohol concentration above prescribed limit, and in respect of which he was fined Rs.10,000/ on 9 October 2013. As regards the justification of the mandatory minimum sentence of 6 months imprisonment under section 123F (4) of the Road Traffic Act, this has been considered and explained quite in depth in several cases over the recent years. In Sobnath v The State [2012 SCJ 274], the Court held – There must be a clear signal to potential offenders of that May 2017 - Issue 70 sort that they would not be dealt with leniently by the courts. The public interest in curbing such offences and in protecting human life therefore eloquently require a custodial sentence even for the first offender unless there exists any special mitigating reason which would justify a non-custodial sentence. The Court emphasized that the appellant was found to have 77 miligrammes of alcohol in 100 mililitres of blood whilst the prescribed limit was 50 miligrammes of alcohol in 100 mililitres of blood and he had a previous conviction for the same offence dated 9 September 2013. The fact that the appellant committed the present offence on 9 May 2014, just eight months later from the date of his previous conviction for the same offence, shows that the appellant had failed to mend his ways and he needed a strong signal and a deterrent to stop him from jeopardizing and putting at risk the safety, security and the lives of other innocent road users. The appellant could not under these circumstances expect any leniency from the Court, the more so as there was no special mitigating factors on record warranting a custodial sentence of less than 6 months. The Court concluded that the mandatory minimum sentence of 6 months imprisonment was fully justified and that the present appeal against sentence is devoid of merit. Thus, appeal was dismissed with costs. However difficult life may seem, there is always something you can do and succeed at. - Stephen Hawking Page 12