The Judicial Committee of the Privy Council Decisions

Jahree v. The State (Mauritius) [2005] UKPC 7 (28 February 2005)

ADVANCE COPY

Privy Council Appeal No. 4 of 2004

Gianchand Jahree Appellant

v.

The State Respondent

FROM

THE SUPREME COURT OF MAURITIUS

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 28th February 2005

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Present at the hearing:-

Lord Bingham of Cornhill

Lord Steyn

Lord Rodger of Earlsferry

Baroness Hale of Richmond

Lord Carswell

[Delivered by Lord Carswell]

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1. On 10 October 2001 the appellant Gianchand Jahree appeared in the Intermediate Court of Mauritius to stand trial on a charge of possession of counterfeit bank notes. The counsel whom he had earlier instructed to represent him was not present, and the magistrate Mrs D Beesoondoyal refused his application for an adjournment to allow him to instruct another counsel. The trial proceeded, the appellant representing himself, and on 4 December 2001 the magistrate gave a written decision finding him guilty as charged, sentencing him to nine months' imprisonment and ordering him to pay Rs 500 for costs. The appellant appealed to the Supreme Court of Mauritius (Pillay CJ and Matadeen J), which on 25 February 2003 dismissed his appeal with costs. The appellant has appealed, with the leave of the Supreme Court, to the Privy Council on grounds in which a number of breaches of the Constitution of Mauritius are alleged.
2. The charge against the appellant arose out of events on 22 August 1999, when police officers conducted a search of his premises at Boulet Rouge, Central Flacq. When they went to search his van, which was in the yard, he asked them to carry out the search at a police compound in Flacq. The van was taken there and searched. The officers found a black waist bag concealed at the rear offside of the vehicle, between the box of the van and the chassis. Inside there was a green plastic bag, which contained three envelopes. Two of the envelopes contained rectangular cut pieces of white paper, and in the third was a piece of paper bearing some writing and wrapped around four spurious notes, each of Rs 1000 denomination. Six other similar pieces of rectangular paper were found under a seat in the van. When cautioned, the appellant denied any knowledge of these items.
3. The appellant made a written statement to the police later the same day, in which he stated that he had been threatened by a person whom he named as Shradhanand (also known as Preetam) Ramsurrun and suspected that that person had planted the incriminating items on him. He made the same case when he gave evidence at his subsequent trial.
4. The case was on 24 March 2000 referred by the Director of Public Prosecutions for determination by the Intermediate Court and an information was sworn on 6 April 2000. The case was called on 24 April 2000, when the appellant informed the court that he would retain the services of counsel. He appeared again on 15 May 2000, when he filed a letter from Mr Dev Hurnam, a member of the Mauritius Bar. The trial was fixed for 18 January 2001.
5. On 18 January 2001 Mr Hurnam sought leave to attend a continuation of a case before another division of the court and filed a letter with the court. Leave was granted, but at 1.45 pm another counsel Mr Hurhangee appeared and informed the court that he had been asked to replace Mr Hurnam and request a postponement. The court, apparently with some reluctance, granted the application and the case was postponed for trial until 10 October 2001.
6. On 10 October 2001 the appellant was present in court, but neither Mr Hurnam nor any other counsel was there to represent the appellant. The minutes of the proceedings read as follows:

"The accused, upon question from Court, states that he is praying for a postponement to retain services of another counsel. The Court informs accused that this case was called the last time on 18.1.2001, on which date owing to the absence of counsel, the case was postponed for trial for today, that is some 9 months later. If the accused had so wished he should have already retained the services of another counsel as he had plenty of time to do so.

The Court is not prepared to grant a last minute postponement today as this would not be in the interests of justice and also because the accused is making an abuse of his right to counsel. The postponement is therefore not granted and the Court proceeds to hear the case."

No response from the appellant to these statements by the magistrate has been recorded. The Board was informed that Mr Hurnam had been suspended from practice by a decision of the Supreme Court, for one year from 20 March 2001, and was not eligible to appear for the appellant. The magistrate did not refer to this and their Lordships do not know whether she was aware of it. Nor did the appellant at any stage say that he had expected to meet Mr Hurnam at court that morning, which, if it were true, one would have expected him to state at once when the magistrate said that he had had plenty of time to obtain the services of another counsel. On the contrary, he is recorded as having asked for a postponement "to obtain the services of another counsel", which must give rise to an inference that he already knew that Mr Hurnam would not be appearing for him.

7. The evidence for the prosecution was called, but the appellant did not cross-examine any of the witnesses. In the course of the evidence of one of them the prosecutor sought leave to adduce the evidence of a document examiner, and when leave was given he produced the report of the examiner, which was admitted in evidence. This related to a comparison of the handwriting of the appellant and that of Shradhanand (otherwise Preetam) Ramsarrun with the writing on the paper in which the bank notes were wrapped. The examiner found no conclusive similarities of handwriting characteristics.
8. The appellant gave evidence on his own behalf, but did not call any other witnesses. In the course of his cross-examination the appellant suggested that somebody had opened the van on the Saturday prior to the police visit, whereupon the following exchange between the magistrate and the appellant was recorded:

"Q. But you had not noticed the van having been opened?

A. Yes.

Q. Had you locked your van on the Saturday when you had left it at Le Citadelle?

A. Yes. But I had left the front windows open by some 2 cms.

Q. Are you saying that when you parked your van at Le Citadelle, in your mind anyone could have opened the door of the van?

A. No.

Q. Do you agree that any vehicle can be opened by means of a false key?

A. Yes.

Q. And you stated earlier that the gloves box of your van was a safe place to keep important keys?

A. Yes.

Q. Do you still maintain that it was a safe place to keep such important keys?

A. Yes.

Q. I put it to you that all the exhibits secured from inside and outside your van belonged to you, including the spurious notes?

A. No.

Q. I also put it to you that you knowingly and unlawfully had in your possession those 4 spurious notes of Rs. 1000?

A. No."

9. In her judgment the magistrate set out the charge and the evidence given and her conclusion that she was satisfied beyond reasonable doubt that the appellant knew all about the presence of the exhibits, including the four spurious notes, and that he therefore had the spurious notes in his possessions, as averred by the prosecution. She found the appellant guilty as charged and imposed the penalties referred to earlier. Miss Moonshiram, who appeared for the appellant before the Board, was critical of the magistrate for not referring to the fact that the appellant was unrepresented or that he requested an adjournment. She also submitted that the court had drawn wrong inferences from the facts of the case.
10. The appellant appealed to the Supreme Court of Mauritius, his appeal being based on three grounds (a) breach of his constitutional rights in the magistrate's refusal to permit an adjournment to allow him to obtain legal representation (b) unfairness in the trial (i) in the magistrate's questioning of the appellant (ii) in the failure of the prosecution to obtain and call evidence about the threatening calls made to the appellant (this ground was abandoned at the hearing of the appeal) (c) incorrect conclusions drawn by the magistrate from the evidence.
11. The appeal was heard on 25 February 2003. Counsel then appearing for the appellant argued that the magistrate should have enquired into the reason why he found himself without counsel at the trial and, if he knew that Mr Hurnam could not appear, what steps he had taken to obtain the services of a replacement. He was left in a disadvantaged position, facing a serious charge without a skilled legal representative to ensure that his case was properly presented, which was a breach of his constitutional rights. There was argument on each side about the inferences drawn from the facts of the case, and in his rejoinder counsel for the appellant is reported in the minutes of the proceedings as stating:

"On the facts, he thinks that it could be inferred that he had guilty knowledge."

12. The court's decision was given in a short oral judgment by Pillay CJ. The court considered that, as held by the magistrate, it was through the appellant's own fault that he found himself unrepresented on the day of his trial, citing Mohammadally v The State (2000 SCJ No 289) and distinguishing Mitchell v R [1999] 1 WLR 1679. The Court did not address the other point, stating that it took that course

"as learned Counsel for the appellant conceded that, on the facts of the case, the trial Court was right to have found that the appellant had the requisite knowledge and was guilty of the offence charged."

13. The provisions of the Constitution of Mauritius upon which the appellant's counsel relied before the Board are contained in section 10, the material parts of which read:

"(1) 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.

(2) Every person who is charged with a criminal offence –

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(c) shall be given adequate time and facilities for the preparation of his defence;

(d) shall be permitted to defend himself in person or, at his own expense, by a legal representative of his own choice or, where so prescribed, by a legal representative provided at the public expense;"

14. In Mohammadally v The State, a previous decision of the Supreme Court of Mauritius, the first appellant had dispensed with the services of her counsel four days before the date of trial and had not taken steps to engage another. The trial judge refused to grant her a postponement, on the ground that she could readily have made efforts to obtain another counsel in the time. She was convicted of a drugs charge and her appeal against conviction was dismissed. The court took the view that as she could easily have engaged another counsel in the time and had made no attempt to do so, she had not been denied access to legal advice and there was no breach of section 10 of the Constitution.
15. In so ruling the court in Mohammadally v The State followed its earlier decision in Gooranah v The Queen [1968] MR 122. In that case the appellant had appeared three times before the court before the date of trial. On the morning of trial he produced a letter from a member of the Bar stating that he had just been instructed for the defence, but as he was engaged elsewhere and had not had time to study the case he must ask for a postponement. The trial judge refused and his decision was upheld by the Supreme Court. In his judgment Rivalland CJ, after referring to section 10(2) of the Constitution, stated at pages 124-5:

"The all important words of paragraph (d) in my view are 'shall be permitted to defend himself'. The duty on the Court is clear and is impliedly twofold: an accused party must be given a reasonable opportunity to retain the services of a legal representative of his choice and, at the trial of the case, the legal representative must be given full latitude – in accordance with the law of this country – to defend the accused. On the other hand, the duty to retain the services of a legal representative of his choice lies on an accused party and the words 'of his choice' are here again important: they necessarily connote the idea that, if he has a wide choice from among the members of the Bar, the responsibility for the choice is his, not that of the Court. The duty cast on the Court is purely a passive one in so far as the presence of counsel at the trial is concerned, while the responsibility for the briefing of the legal representative and ensuring his presence in Court devolves from the very words of the Constitution on the accused party.

The provisions of the Constitution were never intended to be a cloak for the laches of an accused party."

16. Their Lordships consider that the principles laid down in Mohammadally v The State and Gooranah v The Queen are correct and are consistent with those accepted by the Judicial Committee in Robinson v The Queen [1985] AC 956 and Dunkley v The Queen [1995] 1 AC 419. In Robinson v The Queen counsel had been engaged by the appellant but did not turn up in court because he had not been put in funds. The judge refused to hold up the trial, which commenced without counsel. On the following day junior counsel appeared and asked for permission for himself and his leader to withdraw from the case. The judge offered him a legal aid assignment, but counsel declined it. The judge then refused permission to withdraw and refused to adjourn the trial, whereupon counsel left the court and did not return. The Judicial Committee held that there had not been a breach of the relevant provisions of the Jamaican Constitution, which were closely similar to those of Mauritius. Giving the judgment of the Board, Lord Roskill stated at pages 966-7:

"In their Lordships' view the important word used in section 20(6)(c) is 'permitted'. He must not be prevented by the state in any of its manifestations, whether judicial or executive, from exercising the right accorded by the subsection. He must be permitted to exercise those rights. It is apparent that no one could have done more than the judge to secure the defendant's representation by counsel of his choice …

In their Lordships' view the judge's exercise of his discretion, which the counsel for the appellant rightly conceded to exist, can only be faulted if the constitutional provisions make it necessary for the judge, whatever the circumstances, always to grant an adjournment so as to ensure that no one who wishes legal representation is without such representation. Their Lordships do not for one moment underrate the crucial importance of legal representation for those who require it. But their Lordships cannot construe the relevant provisions of the Constitution in such a way as to give rise to an absolute right to legal representation which if exercised to the full could all too easily lead to manipulation and abuse … If a defendant … does not take reasonable steps to ensure that he is represented at the trial, whether on legal aid or otherwise, he cannot reasonably claim that the lack of legal representation resulted from a deprivation of his constitutional rights."

17. This decision was followed in Dunkley v The Queen [1995] 1 AC 419, in which the appellant's counsel had walked out of a murder trial after a dispute with the judge, leaving the appellant unrepresented for the remainder of the proceedings. The Privy Council reaffirmed that the law remained as stated in Robinson v The Queen, that there was no absolute right to legal representation throughout the course of a trial. They allowed the appeal, however, on the ground of the prejudice suffered by the appellant in attempting to conduct his defence without counsel.
18. Mitchell v The Queen [1999] 1 WLR 1679, which the Supreme Court distinguished, was a case of capital murder from Jamaica. In mid-trial the defendant expressed a desire to take over cross-examination of the witnesses from his counsel, who then asked leave to withdraw. The judge did not accede to the request at once, but attempted to persuade the defendant to change his mind and counsel to stay to assist him in some capacity. Neither was willing to accept his recommendation, the defendant asserting that he could do it on his own. Eventually the judge permitted counsel to withdraw and the defendant conducted the rest of the trial without representation. The Privy Council held, apparently influenced by the seriousness and difficulty of the case, that the judge should nevertheless have done more: he should have adjourned the trial for a short time to see if other counsel would be ready and willing to act for the defendant. The decision does not, however, detract from the validity of the proposition that if a defendant is left unrepresented through his own fault that is not a breach of his constitutional right to legal representation. It is, however, necessary to go on to consider whether as a result of the absence of legal representation any miscarriage of justice may have occurred.
19. In the present case the Board does not have the advantage of verbatim transcripts of the proceedings before the magistrate or the Supreme Court. The minutes of proceedings before the magistrate state, however, that the first request of the appellant was for "a postponement to retain services of another counsel", which carries the implication that he was aware that his counsel would not be available to represent him at the trial. There is no hint in the minutes of a reply to the court of the type which one would naturally find if he expected to meet Mr Hurnam at court that morning. Nor has the appellant at any stage stated, either personally or through counsel on appeal, that he was unaware of Mr Hurnam's suspension and expected to meet him at court. In these circumstances one must infer that the magistrate, especially by her reference to an abuse of his right to counsel concluded that the appellant knew that there were difficulties about his representation but took no action to secure the services of counsel. That being so, it was within her discretion to refuse to adjourn the trial and to require the appellant to proceed without legal representation. Their Lordships accordingly do not consider it necessary to express any view on the exact content of the duty of an accused person to ensure the presence of his legal representative in court. It may be observed, however, that in most cases it would be incumbent upon the court, faced with an unrepresented defendant on a serious charge, to make proper inquiry about the reasons and, if deciding to proceed, to ensure that the defendant has been able to read the case papers or is given sufficient time to allow him to do so. It would also be prudent to ensure that such steps are properly noted in some official form.
20. Their Lordships accordingly consider that the ground of appeal based on section 10(2) of the Constitution is not well based. The consequential issue is whether the degree of prejudice suffered by the appellant through the absence of legal representation was sufficient to give rise to a miscarriage of justice. This issue is cognate with those based on section 10(1) and the fairness of the hearing. The first complaint made by counsel for the appellant was that the magistrate had failed to give the appellant the assistance which is due to an unrepresented defendant, by ensuring that the essential questions which might help his case are asked of the prosecution witnesses, and that she had too readily made adverse rulings in the course of the trial. Their Lordships note that these points were not considered sufficiently fundamental to take before the Supreme Court. The case was a simple and straightforward one, and cross-examination of the witnesses would have yielded little: the defence was not a denial of the basic facts proved by the prosecution, but consisted of an allegation that the counterfeit notes had been planted by another person in the appellant's van. The rulings enumerated by Miss Moonshiram were, with one exception, of a type which could scarcely have been opposed. That exception was the admission of the statement made by the handwriting examiner, which could have been of adverse significance. Since, however, it purported to establish that the writing on the paper was not the appellant's, it was to that extent in his favour. In so far as it proved that it was not Ramsarrun's, that may have tended to some degree to negate the appellant's defence, but it was not of great probative significance, for it was not an essential part of his case that Ramsarrun should have written the document.
21. Their Lordships feel more concern about the manner in which the magistrate questioned the appellant in the passages which have been set out earlier in this judgment. It is highly undesirable that a judge should cross-examine an accused person in such a way as to appear to be siding with the prosecution. Appellate courts have constantly said that judges should exercise considerable restraint in their interventions: Archbold, 2002 ed, para 8-248; but see also R v Tuegel [2000] 2 All ER 872, 888-889; [2002] 2 Cr App R 361, 381, per Rose LJ. The cases cited by Miss Moonshiram relate to jury trial, where the issue is whether adverse questioning by the judge may unfairly influence the jury's thinking. They are less directly material to a trial by a judge sitting without a jury. It is nevertheless of importance that even if judges may genuinely be keeping an open mind, they should not conduct trials in a manner which gives the impression that they are hostile to the case made on either side. Their Lordships have carefully considered the course of the trial as a whole and have concluded that although they strongly deprecate questioning by a judge in the manner which appears to have been adopted by the magistrate, it was not of sufficiently central significance in the present case to affect the overall fairness of the trial and justify setting the magistrate's finding aside.
22. The final issue argued by the appellant's counsel was that the magistrate drew incorrect inferences from the evidence against the appellant and that the Supreme Court wrongly assumed from the remark attributed to the appellant's counsel that he had conceded that the magistrate was right to have found that the appellant had guilty knowledge. Their Lordships feel it necessary to repeat what they have said many times, that it is not the function of the Judicial Committee to act as a second Court of Criminal Appeal. As Lord Hope of Craighead put it in Stafford v The State [1999] 1 WLR 2026, 2029:

"Save in exceptional circumstances, the Judicial Committee will not embark upon a rehearing of issues such as the weight which may properly be given to the evidence or the inferences which may properly be drawn from it. These are matters which will be left to the Court of Appeal. Its decision as to whether the evidence was sufficient to support the conviction will not normally be reviewed by this Board."

The Supreme Court had the advantage of seeing and hearing counsel appearing for the appellant before them, and were in the best position to determine what he intended to convey by what he said in his reply. It may also be supposed that the Supreme Court were satisfied that the concession, if such it was, was properly made and that the magistrate was justified in drawing the inferences of which complaint was made. Their Lordships do not propose to go any further into this issue.

23. Their Lordships accordingly conclude that none of the grounds of appeal put forward has been made out and dismiss the appeal with costs.