Easter Term
[2017] UKPC 16
Privy Council Appeals
No 0005 of 2015, 0008 of 2015 and 0010 of 2015
JUDGMENT
Sumodhee (No 3) (Appellant) v The State of
Mauritius (Respondent) (Mauritius)
Sumodhee (No 3) (Appellant) v The State of Mauritius (Respondent)
(Mauritius)
Keramuth (No 2) (Appellant) v The State of Mauritius (Respondent)
(Mauritius)
From the Supreme Court of
Mauritius
before
Lord Mance
Lord Kerr
Lord Wilson
Lord Hughes
Lord Hodge
JUDGMENT GIVEN ON
22 May 2017
Heard on 7 March 2017
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Appellant (KS)
Nandkishore Ramburn
SC
Shaukatally Oozeer
Rama Valayden
Naushaad K Malleck
(Instructed by Omar
I Bahemia)
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Respondent
Satyajit Boolell
SC, DPP
Sulakshna Beekarry-Sunassee
Medaven Armoogum
(Instructed by
Royds Withy King)
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Appellant (SIS)
Shameer Hussenbocus
Zaynab Mirasahib
(Instructed by Omar
I Bahemia)
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Appellant (ANK)
Shameer Hussenbocus
(Instructed by Omar
I Bahemia)
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LORD HUGHES:
1.
The issue in this appeal against conviction is what entitlement an
accused person has to the digital record of his trial. Leave to appeal to Her
Majesty was granted only on this limited ground. The appellant defendants
asserted a very large number of other grounds both before the Court of Criminal
Appeal and upon application to the Board for leave. Those grounds were all
rejected by the Court of Criminal Appeal and the Board refused leave to appeal
them further.
2.
The appellants were convicted in 2000 of a serious offence of arson
causing death. Mob violence had erupted in Port Louis in May 1999 after a
football match had concluded with a result which was disappointing to many
supporters. The mob roamed through the streets and launched fire attacks by
petrol bombs and other means on a number of target buildings. One of the
attacks, on L’Amicale gaming club, resulted in some seven deaths. There was at
the trial no dispute that the arson had been committed, and by many. The issue
was whether the appellants were or were not proved to have been part of it.
Their case was that they were not there at all. They advanced alibis suggesting
that they were in different parts of Port Louis at the material time. The first
two appellants, though not the third, called evidence in support of those
alibis from relatives or friends. None of the appellants elected himself to
give evidence.
3.
The case against all three appellants was founded substantially on the
evidence of an acquaintance, Azad Thupsee. He had at one stage repudiated his
initial account of events which had implicated the appellants. He had been
treated by the prosecution as a hostile witness at the preliminary enquiry,
where he had contended that the earlier statement had been beaten out of him by
the police. At the trial, his explanation for his inconsistent accounts was
that he had been threatened by or on behalf of the appellants and required to
exonerate them by making the complaint about the police which he did. Since he
had initially been arrested on suspicion of participating in the attack, and
had later been afforded immunity from prosecution either for the arson or for
perjury, albeit only after he denounced his retraction, he was treated by the
judge as potentially either an accomplice or someone who might have an axe of
his own to grind. A second (unconnected) witness, Li Ting, implicated the third
appellant and another co-defendant. He had not known them beforehand but gave
evidence that he had recognised them as participants when he saw them amongst
some nine defendants at the preliminary enquiry, and then at the trial.
4.
After their trial, all three appellants lodged appeals against their
convictions. Amongst some 34 grounds, the first two appellants complained as
follows:
“25. The learned judge’s
directions, his language and his inflammatory tone as may be gathered from the
digital recording of his summing up to the jury were a clear invitation to them
to believe Azad Thupsee’s evidence and to convict the appellants. In fact he
left them with no other choice.”
An equivalent ground appeared in the appeal of the third
appellant.
5.
About three weeks before the expected date for the hearing of the
appeals by the Court of Criminal Appeal, the appellants’ solicitors wrote to
the court to say that it was proposed to ask the court to listen to the digital
recording of the summing up. By the same letter, the solicitors asked for a
copy of that recording to be made available to them. The prosecution, when
notified of the request, indicated that it would resist the application that
the court should be required to listen to the recording. In consequence, the
hearing date in October 2004 was given over to a contested application that it
should do so. The court determined that there was no right to be supplied with
a copy of the digital recording, that the ground for seeking it had not been
laid, and that in the absence of any evidence justifying listening to it there
was no basis on which the court should do so. It proceeded to hear the
substantive grounds of appeal over three days in February 2005 and rejected
them all in a substantial reasoned judgment. As indicated above, the attempt to
pursue those grounds by way of further appeal to the Board has been refused,
leaving only the issue of access to, and use of, the digital recording.
6.
It follows that two questions arise. They must be kept distinct.
(i)
does 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?
and
(ii)
does an appellant have the right to insist that the Court of Criminal
Appeal listen to such a recording at the hearing of his appeal?
What right is there to a copy of the digital recording?
7.
The appellants found their claim to a copy of the recording on section
10 of the Constitution. Section 10 contains a variety of provisions designed to
stipulate for the fair trial of criminal and civil issues. Section 10(1)
provides, generally:
“(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.”
Section 10(3) goes on to provide:
“(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 or on behalf of the court.”
8.
The Constitution was adopted in 1968. No doubt at that time criminal
trials were not generally audio-recorded. The Board was told that nowadays they
generally are in the Supreme Court, whilst there is usually no audio recording
in the summary courts, and may or may not be such in the Intermediate Court.
9.
Other legislation in the field demonstrates the development of court
records. The Courts Act 1945 originally provided, by section 177(1), for the
judge conducting a criminal trial in the Supreme Court to take down in writing
the evidence given, and for the Master or Registrar to do so in a civil trial
there. It went on to provide that if the judge (etc) became unable to take down
the evidence, he could direct another person to do it. Those provisions are
still extant. Later, in 1999, a new subsection (3) was added to section 177,
which now states as follows:
“(3) Notwithstanding
subsection (1), the evidence and proceedings in any criminal or civil case
before the Supreme Court may be recorded by tape or other technological means
and the Judge may give such directions with
regard to the recording of evidence and proceedings as he deems fit.”
Meanwhile, adjacent sections of the Courts Act also deal
with court records. By section 23, minutes of proceedings in the Supreme Court
must be drawn up and, together with the notes of evidence taken under section
177 are to be preserved as records of the court. Section 24 (as amended in
1992) says as follows:
“24. Shorthand notes
In every case, civil or criminal,
where the presiding judge so directs, the Master and Registrar or such other
officer shall ensure that shorthand notes are taken of any proceedings before
the Supreme Court, and a transcript of such notes shall be made if the
presiding judge so directs, and such transcript shall, for all purposes, be
deemed prima facie to be the official record of such proceedings.” (Emphasis
supplied)
10.
There is equivalent provision in the Criminal Appeal Act 1954. Section
18 provides, as from time to time amended, most lately in 1994:
“18. Shorthand notes of trial
(1)(a) Shorthand notes may, if
the judge so orders be taken of the proceedings at the trial of any person
before the Supreme Court who, if convicted, is entitled or may be authorised to
appeal under this Act, and on any appeal, a transcript of the notes or any part
of it shall be made if the Registrar so directs,
and furnished to the Registrar for the use of the Court or any judge.
(b) Additionally, a
transcript shall be furnished to any interested party upon the payment of such
charges as may be fixed under the Court Fees Act.”
Meanwhile, rule 18 of the Criminal Appeal Rules 1954
requires the Registrar, when he has received notice of appeal, to obtain from
the trial judge a certified copy of the notes of evidence and of the
proceedings. And by rule 26(8) “interested party” includes both the prosecution
and a convicted person, whilst by rule 26(9) “proceedings at the trial” include
the judge’s summing up.
11.
The contention of the Director of Public Prosecutions in this appeal is
that these statutory provisions, and particularly section 24 of the Courts Act,
make it clear that it is the transcript of the shorthand note (and/or the
judge’s notes of evidence) which is “the” official record of the proceedings in
the court of trial. It follows, he submits, that that is the record of which an
accused is entitled to a copy under section 10(3) of the Constitution. This
contention succeeded in the Court of Appeal, which accordingly held that the
appellants were not entitled as of right to a copy of the digital recording in
addition to the transcript.
12.
There is no reason to doubt that when section 24 of the Courts Act and
section 18 of the Criminal Appeal Act were most recently amended in the 1990s
the normal method of recording a Supreme Court trial was by shorthand note,
from which a transcript would ordinarily be prepared for use in any appeal. But
it does not follow that the assumption that that would be the method of
recording, which underlay those statutory sections, forever limited or
controlled the general rule contained in section 10(3) of the Constitution.
First, the Constitution must prevail over the statutes, rather than the
reverse. Second, the wording of section 10(3) is particularly clear and confers
an entitlement to “any” record of the proceedings made by or on behalf of the
court. A digital recording is clearly a record of the proceedings within that
expression. Third, it is not possible to treat the two sections of the statutes
as limiting the entitlement of the accused to a transcript of a shorthand note
when, these days, there never has been a shorthand note. For a Supreme Court
trial, the modern transcript is prepared from the digital recording, not from a
shorthand note. Moreover, fourth, it is the digital recording which is the
primary record; the transcript, though the indispensable working tool for any
appellate court, is derivative. From this it follows that there is no basis on
which section 10(3) can be construed as not applying to the digital recording.
An accused is entitled, on payment of the cost of providing it, to a copy of
the digital record of the trial.
13.
Although the point does not, as a result, arise, the Board should record
that it does not accept the subsidiary submission of the appellants that a
right to a copy of the digital recording in any event is afforded by section
10(1) of the Constitution without the need for section 10(3). It cannot
possibly be said that in every case a fair trial (and in particular a fair
hearing of any appeal) requires the provision of a copy of the digital
recording. A fair determination of an appeal may require such, but in
most cases it will not.
Use of an audio-recording in the Court of Criminal Appeal
14.
The mere fact that an accused has paid for a copy of the digital
recording does not entitle him to insist that the court must devote time to
listening to it. Ordinarily, there will be no occasion whatever to listen to
it. What record of the trial is needed in the Court of Appeal depends entirely
on the issues which arise in the appeal. Some appeals may need no record of the
trial beyond the indictment and the verdict; that might be so, for example, of
an appeal where the contention was that the indictment disclosed no known
offence in law, or was impermissibly bad for duplicity. An appeal against
sentence normally requires only a transcript of the sentencing remarks together
with the antecedents of the accused and any reports upon him, but may sometimes
call for the summing up (or occasionally for a particular part of the evidence)
to see the factual basis for sentence. The majority of appeals challenging the
direction to the jury will need a transcript of the summing up but will not
normally need any record of the evidence. Some appeals will need transcripts of
those parts of the evidence about which an issue arises. The management of
appeals is for the court itself. It is perfectly entitled, by direction
communicated through its registrar, or if necessary in open court, to rule what
record, if any, is needed.
15.
If, unusually, the court is going to be asked to listen to an audio
recording, it is fully entitled to insist that that request is justified by
counsel on behalf of whichever party makes the request. The potential impact on
the court’s ability to dispose of the other cases in its busy list must be
considered; it is unfair to those concerned in other cases not to do so.
Generally, mere assertion that the recording is necessary will not be enough.
Nor will a bare assertion that the judge’s tone was unfortunate suffice.
Particulars must be given. The court is entitled to expect that, unless there
is a good reason why he cannot do so, counsel who was present at the trial will
vouch by way of signature to the grounds of appeal, or by letter or otherwise,
for the proposition that there is a properly arguable basis for complaint. Whether
or not still instructed, it is part of his professional duty to the court to do
so, and to do so only when the facts justify it. If the request is made, it is
for the court to decide whether or not to accede to it. It will of course do so
whenever it is genuinely necessary to resolve an issue arising on the appeal.
The present case
16.
Given the time which has passed since this trial (albeit the responsibility
of neither the court nor the prosecution) and because the recording had only
lately been made available to the appellants, the Board took the view that it
ought to hear the relevant passages of the recording. It was grateful to Mr
Ramburn SC for identifying them and for making clear submissions upon each. It
noted that the passages to which he took the Board represented a significantly
different selection from those identified in his written case, and omitted most
of the latter, but he was plainly correct to discard those he did. On
inspection, the complaint that the judge had, in the discarded passages,
bestowed approval on the arguments of the prosecution and implicit disapproval
on those of the defendants was nothing whatever to do with the tone of the
judge’s voice. That complaint could be assessed perfectly well, indeed much
better, from the transcript. Moreover it turned out that all the judge was
doing was, wholly properly, reciting the arguments of each advocate.
17.
As to the passages now relied on by Mr Ramburn, the Board was unable to
detect any change of tone in the judge as between them and the rest of the
summing up. His delivery was, as Mr Ramburn realistically accepted, consistent throughout.
It was characteristically staccato, whether or not perhaps in part because he
was not speaking in his first language the Board cannot judge, but there was
nothing in it to convey improper pressure upon the jury or to remove from them
the decisions which needed to be made about where the truth lay. Despite Mr
Ramburn’s careful submissions, the Board is completely satisfied that listening
to the tape in this case added absolutely nothing of significance to reading
the transcript. Indeed, such (very limited) argument as there was for
suggesting that the judge might have let slip too much of his own view of the
evidence was more apparent from the transcript than it was from the recording.
That argument proved, however, on examination, to be ill-founded. Overall, this
was a carefully constructed summing up which contained everything which it
needed to contain and was well balanced in its treatment of the evidence. The
direction in relation to the key witness Thupsee was no exception. The judge
correctly treated him as a witness who might have an axe of his own to grind. He
correctly warned the jury of the wisdom of looking for corroboration of his
evidence, and he was forthright and concise in telling them that there was
none. He was, however, also correct in law to tell the jury that it was open to
them to accept the evidence if sure, despite the absence of corroboration, that
it was true. His summary of the evidence relating to the witness’ previous
inconsistent accounts was fair and objective. To take seriatim the complaints
made in ground 25 of the original grounds of appeal (see para 4 above), there
is no warrant whatever for the suggestion that the judge’s language was
“inflammatory”, his summing up was in no sense “a clear indication” to the jury
to believe Thupsee, and the assertion that he left the jury with no choice is
quite without justification.
18.
It follows that this appeal must be dismissed.
Case management and the role of counsel
19.
The Board would not wish to leave this appeal without some observations
upon some of the case management issues which, it is foreseeable, may ensue
from its foregoing conclusion that section 10(3) affords the accused a right to
a copy of the digital recording. It does so very conscious that case management
is primarily for the local court, no doubt after suitable discussions with
practitioners if directions of general application are contemplated. It offers
these brief observations only in case, in their absence, it might be thought
that it impliedly endorsed a contrary view.
20.
It is a matter for the Court of Criminal Appeal how it goes about
managing any request that it listen to a recording. It may well be a suitable
matter for either a statement of practice or provision in the Rules. What is
quite clear is that the court is entitled to insist, if it chooses to do so, on
such a request being justified, and to refuse it unless it is justified. The
Board would suggest, simply as a temporary measure unless and until the court
decides on its practice, that counsel for an appellant who proposes to make
such a request must take the responsibility for (1) notifying the court and all
other parties in plenty of time before the hearing, say not less than six
weeks, (2) identifying precisely the issue to which the recording is said to be
relevant, and why that issue cannot be argued in the usual way on the
transcript, normally by way of the professionally considered views of trial
counsel, (3) specifying by reference to the time-count of the recording, cross-referenced
to the page of transcript, the exact parts of the recording which the court is
invited to hear and (4) ensuring, through liaison with the court, that the
necessary equipment for playing the recording will be available and a suitably
experienced person on hand to operate it without delay or time-wasting.
21.
It does not follow from section 10(3) of the Constitution that every
accused will have any occasion to apply for such a copy. Indeed, it will only
be rarely that he has. Ordinarily, counsel will be perfectly well able to
advise upon whether there are properly arguable grounds of appeal, and to
settle any notice of appeal, without an audio-recording. Counsel will need in
future, as he does now, only a transcript of such parts of the proceedings as
call for it. Likewise, the Court of Criminal Appeal will ordinarily expect to
determine any appeal on the basis of a transcript, not of course of the whole
trial, but of any part of it which the notice of appeal makes necessary. The
funding of counsel’s consideration of whether there are properly arguable
grounds of appeal is a matter either for contractual arrangements between
counsel and lay client, or, if legal aid is involved, for local rules as to
grant. But the Board should make it clear that it would be perfectly reasonable
for funders to insist upon any request for an audio recording, and for fees for
time to examine it, being justified. A speculative request does not have to be
granted.
22.
In advancing notices of appeal, as in the conduct of trials, the
professional duty of counsel lies both to his client and to the court. There
ought to be no conflict between these duties, but it is axiomatic that 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. There
have been many statements of such principle, which is the common currency of
criminal appeals although, fortunately, it only rarely needs emphasis. For
example, in R v Morson (1976) 62 Cr App R 236 the Court of Appeal in
London (Scarman and Geoffrey Lane LJJ and Willis J) had occasion to say this in
dismissing the appeal against conviction, at pp 238-239:
“[Counsel’s] first point, and it
is a very serious allegation indeed which ought not to be lightly made, was
that the summing-up read as a whole was unfair, in that it was a direction to
the jury to convict this man. This Court deplores the fact that that ground was
included in the grounds of appeal and deplores the fact that it was maintained
in argument. Of course the appellant is perfectly entitled to take any point
that is open to him on appeal, and the mere fact that that argument without any
justification at all, in the view of the Court, has been developed is not to be
held to the discredit of the appellant. But we are sorry that counsel thought
fit to develop it. We have read and re-read the short summing-up. Whatever flaws
or blemishes it may or may not contain on such a specific issue as
identification, a matter to which I shall come later, it is a travesty to
describe the summing-up as a direction to convict. That general ground
therefore fails.
…
Although I have already said what
this Court thinks about the first and general ground, I will not leave this
case without expressing the hope that the Bar will act responsibly before
making in the grounds of appeal or in argument attacks of this general sweeping
character upon a summing-up. If they be justified, it is the duty of the Bar to
make them; if they be obviously unjustified, it is the duty of the Bar to
refrain from making them.”
23.
The importance of this duty has nothing at all to do with avoiding
occasioning irritation to the court. Judges must and do consider on their
merits arguments properly advanced whether they turn out to be good, bad or
indifferent. The importance of the duty lies in enabling the court to deal
efficiently with the very large number of applications made to it, and to
concentrate on those which raise properly arguable points. 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. An appellate court needs to rely on the professional duty
of counsel to avoid this. In a jurisdiction such as Mauritius, where there is
no requirement for leave to appeal to the Court of Criminal Appeal, this
professional duty is of especial importance if the work of that court is not to
be diverted from consideration of possibly meritorious cases into time spent
unjustifiably on the unarguable. Happily, the confidence in counsel which
courts are able to repose is a major factor in the delivery of justice at all
levels.
24.
Counsel’s responsibility to advance requests to the court to listen to
audio recordings only when there is a genuinely arguable ground of appeal to
which such recording is relevant, and his duty to abstain from simply
speculative applications, is an example of this duty to the court. Indeed,
whilst the Board has not had occasion to investigate the more than thirty
grounds of appeal which the Court of Criminal Appeal rightly rejected in the
present case, it cannot help but observe that some might, doubtless
uncharacteristically, have come close to giving too little weight to this obligation.
The court itself described as frivolous and vexatious a complaint about jury
selection, made after counsel for the appellants had been given at the trial
the specific opportunity to raise any matter which troubled them, and had
declined to do so, leading counsel expressing himself perfectly content with
the procedure adopted. Another example appears to be afforded by the contention
that the conviction fell to be quashed because the judge had failed to direct
the jury that the police were at fault in not investigating the assertions of
alibi which the appellants advanced in interview. Since the alibi witnesses
were all known to the appellants, most of them close relatives or friends, and
were called at the trial where the appellants wished to call them, there
appears never to have been any prospect that any deficiency in investigation by
the police of the assertions of alibi, even if such were established, could
have damaged the appellants or impacted unfairly upon their trial in any way. A
third instance might well be the assertion that the conviction should be
quashed because the jury reached its verdicts after too short a retirement; that
was equally consistent with a clear view having been taken on the central issue
of the credibility of the two principal prosecution witnesses, whom the jury
had had several days of trial to assess.
