Police v Labat
| Jurisdiction | Mauricio |
| Date | 19 November 1970 |
| Court | Supreme Court (Mauritius) |
(Latour-Adrien C.J., Garrioch S.P.J. and Ramphul J.)
The individual in international law In general Human rights and freedoms Fair hearing and fair trial Trial within a reasonable time Mauritius Constitution, Section 10(1) Meaning of term charged European Convention on Human Rights, 1950, Article 6(1) The law of Mauritius
Summary: The facts:The accused was arrested in June 1969 in connection with an offence of illicit distillation detected by the police, and released on bail. After twenty-nine adjournments the case was fixed for trial in June 1970. Counsel for the accused then submitted that the prosecution was time-barred by virtue of Section 10(1) of the Constitution.1 Counsel alleged that his client had not been afforded a fair hearing within a reasonable time. He moved for reference of the matter to the Supreme Court for the interpretation of the terms charged and reasonable time in Section 10(1).
Held:(Per Latour-Adrien C.J. and Garrioch S.P.J.) The rights of the accused under the Constitution had not been infringed. The case was remitted to the trial court.
(1) The word charged meant arraigned before a court of law by which the accused was to be tried.
(2) The only concern of a trial court, in the discharge of the duty devolving on it from the requirement that it should give the accused a fair hearing within a reasonable time, was to ascertain what should have been the proper period of time for the determination of the accused's case. The expression reasonable time thus had no relation to the time which elapsed before the information was preferred. However, undue delay in the institution of the proceedings could be a factor, viewed in the particular circumstances of each case, which a trial court was entitled to take into account when considering whether the delay had effectively prevented the accused from having a fair trial. It was clear from Article 6(1) of the European Convention on Human Rights, which had inspired Section 10 of the Constitution, that there was no
difference in this respect between the determination of civil rights and that of a criminal chargePer Ramphul J.: There was no duty on any person or authority to prosecute within a reasonable time a person arrested on a criminal charge and subsequently released on bail. Delay in the prosecution of offences, even when unreasonable, was not, by itself, repugnant to the concept of a fair hearing in the context of the Constitution. The hearing had to be fair, having regard to the delay.
The following is the text of the judgment of the Court:
Latour-Adrien, C.J.:This matter comes to us by a reference from the Intermediate Criminal Court before which an information was preferred against the accused charging him with eight offences against the Distilleries Ordinance and the Liquor Ordinance. For a proper understanding of the matter it is necessary to trace the case back to its origin.
On the 23rd June, 1969, the accused was arrested in connection with an offence of illicit distillation. The next day he appeared before the district court of Savanne and an information was read out to him, whereupon the matter was adjourned to the 27th June and he was released on bail upon condition to appear before the district court of Savanne or the Intermediate Criminal Court on the 27th June, 1969, and on any other date or dates that the case may be fixed thereafter, until the final disposal of the case, then and there to answer a charge of illicit distillation. He duly appeared before the district court on the 27th June, 1969, and the matter from then on kept being adjourned for short periods of time until the 19th May, 1970, when, on his appearing for the twenty-eighth time, he was told to appear before the Intermediate Criminal Court on the 25th May.
On that day he pleaded not guilty to an information containing eight counts which charged him with illicit distillation of colonial spirits, unlawful possession of still, unlawful possession of wash, unlawful possession of rum above the prescribed degree and possession of rum unlawfully obtained. On motion of his counsel the case was fixed to the first available date i.e. the 24th June, 1970, for determination of a preliminary point.
On the 24th June the prosecutor gave evidence to the effect that the offences with which the accused stood charged were discovered on the 23rd and 24th June, 1969, and that the accused was released on bail on the 24th. The Police enquiry was completed and submitted to the Director of Public Prosecutions for advice on the 23rd July, 1969, and the latter having ordered prosecution on the 4th May, 1970, the information was lodged on the 11th May and made returnable on the 25th of the same month. The prosecutor went on to say that it was not unusual that cases were brought before the Intermediate Criminal Court some eleven months or more after the commission of the offences. He added that he was not aware why prosecution before the Intermediate Criminal Court was not ordered in the present case before the 4th May, 1970, and could not remember a case in which an accused party of seventy years of age had to wait eleven months before being prosecuted. He was referred by counsel for the accused to a case of a similar nature in which he was the prosecutor. In that case the offence was discovered on the 16th June, 1969, the information containing eight counts was lodged on the 17th July, the hearing fixed to the 11th August to allow the Court to visit the locus in quo and then adjourned to the 15th, 16th and 17th October, 1969. He explained that speedy action was taken in that case so that the court could, as soon as possible, inspect an exhibit in the casea still of unusually big dimension, on the locus in quo, thus relieving the Policemen who had been placed on sentry to watch over it.
At that stage of the proceedings before the trial Court, Mr. d'Unienville, on behalf of the accused, referred to subsection (1) of section 10 of the Constitution appearing in Chapter II which deals with the protection of fundamental rights and freedoms of the individual. The subsection reads as follows:
10(1) If any person to 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.
He submitted that the prosecution of the accused was time-barred as he had been provisionally charged before the district court of Savanne and had not been prosecuted within a reasonable time in accordance with the provisions of the abovementioned section 10(1), and he moved that the matter be referred to the Supreme Court by virtue of section 84 of the Constitution which lays down that
84(1) Where any question as to the interpretation of this Constitution arises in any court of law established for Mauritius (other than the Court of Appeal, the Supreme Court or a court martial) and the court is of opinion that the question involves a substantial point of law, the court shall refer the question to the Supreme Court
Mr. d'Unienville contended that in the circumstances of the present case the words charged and reasonable time occurring in section 10(1) of the Constitution required interpretation by the Supreme Court and raised a substantial question of law.
Mr. Yip Tong, Crown Counsel, agreed, on behalf of the prosecution, that Mr. d'Unienville's submission appeared to raise some substantial point of law and concurred in the latter's motion for a reference of the question to the Supreme Court.
In an interlocutory judgment the Intermediate Criminal Court granted the motion and referred the matter to this court for the interpretation of the word charged in the context of section 10(1) and for the decision of the following three questions
(1) Is it open to an accused party, at the hearing of an information which has been preferred against him, to raise before the trial Court a point in defence based, as in the present one, on the alleged disregard of his constitutional rights as set out in section 10(1)?
(2) How far, if at all, would this Court be warranted to enquire into and adjudicate upon the reasonableness or otherwise of any delay in the preferment of the present information?
(3) In case this Court be so warranted, would a finding by it that accused has not been brought for trial within a reasonable time necessarily entail the dismissal of the information in view of the provisions of section 10(1) on the ground that the present prosecution is time-barred?
The first question may be answered straightaway. It would result from the terms of section 84(1) of the Constitution themselves that the accused may take such a point before the trial court if it calls for the interpretation of a provision of the Constitution and raises a substantial point of law. In the present case, in order to make a decision on the preliminary point taken by the accused that he has not been afforded a fair trial within a reasonable time, the Intermediate Criminal Court would have to interpret section 10(1) of the Constitution and ascertain its true purport and effect, in particular, what meaning is to be assigned to the terms charged and reasonable time and upon what person or authority it is incumbent to secure to the accused a fair trial. The point was therefore rightly taken before the lower court and it was proper for that court to refer it to the Supreme Court.
We shall accordingly proceed to examine and interpret the scope of section 10 (1) of the Constitution in so far as it relates to the preliminary point raised. The first term that requires consideration is the word charged as used in that subsection. Mr. d'Unienville referred to the definition of that term in Earl Jowitt's Dictionary of English Law, Vol. I, and in Stroud's Judicial Dictionary, and to the judicial interpretation of the term in two decisions of the English Courts namely, Stirland v. D. P. P.ELR (1944) A.C...
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