Ajay Dookee v State of Mauritius
| Jurisdiction | UK Non-devolved |
| Judge | Lord Brown |
| Judgment Date | 28 May 2012 |
| Neutral Citation | [2012] UKPC 21 |
| Date | 28 May 2012 |
| Docket Number | Appeal No 0026 of 2011 |
| Court | Privy Council |
[2012] UKPC 21
Lord Hope
Lord Brown
Lord Mance
Lord Dyson
Lord Sumption
Appeal No 0026 of 2011
Privy Council
Appellant
Sanjeev Teeluckdharry
S. Tsang Mang Kin
(Instructed by MA Law (Solicitors) LLP)
Respondent
Satyajit Boolell SC DPP
Ms Sulakshna Beekarry
(Instructed by Royds Solicitors LLP)
Heard on 26 March 2012
This appeal is directed to sentence and, as will shortly appear, more narrowly still to the correct approach to be taken by both sentencing and appeal courts to the question of credit for time spent in custody whether on remand awaiting trial or, thereafter, pending appeal. In the present case the appellant spent 14 months in custody on remand, a further 31 months in custody pending the outcome of his appeal. It is necessary, however, to set this question in the particular factual context in which it presently arises and it is to this that the Board now turns.
The brutal killing of Mujeeb Mir, a wealthy Indian businessman, on the night of 31 January 2005, must rank amongst Mauritius's most notorious murders of all time. Four men were eventually convicted: three directly of murder: Takah, a security officer at Mr Mir's bungalow, Koonjul, a taxi driver and Mungrah, a gardener; the fourth, the appellant, involved during the night as a second driver, of aiding and abetting the murder,
Taking the facts at their simplest – and for the purposes of this appeal no elaboration is required – Takah obtained access to the bungalow for Koonjul on the pretence that the latter had come to check the alarm system; Takah and Koonjul then beat Mr Mir, tied him up and gagged him, stole his bank cards and mobile phone containing his pin code, and bundled him into the boot of his own red contract car. Koonjul then drove his taxi to pick up the appellant and bring him to the bungalow to drive the red contract car. Initially the appellant drove this car with Takah and Koonjul as passengers and with Mr Mir tied up in the boot, following Koonjul in his taxi. At some point, however, the drivers switched – the appellant's case being that when he heard noises from the boot and was told that there was a man inside he refused to drive further. Koonjul then drove the red contract car to a secluded spot where he, Takah and Mungrah committed the murder. Mr Mir was beaten, driven over and ultimately burned to death with his car left on top of him. Meanwhile, whilst the appellant was waiting elsewhere with Koonjul's taxi, he was questioned by police officers making a routine check and lied about why he was there.
Having killed Mr Mir, Konjul then phoned the appellant to bring his taxi to pick up the three killers and, when it arrived, himself drove all four men back to town (the appellant on one account being present when the deceased's bank card was then used at an ATM). There was evidence, it may be noted, of extensive phone contact between the appellant and Takah in the days before the killing.
The trial of the four men took place at assizes before Paul Lam Shang Leen J and a jury between 16 and 27 July 2007. On the first day Takah and Mungrah changed their pleas to guilty and were sentenced respectively to 32 and 26 years imprisonment. On 27 July Koonjul was convicted by a majority of 8:1 and sentenced to 30 years imprisonment; the appellant was convicted by a majority of 7:2 and sentenced to five years imprisonment. The judge's sentencing remarks in the appellants' case were brief indeed. Noting the appellant's youthful age and clean record the judge observed: "I know the jury didn't follow my direction, so five years imprisonment".
The direction to which the judge was referring appears in the summing-up thus:
"As regards [the appellant], I direct you to acquit him of the charge levelled against him if you find that he did not know that when he drove the contract car for some 3.5km from the bungalow…[the other accused] were to murder the victim, you should return a verdict of not guilty for he drove the car without knowing that the person in the boot would be murdered. If you find that [the appellant] knew that the victim was to be murdered when he drove the car with the victim, gagged and tied…then you can find him guilty, but I have told you I doubt whether there is evidence."
It is not now suggested that there was insufficient evidence upon which the jury could properly convict the appellant as they did.
On 10 August 2007 the appellant appealed against his conviction. Five days later the DPP cross-appealed against the appellant's sentence. Koonjul too appealed against conviction and in his case too the DPP cross-appealed. The appeals were heard by the Court of Criminal Appeal (Y K J Yeung Sik Yuen CJ, S B Domah and N Matadeen JJ) on 28–30 May 2008, 10 June 2008, 29 July 2008 and 16 March 2009, judgment following, almost a year later, on 25 February 2010. The appeals against conviction were dismissed, those (by the DPP) against sentence allowed. Koonjul's sentence was increased from 30 to 38 years (the Court noting particularly that he lacked the mitigation of a plea of guilty), the appellants from 5 to 16 years.
Subject to the question of credit for time spent in custody prior to the increase in his sentence, the appellant has no justifiable complaint about that increase. For aiding and abetting a murder as horrendous as this, a sentence of five years was not merely unduly lenient; it was derisory. Indeed, as already suggested by the sentencing judge's own remarks, it is clear that he was piqued by the jury having taken a less benevolent view than he had of the weight of evidence against the appellant. The judge in short was not loyal to the jury's verdict. Sixteen years, substantial as such a sentence undoubtedly is, was beyond criticism for aiding and abetting this particular murder.
When granting the appellant leave to appeal against his sixteen year sentence, the Judicial Committee of the Privy Council (consisting of three members of the Board as presently constituted) expressly did so "having regard in particular to the fact that no credit was given for the 45 months that the appellant spent on remand". That no such credit was given is, indeed, expressly accepted by the DPP.
How, then, should these 45 months be brought into account? This is by no means an entirely novel question. The first time it appears to have been considered with any care was in Lord Carswell's judgment for the Board in Ali and Tiwari v The State [2005] UKPC 41, conjoined appeals from the Trinidad and Tobago Court of Appeal concerned with determining the date from which an unsuccessful appellant's sentence should run. The governing law of Trinidad and Tobago – section 49(1) of the Supreme Court of Judicature Act, in terms virtually identical to those of section 16(3) of the Criminal Appeal Act of Mauritius – provides in effect that, unless the Court of Appeal gives express direction to the contrary, any time spent by...
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