Boolell v The State
| Jurisdiction | UK Non-devolved |
| Judge | Lord Carswell |
| Judgment Date | 16 October 2006 |
| Neutral Citation | [2006] UKPC 46 |
| Court | Privy Council |
| Docket Number | Appeal No 39 of 2005 |
| Date | 16 October 2006 |
[2006] UKPC 46
Present at the hearing:-
Lord Nicholls of Birkenhead
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Lord Carswell
Lord Brown of Eaton-under-Heywood
Privy Council
Delivered by Lord Carswell]
The appellant Prakash Boolell was on 24 March 2003 convicted by the Intermediate Court of Mauritius (Magistrates Mr David Chan Kam Cheong and Mrs D Beesoondayal) on an information containing one count of swindling, sentenced to six months' imprisonment and ordered to pay Rs 500 costs. His appeal to the Supreme Court of Mauritius (KP Matadeen and Peeroo JJ) was dismissed on 26 May 2004. He has appealed as of right, under section 81(1)(a) of the Constitution of Mauritius, to the Judicial Committee of the Privy Council against the judgment of the Supreme Court.
The charge arose out of a transaction entered into by the appellant, a Mauritius barrister, with Hong Kong Smooth Garments Ltd ("HKSG") on 12 September 1990. His co-accused Harris Ramphul had on 11 August 1990 purchased fabrics from HKSG, tendering a cheque for Rs 132,000 ("the first cheque") in payment, but the cheque was dishonoured. On 12 September the appellant went to the offices of HKSG and gave them another cheque for Rs 132,000 ("the second cheque"), drawn on the South East Asian Bank to the order of HKSG and signed by Balram Seewoodin, and a written undertaking to the effect that Harris Ramphul would pay the sum due by 14 September. At the appellant's request Mr Tony Soo Lan Wah Yang Shing of HKSG gave the dishonoured first cheque to him on receipt of the second cheque. On 14 September 1990 HKSG paid the second cheque into its account, but it was returned because the drawer's account had earlier been closed.
The prosecution case was that the appellant knew quite well that the bank account on which the second cheque was drawn had been closed and that the cheque was a dud, but nevertheless took this and another cheque, signed by Balram Seewoodin but otherwise blank, and used the second cheque in order to obtain the return of the first cheque which had been dishonoured. The case for the appellant was that the second cheque had been given to him by Harris Ranphul, who represented that it was a genuine cheque. The appellant denied that the first cheque was returned to him at his request when he gave the second cheque to HKSG and claimed that it was sent to Ramphul.
The Intermediate Court rejected the defence case and accepted the prosecution version as being a true account of events. The court held that the appellant was fully aware that Balram Seewoodin had already closed his bank account and that the second cheque would not be honoured, yet told Tony Soo that the second cheque was a valid instrument which could be cashed. The appellant also asked him to return the first cheque, which he did. The court rejected the suggestion that the appellant was merely acting under the instructions of his client Harris Ramphul and held that he was on the contrary masterminding events. The appellant succeeded in obtaining the return of the first cheque by giving the second cheque to HKSG.
The appellant appealed to the Supreme Court on a number of grounds, on all of which the court found against him. Before the Board the appellant relied only on one ground, that of breach of his constitutional rights to a fair trial within a reasonable time, as guaranteed by section 10(1) of the Constitution. The appeal was founded on the very long delay which took place between the date when the first statement under caution was taken from the appellant and the eventual disposition of the case by the finding of guilt by the Intermediate Court. It was conceded by counsel for the prosecution that the lapse of time, some twelve years, would without more give rise to a breach of the constitutional provision, but he submitted that the delay was largely the fault of the appellant and that he could not in the circumstances take advantage of it to claim a breach of his constitutional rights.
The complex and long drawn-out history of the prosecution has been fully set out in the judgment of the Supreme Court, and the Board is accordingly able to set out that history in this judgment in reasonably summary form. The offence was reported by Mr Tony Soo by a minor petition dated 26 November 1990. A police inquiry ensued and the appellant made three statements under caution on 19 February 1991. It was accepted by counsel before the Board that for the purposes of reckoning delay the time should start to run from that date.
The police inquiry was completed on 22 October 1991, but the Director of Public Prosecutions did not direct a prosecution until 11 December 1992. An information was laid before the Intermediate Court on 30 December 1992. Ramphul was charged on count 1 with issuing the first cheque in bad faith. The appellant was charged on count 2 with swindling HKSG out of the first cheque by his tender of the second cheque. On count 3 he was charged with embezzlement of the sum of Rs 10,000 delivered to him for the purpose of having Harris Ramphul released on bail.
Preliminary hearings commenced in early March 1993 and at a hearing on 22 March 1993 pleas were taken from the accused. Ramphul pleaded not guilty to count 1. It is clear that the appellant pleaded not guilty to count 3, but there was a dispute at a later stage whether he pleaded at all to count 2. It would be remarkable if he did not, but he subsequently claimed that the court record showed no entry of a plea to count 2 and that in consequence he could not properly be tried on it.
The trial was fixed for 28 October 1993; the prosecution stated, and the Supreme Court accepted, that this date was arranged to suit the appellant's counsel, but before the Board counsel appearing for the appellant did not accept this. There was a long series of adjournments before evidence was first taken on 9 May 1996. The trial was adjourned to 28 March 1994 because of the illness of Ramphul's counsel and the congestion of the court lists. There then followed the first of a series of moves by the appellant described by the Supreme Court as devices which constituted an abuse of the proceedings. On 28 March 1994 Ramphul's counsel moved to withdraw from the case, while the appellant moved for a stay on the ground of abuse of process and delay, without having given notice of his intention to the prosecution or even to his own counsel. The sequence of events which followed is fairly typical of those which took place on later occasions. The prosecution wished to have time to prepare a reply to the appellant's motion, and the matter was adjourned until 13 June 1994. On that date counsel presented submissions as to the procedure, which the prosecution suggested could be done partly on affidavit and partly by viva voce evidence. The appellant's counsel said that he wished to cross-examine a police officer named Palawan, and it was arranged that he would be made available on 17 June. The appellant put in an affidavit, which he communicated to the prosecution late on 16 June, with the result that a further adjournment was sought and given to enable it to be considered. On 23 June the prosecution produced an affidavit from Palawan. Submissions were made on the motion, during which the appellant's counsel stated that he did not now require to cross-examine Palawan. The court gave a ruling on 12 July 1994 dismissing the motion.
A recognisably similar pattern may be seen from the history of the case over the next three and a half years. The appellant made a number of applications, of which two major ones were brought without prior notice to the prosecution or the court. The first, brought on 11 November 1994, was an application for a separate trial. This was not resolved until a ruling dismissing the application was given on 14 February 1995, on which date the trial was relisted for 24 May. In the second application the appellant moved on 2 November 1995 to stay the prosecution on the ground that as he had been acting in a professional capacity in the transaction in question, the matter was one for a professional disciplinary body and the court had no jurisdiction. On 6 December 1995 the appellant's counsel decided not to proceed with the jurisdiction motion, but on 4 September 1996 counsel then appearing for him revived the application, which the court on 30 September rejected as misconceived. On three occasions Ramphul's counsel obtained leave to withdraw from the case, for varying reasons, necessitating the appointment of new counsel. On four occasions, 1 September 1995, 9 May 1996, 9 October 1997 and 14 January 1998, the appellant's counsel withdrew, once because the appellant discharged him and on the other three occasions because they stated to the court that they could not accept the instructions which the appellant had given them.
On 9 May 1996 the hearing of the prosecution evidence at last commenced. After the first witness had given evidence Ramphul changed his plea on count 1 to guilty. The court subsequently imposed a fine on him of Rs 3000, with costs of Rs 300.
On three further days, 12 May, 15 October and 4 November 1997, evidence was taken by the court. On 12 May the appellant raised an issue about the sufficiency of the court record, from which the page relating to 22 March 1993, the date on which the pleas of the accused were taken, was found to be missing. The original page was never forthcoming, but two documents purporting to be photocopies of that page were produced to the court. One version contained the words "Accused No 2 [the appellant] pleads not guilty to count 3", whereas the second, which is in all other respects identical to the first, reads "Accused No 2 pleads not guilty to count 2, 3". It cannot be...
To continue reading
Request your trial
-
Joseph Stewart Celine v The State of Mauritius
...inexcusable delay affected convictions on some counts but not others." 19 This issue has been considered more recently by the Board in Boolell v The State [2006] UKPC 46 where reference was made to the decision of the House of Lords in Attorney General's Reference (No 2 of 2001) [2003] UK......
-
Jerome Dixon v R
...[28] of Tapper) that the law as stated in the Attorney General's Reference (No 2 of 2001) [2004] 2 AC 72 as summarised in Boolell's case [2006] UKPC 46 represented the law in 217 Nevertheless, learned counsel submitted, the JCPC (at paragraph [26]) was careful not to disapprove of the resu......
-
Omar Anderson v R
...rights that have been breached. He determined that, on the basis of AG's Reference (No 2 of 2001) [2004] 2 AC 72, as summarised in Boolell v The State [2006] UKPC 46, the quashing of the conviction as an appropriate remedy formed part of the law in Jamaica. He argued that the case of Soori......
-
Attorney General v Anthony Henry
...St. Brice v The Attorney General of Saint Lucia SLUHCVAP2018/0036 (delivered 31st July 2020, unreported) applied; Boolell v The State [2006] UKPC 46 applied. 9. Where a trial judge exercises the discretion to award damages for breaches of constitutional rights, the quantum must be assessed ......