DPP of Mauritius v Hurnam
| Jurisdiction | UK Non-devolved |
| Judge | Lord Carswell |
| Judgment Date | 25 April 2007 |
| Neutral Citation | [2007] UKPC 24 |
| Court | Privy Council |
| Docket Number | Appeal No 42 of 2005 |
| Date | 25 April 2007 |
[2007] UKPC 24
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hope of Craighead
Lord Scott of Foscote
Lord Carswell
Lord Brown of Eaton-under-Heywood
Privy Council
[Delivered by Lord Carswell]
The respondent Devendranath Hurnam, a well-known barrister practising in Mauritius, was on 11 August 2003 convicted by the Intermediate Court of Mauritius on a charge of conspiring with his client Soobashing Bholah ("Bholah") to do an unlawful act, namely, to hinder police in an enquiry into a larceny by fabricating an alibi for Bholah to mislead the enquiring officers. He was sentenced to six months' imprisonment and ordered to pay costs of 500 rupees. On appeal the Supreme Court of Mauritius set aside the conviction on the ground that the prosecution had not proved an intention on the respondent's part to hinder the police in their enquiry, which in the view of the court required proof of a specific intention directed to achieving that result as the object of the conspiracy, even if it was a likely result which could be foreseen. The court accordingly held that the Intermediate Court should have accepted the respondent's submission of no case based on the contention that there was no prima facie evidence of the conspiracy charged. The appellant, the Director of Public Prosecutions for Mauritius, has appealed to the Privy Council, pursuant to final leave granted by the Supreme Court, under the provisions of section 81(2)(b) of the Constitution of Mauritius and section 70A of the Courts Act, which permit an appeal by the prosecution.
On 4 May 2000 about 2 pm an armed robbery involving a number of persons was carried out at the State Commercial Bank in Grand Bois. About 6 pm that day two brothers were arrested on suspicion of complicity in the robbery, Bholah and his brother Gangaramsingh Bholah. Bholah was taken to Rose Belle police station, arriving about 7.30 pm, and there he was questioned during the evening. According to the evidence given by Bholah, although interviewed for a period put at some two hours in all, he declined to answer questions that evening, stating that he had a headache and would make a statement later. He was transferred in the late evening to Nouvelle France station, where he arrived at 12.25 am on 5 May.
The respondent was contacted that night by another Bholah brother, Kaylashing, and attended Nouvelle France station about 12.10 pm on 5 May, together with two colleagues, Messrs Hawaldar and Hurhangee. The respondent saw Bholah between 12.37 pm and about 1 pm. Bholah said in his evidence that he told the respondent that he had committed the robbery with other persons. He told the respondent during part of this interview, when, as the Intermediate Court found, he and the respondent were alone together, that his brother Gangaramsingh had taken a lorry for a "fitness test" at Curepipe the previous day, whereupon the respondent, according to Bholah, told him not to relate anything to the police about the hold-up, or he would be sentenced for a long period, and said that he would free all of them, "tire zotte tout". The respondent's case, on the other hand, as set out in his police statement and his evidence at trial, was that Bholah at that first interview denied committing the robbery and instructed him that he had been at the NTA fitness centre at the material time. According to the respondent's account Bholah also said that he had told the police this on the previous evening 4 May.
Bholah appeared along with other suspects in the District Court at 2.45 pm on 5 May, with the respondent present, and was remanded. A record appears in the court note:
"Accused 1 [Bholah] and 2 states that they have given their statement/s. Accused 3 – states he wishes to give statement in presence of Counsel."
About 6 pm on 5 May Bholah gave a statement to Inspector Lisette, who recorded it in writing. The respondent was present during the taking of the statement. In that statement Bholah stated that on 4 May 2000 he and his brother Gangaramsingh took a lorry for a fitness test at the NTA Curepipe. He arrived at the test centre at about 1.45 pm and left at about 2.0 to 2.15 pm. After returning home he was called out to help with another brother's bus, which had broken down on the road and had to have a part obtained. He obtained the part and eventually arrived home about 5 pm. The police came about 6.30 pm and took Gangaramsingh and himself to Rose Belle station. He was questioned about his movements that day and "mo ti explique zottes pareil couman mo fine dire", "I explained to them just as I said."
The respondent obtained from Kaylashingh Bholah the certificate of fitness relating to the lorry examined at the test centre on 4 May and brought it to the police station. The certificate confirmed that the lorry had been at the centre on 4 May, but it did not state the precise time or the names of any persons who had brought it there.
On 8 May 2000 Bholah was released on bail and he was interviewed by police officers again on 12 and 16 May. On 14 June he made another written statement, which he followed by further statements on subsequent dates. In his statement of 14 June he said that his previous statements did not contain the whole truth and that he now wished to tell the truth. He claimed that a co-accused Meetoo had threatened to kill his family if he told the truth to the police. He confessed to taking part in the robbery at the bank at Grand Bois, his function being to drive one of the getaway vehicles. He went on to say that when the respondent came to see him on 5 May he related to him all about his participation in the hold-up. He said that the respondent told him to lie and to tell the police that his brother Fadoo (a name by which Gangaramsingh was known) and he went together to have the lorry tested.
The respondent continued to represent Bholah at three hearings in the Intermediate Court, but on 24 July 2000 Bholah told the court that he would no longer retain his services. On 27 June 2001 he pleaded guilty to aiding and abetting the robbery and was sentenced to four years' penal servitude.
The respondent was charged on a provisional information on three charges, two of receiving stolen property (which appear to have related to fees received by him, allegedly paid out of the proceeds of the robbery) and one of conspiracy to hinder police. The prosecution entered a nolle prosequi on the receiving charges on 1 April 2002. The particulars of the conspiracy charge on which he was tried were:
"That on or about the 5 th of May in the year two thousand at Nouvelle France in the District of Grand Port, the said Devendranath Hurnam did wilfully and unlawfully agree with another person, to wit one Soobashing Bholah to do an unlawful act to wit: to hinder Police in an enquiry regarding a larceny committed at the Grand Bois State Bank on the 4 th May 2000 by fabricating an alibi for the said Soobashing Bholah to mislead the enquiring officers."
It is convenient at this point to set out the statutory provisions on which the charge was based. Section 109 of the Criminal Code (Supplementary) Act 2000 makes it an offence to agree with one or more other persons to do an act which is unlawful. The unlawful act relied on by the prosecution was that contained in section 3 of the Public Officers' Protection Act 1982, the material portion of which provides:
"3(1) Any person who by force or violence resists, opposes, molests, hinders, or obstructs a –
(a) public officer in the performance of his duty;
∗∗∗∗
shall commit an offence and shall, on conviction, be liable to a fine not exceeding 10,000 rupees and to imprisonment for a term not exceeding 3 months.
(2) In the absence of force or violence, the penalty shall be a fine not exceeding 3000 rupees and in the case of a second or subsequent offence, the penalty shall be as provided in subsection (1)."
The trial took place in the Intermediate Court before three magistrates, Mrs R Mungly-Gulbul, Mr D Chan Kan Cheong and Mr D Vellien. After some preliminary skirmishes the respondent was arraigned on 13 November 2001 and pleaded not guilty to all three charges. Following some postponements the taking of evidence began on 1 April 2002 and the trial continued sporadically over many hearing days until judgment was given on 11 August 2003. The main prosecution witness was Bholah, who was cross-examined at length. At the close of the prosecution case the defence made a submission of no case to answer, based mainly on the proposition that Bholah had told the police on 4 May 2000 about his supposed alibi, and therefore the respondent could not have fabricated it on 5 May. That submission was rejected by the magistrates.
The respondent gave evidence in his defence, to the effect that his instructions from Kaylashing Bholah and from Bholah himself had been all along that Bholah had been at the fitness centre on 4 May at the time of the hold-up. Bholah had not confessed to him his complicity in the robbery and the respondent had not fabricated any alibi for him. In the course of his cross-examination of the respondent prosecuting counsel put a number of matters to him concerning a previous conviction and also his suspension from practice in 2001 for a disciplinary offence.
Following further evidence and counsel's closing submissions the Intermediate Court gave a written judgment on 11 August 2003. In the judgment the magistrates considered submissions advanced by the respondent alleging unfairness in a number of respects, which they rejected, then went on to consider the evidence in detail. They accepted the evidence given by Bholah as being truthful, giving themselves a proper direction and warning about the danger of acting on...
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