Gianchand Jahree v The State
| Jurisdiction | UK Non-devolved |
| Judge | Lord Carswell |
| Judgment Date | 28 February 2005 |
| Neutral Citation | [2005] UKPC 7 |
| Court | Privy Council |
| Docket Number | Appeal No. 4 of 2004 |
| Date | 28 February 2005 |
[2005] UKPC 7
Present at the hearing:-
Lord Bingham of Cornhill
Lord Steyn
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Carswell
Privy Council
[Delivered by Lord Carswell]
On 10 October 2001 the appellant Gianchand Jahree appeared in the Intermediate Court of Mauritius to stand trial on a charge of possession of counterfeit bank notes. The counsel whom he had earlier instructed to represent him was not present, and the magistrate Mrs D Beesoondoyal refused his application for an adjournment to allow him to instruct another counsel. The trial proceeded, the appellant representing himself, and on 4 December 2001 the magistrate gave a written decision finding him guilty as charged, sentencing him to nine months' imprisonment and ordering him to pay Rs 500 for costs. The appellant appealed to the Supreme Court of Mauritius (Pillay CJ and Matadeen J), which on 25 February 2003 dismissed his appeal with costs. The appellant has appealed, with the leave of the Supreme Court, to the Privy Council on grounds in which a number of breaches of the Constitution of Mauritius are alleged.
The charge against the appellant arose out of events on 22 August 1999, when police officers conducted a search of his premises at Boulet Rouge, Central Flacq. When they went to search his van, which was in the yard, he asked them to carry out the search at a police compound in Flacq. The van was taken there and searched. The officers found a black waist bag concealed at the rear offside of the vehicle, between the box of the van and the chassis. Inside there was a green plastic bag, which contained three envelopes. Two of the envelopes contained rectangular cut pieces of white paper, and in the third was a piece of paper bearing some writing and wrapped around four spurious notes, each of Rs 1000 denomination. Six other similar pieces of rectangular paper were found under a seat in the van. When cautioned, the appellant denied any knowledge of these items.
The appellant made a written statement to the police later the same day, in which he stated that he had been threatened by a person whom he named as Shradhanand (also known as Preetam) Ramsurrun and suspected that that person had planted the incriminating items on him. He made the same case when he gave evidence at his subsequent trial.
The case was on 24 March 2000 referred by the Director of Public Prosecutions for determination by the Intermediate Court and an information was sworn on 6 April 2000. The case was called on 24 April 2000, when the appellant informed the court that he would retain the services of counsel. He appeared again on 15 May 2000, when he filed a letter from Mr Dev Hurnam, a member of the Mauritius Bar. The trial was fixed for 18 January 2001.
On 18 January 2001 Mr Hurnam sought leave to attend a continuation of a case before another division of the court and filed a letter with the court. Leave was granted, but at 1.45 pm another counsel Mr Hurhangee appeared and informed the court that he had been asked to replace Mr Hurnam and request a postponement. The court, apparently with some reluctance, granted the application and the case was postponed for trial until 10 October 2001.
On 10 October 2001 the appellant was present in court, but neither Mr Hurnam nor any other counsel was there to represent the appellant. The minutes of the proceedings read as follows:
"The accused, upon question from Court, states that he is praying for a postponement to retain services of another counsel. The Court informs accused that this case was called the last time on 18. 1.2001, on which date owing to the absence of counsel, the case was postponed for trial for today, that is some 9 months later. If the accused had so wished he should have already retained the services of another counsel as he had plenty of time to do so.
The Court is not prepared to grant a last minute postponement today as this would not be in the interests of justice and also because the accused is making an abuse of his right to counsel. The postponement is therefore not granted and the Court proceeds to hear the case."
No response from the appellant to these statements by the magistrate has been recorded. The Board was informed that Mr Hurnam had been suspended from practice by a decision of the Supreme Court, for one year from 20 March 2001, and was not eligible to appear for the appellant. The magistrate did not refer to this and their Lordships do not know whether she was aware of it. Nor did the appellant at any stage say that he had expected to meet Mr Hurnam at court that morning, which, if it were true, one would have expected him to state at once when the magistrate said that he had had plenty of time to obtain the services of another counsel. On the contrary, he is recorded as having asked for a postponement "to obtain the services of another counsel", which must give rise to an inference that he already knew that Mr Hurnam would not be appearing for him.
The evidence for the prosecution was called, but the appellant did not cross-examine any of the witnesses. In the course of the evidence of one of them the prosecutor sought leave to adduce the evidence of a document examiner, and when leave was given he produced the report of the examiner, which was admitted in evidence. This related to a comparison of the handwriting of the appellant and that of Shradhanand (otherwise Preetam) Ramsarrun with the writing on the paper in which the bank notes were wrapped. The examiner found no conclusive similarities of handwriting characteristics.
The appellant gave evidence on his own behalf, but did not call any other witnesses. In the course of his cross-examination the appellant suggested that somebody had opened the van on the Saturday prior to the police visit, whereupon the following exchange between the magistrate and the appellant was recorded:
"Q. But you had not noticed the van having been opened?
A. Yes.
Q. Had you locked your van on the Saturday when you had left it at Le Citadelle?
A. Yes. But I had left the front windows open by some 2 cms.
Q. Are you saying that when you parked your van at Le Citadelle, in your mind anyone could have opened the door of the van?
A. No.
Q. Do you agree that any vehicle can be opened by means of a false key?
A. Yes.
Q. And you stated earlier that the gloves box of your van was a safe place to keep important keys?
A. Yes.
Q. Do you still maintain that it was a safe place to keep such important keys?
A. Yes.
Q. I put it to you that all the exhibits secured from inside and outside your van belonged to you, including the spurious notes?
A. No.
Q. I also put it to you that you knowingly and unlawfully had in your possession those 4 spurious notes of Rs. 1000?
A. No."
In her judgment the magistrate set out the charge and the evidence given and her conclusion that she was satisfied beyond reasonable doubt that the appellant knew all about the presence of the exhibits, including the four spurious notes, and that he therefore had the spurious notes in his possessions, as averred by the prosecution. She found the appellant guilty as charged and imposed the penalties referred to earlier. Miss Moonshiram, who appeared for the appellant before the Board, was critical of the magistrate for not referring to the fact that the appellant was unrepresented or that he requested an adjournment. She also submitted that the court had drawn wrong inferences from the facts of the case.
The appellant appealed to the Supreme Court of Mauritius, his appeal being based on three grounds (a) breach of his constitutional rights in the magistrate's refusal to permit an adjournment to allow him to obtain legal representation (b) unfairness in the trial (i) in the magistrate's questioning of the appellant (ii) in the failure of the prosecution to obtain and call evidence about the threatening calls made to the appellant (this ground was abandoned at the hearing of the appeal) (c) incorrect conclusions drawn by the magistrate from the evidence.
The appeal was heard on 25 February 2003. Counsel then appearing for the appellant argued that the magistrate should have enquired into the reason why he found himself without counsel at the trial and, if he knew that Mr Hurnam could not appear, what steps he had taken to obtain the services of a replacement. He was left in a disadvantaged position, facing a serious charge without a skilled legal representative to ensure that his case was properly presented, which was a breach of his constitutional rights. There was argument on each side about the inferences drawn from the facts of the case, and in his rejoinder counsel for the appellant is reported in the minutes of the proceedings as stating:
"On the facts, he thinks that it could be inferred that he had guilty knowledge."
The court's decision was given in a short oral judgment by Pillay CJ. The court considered that, as held by the magistrate, it was through the appellant's own fault that he found himself unrepresented on...
To continue reading
Request your trial
-
Beacher v R
...R., [2003] 1 W.L.R. 1545; [2003] UKPC 27, considered. (2) Doherty, In re, [2001] NIQB 41, considered. (3) Jahree v. Mauritius (State), [2005] 1 W.L.R. 1952; [2005] UKPC 7, applied. (4) R. v. Hersey, [1998] Crim. L.R. 281, followed. (5) R. v. Mills, [1997] 2 Cr. App. R. 206; [1997] Crim. L.R......
-
Grant v State
...AC 956 to be not an absolute right, a decision followed in Dunkley v The Queen [1995] 1 AC 419 and, more recently, in Jahree v The State [2005] UKPC 7, [2005] 1 WLR 19 Fifthly, it is clear that the English courts have not interpreted article 6(3)(d) of the European Convention as imposing......
- Grant v Correctional Services
-
R v M
...the questioning was of such central significance as to effect the overall fairness of the trial ( Jahree v the State (Mauritius) [2005] 1 WLR 1952). In R v Mitchell [2010] EWCA (Crim) 783 this court observed that the judge should not "descend into the arena" [21] and he should not cross-exa......