Jugnauth v Ringadoo

JurisdictionUK Non-devolved
JudgeSir Paul Kennedy
Judgment Date04 November 2008
Neutral Citation[2008] UKPC 49
CourtPrivy Council
Docket NumberPetition No 44 of 2008
Date04 November 2008
(1) Mohamed Iqbal Callachand
(2) Mohamed Anwar Callachand
Petitioners
and
The State
Respondent

[2008] UKPC 49

Present at the hearing:-

Lord Hope of Craighead

Lord Rodger of Earlsferry

Lord Carswell

Lord Mance

Sir Paul Kennedy

Petition No 44 of 2008

Privy Council

[Delivered by Sir Paul Kennedy]

On 26 th September 2008 the Board, sitting in Mauritius, granted special leave to the appellants to appeal against the sentences imposed on them by the Supreme Court and remitted their appeals to that court for it to reconsider the sentences in the light of written reasons to be given by their Lordships. They now give those reasons.

The Issue

1

The issue which must now be considered is the approach to be adopted by sentencing courts in Mauritius to time spent in custody prior to sentence.

The Background to the Appeal

2

On 10 th January 1999 there was an violent incident involving the two appellants on the one hand and on the other hand Ismet Joomun and his wife Shenaz Bibi Joomun. As a result Ismet Joomun sustained fatal injuries and Shenaz Bibi Joomun was wounded. The second appellant was arrested on the 10 th January 1999, and the first appellant was arrested 3 days later on 13 th January 1999. They were initially held in police detention, but they were transferred to prison when they were remanded in custody on a provisional charge of murder. In the case of the first appellant that transfer took place on 11 th February 1999. In the case of the second appellant it took place on 17 th February 1999. On 4 th November 1999 both appellants were committed for trial for the offence of murder and on 21 st July 2000 they were released on bail. They had each been in custody on remand for 17 months.

3

On 17 th September 2001, after a review by the Director of Public Prosecutions, three fresh charges were laid by information before the Intermediate Court. Only two of the charges concerned the appellants. For present purposes they can be summarised as follows

(1) both appellants were charged with having on 10 th January 1999 caused the death of Ismet Joomun by inflicting wounds and blows but without the intention to kill, contrary to section 228(3) of the Criminal Code.

(2) the second appellant was also charged with having on the same occasion, together with Mohamed Sameen Callachand, inflicted a blow on Shenaz Bibi Joomun, contrary to section 230(1) of the Criminal Code.

On 29 th July 2004 the appellants were convicted of the first of those offences and the second appellant was convicted of the second offence. On 5 th August 2004 they were each sentenced to penal servitude for 7 years for the first offence. For the second offence the second appellant was fined Rs5000. The respondent accepts that no reference was made by the sentencing court to the time spent in custody on remand because it was not made aware of that period.

The Appeal Process so far

4

Both appellants appealed against conviction and sentence, and they were permitted to remain on bail. The only ground of appeal in relation to sentence which was pursued before the Supreme Court was that that the Intermediate Court failed to take into account the time which the appellants had spent in custody since the incident. The appeals were heard by the Supreme Court on 27 th March 2006, judgment being delivered on 5 th October 2006. The appeals were dismissed. In relation to the appeals against sentence the court said

"We have perused the record and, as pointed out by state counsel, it does not show that the appellants were on remand in respect of their case"

It is now accepted by the respondent that the record to which the Supreme Court referred must have been incomplete.

5

A petition for special leave to appeal against the decision of the Supreme Court in relation to both conviction and sentence was heard by the Judicial Committee of the Privy Council on 3 rd April 2008. The petition was dismissed, but liberty was granted to restore the...

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