Rummun v State of Mauritius
| Jurisdiction | UK Non-devolved |
| Judge | Lord Kerr |
| Judgment Date | 07 February 2013 |
| Neutral Citation | [2013] UKPC 6 |
| Date | 07 February 2013 |
| Docket Number | Appeal No 0033 of 2012 |
| Court | Privy Council |
[2013] UKPC 6
Lord Hope
Lord Kerr
Lord Reed
Appeal No 0033 of 2012
Privy Council
Appellant
S Kailash Trilochun
(Instructed by Roshan Rajroop)
Respondent
Geoffrey Cox QC
(Instructed by Royds Solicitors LLP)
Heard on 12 December 2012
Following a trial before a magistrate of the Intermediate Court of Mauritius, Mrs V Phoolchund-Bhadain, Hassen Eid En Rummun was found guilty on 9 October 2009 of the offence of larceny while armed with an offensive weapon. On 5 November 2009 he and three co-accused who had pleaded guilty earlier received sentences of imprisonment. The three co-accused were Lall Sujore, Beny Lutchoomun and Deojit Vallacanna Beeharry. They had entered pleas of guilty on 27 November 2008. In the case of Beeharry the plea was to the offence of aiding and abetting the commission of larceny. All other accused, including the appellant, were either convicted or pleaded guilty to the offence of larceny with an offensive weapon.
In sentencing the accused, the magistrate said that they had each taken part in a "well planned plot" to commit the offence. On 30 December 1999, in a car hired for the purpose, they had followed the victim from his business premises. When he had brought his car to a halt, they approached it wearing masks. Some of the offenders were carrying sabres. The appellant, Rummun, was one of these. Threats were made to the victim, including that he would be killed if he did not hand over the takings from that day's business. The windscreen of his car was smashed by the defendant, Lutchoomun, wielding a piece of wood. Some 800,000 Mauritian rupees (approximately £17,000) were handed over. The proceeds of the crime were divided up between the defendants. Most of the proceeds were not recovered.
The appellant was arrested on 2 February 2000 and cautioned for the offence. He and his three co-accused confessed to the crime on that date. Rummun appeared before the Intermediate Court of Mauritius on 15 July 2002 and his trial was postponed on many occasions until, finally, it took place in September 2009. It appears that the basis of the defence was that Rummun had not participated in the offence as a principal but merely as a secondary participant. On the hearing of the appeal before the Board, Mr Trilochun, who appeared on his behalf but not in the proceedings below, wisely accepted that, in light of Rummun's confession and what was established about the manner of his participation in the offence, this defence was non-viable.
When she came to sentence the defendants in November 2009, the magistrate said that she took into account that the offence was committed in 1999. But her sentencing remarks then continued as follows:
"However, the delay in disposing of this matter is largely attributable to the defence. True it is that since that time, the accused parties have not been convicted of any offence, this being an indication that they have stayed away from crime. Nevertheless, being given ( sic) the gravity of the offence, the interests of justice will be served by a custodial sentence."
The three accused who had pleaded guilty were each sentenced to three years' penal servitude. The magistrate referred to that consideration in sentencing each of them. The appellant was sentenced to four years' penal servitude. All four appealed their sentences to the Supreme Court.
On 21 September 2011 the Supreme Court (Judges S B Domah and S Bhaukaurally) substituted a sentence of two years' imprisonment for the sentence of three years' penal servitude in the case of Sujore because his clear record had not been given sufficient weight as a mitigating factor. In the case of Lutchoomun, the court reduced the sentence of three years' penal servitude to one of two years and nine months, reflecting the fact that, after pleading guilty on 28 November 2008, he had moved for a separate trial in order to have the matter disposed of. That application had been refused but the Supreme Court considered that Lutchoomun deserved credit for this attempt to have the case dealt with at an earlier stage. The sentences imposed on Beeharry and Rummun were affirmed. The court rejected the argument that Rummun had received a heavier sentence because he had pleaded not guilty. It found that the discrepancy between his sentence and those imposed on the others was the consequence of their having earned a discount by pleading guilty.
On the hearing of the appeal before the Supreme Court counsel for Rummun had raised the issue of delay in bringing his case to trial. It does not appear from the record of the proceedings with which the Board has been provided that any submission was made about the impact which the delay had on the appellant's rights under section 10(1) of the Constitution which, among other things, guarantees a fair trial within a reasonable time to all those charged with criminal offences. The Supreme Court, perhaps understandably in light of the absence of any submission to the effect, did not address the question of the possible breach of the appellant's constitutional rights. In the Board's view, this is unfortunate. In cases such as the present involving substantial delay, the Board considers that it is the duty of the sentencing court, whether or not the matter has been raised on behalf of a defendant or appellant, to examine the possibility of a breach of that person's constitutional rights in order to decide whether any such breach should have an effect on the disposal of the case.
Section 10(1) of the Constitution 1968 provides:
"(1) Where any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law."
This is a fundamentally important constitutional guarantee. The Board has had to consider, in a series of cases of which Celine v State of Mauritius [2012] UKPC 32, [2012] 1 WLR 3707 is but the most recent, the effect of failure to adhere to this provision. The Board notes with approval the reference in the judgment of the Supreme Court to reforms that the legal profession are advocating to deal with delay in the conduct of trials. But the duty of the courts is also clear. Magistrates and judges should be astute to detect delay in the conduct of criminal trials and should be pro-active in seeking to eliminate it.
It appears from the Supreme Court...
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