Buxoo and another v. The Queen (Mauritius) [1988] UKPC 1 (19th May, 1988)
Privy Council Appeal No. 18 of 1997
S. Buxoo and Another
Appellants
v.
The Queen
Respondent
FROM
THE
COURT OF APPEAL OF MAURITIUS
---------------
JUDGMENT
OF THE LORDS OF THE JUDICIAL
COMMITTEE
OF THE PRIVY COUNCIL,
Delivered
the 19th May 1988
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Present at
the hearing:-
Lord Keith of
Kinkel
Lord Brandon of Oakbrook
Lord Griffiths
[Delivered
by Lord Keith of Kinkel]
------------------
1. On 5th December 1985 the appellants
were convicted by the Intermediate Court of Mauritius on a charge of having
wilfully and criminally inflicted wounds and blows upon one Fockeena which
incapacitated him from personal labour for more than 20 days, contrary to
section 228(l) of the Criminal Code. They were each sentenced to 18 months
imprisonment with hard labour. An appeal to the Supreme Court of Mauritius was
dismissed on 18th August 1986. The appellants now appeal to Her Majesty in
Council under section 70a of the courts act. That section, which was added to
the Act by section 7 of the Courts (Amendment) Act 1980, provides:-
"(1) Notwithstanding any other
enactment an appeal shall lie from decisions of the Supreme Court or the
Court of Criminal Appeal to Her Majesty in Council as of right in all
criminal cases."
2. It is to be observed that section
81(i) of the Constitution of Mauritius, dealing with appeals as of right to
Her Majesty in Council from decisions of the Court of Appeal or the Supreme
Court, specifies in paragraphs (a), (b) and (c) certain categories of cases in
which such an appeal is to lie. The final paragraph, (d), adds "in such
other cases as may be prescribed by Parliament".
3. At the outset of his argument counsel
for the appellants raised a question as to the scope of the appeal to Her
Majesty in Council in criminal cases now available as of right by virtue of
section 70a of the courts act. Until that enactment no appeal from any court
in any jurisdiction lay to Her Majesty in Council as of right in a criminal
case. Such an appeal might be presented only with special leave granted by Her
Majesty on the advice of the Board, and that is still the position in respect
of all the other courts appeals from which Her Majesty in Council has
jurisdiction to entertain. (See Oteri v. The Queen [1976] 1 WLR 1272
and Holder v. The Queen [1980] AC 115). Special leave is
traditionally granted only in exceptional circumstances, where the Board find
room for the view that a really serious miscarriage of justice may have
occurred. The question which arises is whether a similar principle is to be
applied in the disposal of appeals as of right under section 70A of the
Mauritius Courts Act, or whether the Board is to consider on a broad basis
whether the conviction appealed against is bad by reason of misdirection or
wrongful admission or rejection of evidence, or is unsafe or unsatisfactory in
the light of the evidence led.
4. In the first appeal coming before the
Board under section 70A, Badry v. D.P.P. [1983] 2 AC 297, the
traditional principle was held to apply. Lord Hailsham of St. Marylebone L.C.
said at p. 302-303:-
"... since this appeal may be
the first to be heard under the legislation (Courts (Amendment) Act 1980,
section 7) extending the right of appeal to the Judicial Committee in
appeals from Mauritius, their Lordships feel it right to reiterate the
general principles on which they will continue to feel bound to tender their
advice in criminal matters.
The locus classicus in which these
principles are stated are the passages in the opinion of the Board given by
Lord Sumner in Ibrahim v. The King [1914] AC 599, 614-615, where he
said:
Their Lordships' practice has
been repeatedly defined. Leave to appeal is not granted except where some
clear departure from the requirements of justice exists: Riel v.
The Queen (1885) 10 App.Cas. 675, 677; nor unless by a disregard of
the forms of legal process, or by some violation of the principles of
natural justice, or otherwise, substantial and grave injustice has been done:
In re Dillet (1887) 12 App.Cas. 459, 467. It is true that these are
cases of applications for special leave to appeal, but the Board has
repeatedly treated applications for leave to appeal and the hearing of
criminal appeals as being upon the same footing: Riels case, 10 AppCas 675; Ex parte Deeming [1892] AC 422. The Board cannot give
leave to appeal where the grounds suggested could not sustain the appeal
itself; and, conversely, it cannot allow an appeal or grounds that would not
have sufficed for the grant of permission to bring it. Misdirection, as
such, even irregularity as such, will not suffice: Ex parte Macrea [18931
A.C. 346. There must be something which, in the particular case, deprives
the accused of the substance of fair trial and the protection of the law, or
which, in general, tends to divert the due and orderly administration of the
law into a new course, which may be drawn into an evil precedent in future: Reg.
v. Bertrand (1867) L.R. I P.C. 520.
By these words their Lordships,
notwithstanding any new legislation in the territories of the Commonwealth
from which appeals may be brought in criminal matters, continue to feel
themselves bound and, in the instant appeals, their Lordships consider that
they have been guided by them. Their Lordships also desire to repeat the
practice direction, issued by Viscount Dunedin (1932) 48 T.L.R. 300:
Their Lordships have repeated ad
nauseam the statement that they do not sit as a Court of Criminal Appeal.
For them to interfere with a criminal sentence there must be something so
irregular or so outrageous as to shake the very basis of justice. Such an
instance was found in In re Dillet ((1887) 12 App.Cas. 459) which has
all along been held to be the leading authority in such matters. In the
present case ... an Indian petition for special leave to appeal against
conviction and sentence of death for murder ... the only real point is a
point for argument on a section of a statute, and all that the petitioner
can say is that it was wrongly decided. That is to ask the Board to sit as a
Court of Criminal Appeal and nothing else.
In all that their Lordships say
hereafter in discussing the merits of the instant consolidated appeals,
their Lordships believe that they remain bound by, and have stayed within,
the confines of these precepts."
5. Counsel for the appellants pointed
out that, in so far as appears from the report of the case, no argument had
been directed in Badry v. D.P.P. to the scope of the appeal or the
principles to be applied in the disposal of it, and he submitted that the
matter should be reconsidered. He drew attention to the terms in which the
Attorney-General and Minister of Justice had presented the proposed enactment
of section 70A to the Mauritian Parliament as indicative of an intention that
the scope of the appeal should be as wide as was the case in civil appeals
which lay as of right. (Fourth Legislative Assembly Debates, Fourth Session,
26 June 1980 col. 3298). It appears that in Mauritius, where a large part of
the law is derived from that of France, travaux preparatoires are readily
resorted to as an aid to the true construction of legislation. That is not a
practice which their Lordships would readily say anything to discourage. The
reference does not, however, indicate any intention on the part of the
legislature to dictate to the Board the principles which are to be applied in
the disposal of appeals under the enactment. If the enactment had specifically
purported to do this, for example by specifying the grounds upon which an
appeal might be allowed, then a serious question would have arisen as to
whether the Board were bound to give effect to the enactment, in so far as it
purported to bring about a departure from the traditional principles. Section
70A of the Courts Act does not purport to do that, and the statement of the
Attorney-General and Minister of Justice cannot reasonably be construed as
capable of importing such an intention into the section by implication. In the
circumstances the question does not arise for decision, but the Board would
not easily be persuaded that their function of tendering advice to Her Majesty
was capable of being fettered by the legislature of any of the countries where
the jurisdiction of Her Majesty in Council is accepted.
6. The Board will accordingly continue
to hold themselves bound, in relation to criminal appeals from Mauritius, by
the principles set out in Badry v. D.P.P. It is to be remarked,
however, that these principles are not necessarily to be applied with the most
extreme rigidity. Where an important point of law of general application is
raised by an appeal, and the decision in question is capable, if not reversed,
of constituting a precedent not conducive to the public interest in the proper
administration of justice, the appeal may be capable of being accommodated
within the intendment of the principles. Thus the Board have on occasion
granted special leave to appeal to a prosecutor. Recent instances are Attorney-General
of Hong Kong v. Tse Hung-Lit [1986] AC 876, Attorney-General of
Hong Kong v. Sham Chuen [1986] AC 887 and Attorney-General of Hong
Kong v. Wong Muk Ping [1987] A.C. 501.
7. In the present case, however, it is
plain that the circumstances of the appeal take it far outside any possible
application of the principles in question.
8. No point of law is involved. The only
issue before the Intermediate Court and the Supreme Court was whether on the
evidence led the appellants had been identified as being among the persons who
carried out the serious assault which was undoubtedly perpetrated on the
victim Fockeena. The Inter-mediate Court found that they had been and the
finding was upheld by the Supreme Court. The Board could never consider it
right to interfere with a concurrent finding of fact of that nature.
9. Their Lordships will therefore humbly advise Her
Majesty that the appeal should be dismissed.