HAURADHUN R v THE STATE OF MAURITIUS

2011 SCJ 94

Record No: 5870

IN THE SUPREME COURT OF MAURITIUS

In the matter of:

Roopnarain Hauradhun
Applicant
v.

The State of Mauritius

Respondent
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JUDGMENT

The applicant was convicted by the Intermediate Court on a charge of attempt upon

chastity upon a child under the age of 12 in breach of section 249(3) of the Criminal Code

and was sentenced to 12 months’ imprisonment. He appealed against his conviction and his

appeal was dismissed. He is now seeking leave to appeal to the Judicial Committee of the

Privy Council against the judgment of the Supreme Court.

He has grounded his application under sections 81(a) and 2(a) of the Constitution

and under section 70 A of the Courts Act.

(ii) Under section 81(1)(a), he has averred that leave should be granted as of
right since the questions raised relate to the interpretation and application
of section 3(a) of the Constitution, particularly to the protection of the law
and due process and trial by an independent and impartial tribunal; and

(iii) under section 81(2) (a) of the Constitution coupled with section 70A of the
Courts Act, he prays for leave on the ground that the question involved is
of great and general on public importance or otherwise.

The questions that he claims ought to be submitted for the determination of the

Judicial Committee are as follows:

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A. “Whether the Supreme Court having raised proprio motu the issue with reference
to Section 173 of the Courts Act and more particularly Section 173[1][b] was duty
bound to declare and decree that the whole trial process had been flawed
whereby my right to the protection of the law and due process has been
breached resulting in a miscarriage of justice?

B. Whether the Supreme Court misdirected itself on the statutory duty of the trial
court which duty was illegally assumed and taken over by the prosecution instead
and my right to a fair trial by an independent and impartial court has been
breached.

C. Whether the Supreme Court was wrong to have dismissed on the ground that no
prejudice has been caused when in truth and in fact Section 3[a] and 10 of the
Constitution ought to have been strictly interpreted consonant to and compliant
with due process.

D. Whether the safety of the conviction was clearly an issue of Constitutional

importance?”

It is common grounds that at the trial, the then 12 year old alleged victim gave

evidence on certain facts against the applicant which did not appear in her statement. She

was confronted with her statement by learned counsel for the prosecution and she conceded

having not mentioned those facts therein but maintained that her version in court was the

truth. Thereupon, learned counsel for the prosecution produced the said statement stating

that she was doing so by virtue of section 173(1)(b) of the Courts Act. On appeal, the

Supreme Court proprio motu questioned the propriety of the production of that statement

and the inapplicability of section 173(1)(b) to the present context.

Learned counsel for the applicant has contended that the applicant should obtain

leave as of right since the prosecution had acted in breach of the statutory powers of the trial

court and thus ‘fundamentally flawed the trial process’ and breached his right to the

protection of the law coupled with his right to a fair trial and due process – thus leading to a

miscarriage of justice.

Under section 81 (1)(a), an appeal to the Judicial Committee is obtained as of right

from final decisions of the appellate court only on questions as to the interpretation of the
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Constitution. It is to be noted that in the present case this irregularity in the proceedings was

never made the subject of an objection by the defence at the trial and no constitutional issue

was canvassed in this regard, and nor was this question was never raised on appeal.

However, the Supreme Court indeed questioned, prorio motu, the propriety of the production

of the statement of the witness but concluded that this irregularity neither caused prejudice

to the applicant nor led to a miscarriage of justice in view of the fact that the learned

magistrate’s judgment showed that she did not take into account the statement of the

witness but that she considered her evidence in court and found her to be a credible witness.

In the circumstances, it has not been shown that any questions as to the

interpretation of the Constitution is involved which would require the determination of the

Judicial Committee. The applicant is therefore not entitled as of right to appeal to the

Judicial Committee under section 81(1)(a) of the Constitution.

With regard to whether leave should be granted under section 81(2) of the

Constitution and section 70(A) of the Courts Act, we shall aptly refer to the basic guidelines

of the Judicial Committee in Ibrahim v R [1914] AC 599 at page 614 which reads as follows:

“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 R. (1985) 10 App. Cas 675; 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’: Dillet’s case (1887) 12 App. Cas. 459. ….. …..
Misdirection as such, even irregularity as such, will not suffice: ex parte
Macrea (1893) 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: R v Bertrand (1987) L.R.1.P.C. 520.”

Again, in the present application, the issue which the applicant intends to raise was

never canvassed before the Supreme Court, and moreover, the nature of the irregularity in

this particular case was not so deeply rooted as to deprive the applicant of a fair trial and to

shake the basis of justice on the protection of the law. There is therefore no question of
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great, general or public importance or otherwise which ought to be submitted to the Judicial

Committee for its determination. The applicant is therefore not entitled to leave under

section 81(2) of the Constitution and section 70(A) of the Courts Act.

The application is refused and is accordingly set aside.

P. Balgobin
Judge

N Devat
Judge

11 April, 2011

Judgment delivered by Hon. P. Balgobin, Judge

For Applicant: Mr Attorney Y Bissessur

Mr S Toorbuth, of Counsel

For Respondent: State Attorney

State Counsel