RAMBHUROSH R.

B v THE STATE

2009 SCJ 218

Record No. 102173

IN THE SUPREME COURT OF MAURITIUS

In the matter of:

Rajen Biswajeet Rambhurosh

Applicant

V.

The State
Respondent

JUDGMENT

The appellant was convicted by the Intermediate Court on a charge of “officer of a

public body accepting bribe” in breach of Section 126(1) (b) of the Criminal Code. He was

sentenced to undergo 12 months’ imprisonment.

He appealed to the Supreme Court on the following grounds:

“(i) Because on the evidence found proved by the Learned Magistrate, the
offence with which I stood charged had not been established.

(ii) Because the Learned Magistrate was wrong to accept the evidence of
witness Travailleur inspite of the contradictions highlighted by him.

(iii) Because in any event the Learned Magistrate failed to give himself the
appropriate warning as the witness had a purpose of his own to serve.

(iv) Because the circumstances in which the Appellant had been entrapped were
such that the whole prosecution evidence was tainted and ought not to have
been acted upon by the Learned Magistrate.

(v) Because in the absence of any formal conviction, the trial was null and void.”
 The Court of Appeal upheld the applicant’s conviction and dismissed the appeal. He

is now applying for leave to appeal to the Judicial Committee of the Privy Council, as of right

under Section 81 (1) (a), on a question as to the interpretation of the Constitution as well as

with leave of the Court, under Section 81(2)(b) of the Constitution coupled with Section

70 A of the Courts Act.

The application was originally based on the grounds set out at paragraphs 9(a) – (f)

of the applicant’s affidavit. At the hearing, ground (b) was not pressed and grounds (c), (d),

(e) and (f) were argued together.

Ground 9(a) forms the basis for the application for leave to appeal as of right, under

Section 10(a) of the Constitution. It reads as follows:

“Whether I have been deprived of the right to have my judgment on appeal delivered
in public in breach of section 10(9) of the Constitution, indeed in this case, my legal
representatives were informed by circular dated 23 rd January 2009 that judgment in
the above matter (Rambhurosh vs The State) had been filed in the Registry of the
Supreme Court to-day.”

The issue before us is whether this ground meets the requirements of Section 81(1)

(a) of the Constitution so as to entitle applicant to appeal to the Privy Council as of right.

Under Section 81 (1) –

“An appeal shall lie from decisions of the Court of Appeal

or the Supreme Court to the Judicial Committee as of right
in the following cases –

(a) final decisions in any civil or criminal proceedings, on

questions as to the interpretation of this Constitution.”
 It is clear therefore that the Applicant is only entitled to appeal as of right

under Section 81(1)(a) from a final decision on a question as to the interpretation

of the Constitution.

The basis for the applicant’s contention on this ground, is Section 10(9) of the

Constitution which reads as follows:

“Except with the agreement of all the parties, all proceedings of every court and
proceedings for the determination of the existence or extent of any civil right
or obligation before any other authority, including the announcement of the
decision of the court or other authority, shall be held in public”.

It is the applicant’s case that the absence of public pronouncement of the

judgment against him and informing him of same by way of circular to his legal

representatives on 23 January 2009, amounts to a breach of section 10(9) in as

much as the announcement of the decision of the Court, was not “held in public”.

An application for leave to appeal to the Privy Council as of right under

Section 81 (1) (a) will only succeed where there is “a genuine question raised as to

the interpretation of the Constitution as opposed to a constrained one” (Veerasawmy

v The State [2005 SCJ 188]).

In our view, the point raised does not involve a genuine question as to the

interpretation of the Constitution. Also, the words “in public” are not to be interpreted

literally as meaning “read out in public”. What is required is that the judgment be

given publicity and that the litigant concerned be duly informed and in a timely

manner, of the outcome of the proceedings. In the present case, the applicant’s own

affidavit reveals that his legal representatives were informed of the judgment by
circular on the very day that it was issued i.e. 23 January 2009. We take note of the

long time tradition of the Supreme Court in Mauritius to inform parties of the judgment

in their case, by means of circular issued immediately upon the judgment being

handed down. We also take judicial notice of the fact that it has always been the

practice for judgments to be deposited at the Court registry and made available for

consultation to any interested party. In our modern age of information technology,

they are further publicised by being placed on the dedicated Supreme Court website

soon after signing off.

The above practice is not far different from that adopted by the Judicial

Committee of the Privy Council for communication of its judgments. According to a

Practice Note dated 4 October 2004 concerning delivery of judgments in the Privy

Council, copies of the printed judgment are made available for collection from the

Privy Council Registry by the representatives of each side one hour before judgment

is delivered and after delivery in the Council Chamber, additional copies are made

available, on request to the parties and any other person.

As such, we find that the applicant’s contention to the effect that the absence

of public pronouncement of the judgment of the Supreme Court, violated the

provision of Section 10 (9) of the Constitution to the effect that the decision of the

Court shall be held in public, cannot be the basis for an application under Section 81

(1) (a) of the Constitution.

At this juncture we find that the observations made by the European Court of

Human Rights in the case of Pretto [European Court HR Pretto and others v Italy,

judgment of 8 December 1983 (series A, No. 71, para 27)] on the issue, in relation
to Article 6(1) of the European Convention of Human Rights which stipulates that

judgment “shall be pronounced publicly”, are pertinent. In that case the Court held

that the object pursued by Article 6(1) in this context, is to ensure scrutiny of the

judiciary with a view to safeguarding the right to a fair trial and that a literal

interpretation of the said words, was not appropriate.

 6

In the case of Pretto (Supra), the Italian Court of Cassation had made a

ruling in civil proceedings which was not pronounced publicly. Mr Pretto argued

before the European Court of Human Rights that the absence of public

pronouncement of the judgment, contravened Article 6(1) of the European

Convention on Human Rights.

In its judgment, dismissing the appeal, the Court alluded to the diverse

legislative and judicial practice as to the scope and manner of implementation in

member States of the Council of Europe, of the principle of publicity (paragraph 2).

It also referred “to long standing tradition of recourse to other means, besides

reading out aloud, for making public the decisions of all or some of their courts and

especially of their courts of cassations, for example deposit in a registry accessible to

the public” (paragraph 26).

The Court went on to state:

“Although the judgment dismissing the appeal on the points of law, was not
delivered in open court, anyone could consult and obtain a copy thereof, on
application to the Court registry” [Supra paragraph 27].

The Court observed that the object of article 6(1) as stated above i.e. to

ensure public scrutinity of the judiciary is “at any rate as regards cassation

proceedings, no less achieved by a deposit in the court registry, making the full text

of the judgment available to everyone, than by a reading in open court of a decision

dismissing an appeal or quashing a previous judgment, such reading sometimes

being limited to the operative provisions” (paragraph 27).

 7

The Court concluded that the Court of Cassation chose to make its decision

public by depositing it in the registry and given that the public had been able to

consult or obtain copies of the decision, there had been sufficient effort to make the

judgment public.

It followed that the absence of public pronouncement of the Court of

Cassation’s judgment, did not constitute a breach of article 6(1) of the Convention.

[supra p. 13, paragraph 28].

The same principles were applied in the subsequent case of Sutter v

Switzerland (European Court HR Sutter case v Switzerland judgment of 22

February 1984 Series A, No. 74, paragraphs 31-34). The applicant in that case

appealed to the military Court of Cassation, against a sentence of 10 days

imprisonment inflicted upon him. He was sent a written notification that his appeal

had been dismissed. He appealed to the European Court of Human Rights,

contending that Article 6(1) of the European Convention on Human Rights, had been

infringed.

The Court held that in considering the interpretation of the requirement that a

judgment be made public, the necessity was not for the judgment to have been

delivered in public; however, it had to have been available to the public. In the case

of Sutter itself, the Court found that since interested parties could have obtained the

Court of Cassation’s judgment on application, that had been sufficient to comply with

the requirements of Article 6(1).

 8

The Court further observed that “a literal interpretation of the terms of Article

6(1), concerning pronouncement of the judgment, seems to be too rigid and not

necessary for achieving the aims of Article 6”. It considered that in each case “the

form of publicity given to the “judgment” under the domestic law of the respondent

State must be assessed in the light of the special features of the proceedings in

question and by reference to the object and purpose of Article 6(1)”. The Court

concluded that the Convention did not require the reading out aloud of the judgment

delivered at the final stage of the proceedings and the absence of public

pronouncement of the Court of Cassation’s judgment, did not contravene Article 6(1).

We do take note of the judgment of Céline v The State – Rec. No. 100360 of

the 8 May 2009 upon which Counsel for applicant relied in support of the application.

In that case, the Supreme Court, in a short judgment, granted the applicant leave to

appeal to the Privy Council under Section 81(1)(a) of the Constitution, on the basis

of the grounds raised at paragraphs 8(a) – (h) of his affidavit. The grounds averred

inter alia a breach of the right to a fair trial, the denial of the protection of the law, and

at paragraph (g) raised the same ground as in the present case to the effect that

informing the applicant’s legal advisers that judgment had been filed in the Registry

of the Supreme Court and the failure to pronounce judgment publicly, constituted a

breach of his right to a public judgment under Section 10(9) of the Constitution.

We note that in the case of Céline (Supra), the Supreme Court gave a very

short judgment in the matter granting the application in the light of the averments at

paragraphs 8(a) to (h), without going into the details thereof. A perusal of the

application, which was filed before us, reveals that grounds 8(a) – (f), (h) in that

application raised serious issues involving questions as to the interpretation of the

Constitution entitling the applicant to leave to appeal to the Privy Council, as of right.
 9

However although the Supreme Court in its judgment granting the application under

Sections 81(1)(a), did include therein ground (g), we find nothing in the judgment

indicating that ground 8(g) of the application was given any special consideration or

that on its own, it would have entitled the applicant to appeal to the Privy Council, as

of right. As such the decision to grant leave in the particular circumstances in the

case of Céline v The State, does not have an incidence in the present application

which does not fall within the requirements of Section 81 (1) (a) of the Constitution

such as to entitle the applicant to appeal, as of right, to the Privy Council.

The applicant has also sought for leave to appeal to the Privy Council under

Section 81(2) (b) of the Constitution coupled with Section 70 of the Courts Act

on the ground that the questions involved in the appeal, are such that by reason of

their great general public importance, ought to be submitted to the Judicial

Committee of the Privy Council.

Section 70 of the Courts Act reads as follows:

“An appeal shall lie from decisions of the Court of Appeal or the Supreme Court to
the Judicial Committee in criminal cases where in the opinion of the Court, the
question involved in the appeal is one that, by reason of its great general public
importance or otherwise ought to be submitted to the Judicial Committee.”

Regarding the first reason invoked for leave to appeal under this section,

namely the absence of public pronouncement of the judgment, we find that the issue

is not of great general public importance, to warrant that the matter be submitted to

the Privy Council for the reasons which we have already stated above.
 1

The other grounds raised at paragraphs 9(c), (d), (e) & (f) of the application,

concern the elements of the offence which need to be established so as to prove the

offence. They are hereunder reproduced:

“c. Whether the Supreme Court was right to hold that the offence under section
126(1)(b) of the Criminal Code was constituted once the sum of money was
remitted to the Appellant irrespective of the fact that the Appellant had not yet
abstained from reporting the matter in the diary book or whether the prosecution
had to prove two ingredients of the offence namely that the money had been
remitted to the Appellant and secondly that the Appellant had abstained from
doing the act.

d. Whether the Supreme Court ought not to have found that the trial Court had not
adjudicated upon the two elements of the offence set out in S126(1)(b) of the
Criminal Code in breach of section 197 of the Courts Act.

e. Whether the Supreme Court was right to hold that the Appellant had the duty to
report the contravention in his notebook within an hour, which he failed to do.

f. Whether the Appellate Court ought not to have found that the findings of the
Learned Magistrate that the Applicant had taken a bribe did not constitute the
offence under which he was charged”.

It is the case for the applicant that the offence under Section 126 (1) (b) of

the Criminal Code comprises 2 elements, namely, the acceptance of the bribe and

the abstention from reporting the contravention. Counsel submitted that the

Magistrate reached the conclusion that the applicant was guilty when he accepted

the bribe and failed to address the second issue i.e. in relation to the reporting of the

contravention. Counsel argued that the constitutive elements of the offence, are

matters of great general or public importance which need to be referred to the Privy

Council for a decisive pronouncement on the matter.

 1

The wording of the Section 82 (1) (b) of the Constitution reveals that an

appeal will lie to the Privy Council, with leave from the Court, where the “question

involved in the appeal, is one of great general public importance”.

At this juncture, we find it apposite to reproduce the following extract from the

case of Marie Anne Chantal Anne v The State [2003 SCJ 163]:

“It is clear from the above that an appeal would only lie from a final decision
of the Supreme Court where there is a question involved in the appeal which
ought to be submitted to the Judicial Committee.”

In the present case, the grounds of appeal which are reproduced in the

judgment of the Appellate Court, reveal that the points now being raised, were indeed

raised before the Appellate Court. As such, these grounds which are not being

raised for the first time by the applicant, may constitute the subject of motion for

leave to appeal to the Privy Council as they are questions involved in the appeal and

were considered and adjudicated upon by the Supreme Court, provided that they

meet the requirements under Section 82(1) (b).

We are of the view that the grounds raised do not satisfy the requirements

under Section 82 (1) (b) of the Constitution. The elements required to establish a

charge under Section 126 of the Criminal Code, do not involve questions of great

general public importance such as to warrant that the matter be submitted to the

Privy Council. These elements are not subject to debate and have been settled by

the existing case law notably in the case of Monaf Naïm v The King [1945 MR 26]

(where the offence was one under Section 132 of the Criminal Code which consists

of the same elements as Section 126 in all respects save that under Section 132, the
 1

contravention is an imaginary one). The matter was again dealt with in the case of

Kaundun v The State [1998 SCJ 120]. The Court in the case of Kaundun stated:

“Section 126…covers a situation where a public officer accepts a bribe to do

or abstain from doing any act in the execution of his functions or employment.
This implies the existence of a genuine contravention ….”.

More recently in the case of ICAC v Soobrun [2007 SCJ 318] which

concerned an offence of bribery by a public official in breach of Section 4(1)(a) of the

Prevention of Corruption Act 2002 (POCA) the provisions of which are similar to

Section 126 of the Criminal Code, the Court held that to cause the contravention to

be filed was not one of the legal elements of the offence and that the proper test

question would be in the very words of section 4(1) (a) of the POCA namely “was the

accused acting in the execution of his duties?”

As such given the established jurisprudence of the principles relating to the

offence, made by the trial Court and the Appellate Court, we are of the view that the

issues raised in the application, do not involve any question of great general public

importance. We are not concerned in the present application with –

“questions which are likely to occur often and where the due and orderly
administration of the law is shown to be interrupted or diverted into a new
course which might create a precedent for the future, and where there are no
other means of preventing these consequences” - Halsbury’s Laws 4th
Edition Volume X, Vo Courts at paragraph 786.
 1

We need to be mindful in this regard of what has been stated in Ibrahim v

The King [1914 AC 599] and followed in subsequent cases notably Ramakrishna

Rao Appadoo v The State [1995 SCJ 185]:

“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.”

“The 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.”

The decision in the present case has not set out any new principles of law in

relation to an offence under Section 126 (1) (b) of the Criminal Code and has

merely applied existing principles in an area of settled law. As such, it cannot be said

to set a precedent which tends to divert the due and orderly administration of the law

or which:

“tends to divert the due and orderly administration of the law into a new
course, which may be drawn into an evil precedent” Nor can it be said to be
“so irregular or so outrageous as to shake the very basis of justice”

We further find it appropriate to point out that if the applicant is of the view that his

constitutional rights have been infringed, he may have recourse to an application for

constitutional remedy under Section 17 of the Constitution. We find it apt to reproduce the

comments made in the case of Marie Chantal Anne (Supra) on this issue:

“Section 17 of the Constitution expressly provides for a constitutional remedy in

appropriate circumstances whenever there is an allegation of any
contravention to any of sections 3 to 16 of the Constitution. The Supreme
 1

Court has, by virtue of section 17(2) of the Constitution, original jurisdiction to

hear and determine any application made pursuant to section 17(1), and may
make such orders, issue such writs and give such directions as the Supreme
Court may consider appropriate for the purpose of enforcing, or securing the
enforcement of, any of sections 3 to 16 of the Constitution to the protection of
which the person concerned may be entitled”.

We accordingly hold that the grounds invoked by the applicant do not establish the

existence of:

(a) any question as to the interpretation of a provision of the Constitution

entitling him to appeal as of right to the Judicial Committee of the Privy
Council under Section 81 (1) (a) of the Constitution;

(b) any issue which, by reason of its great, general or public importance
or otherwise, ought to be submitted to the Judicial Committee of the
Privy Council under Section 81 (2) of the Constitution coupled with
Section 70 A of the Courts Act.

We accordingly set aside the application. With costs.

S.B. Domah
Judge

R. Mungly-Gulbul
Judge
26 June 2009

Judgment delivered by Hon. R. Mungly-Gulbul, Judge

For Applicant: Mr. Q. Ollivry, QC

Mr. Attorney O. D. Cowreea

For Respondent: Miss Gareeboo, State Counsel

State Attorney