Sumodhee v The State of Mauritius

An accused person tried for a criminal offence is entitled under section 10(3) of the Constitution, on payment of a reasonable fee, to a copy of any record of the proceedings made by or on behalf of the court. That includes a digital recording where it is the primary modern record. Statutory provisions based on shorthand notes and transcripts do not confine the constitutional entitlement. Access to the recording does not give an appellant a right to require the appellate court to listen to it. The appellate court controls the record needed for the issues raised and may require a properly particularised and professionally justified request. A fair hearing does not ordinarily require a recording, although a particular appeal may do so.

The appellants were convicted in 2000 of arson causing death. Their appeals included complaints about the trial judge’s summing-up and sought access to, and use of, the digital recording of the trial.

The Court of Criminal Appeal of the Supreme Court of Mauritius refused an application for a copy of the recording and found no basis for requiring the appellate court to listen to it. It later rejected the substantive grounds of appeal. The Board granted leave only on the digital-recording issue. The central questions were whether an accused had a right to a copy of the recording and whether an appellant could insist that the Court of Criminal Appeal listen to it.

Disposition. The Board dismissed the appeals.

1. Right to a copy. Section 10(3) of the Constitution gives an accused tried for a criminal offence an entitlement, on payment of the reasonable cost, to a copy for his use of any record of the proceedings made by or on behalf of the court. A digital recording falls within that expression. The Constitution prevails over inconsistent statutory assumptions.
2. The provisions of the Courts Act 1945 and the Criminal Appeal Act 1954 were framed principally around written or shorthand notes and transcripts. They do not limit section 10(3). In a modern Supreme Court trial, the digital recording is the primary record and the transcript is derivative, although ordinarily the transcript remains the indispensable working record for an appeal.
3. Section 10(1). The Board rejected, as an unnecessary subsidiary point, the submission that the fair-hearing guarantee independently creates a right to a recording in every case. A recording may be required for a fair determination of a particular appeal, but ordinarily it will not be.
4. Use on appeal. Payment for a copy does not entitle an appellant to insist that the appellate court listen to it. The court controls its own case management and decides what record is needed for the issues raised. It should listen where genuinely necessary, but a bare assertion that the recording or the judge’s tone is important is insufficient. Proper particulars and justification may be required.
5. As a temporary case-management measure, the Board suggested advance notice, identification of the precise issue and why the transcript is insufficient, specification of the exact passages by reference to the recording and transcript, and arrangements for suitable equipment and an operator.
6. Counsel’s duty. Counsel must advance only properly arguable grounds and must avoid speculative applications. That overriding duty is important to the efficient administration of criminal appeals. The Board applied the principle illustrated by R v Morson (1976) 62 Cr App R 236. On the facts, listening to the recording added nothing significant: the transcript adequately disclosed a balanced summing-up and no improper tone or direction to convict.

• Privy Council: On the conjoined appeals, the Board granted leave only on the issue of access to and use of the digital trial recording and dismissed the appeals: [2017] UKPC 16.
• Court of Criminal Appeal of the Supreme Court of Mauritius: The court refused the application for a copy of the digital recording and found no basis for requiring it to listen to the recording. It subsequently rejected the substantive grounds of appeal.