Director of Public Prosecutions v Lagesse (Mauritius)

On a criminal appeal in Mauritius, a serious irregularity under section 96(5) of the District and Intermediate Courts (Criminal Jurisdiction) Act 1888 means any material irregularity capable of producing an incorrect outcome. It is not confined to defects making the trial a nullity. The appellate court retains a discretion whether to order a retrial, having regard to fairness, delay, prosecution advantage and the public interest. The constitutional supervisory jurisdiction under section 82(1) provides an additional basis for ordering a retrial. A concession for returning citizens applies only where the returning citizen is the substantive owner and importer of the vehicle; the transaction may be assessed as a whole to identify a sham arrangement.

Two accused appealed to the Board from the Supreme Court of Mauritius. The Intermediate Court had acquitted them of conspiracy and related customs offences arising from the importation of a motor car using a returning-citizen excise concession. The Supreme Court allowed the prosecution appeal and ordered a retrial. Before the Board, the appellants challenged the Supreme Court’s jurisdiction, the fairness of the hearing, the merits of allowing the prosecution appeal, and the failure to invite submissions before ordering a retrial. The central issues were whether the Intermediate Court’s failure to address the prosecution’s substantive case constituted a serious irregularity, and whether the retrial order should stand.

Lord Sales delivered the single judgment of the Board. The appeals were allowed only to modify the retrial order by removing count 5. In all other respects, the appeals were dismissed and the retrial on counts 1 to 4 was upheld.

1. Jurisdiction. Section 96(5) of the District and Intermediate Courts (Criminal Jurisdiction) Act 1888 gives the Supreme Court power to declare a trial a nullity and order a fresh hearing where a serious irregularity has occurred. The phrase covers material irregularities which may have produced an incorrect outcome, but excludes immaterial or trivial defects. The threshold is not whether the irregularity has already rendered the trial a nullity; nullity is a consequence which may follow once the threshold is met. The power is discretionary.
2. The Board affirmed the guidance in Dosoruth v State of Mauritius [2004] UKPC 51; [2005] Crim LR 474. Section 82(1) of the Constitution of Mauritius confers a distinct and broad supervisory jurisdiction to order a retrial in proceedings before the Supreme Court, including a statutory criminal appeal. An ordinary statute cannot remove or restrict that constitutional jurisdiction.
3. Merits. Part C 3 of the First Schedule to the Excise Act is available only where the returning citizen is the owner and importer of the vehicle in substance. The court must examine the arrangement realistically and as a whole. The prosecution’s case was that the ostensible ownership and importation by one appellant were a sham concealing the other appellant’s true position. The Intermediate Court failed to address that case and instead focused narrowly on whether the named importer had disposed of the vehicle. The resulting error was a serious irregularity.
4. Fairness and retrial. The Supreme Court erred by ordering a retrial without inviting submissions on that significant issue. By the time of the Board’s appeal, however, the parties had had an opportunity to address it. Delay alone did not make a retrial unjust where the delay had a reasonable explanation, a fair trial remained possible, and the public interest supported a retrial. The contemporaneous documents and written records meant that a fair retrial remained practicable.
5. Provisional judicial comments testing counsel’s arguments did not make the earlier hearing unfair. Nor had the prosecution advanced a fundamentally new case on appeal; it had consistently alleged that the ostensible arrangement was a sham.

• Supreme Court of Mauritius: allowed the prosecution’s appeal from the Intermediate Court acquittals and ordered a retrial on the relevant counts.
• Privy Council: allowed the appeals only to remove count 5 from the retrial order; otherwise dismissed the appeals and upheld the retrial on counts 1 to 4.