Buxoo and another v. The Queen (Mauritius)

S. Buxoo and Another Appellants

v.

The Queen Respondent

FROM

THE COURT OF APPEAL OF MAURITIUS

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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

[Delivered by Lord Keith of Kinkel]

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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…