STATE v RUHUMATALLY M J

2014 SCJ 184

Record Number: CS 3/12

IN THE SUPREME COURT OF MAURITIUS

In the matter of:-

The State

v/s

Mohamad Jiaved Ruhumatally

Interlocutory Judgment

The accused stands charged with having, criminally, wilfully and with premeditation killed
one Marie Gerald Lagesse in breach of sections 215, 216, 217 and 222(1)(a) of the Criminal
Code. The accused has intimated his intention to plead not guilty to the charge. However,
defence counsel has raised a preliminary point to the effect that the accused is officially
moving to be communicated with a written translated copy of the brief.

It is not disputed that the ‘brief’ referred to above can be conveniently divided in three parts:
[1] The materials gathered in the course of the police enquiry against the accused
[2] The Preliminary Enquiry which was conducted in the case in the presence of the accused
by a District Magistrate before the matter was referred for trial before the assizes
[3] The unused materials available in the police file, inasmuch as the enquiry, inter alia,
concerned other suspects who may have been concerned in the commission of the offence

Defence counsel stated that the whole brief has been communicated to him and to the
accused. However, he stressed that the Preliminary Enquiry file is mostly in English (except
for a few statements which are in Creole). As far as the police enquiry and the unused
materials are concerned, there are a few statements which are in English, more particularly
the statements which have been put up by police officers who enquired into the case and
potential witnesses from the Mauritius Commercial Bank. The accused, according to
counsel, can read and understand Creole but he can neither read nor understand English.
His motion is therefore in relation to all the parts of the brief which are in English to be
translated in Creole for the benefit of the accused. Counsel submitted that his motion is
grounded in section 10 of the Constitution.
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It is to be noted that section 10(2)(b) and (f) of the Constitution deal with the issues of
translation in the following terms:
“10. Provisions to secure protection of law
[2]. Every person who is charged with a criminal offence –
[b] shall be informed as soon as reasonably practicable, in a language that he
understands and, in details, of the nature of the offence;
……………………………………………………………………………………………….
[f] shall be permitted to have without payment the assistance of an interpreter if he
cannot understand the language used at the trial of the offence.”

It is clear from the above that:

[1] an accused has to be informed of the charge against him in a language that he
understands which, obviously, entails translation should the charge sheet have been drafted
in a language that he does not understand. As a matter of timing, this would occur more or
less at the initial stages of the enquiry and would be done by a senior police officer; and
[2] an accused has to be afforded the services of an interpreter at the trial stage should he
not understand the language in which the proceedings or part of the proceedings are being
conducted. That interpreter is usually provided by the court.

At this stage, reference must also be made to section 65 of the Criminal Procedure Act
which provides:
“65. Prosecution evidence available
[1] Every person charged with an offence-
[a] before a Judge and a jury where the trial has not been preceded by a
preliminary enquiry;
[b] before a Judge without a jury; or
[c] before the Intermediate Court.
shall be entitled to have, on demand, copies of the statements recorded from the
witnesses for the prosecution, of any documentary evidence to be produced at
the trial and of any unused material.

[2] Where the trial has been preceded by a preliminary enquiry, the person
charged shall, in addition to the statements, documentary evidence and unused
material referred to in subsection (1), be entitled to copies of the depositions
taken against him by the committing Magistrate”.

The point raised by the defence concerns three main issues, namely:
[1] whether there should be translation of the Preliminary Enquiry file, the brief and other
unused materials at the moment it is communicated to the accused during the pre-trial stage;
[2] should there be such communication, who is the person or authority who must do the
translation; and
[3] who or which authority is to bear the costs of the exercise.
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Matters of approach
The first difficulty that we are confronted with in our analysis of the above issues is the fact
that there are no specific written provisions in our Constitution or other legislation that deal
with the issue of translation of briefs. In my view, the best approach to be taken in such
circumstances, is that which the Supreme court took in the case of The State v M. A.
Coowar [1997 MR 123]. The issue was whether an accused had the right to be informed of
his right to be assisted by counsel. It was conceded that there were no specific written
provisions to that effect in our law, section 5(3)(b) of the Constitution merely providing, in a
general way, that an accused ought to be ‘afforded reasonable facilities to consult a legal
representative of his own choice’. The Court cited with approval the following extract from
the case of Attorney-General of Trinidad and Anor v W. Whiteman (1991) 2 W.L.R. 1200:
“The language of a Constitution falls to be construed, not in a narrow and
legalistic way, but broadly and purposively, so as to give effect to its spirit, and
this is particularly true of those provisions which are concerned with the
protection of human rights. In this case …. the right to communicate with a
legal adviser is capable in some situations of being of little value if the person is
not informed of his right…….. Given that there are some situations where the
right to communicate with a legal adviser will not be effective if no provision
exists for some procedure to be followed with a view to dealing with these
situations, there is a clear necessity that such provision should be made”.

In trying to work out what may be the appropriate conclusion to reach based on a wide
purposive approach, the court referred to the reasoning adopted by the European Court of
Human Rights in the case of Murray v United Kingdom – The Times (1996) February 9
where the provisions of Article 6 of the European Convention on Human Rights fell to be
interpreted. The Supreme Court, basing itself on the fact that Article 6 was comparable to
section 10 of our Constitution, went on to hold the following:
“We consider that the right of a person in police custody to consult with a legal
representative of his choice enshrined in section 5(3) of the Constitution includes
or is deemed to include, although not specifically mentioned, the right to be
informed about that right…” (emphasis added)

It would, thus, be apposite for us, in the present case, to refer to the latest developments that
are occurring in the field of translations of briefs in other jurisdictions before pronouncing
ourselves on the position that may be adopted in Mauritius.

Directives by the European Union

It is interesting to note that the European Parliament and the Council of the European Union
gave the following Directive on the right to information in criminal proceedings (see Directive
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2012/13/EU of 22 May 2012 published in the Official Journal of the European Union of
1.6.2012):
“25. Member States should ensure that, when providing information in
accordance with this Directive, suspects or accused persons are provided,
where necessary with translations or interpretation into a language that they
understand in accordance with the standards set out in Directive 2010/64/EU.”
(emphasis added)

Developments in the United Kingdom

The United Kingdom, being a member of the Union, sought to give effect to this Directive
through Circular no. 012/2013 issued by the Home Office. Reviewing the Code of Practice
that obtains under the Police and Criminal Evidence Act 1984, the following direction was
issued:
“The changes required by the EU Directive apply to the investigation stage for
which the Secretary of State of the Home Department is responsible. The main
impact of these changes is the introduction of a right for a suspect to have a
written translation of ‘essential documents’. These are defined in Code C as
comprising authorisations of detention under PACE given by police and the
court, details of offences charged and written interview records. Various orders
which deal with implementation of other aspects of the Directive are listed in the
transposition note published alongside the Criminal Procedure (Amendment)
Rules 2013/2525”.

Further, the Criminal Procedure (Amendment) Rules of 2013 published in Statutory

Instrument no. 2525(L.22) of 2013 provide the following:
“Amendments to the Criminal Procedure Rules 2013
3. In rule 3.8 (Case preparation and progression), after paragraph (4) insert-
“(5) Facilitating the participation of the defendant includes finding out whether
the defendant needs interpretation because –
……………………………………………………………………………………….....
[c] on application or on its own initiative, the court may require translation to be
provided for the defendant of any document or part of a document ……………..”

At this stage, it would be apposite to refer to section 56 of our Courts Act which provides:
“56. Law of England to decide procedure
Where any question arises as to any procedure, or conduct in or respecting any
matter, in the trial by jury, not herein provided for, the law of England shall be
followed and rule the point or question at issue”.

Without in any way saying that the statutory developments in the United Kingdom are to be
applied in Mauritius, we feel comforted by section 56 to seek inspiration from the practices
that are now obtaining in England, especially when it comes to fundamental Human Rights
and their application in the context of a criminal trial.

Developments in New Zealand

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The issue of providing a translated brief to an accused was dealt with by the High Court of
Auckland in the case of Alwen Industries Ltd v Collector of Customs [1996] 3 NZLR 226.
Alwen Company and one Mr Wong were being prosecuted under 464 Informations for
breaches of the Customs Act. Wong’s operational language was Cantonese and Mandarin.
The accused parties sought an order from the District Court that the briefs of evidence and
of exhibits for the trial be provided to them in written Chinese. The request was denied and
the accused parties applied for Judicial Review of that decision.

Section 24(g) of the New Zealand Bill of Rights Act 1990 provides for an accused party ‘to
have the free assistance of an interpreter if the person cannot understand or speak the
language used in court’. The High Court of Auckland held:
“The Bill of Rights Act gave jurisdiction to order written translation of briefs of
evidence and documentary exhibits. Given that the right to an interpreter was
grounded in notions of fairness, and given the wording of s 24(g), there was no
jurisdiction for limiting the right to the trial itself or for fine distinctions to be drawn
between oral and written translations”.

The Court was clearly of the view that even though the Bill of Rights did not specifically deal
with the issue of translation of briefs, the language of section 24(g), being grounded in the
notion of fair trial, was wide enough to allow the translation of briefs to be read into it.

Provisions for fundamental rights in Mauritius

When it comes to our own Constitution, reference can be made to the general provision of
section 10(2)(c)and (e) which read as follows:
“10. Provisions to secure protection of law
[2]. Every person who is charged with a criminal offence –
[c] shall be given adequate time and facilities for the preparation of his defence
……………………………………………………………………………………….....
[e] shall be afforded facilities to examine in person or by his legal representative,
the witnesses called by the prosecution before any court”.

It is a matter of logic that providing an accused party with a brief, with the Preliminary
Enquiry file and unused materials is a practical way of facilitating him in the preparation of
his defence and for the cross-examination of witnesses that the prosecution would be calling
at the trial. It flows that if the documents are in a language that he cannot read personally,
and has no other alternative means of understanding, then the communication of the
documents serve no purpose whatever. A parallel can be drawn with a situation where an
accused party is present during his trial but the proceedings are in a language that he does
not understand. Thus, the law provides that proceedings in court should be translated to him.
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In the light of the above analysis, I have no qualms in holding that, even though our law does
not specifically provide for translated copies of briefs to be communicated to an accused
party, that can and should be done as a matter of principle, where the circumstances of the
case so warrant. Additionally, it should be said that where the court orders translated copies
of briefs to be provided, the court should appoint the translator and the costs are to be borne
by the State.

Derogations
We now need to expatiate further on the above. The fact that the right to be communicated
with written translated copies of the brief exists in principle does not necessarily mean that,
as a matter of practice, every accused in every case would be automatically entitled to have
such a copy of the brief for the mere asking. The test still remains one of fair trial. The court
before which an accused stands charged may decide proprio motu, or upon a motion being
made, to order that a written translated copy of the brief be communicated to the accused.
However, the court must first consider all the surrounding circumstances of the case and
decide whether it is necessary to have a translated copy made available to the accused in
order to ensure a fair trial.

The elements of fair trial in the context of requiring translation are, inter alia, whether:
[1] The accused could and has understood the proceedings led during the Preliminary
Enquiry, where there has been such an Enquiry held (as is the case in the present matter)
[2] The accused can sufficiently understand any other evidence available to the prosecution
and which the prosecution intends to use against him at the trial
[3] The accused can fully instruct counsel on his version of the facts and how, conversely,
the evidence of the prosecution is to be challenged
[4] The accused would be able to understand the proceedings as and when they are to
unfold in court having had prior access to the documentary evidence that would be produced
and the oral evidence of witnesses and to instruct his counsel as to how his defence is to be
conducted

In the case of Alwen (supra), the High Court having unequivocally stated that an accused
would be entitled to a translated copy of the brief as a matter of principle, went on to say the
following:
“The fact that there was the ability to order written translation did not itself mean
that every accused had the right to have all documents translated at any time.
The right to the assistance of an interpreter was a flexible one which depended
on the circumstances, in the light of the overall need to ensure the accused
received a fair trial. Specifically, this referred to the need to ensure the accused
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understood the proceedings, was able to instruct counsel fully and prepare a
defence”.

In the case of Scott Bradley Metz v The State [2012 SCJ 382] the Court of Criminal Appeal
stressed the following:
“We agree that it is a fundamental principle of fair trial that a defendant should
be afforded adequate facilities to prepare his defence. That is a non negotiable
guarantee. The only question is whether this core value was ensured in the
particular facts of this case inasmuch as adequacy depends upon the particular
facts of each case, including the degree of awareness of each defendant. What
is ‘adequate’ in one case for one individual may not be so in another case for
another individual”.

At the end of the day, whether a translated copy of the brief should be communicated to an
accused will depend on the circumstances of each case and will have to be decided on a
case to case basis by the court whilst bearing in mind the requirements of a fair trial.

Representation by Counsel
One important factor in deciding whether an accused party should be communicated with a
translated copy of the brief is whether he is represented by counsel or not. The argument
that he cannot understand the language of the brief would carry weight where the accused is
unrepresented. But, where he is represented by counsel who understands the language of
the brief, the prejudice which may be caused to the accused in the preparation of his
defence would be almost non-existent. Indeed, the whole idea behind affording an accused
with facilities to be legally represented at the pre-trial stage is that his counsel puts him in the
picture about legal issues which may be beyond his everyday knowledge, explains to him
tactical matters concerning his defence and ensures that the accused has understood all
matters relevant to his case from the brief that is available to the defence.

In the case of Alwen (supra), one important factor in deciding that the accused should be
communicated with written translated copies of the brief was his inability to communicate
with his solicitors in English which meant that he required the assistance of translation at all
times. In the United Kingdom, rule 5(c) of the Amendment to the Criminal Procedure Rules
2013 provides that an accused should be provided with a translated copy of the brief, unless:
“translation of that document, or part, is not needed to explain the case against
the defendant; or
the defendant agrees to do without and the court is satisfied that the agreement
is clear and voluntary and that the defendant has had legal advice or otherwise
understands the consequences”. (emphasis added)
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In Mauritius, the Court of Criminal Appeal dealt with the issue of whether a translated copy of
the brief had to be made available to the accused party in the case of Scott Bradley Metz
(supra). The appellant in that case was an American national who was fully conversant with
the English language but did not understand Creole whereas a good part of the brief was in
Creole. In deciding to reject the contention of the appellant that he should have been
provided with translated copies of the brief, the Court held:
“For instance, if a suspect who does not understand Creole stated that he
intends to conduct his own defence, then, it might be ‘adequate’ in those
circumstances to require the prosecution to communicate to him translated
copies of the statements taken in Creole and the court to provide him with a
translator. But, in the present case, the appellant’s first language is English. The
record shows that he had retained the services of a couple of Mauritian counsel
and a foreign Queen’s Counsel. Mauritius is a multilingual country and we have
yet to see a Mauritian counsel whose second languages are not English and
French at the same time and who is not fully conversant with the Creole
language. The two Mauritian counsel engaged by the appellant stood by him
from the time of his deposition. The appellant also benefited from the oversight
throughout of the American Embassy.”

In the present case, the accused was represented by counsel at the Preliminary Enquiry.
The record shows that at the end of the proceedings, he was asked whether he had anything
to say after he had heard the evidence which had been adduced. The accused made a
statement about the offence. However, at no point in time did he say that he did not
understand the proceedings.

Counsel appeared for the accused since the very beginning of the proceedings before the
assizes as from 15 May 2012. On 5 September 2012, another counsel appeared together
with the first one for the accused so that he was represented by two counsel at that stage.
On 19 February 2013, both counsel moved to withdraw on the ground that the accused was
not following the advice that he had been given. The accused applied for legal aid and as
from 1 March 2013, a third counsel stepped into the case and is still appearing for him. In the
circumstances, I fail to see how the accused can reasonably sustain that he would not
benefit from a fair trial if he is not provided with a translated copy of the parts of the brief
which are in English.

I therefore set aside the motion made on behalf of the accused. The trial is to proceed.

P. Fekna
Judge
23 May 2014
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For State: Mrs Gowry-Bhurrut, Senior State Counsel

together with Miss A. Sunglee, Acting Senior State Counsel
For accused: Mr Jaunbaccus Zaredhin M.N.S., of Counsel
(In forma pauperis)