Supreme Court of Mauritius, 10 avril 2020, 2020 BRC 56 – Police v Choytun Randhirsingh

Police v Choytun Randhirsingh

2020 BRC 56

IN THE BAIL AND REMAND COURT

Provisional Cause Number 665/2018 (Moka) BRC Cause Number 3885/18

In the matter of:

Police

v/s

Choytun Randhirsingh

RULING

The Applicant stands provisionally charged with the offence of MURDER in breach of Section 216, 217, 222 (1) (a) of the Criminal Code coupled with Section 22 (2) (a) of the Criminal Procedure Act as amended by Section 8 of Act 36/2008. The Applicant has moved that he be admitted to bail and he was represented by Me. A. Ganoo who appeared informa Pauperis at the bail hearing. The hearing for the Prosecution was conducted by State Counsel and the proceedings were held in Creole language for the benefit of the Applicant.

The Respondent is resisting the motion and is objecting that the Applicant be granted bail on the grounds of (1) Risk of absconding and (2) Applicant’s own security.

THE CASE FOR THE PROSECUTION

PS Yerukunodoo, the main enquiry officer was called by the Prosecution and he explained that he had been deputed by the Commissioner of Police to resist the present bail application on the above mentioned grounds. The police officer went on to explain that a request through phone was made on 5 th September 2018 and on spot the Applicant’s mother was found in a sitting position leaning against her bed in a sitting position in a pool of blood. The officer explained that Applicant was found sitting opposite the victim and he was smelling of liquor and he remained evasive upon questioning. The police officer stated that as per the MLR report the cause of

death was said to be due to inter-cranial haemorrhage and he explained that Applicant had confessed to assaulting his mother under the influence of alcohol. The officer stated that the enquiry was not completed as Applicant had yet to be confronted with the report of several other injuries noticed on the body of deceased which are not compatible with Applicant’s statement. Regarding the first ground of objection, the officer explained that Applicant is known to be a heavy drunkard and has no fixed place of abode as he was living with the deceased and the property is now being disputed with his sister. The main enquiry officer explained that no one has come forward to take the responsibility of Applicant who does not work and has no source of income outside. The court was informed also that Applicant had no community ties and if granted bail, the police believe he will abscond.

Regarding he second ground of objection, the enquiry officer explained that Applicant’s relatives live in the same neighbourhood and the fact that Applicant is known to be a drunkard the police believe that he may expose himself to harm and if granted bail, there is likelihood that his security will be at stake. Doc X was filed showing no cognate offence committed by Applicant. In cross examination the officer confirmed that Applicant had always resided at his mother’s place before her death and that in the past the Applicant was working as a driver. The officer confirmed further that Applicant was not on bail and had no history of absconding. He further stated that there was no outcry made by the public nor threats made to Applicant as the members of the public were kept at a safe distance from the locus and the Applicant. He maintained that according to information received there was a dispute about property.

THE CASE FOR THE DEFENCE

The Applicant was explained his Constitutional Rights and he went on to state that he would comply with all bail conditions imposed by the Court and the case was closed for the Defence.

In submissions Defence Counsel explained that the property issue will occur when the main case will be disposed. She stated that Applicant will go back to his place and that conditions could be imposed should Applicant be granted bail.

In reply, State Counsel stated that there are exceptional circumstances in this case and that no one was willing to take the responsibility of Applicant and left matters in the hands of the court.

THE RELEVANT SECTIONS OF THE LAW

In the case of Hurnam v The State [2005 UKPC 49], the Privy Council held that only section 4(1) (a) of the 1999 Act specifies the core reasons for refusing bail. Individually, they are to be considered to provide a conclusive reason for refusing bail. Section 4(1)(a) of the Bail Act 1999 reads as follows:

4. Refusal to release on bail

(1) A Judge or a Magistrate may refuse to release a defendant or a detainee on bail where (a) (a) he is satisfied that there is reasonable ground for believing that the defendant or detainee if released is likely to – (i) (i) fail to surrender to custody or to appear before a court as and when required (ii) (ii) commit an offence, other than an offence punishable only by a fine not exceeding 1000 rupees (iii) (iii) interfere with witnesses, tamper with evidence or otherwise obstruct the course of justice, in relation to him or to any other person.

Secondly, as regards to paragraphs 4 (1)(b) to (f) of the Bail Act which are not compelling grounds or core reasons per se to deprive an individual of his liberty but, if relevant, the court need to take into account in order to determine the likelihood of the risks listed in section 4(l)(a) to materialise. The section of the Bail Act 1999 provides as follows:

(1) A Judge or a Magistrate may refuse to release a defendant or a detainee on bail where-

(b) he is satisfied that the defendant or detainee should be kept in custody – (i) for his own protection; or (ii) in the case of a minor, for his own welfare; (c) the defendant or detainee, having been released on bail, has – (i) committed an act referred to in paragraph (a); or (ii) breached any other condition imposed on him for his release: (d) the defendant or detainee is charged or is likely to be charged with a serious offence; (e) there is reasonable ground for believing that the defendant or detainee has – (i) given false or misleading information regarding his names or address; or 5 (ii) no fixed place of abode; (f) a detainee has failed to comply with section 12(2).

Thirdly, a set of consideration is provided under section 4(2) of the Bail Act 1999 to assess the likelihood of the risks enumerated under section 4(l) (a) to materialise. This section provides that:

In making a determination under subsection (1), the Judge or Magistrate shall have regard to such considerations as appear to the Judge or Magistrate to be relevant, including –

(a) the nature of the offence and the penalty applicable thereto; (b) the character and antecedents of the defendant or detainee; (c) the nature of the evidence available with regard to the offence.

Hence, the wording of section 4(1) of the Bail Act 1999 makes it clear that release on bail at pretrial stage is the release upon conditions designed to ensure that the suspect:

(1) appears for his trial, if he is eventually prosecuted; (2) in case he happens to be the author of the offence of which is he suspected, does no further harm to society whilst being at large; and (3) does not interfere with the course of justice, should he be so minded.

The rationale as to bail was clearly set out in the case of Maloupe v The District Magistrate of Grand Port [2000] SCJ 233, where it was held as follows:

“The rationale of the law of bail at pre-trial stage is, accordingly, that a person should normally be released on bail if the imposition of the conditions reduces the risks referred to above- i.e risk of absconding, risk to administration of justice, risk to society- to such an extent that they become negligible having regard to the weight which the presumption of innocence should carry in the balance when the imposition of the above conditions is considered to be unlikely to make any of the above risks negligible, then bail is to be refused.”

It is also trite law that in deciding whether to grant bail to the applicant, a balance must be struck between “on the one hand the need to safeguard the necessary respect for the liberty of the citizen viewed in the context of the presumption of innocence and, on the other hand the need to ensure that society and the administration of justice are reasonable protected against serious risks which might materialise in the event that the detainee is really the criminal which he is suspected to be” [Labonne v. DPP & Anor 2005 SCJ 38]

RISK OF ABSCONDING

The Court shall deal with the first ground of objection raised by the police namely that there is a likelihood that the Applicant could abscond if released as he has no fixed place of abode. I shall refer to the case of LABONNE (JV) VS DIRECTOR OF PUBLIC PROSECUTIONS [2005 SCJ 38], whereby it has been averred as follows:

“the seriousness of the offence or the likelihood of the suspect being charged with a serious offence is obviously just a consideration to be weighed in the balance and not by itself a ground for refusing bail”.

Therefore, the very fact that the Applicant might eventually face a heavy penalty if he is found guilty for the present offence, is not a reason in itself to justify his detention. The Court has further considered the principle stated in the case of WEMHOFF V GERMANY [1968 ECHR 2] namely that:

“When the only (…) reason for continued detention is the fear that the accused will abscond and thereby subsequently avoid appearing for trial, his release pending trial must be ordered if it is possible to obtain from him guarantees that will ensure such appearance.”

There is no evidence that Applicant has absconded in the past and he is not borne on record for a cognate offence nor has been convicted for a breach of condition of release. The main enquiry officer explained in clear terms that his enquiry revealed that Applicant would not have a fixed place of abode as the residence he was occupying prior to the demise of his mother, the victim was now in dispute regarding succession issues and that no one was willing to take the responsibility of Applicant who has both no source of income and community ties. I note that Defence Counsel stated that succession will be a live issue only after the main case of Applicant was disposed of and that he would still be living at his given address prior to his arrest but I find that this amounted to giving evidence from the bar by Counsel for the Applicant. At no point in time did Me. A. Ganoo call defence witnesses nor did she produce any document to confirm the address of Applicant and to undertake taking the responsibility of Applicant should he be granted bail. Further I have considered the fact that the enquiry was not over and that further statements need to be recorded from Applicant following his confrontation with new facts which have come up, that is further injuries noticed on deceased which were not compatible with the version he gave to the police.

The Court has further considered the risks of the Applicant’s absconding, namely “(…) his morals, his home, his occupation, his assets, his family ties and all kinds of links with the country in which he is being prosecuted may either confirm the existence of a danger of flight or make it appear so small that it cannot justify detention pending trial.” (RE: NEUMEISTER VS AUSTRIA [1968 1 ECHR 91] .

Regarding this ground of objection, I find in the light of all the observations above that there are no conditions that I can impose to render this ground of objection negligible.

THE APPLICANT’S OWN SECURITY

In Deelchand (supra), citing IA v France [1998] ECHR 89 (23 Sept.1998), it was held that the own security of Applicant can be relevant and sufficient reason for his pre-trial detention subject to the following caveat:

“However, this can only be so in exceptional circumstances having to do with the nature of the offences concerned, the conditions in which they were committed and the context in which they took place.”

In his deposition, the main enquiry officer stated that the deceased’s relatives reside in the same neighbourhood and that the fact that Applicant is known to be a drunkard, he may expose himself to harm if granted bail. I find that in order to deny a person bail for his own security, credible evidence has to be adduced on that aspect. Based on the evidence so far on record, regarding this ground of objection, I find that the prosecution has been unable to substantiate this ground of objection.

I have also taken into account the Applicant’s statement from the dock that he is prepared to abide by any conditions that the Court may impose. In relation to the first ground of objection I have considered the fact that the address of Applicant is in dispute and the Defence has not adduced any evidence to clarify the situation. Furthermore, I have noted that Applicant has no community and family ties and that the police enquiry is not completed as further statements have to be recorded from the Applicant in light of new observations made in relation to injuries found on the deceased’s body.

The conditions which I have considered regarding first the ground of objection are the duty to report to a police station, undertaking not to travel abroad, imposition of a surety and recognizance, residing at a fixed place of abode, a curfew order, informing police officers of his whereabouts, use of mobile phone for communication of movements and regular meetings with police officers as well as other conditions which could have been appropriate in such a case. I am however of the opinion that there are no conditions, even severe, which could be imposed to effectively reduce the risk of the Applicant absconding to a negligible level.

After carrying out the required balancing exercise, I hold that the need for Applicant to be in continued detention in the circumstances outweighs his right to remain at large. The motion for bail is therefore set aside. However, the Applicant has the right to be tried within a reasonable time as stipulated under Section 5(3) of the Constitution. The Applicant “must, whatever the Bail Act says or does not say, be released unless he is brought to trial within a reasonable time” vide Hossen v District Magistrate of Port Louis [1993 MR 9]. In light of the above, I strongly urge the Prosecuting Authority to complete the enquiry by obtaining the PF 58 as expeditiously as possible and lodge the formal charge against the Applicant so that he is tried within a reasonable time as guaranteed by the Constitution.

B. PRAYAG-RAJCOOMAR (Mrs) Ag. Senior District Magistrate This 10 th April 2020