Supreme Court of Mauritius, 10 février 2020, 2020 LPW 14 – Police v Hemaan Woodun- Ruling Bail

Police v Hemaan Woodun- Ruling Bail

2020 LPW 14

IN THE DISTRICT COURT OF LOWER PLAINES WILHEMS

Provisional Cause Number 898/19

In the matter of:

Police

v/s

Hemaan Woodun

RULING

The Applicant stands provisionally charged with the offence of LARCENY SCALING in breach of Section 301 (1) & 309 (1) of the Criminal Code. The Applicant has moved that he be admitted to bail and he stood inops consilii at the bail hearing.

The Respondent is resisting the motion and is objecting that the Applicant be granted bail on the following grounds:

(1) Risk of re-offending (2) Risk of absconding

The CASE FOR THE PROSECUTION

PS 756 Coco, 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. He explained that Complainant reported a case of larceny for the sum of Rs 3,000/-. The prosecution witness went on to state that the Applicant had made a confession in the present

case and exhibit was not recovered. He further explained that the enquiry was completed and that Applicant has been on remand since 17 th April 2019. He further stated that the Applicant had family ties and a fixed place of abode. He further explained that the Court could impose bail conditions should Applicant be granted bail and that the grounds of objections were only apprehensions. The case was then closed for the Prosecution.

The CASE FOR THE DEFENCE

The Applicant was explained his Constitutional Rights and he elected to make a statement from the Dock. He went on to explain that he will comply with all conditions imposed by the Court should he be granted bail.

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.

In the case of Hurnam v The State [2005 UKPC 49], their Lordships made it clear that refusal of bail will be justified only where there are reasonable grounds to infer that the grant of bail will lead to the materialisation of one of the relevant risks “which cannot be effectively eliminated by the imposition of appropriate conditions”.

In the present case I find that conditions can be imposed by the court to render the grounds of objection negligible.

For all the above mentioned reasons, I find that this is a proper case for the present Court to exercise its discretion to grant bail to the Applicant. I therefore grant him bail on the following conditions:

(1) the Applicant should enter a recognizance of Rs 1500 (2) the Applicant should reside at a fixed place of abode.

B. PRAYAG-RAJCOOMAR (Mrs) District Magistrate This 10 th February 2020