Supreme Court of Mauritius, 10 juin 2020, 2020 BRC 161 – Police v Zuhayr Ahmad

Police v Zuhayr Ahmad

2020 BRC 161

IN THE BAIL AND REMAND COURT

Provisional Cause Number 949/2019 (Grand Port) BRC Cause Number 2726/19

In the matter of:

Police

v/s

Zuhayr Ahmad

RULING

The Applicant stands provisionally charged with the offence of AIDING AND ABETTING IN THE COMMISSION OF A CRIME in breach of section 38 (3) of the Criminal Code coupled with section 30 (1) (d) (ii), and 47 (5) (a) of the Dangerous Drugs Act. The Applicant has moved that he be admitted to bail and he stood inops consilii at the bail hearing. 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 Risk of absconding and Risk of re- offending.

THE CASE FOR THE PROSECUTION

PS 4018 Bonomally, 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 on 20 th June 2019 following an ADSU operation at the place of residence of a co-Accused where the Applicant was also present, the police seized a plastic sachet containing 30 aluminium foils suspected to contain synthetic drugs and he explained that the value of the drug was Rs 9100 and that the Applicant had confessed to the charge.

In relation to the first ground of objection, the officer explained that Applicant was on bail for a drug dealing case and Doc A was filed and Doc X was filed to show that the Applicant had committed a breach of condition of release and that if granted bail, the police fear that that the Applicant will abscond.

In relation to the second ground of objection, the officer explained that the police is basing itself on the confession of the Applicant to say that if granted bail, it fears that the Applicant will re-offend. The main enquiry officer further stated that the police enquiry was not over and that the itemised bill as well as FSL report had yet to be obtained.

In cross examination the police officer confirmed that the grounds of objection were merely based on the confession of the Applicant and the case was closed for the Defence.

THE CASE FOR THE DEFENCE

The Applicant was explained his Constitutional Rights and he went on to state that he will respect all bail conditions if granted bail. The case was then closed for the Defence.

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

In relation to this ground of objection I find that there is nothing concrete to say that the Applicant will abscond. I note that in cross examination the main enquiry officer admitted that his ground of objection was based on the confession of the Application and therefore I find that this ground is a mere apprehension by the police.

RISK OF RE-OFFENDING

Regarding the second ground of objection, bearing in mind Docs A and X on record, I am satisfied that the danger of re offending is “plausible” [as stated in Deelchand v. DPP & Anor (supra) citing Clooth v. Belgium [1991] ECHR 71 (12 December 1991) at para 40].

I have therefore addressed and applied the two-limbed test as laid down in the case of DEELCHAND V THE DIRECTOR OF PUBLIC PROSECUTIONS AND OTHERS (Supra), namely that:

(i) if the evidence against him appears strong, he is more likely to think he has nothing to lose by re-offending;

(ii) if the evidence appears weak to him, he will be less likely to take the risk of detection upon re-offending.

I have assessed an overview of the evidence. (RE: MALOUPE VS DISTRICTMAGISTRATE OF GRAND PORT [2000 MR 64]. In the present case, the Applicant has denied the charge against him and as confirmed by the main enquiry officer there is real police evidence against him. In the case of DOOKHIT S. v THE DISTRICT MAGISTRATE OF PAMPLEMOUSSES, DISTRICT COURT, PAMPLEMOUSSES (2011) SCJ 101 , his Lordship laid down as follows:

“Although the risk of re-offending would necessarily be based on conjecture, the nature of the offence charged and the record of an applicant are useful pointers for a court to decide on this issue”.

I have noted that the Applicant was on bail for a drug offence when he was arrested for the present offence. I note that according to the record of previous conviction of Applicant there is no cognate offence committed by him. I have however borne in mind that even if there is a risk of the Applicant re-offending, the Court should consider whether conditions can be imposed on the Applicant to render these risks negligible. (RE: MALOUPE VS DISTRICT MAGISTRATE OF GRAND PORT). An imposition of a heavy security will ensure the Applicant’s appearance before Court and will be an incentive for him not to indulge in any other offence. In the case of DEELCHAND V THE DIRECTOR OF PUBLIC PROSECUTIONS AND OTHERS (SUPRA), the Learned Judge had this to say:

“Security appears applicable to all the risks as it may be an incentive to the applicant to appear for trial, to behave whilst on bail and to refrain from interfering with witnesses, or tampering with evidence”.

I have also taken into account the Applicant’s statement from the dock. I do note that the main enquiry officer has stated that the police enquiry was not over and I find that no indication was given to the Court as to when the formal charge would be lodged against the Applicant.

I am of the opinion that there are conditions, even severe ones, which could be imposed to effectively reduce the risk of the Applicant re-offending 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 does not outweigh his right to remain at large. The Applicant is to be granted bail on the following conditions:

(1) The Applicant is to furnish a surety in cash in the sum of Rs 15 000; (2) The Applicant is to furnish a recognizance in his own name in the sum of Rs 80, 000; (3) The Applicant is to report to the nearest police station once daily between 06 00 hours and 18 00 hours; (4) The Applicant should not commit any offence whilst on bail; (5) A curfew order is imposed on Applicant. He is to remain indoors daily between 20 00 hours and 05 00 hours at his place of residence, address given to the police. In case of any emergency, the Applicant is to inform the police before proceeding outdoors; (6) The Applicant is to reside at a fixed place of abode, address which he will communicate to the enquiry office.

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