Supreme Court of Mauritius, 11 février 2020, 2020 LPW 16 – Police v Kwame Jerome- Ruling Bail

Police v Kwame Jerome- Ruling Bail

2020 LPW 16

IN THE DISTRICT COURT OF LOWER PLAINES WILHEMS

Provisional Cause Number 197/2020

In the matter of:

Police

v/s

Kwame Jerome

RULING

The Applicant stands provisionally charged with the offence of LARCENY WITH VIOLENCE in breach of Sections 301 (1) and 305 (1) (c) of the Criminal Code. The Applicant has moved that she be admitted to bail and was represented by Defence Counsel at the bail hearing.

The Respondent is resisting the motion and is objecting that the Applicant be granted bail on the ground of risk of re-offending.

THE CASE FOR THE PROSECUTION

Inspector Bowanee, 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 ground. He explained that on 17 th

January 2020 a declaration was made by the Declarant, a bus conductor that on the same day whilst he was on duty, the Applicant entered the bus and assaulted him to finally snatch his satchel coming the sum of Rs 3100 and the sum of Rs 800 from his shirt pocket. The prosecution witness went on to state that the Declarant was injured and had to attend treatment. The list of previous convictions of Applicant was filed showing that the latter had committed 18 cognate offences in the past. Inspector Bowanee further explained that in around two weeks’ time the police enquiry would be completed. In cross examination the EO confirmed that the Applicant had not re- offended since the year 2013 but was being questioned regarding another case of larceny with violence by CID Officers of Bambous. The prosecution witness

explained that even if conditions were to be imposed by the court, the risk mentioned above would not be rendered negligible.

THE CASE FOR THE DEFENCE

The Applicant was explained her Constitutional Rights and he elected to make a statement from the Dock. He went on to explain that he would comply with all conditions imposed by the Court should he be granted bail. He further explained that he had mended his ways and that the police hold a grudge against him.

Defence Counsel offered a brief submission and filed a copy of the Bail and Remand Court bearing reference 2013 BRC 19 which is not binding on this present 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.

I find it apt to refer to the case of Maloupe v District Magistrate of Grand Port [2000 MR 264], it was held that 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 the 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.

The same rationale was applied in Labonne v The D.P.P. & Anor [2005 SCJ 38] where it was held that “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 reasonably protected against serious risks which might materialise in the event that the detainee is really the criminal which he is suspected to be.”

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”.

RISK OF RE-OFFENDING

I have assessed the evidence on record. I have noted that the Applicant has a very heavy previous for larceny with violence cases. I further note that there is also no evidence on record as to whether the Applicant has a fixed place of abode and family ties. Based on these facts and on the deposition of the main enquiry officer, I find that there is evidence to support the ground of objection raised by the police which is not a mere apprehension.

For all the above mentioned reasons, I find that this is a proper case for the present Court not to exercise its discretion to grant bail to the Applicant for all the above mentioned reasons. The prosecuting authorities are to complete the police enquiry as soon as possible and lodge the main case of the Applicant.

B. PRAYAG-RAJCOOMAR (Mrs) District Magistrate This 11 th February 2020