Supreme Court of Mauritius, 13 mars 2020, 2020 BRC 126 – RML Auguste v Police

1 RML Auguste v Police

2020 BRC 126

Provisional Cause Number 1575/19 (Upper Plaines Wilhems (Curepipe)) BRC Cause Number 3995/19` THE BAIL AND REMAND COURT (MAURITIUS) In the matter of:- Ronny Marc Llyod Auguste v/s Police RULING

Introduction

1. The Applicant stands charged with the offence of assault with premeditation in breach of sections 230(2) of the Criminal Code. He has been on remand since the 14 th October 2019 and his Counsel, Me Z Mohamed, has moved that he be admitted to bail.

2. Facts and circumstances of the case

The Applicant was wanted in case OB 722/09, issuing cheque without provision, and the Police did not where he was. On the 07 th October 2019, the Police received information that the latter was at Indian Oil Filling Station and they proceeded there.

The Police tried to arrest him, but he refused to surrender to police custody and escaped in his car. He was chased by the Police and after thirty minutes, the Police managed to apprehend him. Whilst being arrested, the Applicant hit a police officer with a hammer at the head. The Applicant has confessed to the charge.

Case for Respondent 3. Inspector Seebaruth, of CCID, has been deputed by the Commissioner of Police to resist bail in the present case on the following grounds:

(i) Risk of absconding (ii) Risk of reoffending

4. As far as the first ground of objection is concerned, the Police strongly believe that the Applicant will abscond if granted bail, given that he was admitted to bail before Savanne District Court on the 05 th November 2009, and has been on the run since then. There was a warrant of arrest issued against him, but the Police was not aware of his whereabouts. Several police officers deposed in court and the case was eventually struck out on the 10 th September 2013 (Docs A and B). In his statement to the Police, on the 15 th October 2019, the Applicant stated that he was constantly moving houses to evade people, who were asking him for a refund.

5. In support of the second ground of objection, Inspector Seebaruth stated that the Applicant is borne on record for non-cognate offences (Doc X) and, as such, the Police believe that he will re-offend if granted bail.

6. It was confirmed that the enquiry is ongoing as there was an issue with the PF 58 and a broken glass bottle had to be sent to the FSL for analysis.

7. The main EO was duly cross examined by Learned Counsel.

Case for the Applicant

8. The Applicant deposed under oath and was not cross examined.

The Law

9. I bear in mind the sacrosanct principle of presumption of innocence and the Constitutional rights of the Applicant to enjoy freedom and liberty.

3 10. Section 3 of the Bail Act provides that “Notwithstanding any other enactment and subject to section 4, every defendant or detainee shall be entitled to be released on bail.”

11. Section 4 (1) of the Bail Act reads as follows:

A court may refuse to release a defendant or detainee on bail where –

(a) it is satisfied that there is reasonable ground to believe that the defendant or detainee, if released, is likely to –

(i) fail to surrender to custody or to appear before a Court as and when required;

(ii) commit an offence, other than an offence punishable only by a fine;

(iii) interfere with witnesses, tamper with evidence or otherwise obstruct the course of justice, in relation to him or to any other person;

(b) it is satisfied that the defendant or detainee should be kept in custody –

(i) for his own protection;

(ii) in the case of a minor, for his own welfare; or

(iii) for the preservation of public order;

(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

(ii) no fixed place of abode;

(f) a detainee has failed to comply with section 12 (2).

12. Section 4(2) of the Bail Act provides that:

In considering whether or not to refuse bail on any ground mentioned in subsection (1), the Court shall decide the matter by weighing the interests of society against the right of the defendant or detainee to his liberty and the prejudice he is likely to suffer if he is detained in custody, taking into account every consideration which, in its opinion, is relevant, including –

(a) the period for which the defendant or detainee has already been in custody since his arrest;

(b) the nature and gravity of the offence with which the defendant or detainee is or is likely to be charged and the nature and gravity of the penalty which may be imposed on him;

(c) the character, association, means, community ties and antecedents of the defendant or detainee, including any non-compliance with any condition imposed for his release on bail with respect to any other offence; and

(d) the nature of the evidence available with regard to the offence with which the defendant is charged.

13. The rationale as to bail was clearly set out in the authority of Maloupe v The District Magistrate of Grand Port [2000] SCJ 233, where 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

5 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.”

14. I bear in mind that the right balance has to be struck between the constitutional right of the Applicant to enjoy freedom and the interest of society at large.

15. It was held in Deelchand v The Director of Public Prosecutions and Others (2005) SCJ 215 that “In all countries where human rights are respected, the function of the law of bail is likely to be the same, being to reconcile, as stated in Labonne v The D.P.P (supra, at para 2.2.), “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 a criminal which he is suspected to be.”

16. In Islam v The Senior District Magistrate Grand Port District Court [2006] SCJ 282 at para 37, it was held that “Pre-trial bail is not a form of punishment to any individual. It is a form of partial and temporary restriction of his liberty with a view to disabling him against antisocial behavior.” Finding 17. As far as the first ground of objection is concerned, that is the risk of absconding, I have considered the personal circumstances of the Applicant and the following authorities: (a) In Hurnam v The State [2004] PRV 53, at para 16, the Board held that:- “The European Court has, realistically, recognised that the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or re- offending (see, for example, Ilijkov v Bulgaria (Application

6 no 33977/96, 26 July 2001, unreported)), para 80, but has consistently insisted that the seriousness of the crime alleged and the severity of the sentence faced are not, without more, compelling grounds for inferring a risk of flight: Neumeister v Austria (No. 1) (1968) 1 EHRR 91, para 10; Yagci and Sargin v Turkey Series A No 319 (1995) 20 EHRR 505, para 52; Muller v France Reports of Judgments and Decisions 1997 – II, 374, para 43; IA v France Reports of Judgments and Decisions 1998 – VII, 2951, paras 105, 107. In Ilijkov v Bulgaria, above, para 81, the Court repeated “that the gravity of the charges cannot by itself serve to justify long periods of detention on remand.”” (b) In Hurnam v The State (Supra), at para 15, the Board held that :

“It is obvious that a person charged with a serious offence, facing a severe penalty if convicted, may well have a powerful incentive to abscond or interfere with witnesses likely to give evidence against him, and this risk will often be particularly great in drugs cases. Where there are reasonable grounds to infer that the grant of bail may lead to such a result, which cannot be effectively eliminated by the imposition of appropriate conditions, they will afford good grounds for refusing bail.”

(c) This Court has to also take into account other factors in deciding whether there is a serious risk of absconding. In Deelchand v DPP& Ors [2005 SCJ 215], it was held that “the severity of the sentence which the defendant would be likely to incur, if convicted, does not in itself justify the inference that he or she would attempt to evade trial of released from detention…other factors, especially those relating to the character of the person involved, his morals, his home, his occupation, his assets, his family ties and all kinds of links with the country … may either confirm the existence of a danger of flight or make it appear so small that it cannot justify detention pending trial.”

(d) In DPP v Marthe 2013 SCJ 386 a, it was held that “..we have to bear in mind that Mauritius is a small island having other islands as neighbours. This is something which is very specific to our country. It is very difficult, if not impossible, for the authorities to keep the whole of the shores of Mauritius under constant surveillance. This Court can take judicial notice of the fact that, in the recent past, there have been cases where accused parties awaiting trial and persons convicted of drugs offences gave simply left the country by hiring a powerful boat following which there has been a great

7 public outcry in the country. There is therefore an increased responsibility on the Courts, whilst bearing in mind the general principle that liberty is the rule and detention the exception, to see to it that justice is not baffled.”

(e) The personal circumstances of the Applicant are such that he now has a fixed address, but no other evidence as to his family, social and community ties, if any, has been adduced. The facts and circumstances of the present case are very peculiar, in so much as the Applicant has been on the run for a very long time, as evidenced by Doc A. Doc A clearly shows that, although the latter attended court on a few occasions, he has been on the run for a long time, following which the Court had to strike out the case against him. Doc B further shows that the Police had made publications in the DPG with a view to arrest him, which leads to the irresistible conclusion that it was very difficult to trace him out, and that he was arrested after strenuous efforts were made by the Police. I also note that on the day the Police managed to find him, he did not cooperate with the Police at all, escaped in his car and that the Police had to chase him for thirty minutes before apprehending him.

(f) These are all factors, when considered together with the seriousness of the offence at hand, tend to show that he may be tempted to abscond. As such, the first ground of objection, therefore, succeeds.

18. In relation to the second ground of objection, that is the risk of reoffending, it was confirmed that the Applicant is borne on record for non-cognate offences (Doc X) and is not on bail. Given the offence at hand and the nature of the evidence against the Applicant, I find that the danger of re-offending, if granted bail, is “plausible” [Re: Deelchand v DPP & Anor 2005 SCJ 215 citing Clooth v Belgium [1991] ECHR 71 (12 December 1991) at para 40].

19. Having found that the first ground of objection has been substantiated and that there is a plausible risk under the second ground of objection, this Court has an inherent duty to assess whether conditions can be imposed to adequately curb the risks identified, so as to render such risks negligible as expounded in the case of Maloupe (Supra). In Deelchand (Supra), it was held that “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.”

8 20. In the case of Rangasamy M.N. v The D.P.P & Anor 2005 SCJ 249, the Court stated as follows:

“We consider that judicial officers in Mauritius who have first-hand knowledge of the prevailing local conditions regarding law and order and organized crime should have a margin of appreciation in exercising their discretion and deciding on the need for a detainee to be admitted to bail, taking into account all the public interest grounds for refusing bail listed in section 4 of the Act”.

21. The circumstances of the present case are such that no conditions can be imposed to reduce the risks that have been identified. As such, this Court declines to exercise its discretion in favour of the Applicant and finds that his continued detention is warranted. The present application is, therefore, set aside.

Shavina Jugnauth (Miss) District Magistrate This 13 th March 2020