Supreme Court of Mauritius, 14 février 2020, 2020 ROD 10 – BOTTESHARE PATRICK JEAN v POLICE

BOTTESHARE PATRICK JEAN v POLICE

2020 ROD 10

BOTTESHARE PATRICK JEAN v POLICE

Cause Number: – P76/2020

THE COURT OF RODRIGUES

In the matter of: –

JEAN PATRICK BOTTESHARE

Applicant v.

POLICE

Respondent

Ruling

The applicant who is provisionally charged with an offence of threatening verbally in breach of section 224 and 226 of the Criminal Code, as amended, is moving this Court, through his Counsel, Mr. Lamvoyee, to be admitted to bail.

The respondent is represented by Police Sergeant Louis.

The Respondent is resisting the motion and is objecting to his release on the following grounds.

1. If the applicant is released, he may interfere with witnesses. 2. If the applicant is released, he may reoffend.

Factual Background

Police Constable Guillaume (“W1”), officer deputed by the commissioner of police to resist the bail motion, testified that on 24 January 2020, the applicant attended Mont Lubin Health Centre. There, the medical health officer who had to examine the applicant, called a nursing officer to be present because the applicant did previously threaten the medical health officer and where a provisional charge was levelled against him. After the medical examination ended, the applicant left the consultation room and so did the nursing officer. However, the applicant came back and threatened verbally the medial health officer.

Elaboration of the grounds of objection:

As regards to the first ground of objection, W1 testified that the applicant resides at Mont Lubin and the medical health officer practise at Mont Lubin Health Centre and hence there is a real likelihood that Applicant may interfere with the medical health officer.

In relation to the second ground, W1 testified that the applicant is presently on bail for a similar offence and if released, the applicant is likely to commit a similar offence.

The case for the applicant.

From the dock, the applicant admits of having threatened the medical health officer previously but denies the present charge. He went on to say that he has a daughter who has two children of tender age and it is him who looks after them as he is the sole breadwinner. He further stated that he can reside at Baie Malgache if need be. To conclude, Applicant stated that he will abide to any conditions imposed by the Court.

The Law Firstly, in the case of Hurnam v The State [2005 UKPC 49], the Privy Council was of the view that only section 4(1) (a) of the 1999 Act specifies the core reasons for refusing bail. Individually, they 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

(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 as follows: (2) 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 pre- trial 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.

As regards to the case law on bail, in 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 Hurnam v The State [2005 UKPC 49], their Lordships made it clear that refusal of bail will be justified 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”.

Nature and quality of evidence against the applicant

As stated in MALOUPE V DISTRICT MAGISTRATE OF GRAND PORT [2000 SCJ 223], this court will look only at the nature of evidence available in support of the present case and will not look at the merits of the evidence available nor will the court make a detail analysis of evidence available.

As regards to the first and second ground, I find same to have been substantiated. This is being said because the police did find that there was enough evidence to lodge another provisional charge against the applicant and the applicant did agree that he did threaten the medical heath officer in the past. Hence, despite that the applicant has denied the present offence, I find that the likelihood of the applicant to interfere with the medical health officer and threatened him again is indeed present. Applying the law to the facts

23. Now, having found that the two grounds have been proved, I am of the view that after performing a balancing exercise, on the one hand, regarding the interests to protect society and to the administration of justice, and on the other, the Applicant’s constitutional rights to bail, I am of the view that there are stringent conditions which can be imposed so as to reduce the apprehensions of the respondent to a negligible level.

Conclusion

24. I accordingly grant this application and order that the applicant be released on bail provided that: i) to furnish two sureties and each shall be in the sum of Rs 10,000 respectively. ii) to enter a recognizance in his personal name in the sum of Rs 50,000.

iii) To provide to the police of a mobile phone number and which mobile phone will have to remain switched on all the time and which will be used for the police to contact him and to monitor his movements.

iv) To reside in any other area except Mont Lubin and not to have him medically examined by the Dr. Bhagwan, the medical health officer who is the complainant in the present case. v) To report to the nearest police station of his place of abode every Monday, Wednesday and Sunday, once, between 05.00 hours and 21.00 hours.

D.J.A Dangeot Senior District Magistrate Ruling delivered on 14 February 2020.