Supreme Court of Mauritius, 17 avril 2020, 2020 BRC 85 – J Ramah v Police

1 J Ramah v Police

2020 BRC 85

Provisional Cause Number 1328/19 (Upper Plaines Wilhems (Curepipe)) BRC Cause Number 3482/19 THE BAIL AND REMAND COURT (MAURITIUS) In the matter of:- Jevin Ramah v/s Police RULING

Introduction

1. The Applicant stands charged with the offence of murder in breach of sections 216 and 222 (1)(a) of the Criminal Code coupled with section 22(2)(a) of the Criminal Procedure Act as amended by section 8 of Act 36/08. He has been on remand since the 02 nd September 2019 and his Counsel, Me S Hawoldar , appearing together with Me Deonaran, has moved that he be admitted to bail. Me Dawoonath appeared for the Respondent, assisted by PS Appadoo.

2. Facts and circumstances of the case

On the 01 st September 2019, at around 18 30 hours, following a request, the Police proceeded to Angus Road, Vacoas, where they met with the Applicant, who informed them that one Mr Sewraj Bhikoo had snatched his service revolver and shot himself with it at the head. The SAMU was summoned and the victim was conveyed to PMOC, where he passed away. On the 02 nd September 2019, an autopsy was carried out on the victim’s body, by Dr Gungadin, and the cause of death was found to be “gunshot wound to the head”. The Applicant was further

2 questioned and the latter gave different versions, before finally admitting that he had shot the victim accidentally.

Case for Respondent

3. Inspector Ramjeetun, of MCIT, has been deputed by the Commissioner of Police to resist bail in the present case on the following grounds:

(i) Risk of absconding (ii) Interference with witnesses (iii) For the Applicant’s own security

4. In support of the first ground of objection, Inspector Ramjeetun stated that the Applicant will be charged with a very serious offence and given that the nature of the evidence against him is strong, he is likely to be tried at the IC or the Assizes, and will face a heavy penalty if found guilty. As such, the Police believe that he will abscond, if granted bail, through fear of such penalty.

5. As far as the second ground of objection is concerned, it is the contention of the Police that there is an eyewitness, who has given material evidence against the Applicant, and who is known to the latter, as they live in the same locality. As such, the Police believe that the Applicant will interfere with the witness, if he is granted bail. Further, the witness has made a declaration to the Police, to the effect that he has been threatened to change his version (Doc A).

6. With regards to the third ground of objection, the Applicant and the victim live in the same locality, and the Applicant is known to the victim’s family. As such, the Police believe that the Applicant may be harmed by them, if he is admitted to bail.

7. The enquiry is short of the MLR, FSL report, ballistic report and reminders have already been sent to the FSL. It was confirmed that the Applicant has a clean record and is not on bail.

8. The main EO was duly cross examined by Learned Counsel for the Applicant.

Case for the Applicant

3 9. From the dock, the Applicant stated that he would abide to all conditions imposed if granted bail.

The Law

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

11. 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.”

12. 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 –

4 (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).

13. 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.

14. 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 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.”

15. 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.

16. 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.”

17. 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 Nature of the evidence

18. It was held in Maloupe v The District Magistrate of Grand Port [2000] SCJ 223] that in an application for bail, the Court should not examine “…the precise evidence available to the police and to conclude as to whether it amounts to a prima facie case… Witnesses in the course of the hearing of an application for bail should only be allowed to depone as to the nature i.e. the kind of evidence available (including external circumstances which have a bearing on its quality…”

19. Without delving into the merits of the case or making a detailed evaluation of the available evidence, this Court bears in mind that the main EO confirmed that the Applicant admitted having accidentally shot the victim and that in cross, the main EO confirmed that there was a third person present at the time of the alleged offence, who confirmed that all of them had consumed drinks before the alleged incident (page 19 of the court record refers). As such, I find that the nature of the evidence against the Applicant appears to be weak, taking into consideration the present provisional charge against him. Analysis of the grounds of objection 20. 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. In the case of Neumeister vs Austria (1968) 1 ECHR 91 (27 JUNE 1968) at para 10, the Court had this to say: “When the only (…) reason for continued detention is the fear that the accused will abscond and thereby subsequently avoid appearing for trial, his release pending trial must be ordered if it is possible to obtain from him guarantees that will ensure such appearance.” In the present case, it came out from the main EO that the Applicant has family ties and has a fixed address (page 19 of the court record refers). There is nothing on record to suggest that the latter has jumped bail in the past, given that he has a clean record. I further find that the seriousness of the offence is only a consideration to be weighed in the balance and not by itself a ground for refusing baiI. (Re: Labonne (JV) vs Director of Public Prosecutions (2005) SCJ 38). Therefore, I find that the very fact that the Applicant might eventually abscond as he is likely

7 to face a heavy penalty if he is found guilty for the present offence, is not a reason in itself to justify his detention. As such, the first ground of objection raised by the police is based on mere apprehension only, and as such, fails.

21. In relation to the second ground of objection, that is interference with witnesses, it is the contention of the Police that the eyewitness, who has given evidence against the Applicant, lives in the same locality as he does, and as such, they believe that the Applicant will interfere with him, if bailed out, the more so since the eyewitness has given a declaration to the Police, to the effect that he has been threatened to change his version (Doc A).

22. In the case of Deelchand v The Director of Public Prosecutions and Others (2005) SCJ 215, it was held that: “It would be preposterous to hold the view that in each and every application for bail, it would suffice that an enquiring officer should express his fear that the applicant would interfere with one or more witnesses for the accused to be denied bail on that ground. To satisfy the court that there is a serious risk of interference with a witness, satisfactory reasons, and appropriate evidence in connection thereof where appropriate, should be given to establish the probability of interference with that witness by the applicant.” The following extract from “Bail in Criminal Proceedings” (1990), Neil Corre, was also referred to in the same case as follows: “The exception’s most common manifestations are in cases where: (a) the defendant has allegedly threatened witnesses; (b) the defendant has allegedly made admissions that he intends to do so; (c) the witnesses have a close relationship with the defendant, for example in cases of domestic violence or incest; (d) the witnesses are especially vulnerable, for example where they live near the defendant or are children or elderly people; (e) it is believed that the defendant knows the location of inculpatory documentary evidence which he may destroy, or has hidden stolen property or the proceeds of crime; (f) it is believed the defendant will intimidate or bribe jurors; (g) other suspects are still at large and may be warned by the defendant The exception does not apply simply because there are further police enquiries or merely because there are suspects who have yet to be apprehended”.

8 23. Doc A has been duly considered and up to now, there is nothing on record to link that incident to the Applicant. The main EO, in cross, stated that the Police were still enquiring into that matter, but it cannot be ignored that the declaration dates to the 04 th September 2019, and that more than eight months after, there is no evidence on record to link that incident to the Applicant. Further, the main EO confirmed that one Atma Ram Bhikoo, who lives at Vauxhaull Road, St Pierre, has agreed to take the Applicant’s responsibility, if he is bailed out, and that the address has been verified by the Police and found to be a favourable one. As such, I find that the second ground of objection raised by the Police is based on a mere apprehension only, and as such, fails.

24. With regards to the third ground of objection, that is for the Applicant’s own security, it was held in Deelchand (supra), citing IA v France [1998] ECHR 89 (23 Sept. 1998), that the own protection of the Applicant can be a relevant and sufficient reason for his pre-trial detention subject to the following caveat:

“However, this can only be so in exceptional circumstances having to do with the nature of the offences concerned, the conditions in which they were committed and the context in which they took place.” In the present case, the main EO only stated that the Police fear for the Applicant’s security, given that he lives in the same locality as the victim’s family. However, there is no evidence on record to show that there has been any incident between the two families and further, there is an alternative address, provided by the Applicant, where he would reside should he be bailed out. As such, the third ground of objection is only a mere apprehension on the part of the Police and therefore, fails. 25. I find that stringent bail conditions can be imposed on the Applicant, to minimise the risks identified by the Police. I therefore set aside the grounds of objection and order that the Applicant be admitted to bail on the following conditions:

(i) The Applicant shall furnish a security of Rs 50,000 in cash, by cash deposit or bank transfer to the SBM Account in the name of the Accountant General;

(ii) The Applicant shall enter into a recognisance of Rs 500,000 (in his own name);

(iii) The Applicant shall report to the nearest police station to his place of abode everyday, once a day, between 06 00 hours and 18 00 hours;

(iv) The Applicant shall reside at Vauxhall Road, St Pierre, at Mr Atma Ram Bhikoo’s residence;

(v) The Applicant shall not contact any witnesses involved in the present matter, whether directly or indirectly, nor should he approach any such witnesses within a radius of 100 metres;

(vi) The Applicant shall inform the Police about his daily movements each time he reports to the Police and

(vii) The Applicant shall have in his possession a mobile phone in good working condition, the phone number of which is to be provided to the police, so that he may be contacted by the police, as and when required.

Miss Shavina Jugnauth District Magistrate This 17 th April 2020