Supreme Court of Mauritius, 17 avril 2020, 2020 BRC 91 – JJC Arekion v Police

1 JJC Arekion v Police

2020 BRC 91

Provisional Cause Number 168/20 (Upper Plaines Wilhems (Curepipe)) BRC Cause Number – THE BAIL AND REMAND COURT (MAURITIUS) In the matter of:- Jude Joshan Christopher Arekion v/s Police RULING

Introduction

1. The Applicant stands charged with the offence of larceny being more than two in number in breach of section 305(1)(b) of the Criminal Code. He has been on remand since the 28 th January 2020 and has moved that he be admitted to bail. Me Thakoor appeared for the Respondent, assisted by PS Appadoo.

2. Facts and circumstances of the case

A declaration was made to the Police, on the 08 th January 2020, to the effect that, on the same day, between 10 50 hours and 11 16 hours, some people broke into the Declarant’s house, through the garage door, and stole jewelry. The value of the stolen jewelry is Rs 400,000.

A CCTV footage was secured by the Police, whereby a grey Nissan car is seen, stopping in front of the Declarant’s house, with two persons alighting from it. One had a bag with him whilst entering the house. The enquiry has led to the arrest of the Applicant, to whom the owner of the car had lent the said car.

2 The Applicant has denied the charge, but admitted that the car was in his possession since September 2019. A co-Accused has been arrested and has confessed to the charge, whilst implicating the Applicant and another co- Accused. The other co-Accused has not yet been arrested by the Police. Case for Respondent

3. PS Coco, of CID Quatre-Bornes, has been deputed by the Commissioner of Police to resist bail in the present case on the following grounds:

(i) Risk of reoffending (ii) Risk of absconding (iii) Tamper with evidence (iv) Interfere with witnesses

4. In support of the first ground of objection, PS Coco stated that the Police believe that the Applicant will reoffend if granted bail, given that he is on bail for two non- cognate offences (Doc A) 1 and is borne on record for twenty-one cognate offences (Doc X) 2 .

5. As far as the second ground of objection is concerned, it is the contention of the Police that the Applicant may be charged with a serious offence, for which he 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. Further, it came out that the latter is borne on record for several cases of breach of conditions of release on bail (Doc X) 3 .

6. In relation to the third and fourth grounds of objection, it was confirmed that the exhibit has not yet been recovered and there is a second co-Accused, who has

1 The court record mentions the document being produced, to show that the Applicant is on bail for two non-cognate offences, which the Applicant admitted. When the file will be constituted, after the period of confinement, that document, which was sent by whatsapp, will be filed, marked and referred to as Doc A.

2 The court record mentions the document being produced, to show that the Applicant is borne on record for twenty-one cognate offences (Doc X), which the Applicant admitted. When the file will be constituted, after the period of confinement, that document, which was sent by whatsapp, will be filed, marked and referred to as Doc X.

3 The court record mentions the document being produced, to show that the Applicant is borne on record for several cases of breach of conditions of release on bail (Doc X), which the Applicant admitted. When the file will be constituted, after the period of confinement, that document, which was sent by whatsapp, will be filed, marked and referred to as Doc X.

3 not yet been arrested by the Police. As such, the Police believe that the Applicant will tamper with the evidence and interfere with that witness, if he is admitted to bail.

7. It was confirmed that the enquiry has not yet been completed. The main EO was duly cross examined by the Applicant.

Case for the Applicant

8. From the dock, the Applicant stated that he would abide to all conditions imposed if released on bail.

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.

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;

5 (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 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 reoffending, in Clooth v Belgium[1991] ECHR 71 (12 December 1991) the Court concluded that the risk of committing a serious offence while admitted to bail should be “a plausible one”.

• The case of Deelchand v The Director of Public Prosecutions and Others (2005) SCJ 215 set down the following guidelines: The Court should consider the criminal record of the Applicant, the nature of the offence purportedly committed by the accused, the potential sentence if the Applicant is found guilty on a main charge, whether the offence is of a lucrative nature, which could tempt the accused to re-offend.

• In the case of Deelchand (supra), the following test was applied:

“The character of the applicant, notably a clean or criminal record, is also a relevant consideration in considering the risk of offending (as it may indicate an inclination which increases that risk). So too the nature of the evidence against him: if he happens to be a criminal, then –

if the evidence against him appears strong, he is more likely to think he has nothing to lose by re-offending; if the evidence appears weak to him, he will be less likely to take the risk of detection upon re-offending.”

• Given the highly lucrative nature of larceny offences and the fact that the Applicant is borne on record for twenty-one cognate offences (Doc X), I find that the risk that the Applicant might re-offend whilst on bail is not far- fetched. As such, the first ground of objection succeeds.

7 18. In relation to the second ground of objection, that is the risk of absconding, it is the contention of the Respondent that given that the Applicant may be charged with a serious offence, for which he will face a heavy penalty if he is found guilty, this may serve as incentive for him to abscond. However, this is not the only element to be considered when deciding whether this ground should be allowed to stand. The following authorities have been considered:

(a) The case of Deelchand v The Director of Public Prosecutions and Others (2005) SCJ 215 referred to the case of Neumeister v Austria (1968) 1 ECHR 91 (27 June 1968) at para 10, as follows: “The danger of flight cannot … be evaluated solely on the basis of such consideration. 0ther 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 in which he is being prosecuted may either confirm the existence of a danger of flight or make it appear so small that it cannot justify detention pending trial.”

(b) In the case of Hurnam v The State, Privy Council Appeal No. 53 of 2004, [2004] PRV 53, at para 15, the Board held as follows:

“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) It was held in the case of DPP v Marthe [2013] SCJ 386, that:

“At the end of the day, we have to bear in mind that Mauritius is a small island having other islands as close 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

8 drugs offences have simply left the country by hiring a powerful boat following which there has been a great 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.”

It cannot be ignored that the Applicant is borne on record for several cases of breach of conditions of release on bail (Doc X), which when considered together with the seriousness of the offence, shows that there is indeed a risk that he might abscond if granted bail. As such, the second ground of objection succeeds.

19. With regards to the third and fourth grounds of objection, that is the risk of tampering with evidence and interference with witnesses, the enquiring officer stated that the exhibit, worth Rs 400,000, has not yet been recovered and there is a co-Accused, who has not yet been arrested by the Police. The Police believe that the Applicant will tamper with such exhibit and interfere with that witness, should be admitted to bail.

• It was held in Deelchand v The Director of Public Prosecutions and Others (2005) SCJ 215:

“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;

9 (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

• Save and except for the main EO merely stating that the exhibit has not yet been recovered and that there is still a co-Accused at large, no concrete evidence as to the whereabouts of such exhibit or the witness, or as to steps taken by the Police to recover the exhibit and arrest the co- Accused, has been ushered in. As such, I find that the third and fourth grounds of objection are based on a mere apprehension only and, as such, fail.

20. It cannot be overlooked that the evidence against the Applicant emanates from a self confessed accomplice. I bear in mind that the latter must be treated with great caution. However, it was held in DPP v Marthe 2013 SCJ 386 a that :

“The fact that the evidence against an applicant for bail comes from a self- confessed accomplice does not necessarily mean that it is weak or unreliable. It cannot be overlooked that in drug transactions involving more than one person, some of the best evidence against traffickers can and does come from accomplices. The fact remains that Magistrates and Judges have very often convicted accused parties based on the sole evidence of an accomplice after having given themselves the appropriate warning that accomplice evidence is to be treated with care.”

21. It was further held in Marthe (supra) that:

“Indeed, if an accused has denied the charges pending against him, the Magistrate may take that into consideration. But, the denial of a charge has to be assessed in the light of the strength of the evidence available against the accused by the prosecution. If the evidence of the prosecution is strong, the denial is neither here nor there. If the evidence of the prosecution is so weak as to be almost incapable of sustaining the charge against the accused at the subsequent trial, then the Magistrate may weigh the denial of the accused in the balance before deciding to reject the objection taken by the police.”

22. Having found that the first and second grounds of objection have been substantiated, this Court has an inherent duty to assess whether conditions can be imposed to adequately curb the risks in the present cases, so as to render the risks negligible as expounded in the case of Maloupe v/s The District Magistrate of Grand Port and Anor [2000 SCJ 223].

23. The case of Deelchand (supra) provides the following guidance on the subject:

“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”.

24. In the case of Rangasamy M.N. v The D.P.P & Anor 2005 SCJ 249, the Court stated the following:

“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”.

25. 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

11 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.

Miss Shavina Jugnauth District Magistrate This 17 th April 2020