Supreme Court of Mauritius, 20 mai 2020, 2020 BRC 140 – Police v Jonathan Aldo Calypso

Police v Jonathan Aldo Calypso

2020 BRC 140

IN THE BAIL AND REMAND COURT

Provisional Cause Number 1601/2020 (Port Louis North) BRC Cause Number 863/20

In the matter of:

Police

v/s

Jonathan Aldo Calypso

RULING

The Applicant stands provisionally charged with the offence of LARCENY MADE BY ARMED WITH OFFENSIVE WEAPON AND WHILST BEING MASKED in breach of Sections 301 (1) & 301 A and 305 (1) (a) of the Criminal Code. The Applicant has moved that he be admitted to bail and he stood inops consilii at the bail hearing. The proceedings were held in Creole language for the benefit of the Applicant.

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

THE CASE FOR THE PROSECUTION

WPS Jagarea, the main enquiry officer was called by the Prosecution and she explained that she had been deputed by the Commissioner of Police to resist the present bail application on the above mentioned ground. She went on to explain that on 28 th January 2020 at 09 20 hours, Applicant together with his confederates broke into the house of an elderly couple, armed with sabres and masked and threatened the elderly couple and stole articles and jewellery worth Rs 54 760. The court was informed that the Applicant had confessed to the charge and that only part of the exhibit worth Rs 2 000 was recovered. The main enquiry officer went on to state that

the police strongly believe that if granted bail, the Applicant will re-offend as he is borne on record for a larceny offence. The Main enquiry officer further explained that the police enquiry was nearly completed and that the PF 100 was being drafted and that the file will be sent to the DPP’s Office for advice. The Applicant elected not to cross examine the main enquiry officer and the case was then closed for the Prosecution.

RISK OF RE-OFFENDING

In relation to the above ground of objection, the main enquiry officer explained that based on Doc X on record and the confession of Applicant, the police has all the reasons to believe that if Applicant is granted bail, he will reoffend. The case was then closed for the Prosecution.

THE CASE FOR THE DEFENCE

The Applicant was explained his Constitutional Rights and he stated from the dock that he will comply with all bail conditions imposed by the Court. He stated that he had never jumped bail and the case was then closed for the Defence.

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.

The rationale as to bail was clearly set out in the case of Maloupe v The District Magistrate of Grand Port [2000] SCJ 233, where it was held as follows:

“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 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.”

It is also trite law that in deciding whether to grant bail to the applicant, a balance must be struck between “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 reasonable protected against serious risks which might materialise in the event that the detainee is really the criminal which he is suspected to be” [Labonne v. DPP & Anor 2005 SCJ 38]

RISK OF RE-OFFENDING

Regarding the ground of objection, based on Doc X on record, there is no doubt that there is a serious risk of the applicant being tempted to commit further offences. I am therefore satisfied that the danger of re offending is “plausible” [as stated in Deelchand v. DPP & Anor (supra) citing Clooth v. Belgium [1991] ECHR 71 (12 December 1991) at para 40].

I have therefore addressed and applied the two-limbed test as laid down in the case of DEELCHAND V THE DIRECTOR OF PUBLIC PROSECUTIONS AND OTHERS (Supra), namely that:

(i) if the evidence against him appears strong, he is more likely to think he has nothing to lose by re-offending;

(ii) if the evidence appears weak to him, he will be less likely to take the risk of detection upon re-offending.

I have assessed an overview of the evidence. (RE: MALOUPE VS DISTRICTMAGISTRATE OF GRAND PORT [2000 MR 64]. In the present case, the Applicant has confessed the charges against him and as confirmed by the main enquiry officer there is real police evidence against him. In the case of DOOKHIT S. v THE DISTRICT MAGISTRATE OF PAMPLEMOUSSES, DISTRICT COURT, PAMPLEMOUSSES (2011) SCJ 101, his Lordship laid down as follows:

“Although the risk of re-offending would necessarily be based on conjecture, the nature of the offence charged and the record of an applicant are useful pointers for a court to decide on this issue”.

I have however borne in mind that even if there is a risk of the Applicant re-offending, the Court should consider whether conditions can be imposed on the Applicant to render these risks negligible. (RE: MALOUPE VS DISTRICT MAGISTRATE OF GRAND PORT). An imposition of a heavy security will ensure the Applicant’s appearance before Court and will be an incentive for him not to indulge in any other offence. In the case of DEELCHAND V THE DIRECTOR OF PUBLIC PROSECUTIONS AND OTHERS (SUPRA) , the Learned Judge had this to say:

“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”.

I have also taken into account the Applicant’s statement from the dock that he is prepared to abide by any conditions that the Court may impose. I note further that the Applicant is borne on record for a larceny offence and that the main enquiry officer has stated that the police enquiry was over and have the PF 100 was being drafted and the file would be soon sent to the DPP’s Office for advice.

The conditions which I have considered regarding the only ground of objection are as follows: the duty to report to a police station, undertaking not to travel abroad, imposition of a surety and recognizance, residing at a fixed place of abode, a curfew order, informing police officers of his whereabouts, use of mobile phone for communication of movements and regular meetings with police officers as well as other conditions which could have been appropriate in such a case. I am however of the opinion that there are no conditions, even severe, which could be imposed to effectively reduce the risk of the applicant re-offending to a negligible level.

After carrying out the required balancing exercise, I hold that the need for Applicant to be in continued detention in the circumstances outweighs his right to remain at large. The motion for bail is therefore set aside. However, the Applicant has the right to be tried within a reasonable time as stipulated under Section 5(3) of the Constitution. The Applicant “must, whatever the Bail Act says or does not say, be released unless he is brought to trial within a reasonable time” vide Hossen v District Magistrate of Port Louis [1993 MR 9]. In light of the above, I strongly urge the Prosecuting Authority to lodge the formal charge against the Applicant so that he is tried within a reasonable time as guaranteed by the Constitution.

Should the main case not be lodged against the Applicant on or before 30 th June 2020, he is to be granted bail on the following conditions:

(1) Applicant is to furnish a surety in the sum of Rs 35 000 (cash); (2) Applicant is to enter a recognizance of Rs 80 000 (own name); (3) Applicant is to report to the nearest police station daily between 06 00 hours and 18 00 hours. (4) The Applicant should not commit any offence whilst on bail; (5) A curfew order is imposed on Applicant. He is to remain indoors daily between 19 00 hours and 05 00 hours at his residential address and in case there is an emergency warranting him to go out, he must contact the police to inform them of his predicament before proceeding outside during the hours of curfew; (6) Applicant is to reside at a fixed place of abode, address which he will communicate to the enquiry officers;

The matter is fixed Pro Forma on 30 th June 2020 if main case not lodged.

B. PRAYAG-RAJCOOMAR (Mrs) Ag. Senior District Magistrate This 20 th May 2020