Supreme Court of Mauritius, 21 mai 2020, 2020 BRC 197 – N Mohamud v Police

1 N Mohamud v Police

2020 BRC 197

Provisional Cause Number 1598/19 (Flacq) BRC Cause Number – THE BAIL AND REMAND COURT (MAURITIUS) In the matter of:- Nasruddin Mohamud v/s Police RULING

Introduction

1. The Applicant stands charged with the offence of murder in breach of sections 216, 217 and 222(1)(a) of the Criminal Code. He has been on remand since the 10 th September 2019 and his Counsel, Me Teeluckdarry, has moved that he be admitted to bail. Me Soobagrah appeared for the Respondent, assisted by WPI Sadasing.

2. Facts and circumstances of the case

On the 10 th September 2019, at 09 30 hours, following a request, the Police proceeded to the Applicant’s place, where the dead body of one Bibi Shabneez Mohamud, was found, lying on a mattress in a bedroom. The victim was the Applicant’s wife and the latter was not at home when the Police went there. Statements were recorded from the Applicant’s children, aged 10 years and 14 years respectively, and they both stated that, on the same day, there was a discussion between the Applicant and the victim, whereby the Applicant assaulted the victim. The children intervened, but the Applicant assaulted them too.

The Applicant was arrested at Caroline, Bel Air Riviere Seche, and he admitted that he had a discussion with the victim and that, at some point, to prevent her from shouting, he put his hand on her mouth for a few minutes and he realised that she was no longer responding. He left the locus before the Police arrived. At the time of the incident, the Applicant was residing at La Lucie, Bel Air Riviere Seche, but was arrested at his brother’s place, at Caroline, Bel Air Riviere Seche. It came out that the Applicant has a clean record and is not on bail.

Case for Respondent

3. PS Laperoutine, of Riviere Seche CID, 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

4. In relation to the first ground of objection, the main EO stated that, given the facts and circumstances of the case, which is a serious one, the Applicant may be tried before a higher court and will face a heavy penalty, if found guilty. As such, the Police believe that the Applicant will abscond if granted bail, through fear of such penalty.

5. In support of the second ground of objection, PS Laperoutine stated that the main witnesses are the Applicant’s children, who witnessed the incident and are of a tender age. They are vulnerable and thus, the Police believe that the Applicant will influence them, if he is admitted to be bail.

6. It was confirmed that the enquiry is only short of the FSL report and the MLR. The main EO was duly cross-examined by Learned Counsel for the Applicant.

Case for the Applicant

7. The Applicant deposed under oath and was duly cross examined by Learned Counsel for the Respondent.

The Law

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

9. 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.”

10. 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.

4 (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).

11. 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.

12. 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.”

13. 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.

14. 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.”

15. 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 evidence 16. 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

6 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…”

17. Without delving into the merits of the case or making a detailed evaluation of the available evidence, this Court bears in mind that there is direct evidence against the Applicant, in so much that the witnesses, who are the Applicant’s children, witnessed the incident. Further, the Applicant admitted having placed his hand on the victim’s mouth to prevent her from shouting.

18. Based on the above, this Court finds that the nature of the evidence against the Applicant is strong. Analysis of the grounds of objection 19. 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 fact that he has no history of absconding. I have also considered 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 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 also has to 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 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) This Court has been left in the dark as to whether the Applicant has any family or community ties, other than his two children, and as to the latter’s personal circumstances. It has remained unchallenged that the latter left for his brother’s place after the incident, thus failing to report the case to the Police, which tends to show that he was trying to evade justice. 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. We have to bear in

8 mind that the enquiry has not yet been completed and that as it takes a more concrete shape against him, his mindset may change when faced with the likelihood of real consequences (Re: Marthe (supra)).

(f) I, therefore, am satisfied that there is indeed a serious risk of the Applicant absconding if granted bail. The first ground of objection, therefore, succeeds.

20. As regards the second ground of objection, that is interference with witnesses, the main enquiring officer stated that the Applicant’s two minor children are the main witnesses in the present case, and taking into account their tender age and vulnerability, the Police believe that the Applicant may interfere with them if 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; (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;

9 (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

21. The Applicant confirmed that one of the children lives with him and the other, in Pailles. No evidence was adduced on behalf of the Applicant to the effect that he can live elsewhere if released on bail, pending disposal of the case, save and except for him merely stating that he may live somewhere else, but that he first needs to check with members of his family as well as the location (page 9 of the court record refers). Further, it also came up, during cross examination of the Applicant, that he has a close relationship with the children, that one of them is still living at his place and has visited him in prison and called him whilst he was in prison (pages 11 and 12 of the court record refer). This only renders the risk of interference with witnesses palpable, and as such, the second ground of objection succeeds.

22. Having found that both grounds of objection have been substantiated, 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).

23. 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.”

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 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.

26. On a last note, the Respondent is reminded of the following authorities:

(a) Islam v Senior District Magistrate, Grand Port District Court [2006] SCJ 282, where the Supreme Court held that a detainee who has not been admitted to bail has “the right, in case of a continuing refusal, to a trial within a reasonable time with the special feature that it is a case of a remand prisoner.”

(b) Hurnam v The State [2004 PRV 53], where the Judicial Committee of the Privy Council stated the following: “the general right to be released on bail and the right to be released if not brought to trial within a reasonable time, which are both important rights but distinct and different rights.”

27. As such, this Court urges the Police to complete the enquiry within the shortest delay so as to minimise prejudice to the Applicant. The case is fixed Pro-forma to the 23 rd July 2020 for follow-up.

Miss Shavina Jugnauth District Magistrate This 21 st May 2020

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