Supreme Court of Mauritius, 24 février 2020, 2020 BRC 1 – Police v Ahmed Mahomed

Police v Ahmed Mahomed

2020 BRC 1

IN THE BAIL AND REMAND COURT

Provisional Cause Number 211/2019 BRC Cause Number 831/19

In the matter of:

Police

v/s

Ahmed Mahomed

RULING

The Applicant stands provisionally charged with the offence of SWINDLING in breach of Section 330 (1) of the Criminal Code. The Applicant has moved that he be admitted to bail and he stood inops consilii at the 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 following ground:

(1) Risk of re-offending

THE CASE FOR THE PROSECUTION

Inspector Poinen, the main enquiry officer was called by the Prosecution and he explained that he had been deputed by the Commissioner of Police to resist the present bail application on the following ground:

(1) The risk of re-offending

The police officer went on to explain that on 3 rd April 2018 the Applicant went to a shop at Grand Bois and pretended to be a salesman working in hotels. The Applicant allegedly proposed the Declarant to sell her articles in various hotels and took articles worth Rs 80,000. The prosecution witness went on to state that no exhibit has been recovered and that the Applicant had denied the charge against him. He further stated that the Declarant had positively identified the Applicant who had committed 46 cognate offences in the past and should Applicant be granted bail, the police has strong belief that he will re-offend. Doc X was filed and the officer stated that the case file was sent to the DPP’s office on 25 th January 2020 for advice. In cross examination the main enquiry officer admitted that no document was produced by the Declarant to confirm her averments in the declaration made to the police. The case was then closed for the prosecution.

THE CASE FOR THE DEFENCE

The Applicant was explained his Constitutional Rights and he elected to make a statement from the Dock. He went on to explain that he is a victim of his previous convictions and that the whole police case was based on hearsay evidence.

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.”

In the present case I note that according to Doc X, the Applicant has a long list of previous convictions for the offence he has been currently charged with. I have considered the fact that the Applicant has denied the charge against him and in Hurnam v The State, Privy Council Appeal No.53 of 2004, [2004] PVR 53, at para 11, the Board respectfully agreed with the observation made by Balancy J in the case of Maloupe v District Magistrate of Grand Port [2000] MR 264, “The presumption of innocence, guaranteed under the Constitution, should operate in the Applicant’s favour.”

RISK OF RE-OFFENDING

In relation to the present case, the only ground of objection raised by the police that is, the Applicant is likely to re-offend if he is granted bail. I shall refer to the case of CLOOTH V BELGIUM [1991] ECHR 71 (12 DECEMBER 1991 ) where the Court laid down as follows:

“the “danger” of a serious offence being committed by the applicant whilst on bail should be “a plausible one”.

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 DISTRICT MAGISTRATE OF GRAND PORT (2000) MR 64) . In the present case, the Applicant has denied the charge against him and as confirmed by the main enquiry officer

there is no documentary evidence against him. In the case of DOOKHIT S. v THE DISTRICT MAGISTRATE OF PAMPLEMOUSSES, DISTRICT COURT, PAMPLEMOUSSES (20 11) 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 therefore taken into account the past records of the Applicant. I have noted that the Applicant has previous convictions for swindling and other dishonesty offences. However, he has never breached a condition of bail in the past. I have borne in mind that although there is a risk of the Applicant reoffending, 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”.

Moreover, regular reporting to the police station will enable the police to properly monitor the Applicant’s whereabouts and will act as a deterrent for the Applicant from absconding or reoffending. I therefore find that the Applicant’s right to liberty outweighs any objection raised by the police in support of his continued detention.

In the circumstances, I set aside the objection raised by the police in this case. I order that the Applicant be released on bail, pursuant to the Bail Act, under the following conditions:

(i) the Applicant should provide a cash surety of Rs 30,000; (ii) the Applicant should enter a recognizance of Rs 100,000; (iii) the Applicant should report to the police station nearest his place of residence twice weekly, that is on Wednesdays and Saturdays, between 6 a.m. and 6 p.m.; (iv) the Applicant should leave his contact details with the police and leave his phone on at all times to be contacted upon by the police if necessary (v) the Applicant should not re-offend whilst on bail

B. PRAYAG-RAJCOOMAR (Mrs) Ag. Senior District Magistrate This 24 th February 2020