Supreme Court of Mauritius, 24 février 2020, 2020 BRC 3 – Police v Reshad Baboorally

Police v Reshad Baboorally

2020 BRC 3

IN THE BAIL AND REMAND COURT

Provisional Cause Number 60/2020 BRC Cause Number 336/20

In the matter of:

Police

v/s

Reshad Baboorally

RULING

The Applicant stands provisionally charged with the offence of LARCENY BREAKING in breach of Section 301 (1), 306 of the Criminal Code. The Applicant through a motion by his Defence Counsel has moved that he be admitted to bail and the proceedings were held in Creole 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

WPS 544 Woottun, the main enquiry officer was called by the Prosecution and she explained that on the 5 th January 2020 at 09 20 hours the Applicant entered a corner shop with a colleague and committed the larceny of snacks and Rs 200. The prosecution witness went on to explain that the Applicant had confessed to the

charge and if granted bail, the police believes that the Applicant will re-offend. She stated further that the police enquiry was completed and that the PF 100 has been drafted since 14 th February 2020. In cross examination the witness confirmed that the Applicant had a clean record and that exhibit had been partly recovered. She further stated that the police had no control as to when the main case would be lodged against the Applicant. 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 will comply with all conditions imposed by the Court should he be granted bail.

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.

In the case of Hurnam v The State [2005 UKPC 49], their Lordships made it clear that refusal of bail will be justified only where there are reasonable grounds to infer that the grant of bail will lead to the materialisation of one of the relevant risks “which cannot be effectively eliminated by the imposition of appropriate conditions”.

In the present case I find that conditions can be imposed by the court to render the ground of objection negligible as Accused has a clean record and the sole ground of objection appears to be a mere apprehension by the police authority.

For all the above mentioned reasons, I find that this is a proper case for the present Court to exercise its discretion to grant bail to the Applicant. I therefore grant him bail on the following conditions:

(1) the Applicant should furnish a surety in cash of Rs 5,000 (2) the Applicant should enter into a recognizance of Rs 30,000 (3) the Applicant should reside at a fixed place of abode. (4) the Applicant is to report to the nearest police station every Friday between 06 00 hours and 18 00 hours.

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