Supreme Court of Mauritius, 24 juin 2020, 2020 BRC 223 – R S Shibchurn v Police

1 R S Shibchurn v Police

2020 BRC 223

Provisional Cause Number 1543/18 (Grand Port) BRC Cause Number 4375/18 THE BAIL AND REMAND COURT (MAURITIUS) In the matter of:- Sitaram Rohiswar Shibchurn v/s Police RULING

Introduction

1. The Applicant stands charged with the offence of damaging property by band in breach of section 352 of the Criminal Code. He has been on remand since the 16 th March 2018 and his Counsel, Me Trilochun, has moved that he be admitted to bail. Me Mohung appeared for the Respondent, assisted by PS Vythelingum.

2. Facts and circumstances of the case

On the 03 rd November 2018, Mrs Marie Adeline Ubheeman, made a declaration to the Police, to the effect that, during the night, a group of persons entered her yard and damaged several window panes and her private car. She also heard someone uttering the following words: “met dife dans lacaz-la.” The enquiry has revealed that the suspects were hooded and armed with sabres. The value of the damages amounts to Rs 310,000.

The enquiry has led to the arrest of nine suspects, including the Applicant. Two amongst them were injured by gunshots, on the locus. The gunshots came from a gun, which belongs to the Declarant’s son. The Applicant has denied the

2 charge, but was implicated and identified by the co-Accused. The co-Accused stated that the Applicant was the leader of the group and that they were acting under his instructions.

The Applicant and the Declarant live in different localities and are not related. It came out, during investigation, that the Applicant formed part of a gang, which organised the attack on the Declarant’s house.

Case for Respondent

3. Inspector Juggoo, of MCIT, has been deputed by the Commissioner of Police to resist bail in the present case on the following ground:

(i) Risk of reoffending

4. In support of the ground of objection, Inspector Juggoo stated that the Applicant has been persistently involved in serious offences, and is actually on bail for five non-cognate offences (Doc A) and is borne on record for non-cognate offences (Doc X). The Police strongly believe that the Applicant will re-offend, based on these documents, and also as he has been involved in violent cases.

5. It was confirmed that the enquiry has been completed and the case file sent to the ODPP. Advice has already been tendered for the Applicant and the co- Accused to be prosecuted. The main EO was duly cross examined by Learned Counsel for the Applicant.

Case for the Applicant

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

The Law

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

3 8. 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.”

9. 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).

10. 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.

11. 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

5 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.”

12. 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.

13. 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.”

14. 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 the evidence

15. 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 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

6 quality…”

16. Without delving into the merits of the case or making a detailed evaluation of the available evidence, this Court bears in mind that the evidence against the Applicant comes from several self confessed accomplices. It will be for the Trial Court, and not this Court, to assess the credibility of these self confessed accomplices, as expounded in the cases of DPP v P Sathebajee 2019 SCJ 8 and S Dookhit v The District Magistrate of Pamplemousses, District Court, Pamplemousses 2011 SCJ 101.

17. For the purposes of the present bail application, on the issue of the evidence available against the Applicant emanating from self confessed accomplices, 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.”

18. 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.”

19. Based on the above, I find that the nature of the evidence against the Applicant, appears to be strong. Analysis of the ground of objection

7 20. As far as the 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 nature of the evidence and taking into account Docs A and X, I find that the danger of the Applicant re-offending, if granted bail, is “plausible” [Re: Deelchand v DPP & Anor 2005 SCJ 215 citing Clooth v Belgium (supra)].

21. Having found that there is a plausible risk, this does not entail that bail should be refused to the Applicant. There is an inherent duty upon this Court to assess whether conditions can be imposed to adequately curb the risks, so as to render the risks negligible as expounded in the case of Maloupe v The District Magistrate of Grand Port and Anor [2000 SCJ 223].

8 22. 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”.

23. 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”.

24. I find that stringent bail conditions can be imposed on the Applicant to minimise the risks identified by the Police. I therefore set aside the ground of objection and order that the Applicant be admitted to bail on the following conditions:

(i) The Applicant shall furnish a surety of Rs 50,000 in cash;

(ii) The Applicant shall enter into a recognisance of Rs 200,000 in his own name;

(iii) The Applicant shall report to the nearest police station to his place of abode everyday, once a day, between 06 00 hours and 18 00 hours;

(iv) The Applicant shall reside at a fixed address, which address shall be provided to the Police;

(v) The Applicant shall not contact any witnesses involved in the present case, whether directly or indirectly, nor shall he approach these witnesses within a radius of 200 metres;

(vi) A curfew order is imposed on the Applicant. The Applicant shall stay at his residential address, as provided to the Police, from 20 00 hours to 05

9 00 hours on a daily basis. In case of 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 and

(vii) The Applicant shall have in his possession a mobile phone in good working condition, the phone number of which is to be provided to the police, so that he may be contacted by the police, as and when required.

Shavina Jugnauth (Miss) District Magistrate This 24 th June 2020