Supreme Court of Mauritius, 25 février 2020, 2020 BRC 5 – Police v Tony Oliver Victoire

Police v Tony Oliver Victoire

2020 BRC 5

IN THE BAIL AND REMAND COURT

Provisional Cause Number 82/2020

In the matter of:

Police

v/s

Tony Oliver Victoire

RULING

The Applicant stands provisionally charged with the offence of ASSAULT WITH PREMEDITATION in breach of Sections 230 (2) of the Criminal Code. The Applicant has moved that he be admitted to bail and he was represented by Defence counsel 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 following grounds:

(1) Risk of re-offending (2) Risk of absconding

THE CASE FOR THE PROSECUTION

PS Barkatally, 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 above mentioned grounds. The police officer went on to explain that

The Declarant was living at the place of Applicant when the latter stabbed him with a knife at his abdomen, head and arm and dragged him. The court was informed that the Declarant was admitted at the hospital for a period of one week and that the police enquiry was not completed as the PF58 had yet to be obtained.

In relation to the first ground of objection Doc A was file to show that the Applicant has offended whilst on bail and in relation to the second ground of objection, Doc X was filed to show that the Applicant has breached his condition of release in the past. The main enquiry officer further explained that after assaulting the Declarant, the Applicant bolted away and was only arrested the following day. In cross examination PS Barkatally stated that Applicant did not come voluntarily to the police and that the police has strong apprehensions that should Applicant be granted bail, he will commit similar offences. The enquiry officer confirmed that the Applicant had a fixed place of abode and the case was 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 state that he would not re-offend should he be granted bail and the case was closed for the Defence.

Defence Counsel offered no submission in law or the facts and left the matter in the hands of the Court.

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 ABSCONDING

Regarding the first ground of objection for bail, being given the seriousness of the offence and the probable custodial sentence to be imposed should applicant be found guilty, there is no doubt, a serious risk that he may be tempted to abscond. However, this court also has to take into account other factors in deciding whether there is a serious risk of absconding. Indeed, “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 if 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.” [As per Deelchand v. The State [2005] SCJ 251 citing Neumeister v. Austria (1968) 1 ECHR 91]

I have taken into consideration the fact that Applicant has a fixed place of abode and family ties.

RISK OF RE-OFFENDING

Regarding the second ground of objection, I find that Applicant has not committed cognate offences in the past. Doc A shows that two similar cases have been lodged against the Applicant but no conviction has yet been secured against him and I have also considered the fact that Applicant has confessed to the present case. 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 DISTRICT MAGISTRATE OF GRAND PORT (2000) MR 64) . In the present case, the Applicant has made a full confession to the charge against him and as confirmed by the main enquiry officer there is real 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 therefore taken into account the past records of the Applicant and I have noted that he has 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 A ND 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 is to furnish a surety in cash in the sum of Rs30,000 (iii) the Applicant is to enter into a recognisance in his own name in the sum of Rs100,000 (iv) the Applicant is to reside at a fixed place of abode as indicated by him to the police (v) the Applicant is to report to the police station nearest his place daily between 06 00 hours and 18 00 hours (vi) the Applicant is not to commit any offence whilst on bail (vii) the Applicant is not to approach the Declarant either directly or indirectly

B. PRAYAG-RAJCOOMAR (Mrs) Ag. Senior District Magistrate This 25 th February 2020