Supreme Court of Mauritius, 25 février 2020, 2020 BRC 6 – Police v Azagen Vadamaley

Police v Azagen Vadamaley

2020 BRC 6

IN THE BAIL AND REMAND COURT

Provisional Cause Number 77/2020 BRC Cause Number 63/20

In the matter of:

Police

v/s

Azagen Vadamaley

RULING

The Applicant stands provisionally charged with the offence of POSSESSION OF SYNTHETIC CANNABINOID in breach of Sections 34 (1) (b), 47 (5) (a) of the Dangerous Drugs Act coupled with GN 93/19. The Applicant has moved that he be admitted to bail and he stood inops consilii at the bail hearing. 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

PS Luchmun, 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 ground. He explained that on 7 th

January 2020 following a search exercise carried out at the Applicant’s dwelling, a folded aluminium foil containing suspected synthetic cannabinoid was secured. The officer went on to state that the value of the drug was Rs 100 and that the Applicant had confessed to the charge and only the FSL report was missing to complete the police enquiry and that there was no indication as when it would be obtained. Doc A was filed to show that Applicant was currently on two bails and the court was informed that the Applicant had a clean record. In cross examination, PS Luchmun

stated that the sole ground of objection was based on Doc A on record and 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.

I find it apt to refer to the case of Maloupe v District Magistrate of Grand Port [2000 MR 264], 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.

The same rationale was applied in Labonne v The D.P.P. & Anor [2005 SCJ 38] where it was held that “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 the criminal which he is suspected to be.”

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”.

I have assessed the evidence on record. I have noted that the Applicant has a clean record and I find that there is no evidence to support the sole ground of objection raised by the police.

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 as the ground of objection appears to be a mere apprehension by the prosecuting authorities. I therefore grant bail to the Applicant on the following conditions:

(1) the Applicant should provide one surety of Rs 2000 in cash (2) the Applicant should enter a recognizance of Rs 20,000 (open)

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