Supreme Court of Mauritius, 26 mai 2020, 2020 BRC 146 – Police v Louis Mick Hendrique Villemain

Police v Louis Mick Hendrique Villemain

2020 BRC 146

IN THE BAIL AND REMAND COURT

Provisional Cause Number 1566/2019 (Pamplemousses) BRC Cause Number 3430/19

In the matter of:

Police

v/s

Louis Mick Hendriqué Villemain

RULING

The Applicant stands provisionally charged with the offence of ESCAPING FROM LEGAL CUSTODY in breach of Section 170 of the Criminal Code Act. 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 language for the benefit of the Applicant.

The Respondent is resisting the motion and is objecting that the Applicant be granted bail on the sole ground of Risk of absconding.

THE CASE FOR THE PROSECUTION

PS 1937 Daby, 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. The police officer went on to explain that on 30 th August 2019 the Applicant escaped from police cell at Pointe aux Canonniers police station and was later arrested. The main enquiry officer further explained that the Applicant had confessed to the charge and that as Applicant was on bail when he was arrested for the present offence and he escaped from legal custody and struggled when he was caught and arrested again and injured three police officers in the process, the police believe that if granted bail, the Applicant will abscond. The police officer went on to state that the Applicant is of

difficult character and does not respect the authorities. The record of previous convictions of Applicant was filed showing that the Applicant was borne on record for non-cognate offences. The enquiry officer explained that the police enquiry was completed and that further queries had to be attended to and that the main case against that Applicant would be lodged within three weeks. The Applicant elected not to cross examine the officer and the case was then closed for the Prosecution.

THE CASE FOR THE DEFENCE

The Applicant was explained his Constitutional Rights and he went on to state that the door of the police cell was left open and he simply walked away. The case was then closed for the Defence.

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

The Court shall deal with the only ground of objection raised by the police namely that there is a likelihood that the Applicant could abscond if released. I shall refer to the case of LABONNE (JV) VS DIRECTOR OF PUBLIC PROSECUTIONS [2005 SCJ 38], whereby it has been averred as follows:

“the seriousness of the offence or the likelihood of the suspect being charged with a serious offence is obviously just a consideration to be weighed in the balance and not by itself a ground for refusing bail”.

Therefore, the very fact that the Applicant might eventually face a heavy penalty if he is found guilty for the present offence, is not a reason in itself to justify his detention. The Court has further considered the principle stated in the case of WEMHOFF V GERMANY [1968 ECHR 2] namely that:

“When the only (…) reason for continued detention is the fear that the accused will abscond and thereby subsequently avoid appearing for trial, his release pending trial must be ordered if it is possible to obtain from him guarantees that will ensure such appearance.”

I have taken into consideration the fact that it is unknown whether the Applicant has a fixed place of residence and the fact that he has escaped from legal custody and struggled upon being arrested again and injured three police officers in the process. Based on these facts only, I find that the ground of objection is not only an apprehension and can be sustained. The Court has further considered the risks of the Applicant’s absconding, namely “(…) his morals, his home, his occupation, his assets, his family ties and all kinds of links with the country in which he is being prosecuted may either confirm the existence of a danger of flight or make it appear so small that it cannot justify detention pending trial.” (RE: NEUMEISTER VS AUSTRIA [1968 1 ECHR 91].

Further, bearing in mind that Mauritius is a small island having other islands as neighbours and that it would be impossible for our authorities to keep the whole of the shores in Mauritius under constant surveillance, there is an increased responsibility on this court, whilst bearing in mind the general principle that liberty is the rule and detention the exception, to see that justice is not baffled when Accused parties awaiting trial simply leave the country by hiring powerful boats as has been the case in the past. (Re: The Director of Public Prosecutions v/s Louis Jimmy Marthe [2013 SCJ 386a]). Regarding this ground of objection, I find in the light of all the observations above that there are no conditions that I can impose to render this ground of objection negligible.

After carrying out the required balancing exercise, I hold that the need for Applicant to be in continued detention in the circumstances outweighs his right to remain at large. I find it apt to refer to the case of Rangasamy M.N v D.P.P & Anor [2005 SCJ 249] where the Court had this to say:

“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.”

The motion for bail is therefore set aside. However, the Applicant has the right to be tried within a reasonable time as stipulated under Section 5(3) of the Constitution. The Applicant “must, whatever the Bail Act says or does not say, be released unless he is brought to trial within a reasonable time” vide Hossen v District Magistrate of Port Louis [1993 MR 9]. In light of the above, I strongly urge the Prosecuting Authority to lodge the formal charge against the Applicant so that he is tried within a reasonable time as guaranteed by the Constitution.

B. PRAYAG-RAJCOOMAR (Mrs) Ag. Senior District Magistrate This 26 th May 2020