Supreme Court of Mauritius, 3 mars 2020, 2020 BRC 20 – police v Abdool Steack Abdool

police v Abdool Steack Abdool

2020 BRC 20

IN THE BAIL AND REMAND COURT

Provisional Cause Number 147/2020

In the matter of:

Police

v/s

Abdool Steack Abdool

RULING

The Applicant stands provisionally charged with the offence of KNOWINGLY RECEIVING PROPERTY OBTAINED BY MEANS OF A CRIME in breach of Sections 40, 301 (1) and 309 (1) of the Criminal Code. The Applicant has moved that he be admitted to bail and he was represented by Defence Counsel Me. R.Toorbuth 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) Interfering with witnesses

THE CASE FOR THE PROSECUTION

Inspector Thandrayen, 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. He explained that on 17 th

January 2020 at 21 50 hours the Declarant reported a case of larceny. He further stated that two Accused parties were arrested and they confessed that they had sold the jewellery stolen to Applicant for the sum of Rs 5, 000 when the jewellery was worth Rs 75, 000. Docs A and X were filed to show that Applicant had offended whilst on bail for a cognate offence and he explained that if granted bail, the police suspects that Applicant will re-offend.

Regarding the second ground of objection, the Applicant explained that there was a co-Accused at large and that the police had all the reasons to believe that should Applicant be granted bail, he will interfere with the witnesses. The court was informed that Applicant had denied the charge and that one month was needed to arrest the co-Accused and a further 2 months was needed to complete the police enquiry. In cross examination the enquiry officer confirmed that Applicant had committed a similar offence in the past and he maintained that Applicant will interfere with witnesses. He confirmed that Applicant had a fixed place of abode as well as was the father of four young children and maintained that his grounds of objections were not mere apprehensions. 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 state that he will abide by all bail conditions imposed by the court. 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.”

In the present case I note that according to Doc X, the Applicant has a previous conviction for the offence he has been currently charged with. I have considered the fact that the Applicant has denied the charge against him and in Hurnam v The State, Privy Council Appeal No.53 of 2004, [2004] PVR 53, at para 11, the Board respectfully agreed with the observation made by Balancy J in the case of Maloupe v District Magistrate of Grand Port [2000] MR 264 , “The presumption of innocence, guaranteed under the Constitution, should operate in the Applicant’s favour.”

RISK OF RE-OFFENDING

In relation to the present case, the only ground of objection raised by the police that is, the Applicant is likely to re-offend if he is granted bail. I shall refer to the case of CLOOTH V BELGIUM [1991] ECHR 71 (12 DECEMBER 1991) where the Court laid down as follows:

“the “danger” of a serious offence being committed by the applicant whilst on bail should be “a plausible one”.

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 denied the charge against him and as confirmed by the main enquiry officer. However, Accused parties in a case of larceny have revealed his identity as being the person to whom they had sold the stolen jewels. 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. I have noted that the Applicant has a previous conviction for the present offence and as per Doc A he is on bail for a similar case of possession of stolen property vide provisional case cause number 7482/19 before Port Louis 3 rd Division. 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 AND 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”.

I have also taken into account the Applicant’s statement under oath that he is prepared to abide by any conditions that the Court may impose. The conditions which I have considered are the duty to report to a police station, undertaking not to travel abroad, imposition of a surety and recognizance, residing at a fixed place of abode, a curfew order, informing police officers of his whereabouts, use of mobile phone for communication of movements and regular meetings with police officers as well as other conditions which could have been appropriate in such a case. I am however of the opinion that there are no conditions, even severe, which could be imposed to effectively reduce the risk of the applicant re-offending to a negligible level.

RISK OF INTERFERENCE WITH WITNESSES

I shall now turn to the second ground of objection raised by the police in relation to the

present case, namely the risk of interference with witnesses and evidence. I shall refer to the case of DEELCHAND V THE DIRECTOR OF PUBLIC PROSECUTIONS AND OTHERS [2005SCJ 215], where reference was made to Neil Corre quoting an extract of his book “Bail in Criminal Proceedings” (1990), to express the most common manifestations where there is a risk of interference with witnesses, namely:

(a) the defendant has allegedly threatened witnesses; (b) the defendant has allegedly made admissions that he intends to do so; (c) the witnesses have a close relationship with the defendant, for example in cases of domestic violence or incest; (d) the witnesses are especially vulnerable, for example where they live near the defendant or are children or elderly people; (e) it is believed that the defendant knows the location of inculpatory documentary evidence which he may destroy, or has hidden stolen property or the proceeds of crime; (f) it is believed the defendant will intimidate or bribe jurors; (g) other suspects are still at large and may be warned by the defendant.

In the present case, the police apprehend that the Applicant might interfere with a co-Accused at large. I have considered that the witness has not yet been arrested and he has not yet given his statement to the police and the Applicant himself has denied the charge against him. Therefore, the risk of him interfering with the witness will bear much consequential effect. I therefore find that this ground of objection can stand.

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. 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 complete the enquiry by obtaining the FSL report as expeditiously as possible and lodge the formal charge against the Applicant so that he is tried within a reasonable time as guaranteed by the Constitution.

Should the main case against the Applicant not lodged on or before 5 th June 2020 the Applicant is to be granted bail on the following conditions:

(1) Applicant is to furnish a surety in cash in the sum of Rs 40 000 (2) Applicant is to furnish a recognizance in his own name in the sum of Rs 120, 000 (3) Applicant is to report to the nearest police station every Monday, Wednesday and Friday between 06 00 hours and 18 00 hours (4) Applicant is not to re-offend whilst on bail (5) Applicant is not to interfere with any witnesses involved in the present case either directly or indirectly

B. PRAYAG-RAJCOOMAR (Mrs) Ag. Senior District Magistrate This 3 rd March 2020