Supreme Court of Mauritius, 5 mai 2020, 2020 BRC 133 – Police v Jason Batour

Police v Jason Batour

2020 BRC 133

IN THE BAIL AND REMAND COURT

Provisional Cause Number 497/2020 (Rose Hill)

In the matter of:

Police

v/s

Jean Michel Jason Batour

RULING

The Applicant stands provisionally charged with the offence of DRUG DEALING: POSSESSION OF HEROIN FOR THE PURPOSE OF DISTRIBUTING in breach of Sections 30 (1) (f) (ii) and 47 (5) (a) of the Dangerous Drug Act. The Applicant has moved that he be admitted to bail and he was represented by Me. D. Joyram at the bail hearing. The proceedings were held in English language and in light of the Covid 19 pandemic situation prevailing and the lockdown situation prevailing in Mauritius, all parties were present via video call and had no objection that the matter be heard via video call and for all documents to be communicated electronically.

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

THE CASE FOR THE PROSECUTION

PS 5892 Ramkhelawon, the main enquiry officer was called by the Prosecution and he explained that he had been deputed to resist the present bail application on the above mentioned ground. The police officer went on to explain that on 20 th February 2020 at 17 45 hours during an ADSU operation, the place of Applicant was searched and 13 folded aluminium foils containing suspected heroin were secured and the value of the drugs was Rs 2600. The officer went on to state that the Applicant had

confessed to the charge and that based on the fact that Applicant had confessed to the charge and if released on bail, the police fears that the Applicant will re-offend and commit similar offences as drug dealing is a lucrative business. The record of previous conviction of Applicant was filed through WhatsAap and marked as Doc X and it showed that Applicant had committed a cognate offence in the past. The main enquiry officer further explained that the enquiry was not completed and the FSL report has yet to be obtained. The court was informed that the Applicant was not on bail when he was arrested for the present offence.

In cross examination, the enquiry officer confirmed that the Applicant had been on remand for three months and he explained that he could not give any indication as to when the formal charge would be lodged against the Applicant. He confirmed that the Applicant had a fixed place of abode as well as had family ties. 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 he will abide with all bail conditions and that he had family responsibilities.

Defence Counsel offered no submissions and she simply left matters 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 RE-OFFENDING

Regarding the only ground of objection, there is no doubt that drug trafficking being a lucrative business, there is a serious risk of the applicant being tempted to commit further offences. 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 DISTRICTMAGISTRATE 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 there is real police 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 however borne in mind that even if there is a risk of the Applicant re-offending, 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 from the dock. I note further that Applicant is borne on record for a drug offence and that he is not currently on bail. I do also note that the main enquiry officer has stated that the police enquiry was short of the FSL report and there was no indication as to when the formal charge would be lodged against the Applicant. I am of the opinion that there are conditions, even severe ones, which could be imposed to effectively reduce the risk of the Applicant re-offending to a negligible level.

After carrying out the required balancing exercise, I hold that the need for Applicant to be in continued detention in the circumstances does not outweigh his right to remain at large.

The Applicant is to be granted bail on the following conditions:

(1) The Applicant is to furnish a cash deposit in the sum of Rs 30 000; (2) The Applicant is to enter a recognizance of Rs 100 000 (own name); (3) The Applicant is to report to the nearest police station every Wednesday and Saturday between 06 00 hours and 18 00 hours. The reporting is to start as from the 1 st day after the expiration of the confinement period currently in force in Mauritius; (4) The Applicant should not commit any offence whilst on bail;

(5) The Applicant is to reside at a fixed place of abode, address which he will communicate to the enquiry officers; (6) A curfew order is imposed on Applicant. He is to stay indoors at his place of residence, address given to the enquiry officers, daily between 20 00 hours and 05 00 hours. In case of an emergency he is to inform the police before proceeding outside.

In relation to the first bail condition, the required cash deposit is to be deposited at the nearest bank in an SBM account in the name of the Accountant General, the number and details of which is obtainable by Applicant’s Counsel from the court manager of the Court where the provisional case was lodged, in the present case, Lower Plaines Wilhems (Rose Hill) District Court.

B. PRAYAG-RAJCOOMAR (Mrs) Ag. Senior District Magistrate This 5 th May 2020